Travel is a great teacher. It focuses our attention by compelling comparisons between the unfamiliar and the familiar. It develops perspective by inviting the measurement of differences and similarities between what we see before us and what we have left behind.

In visiting the brave new world of Israel, Americans note many features different from our own country and some that remind us of home. As to our attitude towards the law, however, there is no doubt that in spite of our very different histories we march to the same drummer with you. Israel and America are both law-based societies. We share in common the fundamental belief that no ordered society can exist or thrive except under the law, that all persons (including the state) are equal under law, and that individual liberty is dependent on the law and on its fair and steady enforcement by judges independent of the other branches of government.

Judges whose daily tasks are to interpret the law of their own State frequently find difficulties in expressing the exact nature and hierarchical value of the rules of international law, which from time to time they are required in some sense to apply.

Perhaps the classical example of this in countries applying the English common law is that of prize courts and the law which they should apply. Under international law belligerent States, by whom maritime captures (prizes) may be made, have a duty to create some forum before which issues can be tried as to the lawfulness of such captures and its consequences. As Lord Parker observed in The Zamora as to the title in the property seized, “from the moment of seizure the rights of all parties are governed by international law”. In the final ruling in that case, the Privy Council held that the neutral property at issue had been unlawfully requisitioned, even though such requisition was authorised by a British Executive Order-in-Council, because that Order-in-Council itself was inconsistent with the rules of international law governing requisition of neutral property.

It would seem particularly appropriate following the tribute which appeared in the previous issue of the Israel Law Review, to commence our excursion into Israeli labour law with one of Otto Kahn-Freund's thought-provoking observations.

“Over a large area of British industrial relations, the rule-making and the decision-making processes, the, as it were, ‘legislative’ and ‘judicial’ functions are as indistinguishable as they were in the Constitution of medieval England. … And just as in the common law the judge is rule-maker and decision-maker all at once, so in the dynamic system of collective bargaining the parties ignore the difference between interpreting an old rule and making a new one.” Thus, in England, as Professor Kahn-Freund points out, the almost universally accepted distinction between disputes of rights and disputes of interests is not considered relevant.

The origin of the comparative study of Talmudic law lies in the Talmud itself, where we find instances in which the Sages formulated their halakhot in comparative terms, or took cognizance of non-Jewish legal positions.

There are two aspects to comparative legal studies in modern Talmudic research: first, that of pinpointing the influence of one system upon another; and second, that of obtaining a clearer and deeper understanding of each system by emphasizing the common and the unique elements in each. The first aspect is very much a matter of chance, and even when it is applicable, the results often constitute details which are not capable of being formulated in general terms. The second aspect—that of mutual clarification—is, however, generally applicable, and may be employed with profit in numerous instances.