I was not surprised when, from several alternative subjects, you chose, as the title of my Lecture, the need for a Constitution in Britain. Those of us without a written constitution are indeed, a select club—New Zealand, Israel, the United Kingdom.

I will start with a quotation from Lord Salmon. In a recent lecture, he said:

One can recognize in this passage the views of an eminent common lawyer, believing in the strength and potentialities of the common law as a flexible instrument, in, of course, the right hands: of one who believes deeply in human freedom, and who is concerned about the threat to it: who desires an explicit definition of the basic liberties and who believes that these can be protected by a sufficiently strong, entrenched, legal system. In this he undoubtedly reflects the views of many people, probably of the majority of ordinary men.

The manner in which rights should be classified and the various classes defined have been discussed the world over for many generations. This fundamental problem of conceptual jurisprudence has challenged the acumen of many scholars; but to avail. Yet it is vital to find a suitable test of distinction not only for the sake of theoretical thinking but also for the needs of daily practice. Thus, how shall we decide to what extent we are legally bound to respect another person's right? How does such a right arise? How is it transferred? When does it expire? And how shall we know what law is applicable in all these matters? Is it the law of property or the law of obligation? Is it the law governing the place where some piece of property is situated or the law under which the right was created? To answer these questions it will often be necessary to find out in what category the right considered belongs.

It has been widely remarked, in both the popular press and the scholarly literature, that rapid technological advances in the biomedical sciences may have outpaced society's ability to consider and cope with all their implications. In short, that technology is out of control. A particularly poignant example of the quandaries wrought by modern technology has been the plight of Karen Quinlan and her family. Pronounced by her doctors to be in a “persistent vegetative state”, with permanent loss of all cognitive function, Karen was seemingly sustained only by her connection to a mechanical respirator. Following a lengthy vigil and with the blessing of their church, the Quinlan family requested that the respirator be disconnected. The doctors refused, stating that such an action would be contrary to accepted medical practice. The Quinlans responded with a legal action for declaratory and other relief, the practical effect of which would be the termination of use of the respirator. After failing in the lower court, In the Matter of Karen Quinlan, 137 N.J. Super. 227, 348 A.2d 801 (1975), the Quinlans were successful in the New Jersey Supreme Court, 70 N.J. 10, 355 A.2d 651 (1976). Shortly thereafter, the Quinlans directed that the respirator be removed; much to their surprise (and undoubtedly that of the Court), Karen proved able to breathe unassisted. With antibiotic treatment and intravenous feeding, but without the respirator, Karen has survived since June of 1976 in a New Jersey nursing home. There is no indication that she has regained cognitive function.

While widely perceived as concerning “the right to die with dignity”, the Quinlan situation in fact raises a great many issues central to the interaction of law, morals, and modern technology and provides a convenient focus for discussion of these issues.

In the suspended sentence, or as it is sometimes called, the conditional sentence, the defendant does not serve a sentence upon conviction. Service of sentence is postponed for a period of time. Whether the defendant actually will serve any sentence depends upon whether he abides by the conditions of postponement or suspension. Typically, the condition is that he shall refrain from committing additional crimes, sometimes without limitation, sometimes of a specified class.

There exists in the literature considerable debate over the value of the suspended sentence as a penal device, with the harshest criticsm coming from the Anglo-Saxon countries which share a strong preference for probation. Israel stands somewhere between these poles. While the legal tradition bequeathed her upon emerging into independence was Anglo-Saxon, she has, ever since, sought wisdom in other traditions as well, with the result that Israeli legislation has on occasion produced interesting and unique devices. The suspended sentence is, in my view, a case in point, worthy of being made known to a wider audience.