On Sept. 30–Oct. 1, 1946 the International Military Tribunal in Nuremberg announced its judgment. The trial started on Nov. 14, 1945 and was concluded on Aug. 31, 1946 after 216 working days. The writing and discussing of the Judgment was accomplished in four weeks. The proceedings and judgment represent an extraordinary tour de force.

The Judgment has been a subject of careful study and heated controversy for a quarter of a century. Considering the record speed of the trial and of the writing of the Judgment, it should come as no surprise to discover that the Judgment is far from being a monolithic piece.

In the following, an attempt is made to test the consistency of the positions of the IMT in one of its most sensitive parts: the persecution and the extermination of the Jewish people.

It is a commonplace that Rome's greatest contribution to the modern world is its law. Whether this is strictly true or not, Roman law is certainly the basis of the law of Western Europe (with the exception of England and Scandinavia), of much of Africa including South Africa, Ethiopia and in general the former colonies of countries in continental Europe, of Quebec and Louisiana, of Japan and Ceylon and so on. Perhaps even more important for the future is that International law is very largely modelled, by analogy, on Roman law. Just think of the perfectly serious arguments of a few years ago as to whether outer space (including the moon and planets) were res nullius or res communes and whether they were, or were not, susceptible of acquisition by occupatio. This persistence of Roman law has had undesirable consequences. First, Roman law as an academic subject has got into the hands of lawyers whose love of technicalities has frightened off classical scholars who tend not to use the legal sources. Secondly, scholars of antiquity, since Roman law is left well alone, have also been reluctant to look at other ancient legal systems. So have lawyers since these other systems have no ‘practical” value. Thirdly, following upon these but worse still, the usefulness of Roman law for later ages, coupled with its enforced isolation from other systems of antiquity, has often led to an exaggerated respect for it, and to its being regarded as well-nigh perfect, immutable, fit for all people. Many in “the Age of Reason” were ready to regard Roman law as “the Law of Reason”.

The origins of the Criminal Code Ordinance of 1936 (hereinafter, CCO) have never been fully explored. The Supreme Court of Israel has indicated that specific provisions were derived from Ottoman law, or were modelled upon an English statute, or based upon a common law doctrine. No one, however, has attempted to describe comprehensively the history of the CCO, and those who have touched upon the subject have usually contented themselves with general statements:

a. The local legislator drew most of the offences included in the Criminal Code Ordinance from the well of English law.

b. Everybody admits that the provisions of the Palestine Criminal Code Ordinance relating to manslaughter and murder were not derived from one source, but include different ideas and pieces of ideas that were taken, a little here and a little there, from different legal systems—English, French, Ottoman, or French in Ottoman clothing, as it existed until 1936. Before us is a mosaic of different colours composed into a single picture. As to this there is no disagreement … What is not so clear and certain is the identity of the concrete source of each of the bricks of the building that comprise the ‘collective’ legislation.

I. Conditions of Protection: (1) A “Bill”: a) General observations, b) conditional instruments i) uncrossed instrument ii) crossed instrument, c) banker's draft i) uncrossed instrument ii) crossed instrument, d) instrument to order of unspecified person, e) instrument with forged drawer's signature or material alteration, f) “bill” distinguished from “cheque”, g) non-negotiable bill.

(2) Indorsement: a) Indorsement distinguished from receipt, b) forgery of signature of drawee bank's customer, c) unauthorized signature

(3) Good Faith

(4) Ordinary Course of Business

(5) Lack of Negligence: a) When this element required, b) meaning of concept

(6) Payment: a) Payment distinguished from collection, b) payment otherwise than by drawee bank, c) protection distinguished from cause of action

The subject of this study is one aspect of the complex of rights and obligations created upon the perpetration of forgery in the indorsement of a bill. In general terms we are concerned here with the conversion of a bill, its forged indorsement, the payment thereof by the drawee and a claim by the owner of the bill upon the drawee for the amount of the bill. The local law recognizes the right to such a claim but interposes a shield protective of the drawee under certain conditions. The purpose of the present study is to examine the nature of this protection, to identify the conditions thereof and to examine its reasonableness. The intention is to confine attention solely to this protection and accordingly no inquiry will so far as possible, be conducted into any principle which possesses broader projections beyond this limited theme. Nevertheless, one cannot ignore a number of relationships which arise as a consequence of this protection but are not created between the true owner and the drawee themselves. In order to examine the reasonableness of the protection, these relationships require investigation, if only briefly.

The Administrative Procedure Amendment (Statement of Reasons) Law, 1958 imposed on every public servant, the duty—subject to certain exceptions—to give the reasons in writing, for a negative decision, when requested to use his statutory authority.

However, no time-limit for furnishing its reasons was laid upon the administrative authority and no legal sanction was placed on failure to perform this duty except in the case of litigation, where the burden of proof that the public servant has legally used his authority was placed on the public servant. In other words, the presumption of legality was thus in favour of the citizen and not of the decision (sec. 6(A)). This measure is certainly important, but it is already within the field of litigation, while the importance of the Law is in the realm of non-litigious procedure.

In that situation, deliberate or negligent silence on die part of a public servant was enough to make the Law's provisions ineffective. The citizen could only bring an action before the High Court of Justice, a proceeding which is available in every case. Does this mean, therefore, that the 1958 Law did nothing more than to add another action, for failure to give reasons, to those generally available to the individual? If so, it set about it in a very roundabout way!

The serious criticism expressed by many scholars of criminal law against strict responsibility offences (sometimes called Public Welfare Offences), has not brought about their abolition. The courts of this country, as of most common law countries, continue to interpret certain offences as imposing responsibility without fault and the legislator on his part has not interfered.

While the debate on the very existence of strict liability offences continues, very little attention has been paid to another not insignificant problem, the principles and considerations on which the courts should determine the severity of sentence to be imposed on conviction for such offences. It is, of course, impossible to deal with this latter aspect in isolation from the rationale given by the proponents of strict responsibility in favour of its retention. It follows, then, that any analysis of sentencing in strict liability offences is to a great extent also a renewed probing from another angle into the basic problems involved in the imposition of liability without fault in criminal law.