The sages held that part of a man's praise is told in his presence and all of it in his absence (BT Eruvin 18b). Even as Prof. Tedeschi sits before us in his valour – for so our sages have designated the age of four-score – I am well aware that he has no desire for eulogies and that he is a man who shuns honours. Indeed, only the entreaties of his students and friends moved him – with great difficulty – to participate in this festive meeting of the Academy of Sciences and Humanities. His valour is in his humility. This is the man and such has always been his chosen path. As I know him and respect him – and, I admit without shame, also love him – I shall, in deference to him, conduct myself in strictest accordance with the dictate of the sages and shall sing but the smallest part of his praises. Nevertheless, we owe it to ourselves to give an accounting of the work of this great jurist from whose well we have quaffed and who, as a rising spring, is as prolific today as in his youth.

The legal scholarship of Prof. G. Tedeschi is broad and comprehensive, encompassing all areas of the civil law and reaching into the public law as well. At its base, there lies a solid jurisprudential foundation, in the context of which Prof. Tedeschi has devoted considerable thought to the various issues of the theory of precedent. In gratitude to Prof. Tedeschi, my venerable teacher and dear friend, to whom I owe the greatest of debts, and who for me serves as both model and symbol, I would take this opportunity to consider one aspect of the doctrine of precedent – that of overruling precedent.

Concern with the question of equity – in the Aristotelian sense of epieikeia – in the teaching of Maimonides has been revived by the profound study of this basic and complex subject by the late Eliezer Shimshon Rosenthal. The immediate purpose of that study, amplified in the intricate manner characteristic of the author, is to show that Maimonides' answer regarding the Halakhah on the last hour for eating hamez on the eve of Pessah is intimately associated with his perception of the generality of the Torah as expressed in Part III, chapter 34 of The Guide of the Perplexed, and comparable to another well-known responsum of his concerning the prohibition of listening to musical song.

In the course of his discussion, the author points out the connection between Maimonides' approach and the writings of Aristotle, and in a special appendix he enlarges on the relationship of Aristotle to Plato. Rosenthal's understanding of Maimonides' position gave rise to a critical response by Shalom Rosenberg, which in turn led other scholars to contribute to the debate with their own clarifications and comments.

This article is a synopsis of a monograph which will be published shortly (in Hebrew) by the Harry Sacher Institute for Legislative Research and Comparative Law. I dedicate it to Professor Tedeschi because he was the one who triggered it ten years ago, with his suggestion that the study of law, and especially the study of contexts of discretion in the law, cannot be complete without detailed studies of the ways in which officers in practice use their powers. Custom thus has an easily overlooked importance as a source of law even in modern systems, in the many areas in which mere knowledge of the normative framework within which powers are exercised is insufficient for a knowledge and understanding of the law.

Tedeschi's suggestion seemed correct on its face, to an extent sufficient to motivate me to leave theorizing about law from the armchair and look into the practice of law enforcement. I emerged from the adventure even more convinced of his insight than when I started.

While working on the subject I realized that comparative analysis was also of relevance to such questions, and that important questions were raised about the utility of such analyses in attempts to solve one's problems. Again I have found that Tedeschi articulated the conclusion I have reached in an early article published years ago.

So these insights of his were added to the many things for which I am indebted to Professor Tedeschi: the solid commitment to legal scholarship for which he has always stood; the varied, persistent and prolific interest he has in all things legal and in the life-problems which the law seeks to regulate, resulting in many essays which are to this day classic in their field; and the fact that he is among the rare scholars who practice what they preach. If we take the importance of custom as an example, Tedeschi insists on including sections on custom in all his articles on legal problems, and in many instances this combination of great analytical strength and attention to social reality is what makes Tedeschi's writings so important. It is rare to have such people as one's teachers, and I feel lucky and grateful to have been his student.

The larger study on which this article is based elaborates in some detail these larger jurisprudential questions of the complex relationships between solutions of legal problems (or law reform) and legal theory, empirical research and comparative analysis. Here I shall confine myself to the major findings of my research into the reality and the ideal of the power of the Attorney-General to stay criminal proceedings.

In recent years a new trend has appeared in decisions of the Supreme Court concerning the interpretation of criminal prohibitions. According to this trend – which will be analysed in the course of this article – a penal statute must be interpreted in the same way as every other statute, there being no rule of restrictive interpretation particular to criminal law. The interpreter must choose that interpretative option which best realizes the objective of the legislation, even when that option is based on the irregular and secondary meaning of the words. The legislative objective is often identified by the Court as the broadest possible defence of the social interest protected by the norm. It is this trend that we wish to discuss, or rather, to criticize.

Renunciation and remission are not comprehensively treated in the new Israeli legislation. And although the legislature has referred to these terms in the course of its legislation, they are nowhere defined.

The first reference to the terms, chronologically speaking, is in sec. l(c) of the Gift Law, 1968: “A gift may consist in the donor's renunciation of a right against the donee or in the donor's remission of an obligation of the donee towards him”.

In the chapter treating of “Several Debtors and Creditors”, the Contracts (General Part) Law, 1973, provides an enlightening reference to the terms under discussion. Sec. 55(c) states: “If the creditor discharges one of the debtors of the whole or part of the obligation - by way of waiver, remission, compromise or otherwise - the other is discharged to the same extent unless a different intention appears from the discharge”. Thus we have before us a list of terms (renunciation, waiver, remission, compromise, discharge) that often appear in modern codices as factors that terminate a debt by means other than performance.

The Contracts (General Part) Law, 1973, is the fundamental statute in Israeli contract law, and will in the future serve as the basis for the codification of Israel civil law. The Law was enacted following a decade of meticulous preparatory work by a committee headed by Professor Tedeschi. Prof. Tedeschi was the leading intellectual force in this committee; his influence is apparent in the approaches, principles and concepts of the Law, as well as in its particular provisions. Prof. Tedeschi also devoted a part of his prolific writings to the realm of contracts law. This article, dealing with only two sections of the wide-ranging Contracts (General Part) Law, is dedicated with admiration to the father of Israeli modern contract law.

This article is based on a study on custom in public law conducted some years ago due to the welcome initiative of Prof. G. Tedeschi. Like many others, I too responded to his irresistible powers of persuasion, to conduct a study on custom in a field close to my area of interest, public law. I owe many thanks to Prof. Tedeschi, for by virtue of this study I have acquired significant perspectives for the analysis of public law.

During the course of my work on another study (on judicial independence, conducted for the Jerusalem Institute for the Study of Israel), I discovered an historical document pertaining to Prof. Tedeschi, in whose honour this issue of the Israel Law Review appears. The document concerns an offer, addressed to Prof. Tedeschi in 1953, to be appointed a Justice of the Supreme Court.

It is generally thought that the rule of religious law regarding marriage and divorce is a concession on the part of the State of Israel to religious interests. It is assumed that the religious population derives great satisfaction from the fact that the State ostensibly bows down to religious law, declining to exercise its jurisdiction on this matter. The non-observant citizen is widely considered the victim of this arrangement. He is forced to take part in a religious ceremony which is foreign to him and, in such an intimate realm of his life, must render himself of the services of a religious authority that represents concepts and symbols which he adamantly rejects. It is true that this sensitivity to “religious coercion” and freedom of conscience is apparent as regards the Jewish population, whereas there is less of a tendency to increase government intervention in the religious and legal autonomy of non-Jewish religious communities.

Historical developments have left a greater impression on the law of property than on many other branches of law. Land law, which constitutes a substantial portion of the law of property, is of particular import in this regard. The characteristic feature of land is its permanence, which is manifested in place, time and quantity: place – land being immovable; time – land having a continuous existence; and quantity – the amount of land basically not changing. This threefold permanence exposes land law to the continuous influence of historical forces, the effects of which are lasting. The phenomenon can be observed in the legal systems of many countries, including Israel.