It would be impossible in a short lecture to give a comprehensive survey of all the changes that have occurred in the last forty years in that branch of law known as “Israel common law”. I will not, therefore, try to do so. Instead, I wish to single out the most distinctive phenomenon in this area of law. I refer to the conceptual/intellectual revolution in the outlook of the court regarding the nature of its judicial function. The original view, according to which the sole function of the court in the area of public law is to decide disputes between citizens and public authorities, has been abandoned and replaced by an outlook that views the court as an institution responsible for the legality of public administration, or, as the court itself is accustomed to defining the matter, for the rule of law.

I shall divide my discussion into two parts. In the first part I will briefly discuss the prominent changes that have occurred in the judicial decisions regarding public law in recent years, and the judicial philosophy underlying these changes.

Professor David Kretzmer has reviewed the development of administrative law in Israel and reached the conclusion that a revolution has occurred. The revolution manifests itself in the substantial widening of the scope of judicial review over administrative acts. For example, the Supreme Court is now willing to review the legality of parliamentary proceedings. This revolution, in his opinion, reflects a change in the conception of the Court's function in this realm. In the past the Court saw itself as limited to the function of deciding controversies between two opposing parties. Today, it is as if another function has been added, and the Court perceives itself as the guardian of the rule of law. Therefore, it is likely to become actively engaged in protecting the rule of law and to invalidate a governmental decision even absent a controversy in the traditional sense. The Court acts in this manner without explaining the basis or the reason for the role that it has assumed. Thus, the question may well arise whether this revolution is legitimate. On the basis of Professor Kretzmer's comments one may ask if indeed the Court, in the struggle over the rule of law, has taken on a function not its own, and in doing so itself infringed upon the rule of law.

The first forty years of the State of Israel witnessed significant changes in the relative status of the various branches of government. The executive was quite powerful during the early decades of the State's existence, thanks to the strong leadership of the first Prime Minister and founding father, David Ben Gurion. Accordingly, the status of the Supreme Court during that period was weak in comparison to the Executive Branch, i.e. the Government. Subsequently, the government's position weakened as the judiciary gained strength. This phenomenon was expressed in the increasing recourse to the courts to consider issues that had previously been the exclusive domain of the government. The judiciary's broader role and enhanced position vis-à-vis the executive did not bring about commensurate constitutional protection of the judicial system. In fact, we may observe a certain decline in this respect that hopefully, will be rectified when the Constitution of the State of Israel is completed with the enactment of Basic Laws on Human and Civil Rights coupled with legislation that will provide the requisite constitutional protection.

The symposium on 40 years of Israeli law presented the principal speakers with a formidable task, as one cannot do justice to the developments that have taken place in an entire branch of law over 40 years within the confines of a short lecture. This is perhaps especially true of Israeli constitutional law, which contains a wealth of matters deserving of discussion. Thus it may be that the method chosen by Professor Shetreet — a discussion of selected topics — is the best solution a specialist in this field could offer. However, speaking for myself as one who observes constitutional law as an outsider, it is essential to place these individual trees in their proper place in the forest. A further difficulty is that the article published here is a considerable expansion of the oral presentation to which it was my task to respond. I shall therefore confine my remarks mainly to placing these selected topics in their proper context, adding a few short and incomplete comments regarding the issues themselves. This approach seems preferable also because, generally speaking, I have no quarrel with the concluding, operative remarks in Shetreet's article.

Since the establishment of the State and up to the present day, Israeli law has had to deal with a great number of various problems in the field of international law, e.g. whether the State of Israel is a successor to the obligations of the Mandatory government; the jurisdiction of the Israeli courts with regard to offences committed in demilitarized zones or beyond the State's boundaries (on the high seas or abroad); the immunity of foreign states and their representatives from the jurisdiction of Israeli courts and from measures of execution; the status of international organizations and of their employees; the effect and implications of official acts performed within the territory of a state which is at war with Israel; the effect of international treaties in Israel; the question whether the Eastern neighbourhoods of Jerusalem are part of Israel; various issues concerning extradition, and of course, many questions regarding the laws of war: the powers of the military governor, and in particular his power to expropriate land in the territories under Israeli control and to expel residents from the territories, the extent of his legislative powers, etc.

In her instructive article, Professor Lapidoth discussed, inter alia, the applicability of the laws of war to the territories administered by the Israel Defence Forces since the Six Day War of 1967. Being in full agreement with Professor Lapidoth that from the legal standpoint the situation is in need of improvement, I wish to deal more extensively with two questions: (1) What is the position of the Government of Israel regarding the applicability to Judea and Samaria and to the Gaza Strip of the Hague Regulations of 1907 respecting the Laws and Customs of War on Land, and of the Fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War? (2) What is the position of the Supreme Court with regard to the applicability of the Regulations and the Convention to these territories.

Jewish law is an independent legal system embracing most of the subjects to be found in any system of positive law. The hopes and efforts of many people notwithstanding, Israeli law is not identical to Jewish law, nor does it constitute one of its branches. The generally accepted view is that Jewish law is not influenced, nor affected in any way, by the acts of the Israeli legislature or judiciary. There is, however, little doubt that to a certain extent, Israeli law is influenced by Jewish law. It is therefore a legitimate exercise to discuss the nature of the relationship between the two systems from the point of view of Israeli law. We may also comment upon the amount of satisfaction or disappointment which may legitimately be felt, on the one hand, by those in favour of reinforcing the relationship between the two systems and making it stronger and more active and, on the other, by those opposed to such a relationship. It should also be observed that the interrelationship between Israeli and Jewish law is not only to be perceived from the standpoint of pure law. Any discussion of this question involves issues of a political, religious and social nature; a study focussing on the bare legal facts alone would provide a necessarily distorted picture.

The focus of the article written by my colleague, Prof. Brahyahu Lifshitz, was the extent of the influence of Jewish law on the legal system of the State of Israel during the forty years since its establishment. In my view, a symposium on “Forty Years of Israeli Law” ought also to include a study of the innovations and developments which have taken place within Jewish law during this period, since to a certain extent, Jewish law is an integral part of Israeli law. A comprehensive analysis of this issue is clearly beyond the scope of this paper. Nevertheless, one major question should be dealt with, i.e. to what extent does the legal system of the State find expression in modern Rabbinical case law? Has the new political reality of statehood, achieved after many centuries of exile, and the ramifications of this reality in the field of law, in any way affected modern Rabbinic decisions in the years following the establishment of the State—decisions which are meant to reflect the changes and developments that have taken place in the world of Jewish law?

In the opening section of his article, Prof. Lifshitz describes the influence of Israeli law upon Jewish law in the following terms:

When our Sages searched for an analogy to a situation in which a compromise or balance had to be found between two opposing forces pulling in opposite directions, they invoked the picturesque image of the “muleteer and the camel driver”. The muleteer runs behind the animal and prods him with the stick in his hand, whereas whoever drives the camel must walk in front of him, tugging gently at the halter. A person who has been charged with driving both a mule and a camel at the same time must, therefore, walk between the two and accustom himself to a middle way of walking which will more or less suit both beasts.

This analogy came to mind when I was asked to review the main trends in family law in Israel. Here we have a system afflicted with legal schizophrenia, for within it, two different juridical systems — that of religious law (or laws) and that of secular law — are struggling and pulling in opposite directions. To find a balance or compromise between these two is the major part of the task with which the legislator, and also the judge, is charged, and it is a mission which is not always successfully accomplished.

There can be no quarrel with Prof. Pinhas Shifman's essential thesis. The attempt to have two kings rule the same kingdom at one and the same time has undoubtedly failed. The “mixed marriage” between two legal systems, having different — and at times contradictory — philosophies of law, world outlooks and social goals, has given birth to a child which neither parent is eager to acknowledge. As is usually the case in failed marriages, here too each side blames the other for the failure; the civil system points an accusing finger at the religious system, and the Rabbinical Courts blame the civil courts. Prof. Shifman is certainly correct in his claim that the complexity of this situation has given rise to a certain tendentiousness among both the civil and the Rabbinical Court judges, with each group zealously seeking to enlarge its own kingdom.

Although I do not find fault with the general picture sketched by Prof. Shifman, I cannot agree with some of the finer details; in particular, with certain examples cited by Prof. Shifman in support of his conclusions, which are correct in and of themselves.

In the field of criminal law there is as yet no fully original Israeli code. The Penal Law, 1977, is a new version of the Criminal Code Ordinance, 1936, combined with the various amendments thereto introduced by the Knesset since the establishment of the State. Most legislative changes affect specific offences. The intervention of the Israeli legislator in the general part of the Law, has been most limited. The only context in which the Israeli legislator has laid down his own arrangements is in the application of the criminal law. Under the Criminal Code Ordinance (sections 6-7) its scope was territorial. However, in 1955 the Penal Law Revision (Offences Committed Abroad) Law, 1955 was passed by the Knesset, and this extended the provisions of the Ordinance to certain offences committed outside the territory of the State. In the course of the years, the extra-territorial scope of the criminal law has expanded.

In the following lines, I shall attempt to expand somewhat the scope of the survey, as a supplement to Dr. Miriam Gur-Arye's excellent paper on the requirement of fault. In addition, I will refer to the principle of legality, and to legislation in the field of criminal law. I shall also indicate what I regard as the proper directions for future development, as well as point out novel and disturbing trends in the application and implementation of the law.

Although Agranat J. had the courage to advance Israeli law beyond English law, by recognizing irresistible impulse in the wake of developments in the field of psychiatry and by a non-historical interpretation of the law, contemporary Israeli case law has refrained from taking another step forward in the light of further development in that science.

Once upon a time there was a lawyer who was most familiar with the rules of criminal procedure and of evidence in force in mandatory Palestine in May 1948. One day in June 1948, the lawyer disappeared. Some say he fell into a deep sleep for many years. Only after the passage of forty years he awoke.

Turning to and fro, he will immediately recognize the Ottoman building that houses the courts in Jerusalem's Russian Compound. He will also feel at home with the basic hierarchy of the judiciary: two courts of first instance—magistrates' and district—and no intermediate court of appeal between the district level and the Supreme Court.

Professor Harnon set a broad canvas. In the ten minutes allotted me, I shall address but a few of the topics he raised.

I would like principally to devote my comments to the subject of unrepresented defendants, as viewed from the perspective of a trialcourt judge.

Our rules of procedure and of evidence are fair and reasonable. There are differences of opinion as to the preferred approach to several of the issues mentioned by Prof. Harnon: the scope of the right to remain silent, the admissibility of out-of-court statements and the striking of a proper balance in this regard, etc. Notwithstanding the differences in approach to any particular topic, the system as a whole fulfils the purpose of the substantive criminal law — the establishing of the innocence or guilt of the accused.

From the establishment of the State until the present day, two quiet “revolutions” have occurred in Israeli law — the first in the area of public law, and the second in the area of private law. In public law we have witnessed the incorporation of a functional constitution — partly in the form of the Basic Laws, prescribed by the Knesset as constitutive authority; and partly through the consolidation of human rights, the handiwork of the Supreme Court engaged in judicial lawmaking. In private law we have witnessed the coalescing of a civil codification — mainly the product of the Knesset as legislative authority with judicial lawmaking “between the cracks” of the legislation.

In a recent article, Prof. Izhak Englard reviewed the salient developments in tort law over the last decade. These developments are:

(a) Deciding the question of the internal structure of the Civil Wrongs Ordinance as regards the relationship between the general and the specific torts.

(b) Extension of tortious liability for negligence, and the crystallization of the conceptual framework of that tort.

(c) Expanding the scope of the tort of breach of a statutory duty by allowing the unimpeded inclusion of statutory duties within the scope of the Civil Wrongs Ordinance.

(d) Removal of the umbrella erected by the case law in order to shield the State and its agencies from liability for negligence and the breach of a statutory duty, and the equation of the position of the State to that of other tortfeasors.

With the establishment of the State of Israel and the enactment of sec. 11 of the Law and Administration Ordinance, 1948, Israeli law absorbed the Mandatory law which had applied prior to independence. Israeli contract law of forty years ago was comprised of two main components: Ottoman law and English law.

The component of Ottoman law consisted primarily of the Mejelle and of the substantive provisions of the Ottoman Code of Civil Procedure. Some of the books of the Mejelle regulated important contractual transactions, such as sale and lease. The Ottoman Code of Civil Procedure included provisions concerning compensation for damage, but the most important and significant provision was sec. 64, which established, in our law, the principle of freedom of contract. By virtue of this section, validity was conferred upon all contracts made in Israel, except those contrary to statutory law, to morality or to public order, and the power of the parties to a contract to contract out of the provisions of the Mejelle was accorded recognition.

Two contradictory trends can be discerned in the development of labour law in Israel. On the one hand, there is the socio-philosophical approach which guided those who fashioned labour law in its early stages of development. This ideological, even doctrinaire, approach lay behind a long series of laws, especially between the years 1948-1964, and guided the Labour Courts since their establishment in 1969. The second trend, and one that is becoming more marked, is pragmatism. Especially since the early 1970s, labour laws have been characterized by pragmatism and by a retreat from the ideology-doctrinaire approach. The pragmatic approach is characterized by legislative and executive intervention in autonomous labour relations, by ad hoc decisions, and by a desire to achieve short-term, immediate economic and political objectives, even at the cost of harming important long-term principles. In some cases, it would have been possible to achieve these same objectives by alternative methods that would not have undermined the impressive structure of Israeli labour law principles.