The three papers published hereafter were presented at an International Conference on the Ethics and Responsibilities of the Legal Profession held in Tel Aviv from 17–21 August 1980. As could be expected, the views expressed therein are not identical, but since they are all connected with the manner in which the nature and the function of the profession is conceived, it may be useful to outline the attitude of the law of Israel on the subject.

The Chamber of Advocates Law, enacted in 1961 to supersede the Advocates Ordinance, 1938, declares in sec. 54 that —

The statute apparently places at the same level the lawyer's duties to his client and to the court: the order in which it enumerates them does not indicate any intention of priority—any more than in the Decalogue the respect due to one's father can be said to take preecdence over that to one's mother. The same two fundamental duties are mentioned, in reverse order, in the Rules of Professional Ethics made in 1966 by the National Council of the Chamber of Advocates with the approval of the Minister of Justice.

One of the major issues in lawyer's professional ethics is that of the lawyer's duties towards the court and the administration of justice. The question is whether the lawyer has ethical responsibility only towards his client, or whether he also plays a role as a judge's assistant and has responsibilities arising from such a role.

In research on the subject, the problem is not posed in uniform terms and there are no commonly shared solutions. The prevailing trend is to give different answers according to the various roles which the lawyer is supposed to play in a judicial process with an adversary rather than an inquisitorial framework. Such a distinction is often viewed as fundamental just in order to define the lawyer's ethical duties in the civil process. So, it is usually said that in the adversary system the attorney plays a typical partisan role, and that he is client-centered because his task is only to represent his client with the best zeal and by all the means permitted by law. Hence comes the metaphor of the lawyer as a “hired gun”, who must use all his abilities only to serve the client.

A discussion on the neutrality of the lawyer requires some preliminary elucidation. Indeed, as concerns the judge's function, the term “neutrality” is generally used in connection with diverse principles such as: (a) the judge's impartiality with regard to parties, a basic element characterizing the adversary process, according to a tradition dating back to classical liberalism; (b) the judge's neutrality with regard to the law, typical of codified law systems where political choices are entrusted to the legislative power, the judge being a mere interpreter of the law, according to objective criteria; (c) the judge's independence of the other public powers, and thus his autonomy with regard to the aims pursued by the legislative and executive powers.

We will not dwell here on the fact that the principle of the judge's neutrality, according to the liberal tradition, is now undergoing a crisis, in connection with the evolution of modern states. Together with the principle of the judge's neutrality, this same tradition also developed, though in a markedly different sense, the principle of the lawyer's neutrality, which became deeply rooted in the conception of the legal profession; the common inheritance of all liberal states up to the social revolutions of the 20th century. This “neutrality” encompasses different aspects of the legal profession, whose common matrix can be found, on the one hand, in the social composition of lawyers as a class and in the viewing of the legal profession as a “liberal” profession; and on the other, in the characteristics of legal education in the 19th century law schools.

My purpose in this paper is to present some propositions relevant to the analysis of legal ethical problems. In working my way to those propositions, however, I shall first discuss the need for them and explain why I deem them to be important.

My basic thesis is that historically the profession's codes of ethics constituted a jurisprudential anomaly with two unfortunate consequences. First, they had an undesirable effect on the conduct of lawyers in the representation of their clients. Second, and more importantly, they served to impede the development of a satisfactory law of legal ethics.

The first proposition is more difficult to establish than the second and I do not propose to dwell on it. But, if you accept the notion that lawyers have used their duty of loyalty to the client to arrogate to themselves the power of acting in accordance with the client's wishes regardless of the consequences to society or to others, I think you will agree with the point. This is not to say that lawyers always exercise that power, and few lawyers, I think, take seriously Lord Brougham's infamous dictum that an advocate “must not regard the alarm, the suffering, the torment, the destruction which he may bring upon any other” in defense of his client. But the fact that the dictum lives on tells us something about the lawyer's perception of his duty of loyalty. Ultimately, I suppose, the notion of the lawyer's duty of loyalty to the client must be attributed to the common law adversary system of trial, but the duty received its most fulsome expression in the profession's code of ethics. Courts never gave loyalty the imprimatur of approval that the profession stamped on it with the rules of ethics.

1. General: The topic under discussion relates to the incidence of the criminal laws of more than one state applying to the same offence, committed by the same person, and the question with which we are confronted is how—if at all—this phenomenon may be prevented, and, if it is inevitable, and if remedies are called for, what are the available remedies.

The topic falls within the orbit of international criminal law as a branch of law comprising the system of norms of domestic criminal law, which regulates matters containing a foreign element, and of international law, which regulates matters containing a criminal element. And indeed, concurrent incidence of criminal laws as aforesaid is the fruit of the regulation by norms of this nature.

In order to provide answers to the questions concerning concurrent jurisdiction as a consequence of the concurrent incidence of the criminal laws of several states, it is necessary to answer a preliminary question, i.e., is the problem of concurrent jurisdiction a procedural problem of distribution of the judicial functions amongst the courts of a number of states, or, rather, is it a fundamental, substantive problem, of which judicial competence is only the result?

States have their nationals and religions have their religionists, each of whom shares in a distinct and inherited identity. In considering whether Jewry is one of those communities which consists of dependents born into it, three distinct variations arise: there are those who recognize that Jewry is a unitary group with the right to have a National Home; there are those who hold that Jewry, as a community, must be combatted as an enemy; there are those who view Jewry as a group of individuals, the interests of which Jewish organizations (not necessarily of a Zionist orientation) have found it to be their responsibility to safeguard in situations where their interests were not safeguarded as nationals of specific States.

In politological terms, the first and third combine positively and the second and third negatively, but in each combination Jewish organizations were faced with the obligation to act on an international level under conditions and by means so novel in terms of international practice that they were termed unprecedented and sui generis, and for which international law had no place to integrate the kind of non-governmental protective activity which was evoked, or to illustrate how a victim's experience creates law, or how scattered communities operate generically, within patterns exclusive to them.