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.