After having acquired a prominent place in economic life—and therefore also in the life of law—advertising has begun to draw the attention of both law-maker and legal analyst.

Indeed two fronts are distinguishable which the potential victims of advertising seek to open up against the advertiser—the first by his business competitors and the second by the actual direct and indirect customers. As to the first front, the law has already taken regard of it ever since it took a stand against unfair competition, since advertising is the main instrument to effect some of the different forms of unfair competition (which in Israeli law, following the English pattern, takes the shape of “injurious falsehood” and “passing off”).

The Faculty of Law and the Department of Philosophy of the Hebrew University of Jerusalem found that celebrating the 100th birthday of M.R. Cohen by holding a symposium dealing with his legal philosophy was the best tribute we could pay to the man who spent so much energy telling both lawyers and philosophers that their disciplines could benefit from cross-fertilization. It is a telling fact that both disciplines need that reminder today as much as they needed it then: legal philosophy is considered central neither in law schools nor in philosophy departments. Law schools perceive as their primary tasks the equipping of their students with the tools of the trade: knowledge of the law, coupled with an understanding of legal reasoning and special legal terminology. Since a person can be a very effective lawyer without thinking a lot about the nature of law as a social phenomenon or its function in social life, curricula in law schools often do not include a course in legal philosophy. Departments of philosophy, on the other hand, tend to shy away from “applied” subjects. They offer courses in the history of philosophy, metaphysics, ontology and epistemology, ethics, theory of action and theory of mind. They usually consider law as just another realm of human practical affairs, which does not deserve particular philosophical care.

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.

In Israel, in the field of the law of personal status, at the center of which stand the laws of marriage, the law is not territorial but personal, and the law applying to an individual changes in accordance with his religious affiliation. Consequently, any discussion of the comprehensive position of Israeli law on the institution of marriage would seem to be impossible, for Israeli law lacks its own, independent regulations on matters of marriage. The law of the State on these matters has been likened to a mirror, having no image of its own and serving only to reflect the religious law. In this mirror, various laws are reflected, and it is difficult to find in them a common denominator of the differing and contradictory conceptions they express towards the institution of marriage.

In opening this symposium, which has been convened on May 14, 1981, to commemorate the one hundredth birthday of the late Professor Morris R. Cohen, I need hardly state that I feel honored by being privileged to preside at its first session. It is fitting that the symposium takes place under the joint auspices and sponsorship of the Philosophy Department and Law Faculty of the Hebrew University, for the subjects of philosophy in general and legal philosophy in particular were Cohen's life-loves. In this connection, I desire to mention the credit which is due to Dr. Ruth Gavison, who teaches legal philosophy here, for thinking out the program of the symposium and undertaking the onerous task of supervising the implementation of the technical details involved in organizing this event. It is also my great pleasure to extend, on behalf of all who are assembled here, a heartfelt welcome to Dr. Leonora Cohen-Rosenfield, Professor Emeritus of the University of Maryland and daughter of Morris Cohen, as well as to her husband, Mr. Harry Rosenfield, who was her father's student and is presently a prominent Washington attorney, for having come from the United States in order to grace this symposium with their presence and indeed to be active participants therein.

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.

The philosophy of law was a major component of Morris Raphael Cohen's commitment to philosophy. “To examine anew the problem of social ends in relation to law and morals and the life of civilization” he considered “an essential task of philosophy”. Where better than in the legal arena could one follow the living play of the social order in the light of logical method and ethical purpose? How did Cohen acquire this classical view of the task of philosophy, which in the early twentieth century seemed so foreign to his compatriots?

For the Hebrews, God is a law giver, Moses a law teacher, and the Talmud, commentaries on the Law. Even God has to forbear from infringing the duty to be just. “My interest in the philosophy of law”, said Morris né Moses, “has its roots in the fact that my very first education was Mosaic and Talmudic legislation”.

In its landmark decision In re Gault (1967), the Supreme Court of the United States held that a minor brought before the juvenile court was in principle entitled to the guarantees of due process available to adult defendants in criminal trials. That momentous decision sparked off a debate which has continued ever since in academic and policy-making circles, both on the national and international levels. In essence, the controversy relates to the question of the nature of social control measures to be adopted by the legal system to deal with errant juveniles. Should these be essentially criminal and punitive in character, or are they better considered as welfare proceedings, the essential purpose of which is to determine the appropriate treatment? Thus, the legal, or punitive, model of juvenile justice may be juxtaposed to the welfare or treatment (or even “therapeutic”) model.

Morris Raphael Cohen, the American philosopher, had a major impact on the development of legal philosophy in the United States and on the law itself. The centenary of his birth (1880–1947) is a fitting occasion to assess his influence on the law.

This paper addresses only a few aspects of Cohen's enormous influence, as a legal philosopher, on American law. Since his day, the changes which he wrought in the law have been taken for granted by lawyers, judges, legal writers and historians.

The following four facets of Cohen's seminal influence on the law will be reviewed. Philosophy of law—what? and why?; Revival of the philosophy of law in the United States; Debunking the legal fiction that judges declare, but do not make, the law; and Substantive legal themes.

In Azen v. State of Israel, the Supreme Court heard the appeal of a person who had been declared extraditable to France for offences of stealing by an agent and fraud, committed, according to the request for extradition, in France. One of the pleas raised against the decision of the District Court, in which Azen was declared extraditable, was that the specialty limitation was not guaranteed in the Extradition Treaty between Israel and France, as required by sec. 17 (a) of the Israeli Extradition Law, 1954. This section states unequivocally that —

whereas in art. 17 of the said Treaty, specialty is guaranteed in the following words:

i.e. under the Treaty, the specialty limitation is restricted, from the procedural point of view, to those processes involving physical, personal enforcement against the subject of extradition—he will not be “summoned” for interrogation, nor judged “in his presence”, nor “detained”; the Extradition Law, however, contains no such restriction, with the exception of detention which, by its very nature, requires physical enforcement.

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.

In 1941, the Banking Ordinance enacted by the High Commissioner of Palestine defined “banking business” as the “business of receiving from the public on current account money which is to be repayable on demand by check, and of making advances to customers”. The most recently enacted Israeli Banking Law (Licensing), 1981 contains a very extensive definition of banking business which includes no less than thirteen types of transactions.

This certainly reflects a new legal approach towards the economic reality of banking which in and of itself has not changed drastically. Moreover, the peculiar dynamics of the banking business also inspired the legal rule that the Governor of the Bank of Israel should have the right to enlarge the legal definition by recognizing the banking character of other transactions.

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?

On June 28, 1978, the Israeli Knesset passed a Law which changed the age of criminal responsibility of juveniles, raising the threshold from 9 years of age to 13 years of age. This Law, known as the Penal Law (Amendment no. 3) 1978, is popularly called the “Yitzhaki Law”, after MK Yitzhak Yitzhaki (Likud) who initiated the Law.

From a practical point of view, the Amendment means that police interrogators may not interrogate minors under the age of 13, nor may they open criminal files on such minors or prosecute them. When and if the police are confronted with juveniles suspected of delinquent behaviour the police may take their testimony, and may refer them to the welfare officers, who, operating by virtue of the Youth (Care and Supervision) Law, 1960, are authorized to decide whether the minor requires care, and if so, the kind of care he is to receive.

What manner of man was Cohen? An examination of his published philosophical writings, his autobiography (completed by his son after his death in 1947), his daughter's Portrait of a Philosopher, his colleagues’ book of memorial essays in his honor, Cornelius F. Delaneys' Study of Naturalistic Philosophy and David A. Hollinger's Morris R. Cohen and the Scientific Ideal, all reveal a many-sided, complex human being.

Several judgments based on the evidence supplied above come readily to mind. If a list of accomplishments at the close of his life were to be drawn up, it would appear that he attained much of what he consciously resolved to do, in spite of the fact that his own view of human destiny was one of powerlessness, tragedy, limited human knowledge and vain hopes. Cohen lived to become a sage, a humanitarian, a great teacher and an extraordinarily gifted and influential philosopher of science, civilization and law. He was a sage because he knew the limitations of wisdom and the bitterness and resignation attendant upon a life obedient to the reasoned dictates of wisdom.