One cannot overemphasize the basic rule that the maxims ex turpi causa and in pari delicto operate negatively, that is to say, only so as to bring about the rejection of actions tainted with illegality in its widest sense; but they never operate so as to outlaw culprits or deprive even habitual offenders of their civil rights.

Some doubt may, however, arise whether the same rule applies to illegal associations. After all, associations are not natural human beings, whose rights as such are regarded as fundamental human rights or safeguarded by Bills of Rights. Associations and corporations, of all kinds, owe their very existence to a legal concept which regards them as something additional, sometimes even entirely different from their members.

It is not self-evident then, that illegal associations should or should not be recognized for any civil law purpose, and it is not surprising, therefore, that there has been a diversity of legal opinion on that point.

Very soon after the establishment of the State (and as an important part of its constitutional structure) the office of State Comptroller, responsible to the Knesset alone and independent of the Government, was established under statute—the State Comptroller Law of 1949. After undergoing a number of amendments, the Law was eventually replaced in 1958 by a Consolidated Version but without any substantive change being made in the functions and powers of the Comptroller, a fact which goes far to demonstrate the proven worth of the office.

Briefly, the functions of the Comptroller are to carry out “inspection of the finances and the management of the finances and the property and administration of the State and of the bodies subject to the inspection of the Comptroller, and to perform the other functions assigned to the Comptroller by this Law”.

The bodies subject to inspection include, in addition to every government department, state enterprises and institutions and local authorities, persons or bodies holding, otherwise than under contract, or managing or controlling any state property or funds in the management of which the Government has a share or which are made subject to inspection by the Knesset or by agreement with the Government.

At the end of the Ottoman rule the legal system in Israel was ripe for change. The British conquest was welcomed, at least by the Jewish population, and under the circumstances there was no objection to absorbing the legal system of the new conqueror.

British conquest in 1917 brought military rule but by 1920 a civil administration headed by High Commissioner Sir Herbert Samuel had already been installed. On July 24, 1922 the League of Nations bestowed upon Britain the Mandate over Palestine, and less than a month thereafter, on August 10, 1922, the Palestine Order-in-Council was enacted. This legislation was designed to serve as a “Constitution” for Mandatory Palestine. It established institutions of the Government—the executive authority, the legislative branch, the judiciary—and defined their powers. In particular, the sources of law to be applied by the civil courts were enumerated in Art. 46, while matters of personal status jurisdiction remained vested in the courts of the various religious communities.

Medical jurisprudence and particularly malpractice by the physician have becomes the subject of increasing concern and scholarly interest. The approach of other civilizations to the physician's liability has been previously explored. This inquiry will seek a comprehensive understanding of the liability imposed upon the physician in Jewish law.

First, to provide the proper context, the general status and role of medicine and the physician in Jewish law will be briefly considered. Then, the situations in which a physician is obligated to treat or to refrain from treating patients will be explored. Assuming the physician has agreed to treat the patient, the various standards of conduct—due care, negligence, gross negligence, battery, unauthorized practice—and the liability that attaches in each will be outlined. Then, the special liability of a physician in cases of a patient's death will be analyzed. Thereafter, the effect of a patient's waiver of any claim for damages against the doctor will be considered. Finally, the overall approach adopted by Jewish law to the problem of physician's liability will be evaluated.