I am most honoured to have been asked to deliver this lecture in the series of the Lionel Cohen Lectures in this University. During the years I practised as an advocate I had the privilege and advantage of appearing in London on more than one occasion before a board of the Judicial Committee of Her Majesty's Privy Council of which Lord Cohen was a member. May I respectfully say that in the argument of cases before him I came to appreciate his knowledge of the law and the perceptiveness of his mind in the resolution of complex legal problems. I always appreciated his unfailing courtesy and patience with counsel even when perforce counsel in the course of duty had to put what his Lordship thought was a bad and even an untenable argument. Also, I came to know him personally and joined the wide circle of his friends. I am very delighted to be now participating in a public acknowledgement of Lord Cohen as a jurist and as a man.

Gold value clauses are rarely used in England. In the United States, before the Joint Resolution of both Houses of Congress of January 5, 1933, which abrogated gold clauses in the U.S. retrospectively and prospectively, declaring them to be against public policy, gold coin clauses were a common occurrence. In the past on the European continent much use has been made of gold value clauses.

In England gold value clauses may assume greater importance in the future. Lately, the two-tier system of gold prices has been introduced, one between Central Banks and another at the free market price. In an individual gold value clause, the question of which price is recognized by the parties, who probably did not in fact foresee the possibility of the creation of a two-tier system, is one of construction. Even today, a party to a gold value clause which refers to the free market price may gain a profit, if there is an appreciation of the price of gold on the free market above the U.S. government minimum level of $35.00 per ounce.

The laws of the Old-Babylonian kingdom of Eshnunna (LE) were discovered in 1945 and 1947, on two parallel tablets, during excavations on the outskirts of Baghdad. In 1948 a first edition, with English translation, was published by Professor Albrecht Goetze, of Yale University. Since then the LE have been translated into many languages, major and minor, and a considerable literature has grown up around them. Goetze himself has repeatedly returned to the Laws of Eshnunna. His standard edition of the LE, now in general use by scholars, was published in 1956.

Eshnunna, to the east of the river Tigris, flourished during the early second millennium B.C. Much of its history is as yet uncertain. Here it will suffice to note that it finally fell victim to the expansionist policies pursued with success by Hammurabi of Babylon, during the fourth decade of his reign. The date of promulgation of the LE is uncertain, but it is at least agreed that they precede the Code of Hammurabi, though one cannot know by how much. It is then a fair guess that they were issued in the course of the 18th century B.C.; thus they constitute the earliest collection known at present, of legal rules in Akkadian.

The Israel Law of Marriage and Divorce is unique in many aspects. In European and European-based systems of law, the rivalry between Church and State ending in the triumph of the State over the Church is a matter of past history. Ecclesiastical courts were long ago deprived of jurisdiction in matters of marriage and divorce. Canon law, nevertheless, continues to this day to be the source of the law of the land in this field in all jurisdictions of both Roman civil and common law, even after the pollution and dilution in varying degrees of such source by the secular powers. Principles rooted in canon law were incorporated wholesale in the secular law of the land, and thus made to apply to the entire population irrespective of individual religious affiliation. The continuous activity of a single system of lay courts dealing with matrimonial issues in the course of its general preoccupation with the administration of justice, utilizing a single set of laws of evidence and rules of procedure, gradually welded the principles taken over from the canon law and die law emanating from other sources into one homogeneous body.

Israel alone, among all Western systems of law, retains the law relating to the creation, incidences and termination of the matrimonial status in its almost unadulterated form of religious precepts, and maintains a ramified system of religious tribunals for the administration thereof. This enables nearly all to achieve either marital bliss or, if necessary, the happiness resulting from the dissolution of a miserable marriage in the manner sanctioned by the authorities of their own religious denomination.

It is a signal honour to have been invited to lecture at this world-renowned University—located, as some geographers would have it, at the very centre of the world. Certainly all eyes are concentrated on it at the moment. And it is an exhilarating thought that perhaps this new Law Centre will generate new legal approaches which we all seek, far transcending the limited legal problem and its solutions which we discuss tonight.

Let me say at once that in comparing Israeli and United States company law, I speak about your half of the subject—Israeli law—with much diffidence, although I am emboldened by the realization that every student of comparative law inevitably feels somewhat insecure in his grasp of law outside his own country. Still when I pondered what would be the most useful area for this lecture, I was struck by a fundamental similarity—for although we are separated geographically by half the world, the basic concerns of corporate investors are the same the world over: (1) an agreed-upon allocation of the rewards, if the corporate venture prove successful, and (2) control over management of the enterprise into which they have put their capital. Of first concern then is the law governing the corporate structure since this is what determines the investors' financial and voting rights, and secondly, the law protecting the investor against an unresponsive or irresponsible management. The legal sanctions here involved—statute law or case law—are a matter of concern to foreign capital. The reaction of foreign investors should be of special interest to you because Israel's social, economic, and political goals cannot be achieved without a substantial influx of capital investment from the outside. Foreign investors can operate either through foreign corporations doing business in Israel or through Israeli-formed companies. Tonight, because of time limitations, we confine ourselves to Israeli-formed companies. Other problems for a foreign investor, such as foreign exchange controls, do merit more than passing reference—but we cannot take time to elaborate them.

The current year—5730, by the Jewish calendar—was “election year”, and now that the great event has passed and a new Knesset—“the Seventh”—been elected, it may be opportune to give a brief description of our system of parliamentary elections, to consider some of its problems and to see what lessons can be learned.

Knesset elections are governed, primarily, by the provisions of the Basic Law: The Knesset. Under this Law, elections are to be held once every four years. Earlier elections—e.g. when there is no majority to support a government—require special legislation. Elections are general, countrywide, direct, equal, secret and proportional. Detailed provisions are set out in the Knesset Elections Law, 1969. Under this Law, votes are cast for lists of candidates filed by the various competing parties not later than 35 days before the elections. In the final count, the whole country constitutes one election district; all votes are added up and taken into account. However, lists must attract at least one percent of the total of valid votes cast at the elections in order to participate in the division of the Knesset's 120 seats. Such division is effected, first, by dividing the total of valid votes cast for such qualifying lists by 120; then, by allotting each such list as many seats as are arrived at by dividing the total of valid votes cast for it by the quotient so obtained; and finally, by allocating any remaining seats to such lists, one to each respectively, as are left, after such division, with the largest remainders of votes.

The characteristic function of private international law is to declare the law applying to cases containing a foreign element, by pointing out the general principles upon which all the legislation on the matter is based and developed. The function of such principles is to help to specify the law considered appropriate in individual cases. Private international law knows several such principles such as domicile, nationality, the will of the parties, the place where a contract is concluded or where an immovable is situated, etc.

Conflict of personal laws is also based on connecting principles, although of a different character. The main connecting principle is the ethnic or religious association of the parties. Nationality or domicile of the parties, the two connecting principles on which the main systems of private international law are based, may not be resorted to in the conflict of personal laws. Nationality may be taken as a basis for deciding which is the most appropriate law to be applied to the relationships between nationals of different States, but not for deciding which law is to be applied to parties who, being members of different legal systems, are nevertheless all nationals of the same State. As to domicile, it may help to solve a similar problem arising between persons domiciled in different countries or between persons domiciled in different parts of the same country within which different territorial laws are in force; but it can serve no useful purpose in relation to nationals of the same State to whom different laws apply by reason of their ethnic or religious origin and who live scattered throughout the whole of the territory of the State.

I. Historical and Comparative Backround: (1) Early medieval times. (2) The Ottoman Empire and successor States. (3) Personal laws in the colonies. (4) State and Church law as personal laws.

II. The Personal Laws as Autonomous Legal Systems: (1) Notion of legal system. (2) Personal legal systems. (3) Relationships between personal legal systems and between such systems and the State. (4) The dominant position of the State. (5) The personal laws as autonomous legal systems.

III. The Conflict of Personal Laws and the Interpretation of its Rules: (1) State legislation relating to personal laws. (2) The problem of qualification. (3) The renvoi problem. (4) Public policy.

IV. Connecting Principles: (1) Membership of an ethnic or religious group. (2) Influence of the will of the parties. (3) Other connecting principles.

V. Nature and Historical Function of the Conflict of Personal Laws: (1) The legal nature of the Conflict of Personal Laws. (2) The historical function of the conflict of Personal Laws.

With the exception of Great Britain and, for the present at least, of Israel, probably all states possess a written constitution, systematically arranged and with set articles. Another term often used for constitution is basic or fundamental law, since the constitution provides a foundation and framework for the other regulations and norms which form the legal system of the country. In most countries, in fact, the constitution is made in such a way that it is more difficult to change than are ordinary laws; for instance, a set majority in parliament may be required for amendment, or the lapse of a certain amount of time, perhaps there must be an intervening parliamentary election between the proposal and adoption, or an amendment must be ratified by popular vote, etc. An exception to this is the procedure in New Zealand, where although the constitution is systematically arranged, no attempt is made to ensure the stability of it by means of such technical procedures; it can be changed in the same way as an ordinary law.

The centenary of the Mejelle, the Ottoman Civil Code, is not being commemorated by any jubilations. This is not only because so little of it is left in force, but also, and perhaps mainly, because it has remained much of a mystery right up to the present day.

The mystery is due partly to certain initial defects inherent in its preparation. One of these is the ambiguity purposefully introduced into the Mejelle, with the aim of camouflaging its deviations from the Holy Law of Islam which, theoretically, reigned supreme in the Ottoman Empire to its last day. Indeed, true to a long-standing tradition, the assent of the highest religious authority in the Empire, Sheikh-u 'l-Islam, was required before any law could be promulgated. Thus, in the case of the Mejelle too, the said religious authority was associated in its preparation. Once involved in the matter it could no longer shun delicate problems, when the religious law came into conflict with the interests of the State. In order to avoid this dilemma in the Mejelle, its authors applied a new stratagem, that of silent omission.

On May 28, 1967, one Solomon Hamatprest voluntarily presented himself before the military authority, after having failed for a number of years to report for registration and medical examination as required by a notice published under the Defence Service Law, 1959 (hereafter called the Law). Omission to fulfil a duty imposed by this law constitutes an offence punishable by two years imprisonment under section 5(a) (1) of the law; and where such offence is committed “with intent to evade defence service”, the maximum penalty is increased by section 35(b) (1) to five years prison.

Before the Six Day War those who shirked defence service had consistently been charged with the lesser offence. But in the wake of the War this offence had been covered by an Amnesty Law; and that was probably why Hamatprest, among others, had been committed for trial under the alternative graver offence, involving “intent to evade defence service”, which had been explicitly excluded from the amnesty.

Penology, or the science of punishment, has three different aspects: the technique of punishment, or the character of the various punitive measures and the means by which they are enforced and implemented; the psychology of punishment, probing into the function of punitive action, both in so far as the victim, that is the person punished, is affected, and in so far as such action is calculated to satisfy the needs or purposes of the punishing authority; and the sociology of punishment allocating to penal activity its place (as part of the legal institutional framework) in the social, economic and political life of the community. All these aspects are interconnected, and the view generally advocated (though hardly proven as yet) is that they are also interdependent: the psychological effect as well as the sociological impact of any given penalty depends, it is held, on the nature of the penalty concerned and the manner in which it is implemented. The fact cannot, however, sufficiently be stressed that any such interdependence is not, as a rule, preconceived or planned in advance. It is for the historian of penal law or penology to establish on the statistical or other data what has, in fact, been the effect or the impact of any particular punishment in any given period or community. But the penologist is not necessarily either historian or statistician. While, like the lawyer, he builds on institutions which have come down from the past, neither his theorization nor his planning is bound by precedent or past experience, and he may well dismiss the past as one great error which exists only to be rectified or eliminated. This being so, for a penology to develop it is not necessary that there should be any practical experience with the effect and impact of punishments actually imposed. It is true that in the absence of such practical experience, penology will remain an exercise in theorization and planning, not unlike the exercises in “utopian” and idealistic legislation which have occupied so many geniuses in the past; but that does not derogate from the validity of, and the scientific attention due to, the reasons and considerations underlying the theories propounded.

I shall try in the following pages to explain Israel's policy on extradition, outline briefly Israel's Extradition Law, 1954, and survey Israel's extradition links with European countries. I shall then deal with Israel's experience with the application of the European Convention on Extradition of 13 December 1957, and shall consider possible modifications to the Convention. This task has been made easier by the three reports which have been presented by Professor Schultz, Mr. Duk and Mr. Karle.

The extradition of criminals presents for every country delicate and complex problems, for this branch of law, regulated by both international agreements and domestic legislation, is intimately related to each State's concepts of administration of justice and criminal law, as well as to its approach to human rights in general, and asylum in particular.

Most writers discussing pre-Republican Yemen stress its complete isolation from the rest of the world. Those sympathetic to the Republic are anxious to point out that the Imams, or kings, of the country consciously followed a policy of almost hermetic isolation in order to ensure the continuation of the feudal privileges which they and the tribal sheikhs enjoyed. Whether or not this interpretation is accurate it is necessary to point out that some countries, and not only Arab states, had already been in contact with the kingdom for several decades at the time of the 1962 coup.

Italy was the first European nation to make a deliberate attempt to develop its relations with Yemen in this century. The Italians, anxious to make their position in Eritreamore secure and, if possible, to gain an economic foothold in Arabia, concluded a Treaty of Amity and Commerce with the Imam on September 2, 1926. From that time, and in spite ofthe disappearance of Italian colonies in East Africa, the Italians have continued to enjoy a somewhat privileged position among Western Europeans in the country. At times during the past few years, they have been almost the only Westerners permitted to remain in Yemen.

To claim that the Land Law, 1969 is the most significant private law enactment to have been promulgated hitherto by the Knesset may perhaps be regarded as somewhat of anexaggeration. Nevertheless, it would seem incontrovertible that this statute is at any rate among the most basic and extensive to have been enacted by the Knesset in the realm ofprivate law. In order to appreciate the particular importance of this statute it is sufficient to consider two provisions thereof, namely, the abolition of recourse to English law as a source for complementing the local law in all matters relating to land; and, secondly, the repeal of the Ottoman land legislation. Some preliminary remarks may be of assistance in appreciating the full import of these two provisions.

1. Claim to the Right of Intervention in the Defence of Socialism: The Brezhnev Doctrine asserts the Soviet Union's right to intervene in the internal affairs of the states comprising the Socialist Bloc. The source of this Doctrine is Soviet Foreign Minister Gromyko's declaration at the June 27, 1968, session of the Supreme Soviet, when he announced that the Socialist commonwealth would not tolerate the withdrawal of any of its constituent parts, should it be attempted.

This statement formed the basis of what is called the “Brezhnev Doctrine”, as formulated in an article appearing in Pravda on September 26, 1968. The Doctrine is designed to affirm the “limited sovereignty” of every Socialist State and to justify the military intervention of members of the Warsaw Pact in Czechoslovakia.

The Pravda article asserted that Czechoslovakia's self-determination impaired the essential interests of the Socialist commonwealth and required the “Soviet Union and the other Socialist countries…to take actions…in the fulfillment of their international obligations towards the Czechoslovak nation and in the defence of their Socialist achievements”.

The Soviet Union's special role within the Socialist commonwealth and its right to intervene in its name was justified as follows:

In this article we are concerned with the problem of the attitude of the criminal law towards the destruction of one's own property. In the elucidation of this problem it will be necessary not only to analyse various provisions of the special part of the criminal law, but also certain extra-penal laws, and to consider them against the wider background of the different social interests they are designed to protect.

The accepted view of our legal system is that among the liberties a person enjoys is the liberty to destroy or damage his own property.

This view is an outcome of both the influence of Roman Law, and of our social and economic system. This liberty is nowadays subject to limitations ensuing from the needs of society, the state or even of individuals, in the same way as use of property is not unrestricted, but has sometimes to submit to the rights of others (sic utere tuo ut alienum non laedas), The extent and form of these limitations depend mainly on the structure of a given society and its ideologies, but the differences between most societies, at least in the western world, are diminishing gradually.

The problem of computerized data has been largely conceived of in terms of the concept of privacy. Thus any check of legal periodicals will disclose a number of articles on computers and privacy, and a recent Bill before the English Parliament is entitled “A Bill to Prevent the Invasion of Privacy through the Misuse of Computer Information”.

In fact privacy is only one aspect of a wider complex problem, and the concept of privacy both factually and legally is far from coextensive with that problem. Proposals such as the English Bill which speak in terms of privacy are really concerned with problems of accuracy of information, its dissemination and use; and the information may be public or private, it may have been acquired legally or illegally, with or without intrusion of privacy, with or without knowledge, with or without consent.

Perhaps the problem could here be categorized as one in which society is attempting to set standards of fair acquisition, fair dissemination, and fair use of information. It is confusing, as will be illustrated below, to set these standards in terms of privacy which is only one of a number of personal and societal values involved.

Can the members of a company in general meeting ratify a transaction of the directors by simple majority, when the latter—in breach of their fiduciary duties—have not acted “bona fide in the interests of the company”? This question is likely to prove of importance in a number of different contexts. In Bamford v. Bamford it arose in connection with the validity of an act of the directors in the sphere of the company's relations with a third party—the contention that the act was invalid having been made by the minority shareholders, who objected to ratification, and not by the third party himself. The possibility of ratification gives rise to two questions: is the general meeting of the company the competent organ to exercise this power? And, assuming that it is, can the act done in breach of a duty be ratified by it by simple majority? In the Bamford case it is only the former aspect of the problem that is considered.

The articles of the company vested the power to allot shares in the directors. In exercising this power the directors failed to act “bona fide in the interests of the company”. Their act was ratified by the members in general meeting by simple majority and the validity of the ratification was challenged. Both the judge of first instance and those sitting on appeal decided that it was valid. Plowman J., in the Chancery Division, held that, since the directors had been actuated by an improper motive, they thereby lost their power of allotment, which accordingly vested in the general meeting, as the organ of the company with residual power in this respect. The general meeting—he went on to hold—could ratify the directors' action by simple majority. Harman L.J. and Russel L.J., in the Court of Appeal, reached the same conclusion— but for different reasons. In their opinion, the fact that the directors allotted the shares for an improper motive does not mean that what they did was in excess of their powers; the allotment simply became voidable. The power to remedy the defect—they held—is in the hands of the general meeting, which can exercise this power by simple majority.