Colleagues, students and admirers of Professor Nathan Feinberg take pleasure and pride in presenting this issue of the Israel Law Review to the great Maître on his 90th birthday, as a small token of our gratitude. We respect Professor Feinberg for his vast and deep knowledge in international law in general; we admire him for his particular expertise and contributions in the study of legal problems related to the Jewish people, to the Zionist cause and to the State of Israel; and we are grateful to him for the leading role he played in the establishment of the first faculty of law in this country, at the Hebrew University in Jerusalem.

Nathan Feinberg was born in Kovno on June 6, 1895. His aptitude for learning was such that the severe numerus clausus did not prevent his admission to the Russian high school, from which he graduated with distinction in 1914. At the same time he was given a Jewish and Hebrew education privately. He then proceeded to the Faculty of Law of the University of Zurich, from which he graduated magna cum laude in 1918.

There are two aspects to a treaty. On the one hand, it constitutes a procedure, an operation whereby several minds meet and, if necessary, meet again to review, amend or even abolish the commitments contained in the treaty; on the other hand, it describes and establishes rights and duties, defines individual situations, or lays down general rules. In the language of continental jurists a treaty is at the same time a “legal transaction” and a “collection of norms”. Consequently, it is possible to distinguish in the articles of the treaty between those containing provisions pertaining to the mechanism of the legal transaction, which may be termed its “operational rules”, and those containing rules of content, which may also be called—to borrow from the language of private international law—“rules of substantive law”.

In November 1964 the then Minister of Justice stated in the Knesset:

During 1985, the Belgian political climate was suddenly disturbed by the announcement of the installation of 16 cruise missiles on the soil of the peaceful city of Florennes. In comparison with the world-wide concern about what the proliferation of intermediate range nuclear weapons means for world peace, the debate which took place in Belgium concerning 16 missiles could seem somewhat ridiculous. However, this debate appeared to us to represent a growing state of mind becoming widely felt in Western Europe, and it contains sufficient legal aspects to make it the object of this present article by which we join in honouring our eminent colleague and friend, Prof. Nathan Feinberg.

On the 12th of December 1979, the North Atlantic Council unanimously adopted the “double decision”. On the one hand, this decision dealt with the installation of 572 nuclear missiles in Western Europe and, on the other, with the intensification of negotiations with the USSR, with the aim to reach agreement on the reduction of armaments.

All legal systems have long recognized the need to provide the plaintiff with provisional relief of various types so as to insure that, during the pendency of the legal proceedings, the defendant does not take actions that would frustrate the possibility of enforcing the plaintiff's judgment should one be obtained.

While recognizing the need to provide such relief, the law has, however, also been faced with an opposing set of values. That is, provisional relief is, by definition, relief provided before the plaintiff has proven the defendant's liability. In other words, the coercive power of the courts is sought to be brought to bear, whether in the form of sequestration of the defendant's property or by an order directed against him personally to restrain from acting as he otherwise would, before it is determined definitively that he is liable to the plaintiff. This is a drastic step indeed—a restraint of the defendant's property or liberty prior to a definitive adjudication of his liability.

Urgent relief imposes two basic requirements which influence both the procedure and the structure of the trial in which it is applied: avoiding prejudice and, in order to avoid prejudice, deviating from the general rules of procedure.

As Calamandrei rightly noted in his fundamental work of 1936 (recently reprinted), the duration of the ordinary suit can lead to the danger that measures taken will be both useless and tardy. This is not a new viewpoint: it was a valid dictum in the Roman trial that “Si periculum est in mora, receditur a regulis iuris communis”.

The thing which is new in our times is the consciousness in democratic legal systems that the judicial protection of rights and legitimate interests is not effective unless it is quickly obtainable. This observation applies to ordinary commercial rights, but above all it applies to non-commercial ones, for example rights of the person and his liberty. In other words, the time factor has become a vital one in guaranteeing and effecting access to justice.

It is well known that the United States Constitution establishes the right to a speedy trial. Article 6 of the European Convention on Human Rights similarly states that everyone has the right to have his case decided “dans un d61ai raisonable”.

According to the famous “Coase Theorem”, market forces, under given conditions, will automatically, without any external intervention, bring about an efficient allocation of resources. These conditions, necessary for the smooth operation of the “invisible hand” which leads to efficiency, are denoted as “absence of transaction costs”, as the presence of transaction costs may impede this desired process. The main legal implication outlined by Coase is that absent transaction cost, there is no need, and no place, from an efficiency point of view, for liability rules: resource allocation would be the same either with or without them. An act which is efficient will be carried out despite a liability rule which imposes the burden of compensation on the actor. On the other hand, an inefficient act will be barred by market forces without the help of liability rules.

The political attacks being mounted today against international organisation—the United Nations General Assembly, and especially UNESCO—are paralleled by some differences and challenges to the International Court of Justice, and this on the part of some of the Court's erstwhile most enthusiastic supporters. It used to be almost an act of political faith for Western, or Western-influenced, para-professional legal associations, meeting in the immediate post-War era and up to the 1960s, to reaffirm their support for the principle of international adjudication as the prime method of peaceful settlement of international disputes, and for the acceptance by all States of the compulsory jurisdiction of the World Court as the most affirmative and concrete way of demonstrating their endorsement of that principle. It was once a key element in the instructions of Western delegations to international legal conferences to insist upon the primacy of judicial settlement in any formal legal affirmation of the principle of peaceful settlement and in any listing of the alternative modes of its exercise.

“As long as war is regarded as wicked,
it will always have its fascination.”
Oscar Wilde

According to the textbooks, the unfettered right of a state to go to war was, until modern times, regarded as one of the essential trappings of statehood, an indispensable aspect of sovereignty. Such a broad assertion does however require qualification, as ever since the time of Saint Augustine, scholars have attempted to set limits to the extent of the state's discretion to go to war. The task has not been an easy one, and it may indeed aptly be remarked that “Warfare has been as difficult to justify satisfactorily in theory as it has been endemic in practice”.

The early Russian literature on international law was largely produced by diplomatic practitioners in the course of, or in supplementation of, their official duties. The most celebrated example, regarded as the first original Russian work on international law in the Russian language, is P. P. Shafirov's discourse on the just causes of the war between Sweden and Russia, Razsuzhdenie kakie zakonnye prichiny ego Tsarskoe velichestvo Petr Pervym…k nachatiiu voiny protiv Korolia Karola 12, Shvedskogo 1700 godu imel… (Spb., 1717). Translated into English and German, the Tsar intended that all Europe should understand Russia's legal pretensions against Charles XII of Sweden through Shafirov's book and himself edited the final text and contributed the conclusion. At Imperial behest two further Russian editions were printed in 1719 and 1722 in thousands of copies.

The sale of property by a non-owner is an important question in many legal systems. The problem is more acute in the case of movables, since with immovable property the existence of a register of title allows the buyer to check with relative ease whether the seller is in fact the owner. There is usually no register of title to movable property, and the buyer will usually identify the holder of goods who is offering them for sale as their owner.

There are three parties involved in the problem: A — the real or original owner, B — the seller, and C — the buyer. B may be a thief, a finder or A's bailee, or he may have obtained the property from A by misrepresentation, and so forth. In many cases it is impossible to obtain satisfaction from B, either because he cannot be traced or because he is insolvent, and the question of who owns the property, A or C, then assumes vital importance.

Our concepts and values are part and parcel of a philosophy broader than law, according to the expression used by Justice Robert Jackson in his description of the place of the Supreme Court as a unit in the complex and interdependent scheme of the democratic system of government. Drawing from the multitude of conceptions and ways of thought which characterize the Weltanschauung of the protagonists of a system of law based on the belief in the rights of the individual and in the rule of law, I would like to mention three aspeots and dwell on two of them in some detail. The first is represented by the evolutionary approach in the interpretation of the law; the second aspect is the permanent concern for judicial independence, and the third is transmuted into the ongoing mission of the court to enable human beings, as such, to confront the problems created by the effacing effects of modern society. The three above-mentioned aspects are separate but, in my opinion, not only do they overlap when we try to classify the phenomena representing them, but they are at least co-related and often even interdependent. Let us turn first of all to what I termed the evolutionary approach.

Because of the diminutive size and relatively intense urbanization of the country, noise has always constituted one of the more serious environmental problems with which the Israeli legislature and courts must contend. Indeed, in a recent survey conducted by the Israeli Environmental Protection Service, (E.P.S.) 52.5% of Israelis questioned indicated that the major deficiency of their environment was the prevalence of noise, as opposed to only 3.7% who complained of unpleasant air or odours. Regulations have been enacted specifying the manner in which noise is to be measured and providing standards for the existence of nuisances. Recently, the court has been faced on several occasions with the question of whether violation of such regulations is necessary for an action seeking to establish a given noise as a nuisance. Although no definitive rule has been established, the Supreme Court, in confirming a lower court decision in Israel Electric Co. Ltd. v. Farsht, began what we hope will be a continuing process in determining a clear and optimal judicial policy regarding the measuring of noise and the use of these calculations in nuisance cases.

Reviewing the history of the Permanent Court of International Justice and of the International Court of Justice from 1922—the World Court, a convenient but possibly misleading expression which embraces both the Permanent Court from 1922 to 1945 and the present International Court of Justice established as an integral part of the United Nations since—four clearly separated periods can be discerned. They run from 1922 to 1931, 1932 to 1940, 1946 to 1966, and from 1967 onwards.

The establishment of the League of Nations and the Permanent Court after a cataclysmic war in Europe and the awe-inspiring Russian Revolution released a wave of euphoria upon the exhausted and war-weary peoples of what is now known as Western Europe, and they placed great hopes in the new League and Court.