Article 51 of the United Nations Charter states that:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of selfdefense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

International lawyers are still arguing about the scope of the right of self-defence in Article 51 of the U.N. Charter. Most of the arguments focus on the semantics of Article 51. Those who argue for a “restrictive view” of the provision emphasise the qualifying phrase “if an armed attack occurs”.

Professor Lawrence M. Friedman, the well-known legal historian and legal sociologist, stressed in a recent essay that the contemporary relevance of law within broader social phenomena could be analysed in terms of community expectations. He wrote that during the 19th century “[p]eople knew that they were exposed, at all times, to the risks of sudden disaster — disease, death in childbirth and childhood, accidents, chronic economic uncertainties. They faced these calamities without private insurance, without public welfare programs, and without legal liability rules that made it practical to collect damages from private citizens and companies”. Societies of the past fostered a “culture of low expectations” with regard to law as well as to life itself. In contrast, our contemporary society driven by medical, technical and social developments heads towards the “reduction of uncertainty”. Amazing progress in medicine, the full-fledged emergence of the welfare state, and the expansion of private liability for accidents and injuries have, at least in Western countries, greatly enhanced people's expectations from the social mechanisms. The stature of law has grown accordingly to unknown pre-eminence since all methods of reducing risks are now shaped in terms of legal norms.

1. When touching upon the question of the nature of corporate personality most lawyers will at best make a link with some paragraphs from the introduction to their commercial law course. They will remember that during the nineteenth century fierce theoretical battles were fought on questions such as whether we should treat supra-individual and non-individual entities as “persons”, under what conditions we should recognize their personality and what should be the legal consequences of such recognition. But no matter how interesting this debate must have been, to revive it is tantamount to becoming a public menace. Already in 1953 H.L.A. Hart, certainly an authority on legal theory, declared that “the juristic controversy over the nature of corporate personality is dead”. In many respects this assessment is correct. Despite the numerous differences about the conditions of recognition, about the possible types of corporations and associations which are subject to corporate personality, about the solidity of the corporate veil, we can observe that nearly all legal systems in the world adopt the notion of corporate personality as such. We may assume the notion will become even more important in the former socialist world, as these countries try hard to reshape their economies along the lines of the market economies in the Western world.

1. This Conference was originally planned to honour Professor Julius Stone on the occasion of his eightieth birthday. It is my sad duty to open it tonight by honouring his blessed memory. He was not only one of the greatest philosophers of law, not only a brilliant jurist and an inspiring teacher, but also a longstanding and faithful friend who defended Israel's claim to a rightful place among the nations with deep conviction and persistent involvement. He taught at the Hebrew University of Jerusalem — as at dozens of universities all over the free world — as a visiting professor, and graced the Truman Institute for Peace at the Hebrew University as its first director. His monumental work on The Province and Function of Law, written almost fifty years ago, still ranks as one of our leading and indispensable textbooks, and I shall not enumerate to you the now famous titles of the many books which followed it. Not only his own fora, first the University of Sydney and later the University of New South Wales, but the whole academic world, suffered a grievous loss when he died last year; and for the organizers of the Conference, it is a sad disappointment that the cathedra honoris causa which had been reserved for him had to remain empty.

Until very recently the dominant approach to the theory of punishment has been to discuss it in isolation from any general theory of the just distribution of benefits and burdens in a society. Almost without exception, the debate between the competing theories of punishment has run separately from the theory of distributive justice, as if the words “just” in “just punishment” and “just reward” belonged to two different species of “justice”. Perhaps the most important exception to this rule has been the position of radical utilitarians — i.e., act-utilitarians of J. J. C. Smart's genre, or wealth-maximization theorists of Richard Posner's ilk — who consciously treat the domains of economic distribution and of criminal punishment as two areas of application of one and the same set of over-arching principles. But, since neither for Smart nor for Posner is distributive justice (whether regarding economic goods, or penalties) a morally significant virtue, their theories really do not detract from the general trend that, in the literature on punishment, the conceptions of retributive and distributive justice are largely independent.

More than twenty years ago, a study of the legal status of the kibbutz pointed out the shortcomings of the existing legal framework and its failure to deal with distinctive features of kibbutz society. The study cited a 1960 District Court decision in a tort case which expressed surprise and dismay that, “in the twelfth year of Israel's independence … it is still necessary to decide matters concerning the unique way of life of the kibbutz and the norms governing it – as well as the legal consequences of a conflict between the kibbutz world and the ‘outside’ world – according to law that did not take into account the possibility of the existence of an entity like the kibbutz and pursuant to criteria that are not at all appropriate”. In 1984, Justice Barak quoted that passage to the same effect and we can do the same today.

Section 2 of the Contracts (Remedies for Breach of Contract) Law, 1970 defines a breach as “an act or omission contrary to the contract”. This general definition applies to any obligation in any contract, and to every form of its breach. Thus, a seller who has undertaken to deliver certain property at an agreed time and place is in breach of his obligation whether he delivers a different property than the agreed or a defective one, whether he makes the delivery after the agreed time or at a wrong place, and so forth. This abstraction of the notion of breach, and the application of similar rules to all kinds of breach (subject to some specific rules in specific Laws and in the Remedies Law itself), are prominent features of the law of contractual remedies and of contract law in general under Israeli legislation. This abstraction enables one to deal generally with subjects, that in other legal systems in various contexts are treated separately. The question discussed in this article refers to the degree of similarity required between the content of the contract and its actual performance. In other words, the question is whether a slight or trivial deviation from the contract's content is to be considered a breach.

An impartial observer reviewing the Anglo-American philosophical writings of recent decades on the question of the justification of punishment would very likely label the contest, thus far, a draw. Three major justifications have been put forward as principles constitutive of fairness in punishment, and none can be said to have routed its rivals.

Some modern writers have written forcefully in defence of the rehabilitative justification of punishment — or, more precisely, the replacement of punishment with a system of judicially mandated therapy for criminals. This substitution, however, has been tellingly criticized as demeaning to offenders, violative of individuals' moral rights, and liable to abuse as a pretext for suppression of unpopular ideas. Others have sought to justify punishment on the basis of the societal need to deter crime. But deterrence seems at the same time too severe and too lenient a basis for punishment. Draconian penalties for minor offences and exemplary punishment of the innocent would meet the requirements of deterrence if they proved effective in preventing future crimes; yet offences whose nature or whose pattern of occurrence makes effective deterrence impossible should go unpunished, on this view.

The debate about theories justifying punishment has been continuing for centuries now. Many questions are involved, and all must be answered by a complete theory justifying punishment. But the two questions which must be answered by any attempt at justifying punishment are who should be punished (and why) and what the measure and mode of that punishment should be. The practice of punishment as we know it consists of the monopolised and deliberate infliction of suffering on the punished individual, after he was convicted of an offence, by the State. Thus the justification of punishment must address questions such as that of the relationships between offences and moral wrongs, or the implications of difficulties of proof or of the inevitable fact that only some offenders are caught and convicted to punishing. But the intensity of the debate is heightened by the fact that at least part of the controversy concerns even punishment for the most heinous crimes, when there are no problems of evidence or selective enforcement. The debate goes to the very core of the practice of punishing. It is with this aspect of justifying punishment that I shall deal.

Utilitarianism is the view that the rightness of an action depends entirely on expected utility, that is on the sum of the utilities of its consequences weighted by their various probabilities. I shall distinguish two forms of utilitarianism: hedonistic utilitarianism and preference utilitarianism. In hedonistic utilitarianism it is just a matter of pleasure and its opposite, unpleasure. Often utilitarians have used ‘pain’ instead of ‘unpleasure’, but this has the disadvantage that ‘pain’ can suggest ‘a pain’, and ‘a pain’ is not the opposite of ‘a pleasure’. If I annoy you I give you the opposite of pleasure but I do not necessarily give you a pain. In preference utilitarianism we take value to be satisfaction of desires or preferences. It is a difficult theory to work out in so far as we have to take ‘preference’ here to be intrinsic preference, and so need a clear distinction between intrinsic and extrinsic preferences.

(1) During my lifetime most of the discussion of punishment in British philosophical journals has started from an article first published in 1939. Thirty years later this was reprinted, along with a selection of eleven of the most substantial subsequent contributions, to form a volume which has since served to introduce further student generations to The Philosophy of Punishment. In that seminal paper the late John Mabbott — whom it was later my good fortune to have as one of my tutors — proposed “to defend a retributive theory of punishment, and to reject absolutely all utilitarian considerations from its justification”.

His initial claim perhaps sounded bolder, or rasher, than it was. For Mabbott in his second paragraph explained: “The question I am asking is this. Under what circumstances is the punishment of some particular person justified, and why?” After giving and defending his retributive answer to this question Mabbott turned to the “distinction between abolishing injustice in punishment and abolishing punishment altogether”. While still insisting that “punishment is a corollary of law breaking …” he went on to allow that “considerations of utility come in on two quite different issues. Should there be laws, and what laws should there be? … The choice which is the essential prius of punishment is the choice that there should be laws”.