When I first met Otto Kahn-Freund in 1920, his charm made me his lifelong friend. His was the cheerfulness of a rich nature, but also a penetrating mind and the readiness to stand on his opinion and to express it forcefully.

After the First World War Kahn-Freund studied history and, later on, law; partly at his home-town university Frankfurt-am-Main and partly in Heidelberg and Leipzig. In a circle of animated students he was one of the most remarkable. He finished his law studies in 1925 summa cum laude with a doctoral thesis on the effects of collective labour agreements. From early on labour law was one of the topics nearest to his interest, perhaps urged by his socialist conviction, certainly stimulated by our teacher Professor Hugo Sinzheimer. Kahn-Freund belonged to the inner circle of Sinzheimer's pupils and also worked some time in his advocate's practice. Labour law was to become a leitmotif in Kahn-Freund's own professional way, up to his last work—a series of lectures he called “Labour Relations —Heritage and Adjustment”, which he held in 1978 in the British Academy under the auspices of the Thanksgiving Offering to Britain Fund donated by Jewish refugees settled in England (the lectures were published in 1979).

Nobody would deny that in a considerable proportion of cases which come before a judge for decision, the law is clear, and indeed often undisputed by the parties. In these cases, the Judge's duty raises no special problem so far as the law is concerned, though it may do so as to the facts. But it is also true that there are a significant number of cases in which the law or at least its application, is unclear, and the nature of the judicial role is then more controversial. During the last few decades legal theorists and judges themselves have often discussed these questions in various public pronouncements. In this lecture I want to focus principally on a number of assumptions and views about the judicial role which appear to be largely peculiar to the English, or perhaps Commonwealth judiciary. But before I look more closely at the English judiciary, I would like to set the discussion into a broader theoretical framework.

The Trust Law, 1979, came into force at the beginning of February, 1980, resolving the debate of many years as to whether the institution of private trusts is recognized in the Israeli legal system. The debate was carried on in the cases, and in scholarly articles, but despite all the ink that was spilt, the law remained uncertain. Two views recently expressed on the question, one by Cohn J. in the case of Inzel v. Kugelmas, and the other by experts in the Ministry of Justice in their preamble to the Trust Bill, are clear evidence of the uncertainty. Cohn J. wrote:

The experts in the Ministry of Justice, on the other hand, stated that—