The State of Israel came into being forty years ago. Its Declaration of Independence proclaimed that the State “shall guarantee complete equal social and political rights to all its citizens without regard to religion, race or sex”. At the time there was a war being waged for Israel's independence, a war which is not yet over. The threat to Israel's security, both from within and without, is still very real. The struggle for security has been going on, unabated, for forty years, and it exacts a price. Among other things, it exacts a price in human rights. Freedom of expression, for example, is subject to military censorship. As a British judge once remarked, war is not waged in accord with the principles of the Magna Carta.

The Report of the Landau Commission puts a painful question for public debate: can it ever be morally acceptable in a liberal democracy for the state to use cruel measures against a person to compel him to reveal information needed to prevent grave harms, such as the loss of lives? The question, of course, belongs to a class of questions that has baffled and divided people for generations. Are some actions inherently and intrinsically wrong, so that they may not be redeemed by the net good consequences they produce on balance? Even if this is the case in general, can it be true regardless of the enormity of the consequences? Battle lines in moral philosophy are drawn in terms of how these questions are answered. For consequentialists the morality of all actions is solely determined by their consequences, near and long term. For deontologists the morality of all actions is always determined, at least in part, by their intrinsic wrongness, so that if they are wrong they are not made right by their desirable consequences. Each side has, so it seems, an unanswerable objection to the position of the other. Deontologists ask: then you mean you are ready to declare, for example, that punishment of innocent persons may be morally justified if it is necessary to prevent crime? And consequentialists (without answering) ask in turn: then you mean that even if the life of thousands and the preservation of the basic freedoms of a democratic community depend on it, you would regard it as morally prohibited to use any force against a single innocent person?

These questions are among the hardest of all hard questions. But they become even harder when they are asked in the context of a public debate over how a government should act in some immediate crisis.

The decision in Noar Kahalacha, an anti-segregation in education case that was recently delivered by the Israeli High Court of Justice, has been ‘naturally’ celebrated as the ‘Israeli Brown’. But is it? This article points to the differences between the monumental US Supreme Court decision of Brown and the Israeli Brown-equivalent – Noar Kahalacha. It contends that the two cases bear differences that stem from the divergent patterns of discrimination they represent, and that they reflect these differences squarely. The discrimination patterns reflected by the cases differ by virtue of traits that are traditionally overlooked in antidiscrimination theoretical analysis. Comparing the two cases, therefore, allows us an opportunity to revisit the notion of discrimination and its antidote, antidiscrimination. Drawing on the dichotomous concepts of de jure/de facto discrimination and difference/sameness discrimination, the article shows how these dual theoretical notions are determinative in shaping the distinctiveness of each of these cases. While the African American victims in Brown were easily recognised as a distinctive group suffering from de jure discrimination, the Mizrahi victims in Noar Kahalacha – who suffer from de facto discrimination within a Jewish hegemonic society – lacked such clear recognition. Accordingly, the discrimination narrative that Noar Kahalacha provides is very incomplete and carries only limited potential for effective application in future struggles to eliminate discriminatory practices against Mizrahis in Israel. Brown, on the other hand, carries a converse trait. Though criticised, Brown, nevertheless, strongly signifies the recognition by White America of its overarching discriminatory practices, and implies a genuine dedication to break from it. This understanding further illuminates the limitations embedded in the possibility of ‘importing’ highly contextual antidiscrimination jurisprudence from abroad into our system's highly contextual reality of discrimination.

1. The principle of double criminality is traditionally bound with institutions of international criminal law. Double criminality is a requirement not only with extradition, but also with the transfer of criminal proceedings and with execution of foreign sentences. International criminal law employs a range of “double conditions”, the common denominator of which is the requirement that two legal systems share a certain set of values or legal prescriptions. In addition to double criminality, international law uses such terms as “double punishability”, the “double possibility of criminal proceedings” and the “double possibility of the execution of penal judgment”. Among these concepts, double criminality is the most important and universal condition applied in the basic institutions of international criminal law, such as extradition, the transfer of proceedings, and the execution of foreign penal judgments.

Since the concept of democracy made its premiere, popular sovereignty has always been one of its fundamental characteristics. Nevertheless, many democracies have adopted eternity clauses (non-amendable constitutional provisions) as well as the unconstitutional constitutional amendment doctrine (the judicial power to strike down amendments to the constitution on substantive grounds), seemingly betraying the established democratic tradition. Including eternity clauses in a constitution certainly poses a challenge to any democracy, namely that of resolving the tension between their freezing effect on the legal system and the democratic notion of popular sovereignty. The intuitive question is why bother? Why address this challenge in the first place rather than uprooting eternity clauses from the constitutional system altogether, thereby resolving the inner tension they generate? One answer is that eternity clauses are presumably here to stay. More to the point, however, is that their presence in a legal system is desirable, since their absence would leave a modern democracy vulnerable to irresponsible normative acts by an incompetent body of representatives. Although Israel's Basic Laws do not include formal eternity clauses, its legal system tends to limit the scope of amending power where the Zionist project is concerned, thereby freezing the imperfect founding formula of the Jewish state. As a result, Israel as a Jewish democratic state faces the same challenge of resolving the tension between the freezing effect and popular sovereignty. This article argues that this challenge can be successfully met as soon as eternity clauses are integrated within a three-track democracy—a holistic constitutional system and theory. As a constitutional system, it distinguishes between three decision-making tracks and identifies the basic norm of the legal system with a nation's collective will or dynamic founding narrative. As a constitutional theory, it justifies constitutionalism and judicial review mainly for the purpose of regulating a nation's evolution. Eternity clauses play a pivotal role in three-track democracies by blocking the first decision-making two tracks in order to force revolutionary movements to engage in the consensual third track. This protects society from a unilaterally-imposed revolution—an act liable to be detrimental to the delicate evolutionary process.

The output of Israel's judiciary, as measured by the number of completed cases, does not vary with judicial inputs, as measured by the number of judges. The appointment of additional judges lowers the caseload of existing judges, who respond by lowering their productivity. The percentage fall in productivity is equal to the percentage increase in the number of judges, implying that the output of the courts remains unchanged. This evidence undermines the conventional approach for determining the number of judges, which assumes that the productivity of judges does not depend upon their caseload.

This study compares how four countries, the United States, Canada, Britain and Israel, conceive active and passive euthanasia and the right to die in dignity. I start the discussion by clarifying the scope of the analysis and by shedding light on the concepts of autonomy and dignity. Section II proceeds by drawing attention to the familiar distinction between active and passive euthanasia, reviewing the current legal positions in the United States, Canada and England. Section III addresses Ronald Dworkin's distinction between experiential and critical interests, and further contemplates the analogy he draws between the destruction of life and the destruction of masterpieces of art. The section continues by contrasting Dworkin's assertion that what we seek is life in earnest, not any form of life, with Leibowitz's view that human life is sacred. In this context I also refer to the recent Scheffer decision, the only ruling at this time by the Israeli Supreme Court on the issue of death with dignity. Section IV considers the Eyal case, involving an amyotrophic lateral sclerosis patient who expressed his wish not to be connected to a respirator. I assert that in such instances, the patients' autonomy would be sustained and their dignity better served by helping them die. It is not always true that keeping a person alive is to treat her best. In some situations we respect a person and her dignity when we help her cease living. My justification for helping such patients fulfill their request rests on the assumption that they freely and genuinely expressed their will to die, and that they persist in expressing that desire.

This comment argues that courts should focus on the negative liberty interests of the accused and the proportionality of state-imposed limits on those interests, as opposed to the human dignity of either the accused or the victim, when determining the constitutionality of criminal laws. The first part of the comment examines the Canadian experience with regard to the constitutional control of the criminal law. Canadian courts have focused on the liberty of the accused but have been unwilling to consider how the liberty interests of the accused can be subject to proportionate limitations. The next part suggests that human dignity has a dual character that can both support and oppose many controversial parts of the criminal law and as such is not particularly helpful for courts in assessing the constitutionality of criminal laws. The third part critically examines the presumptions of constitutionality proposed by Gur-Arye and Weigend and suggests that human dignity has little work to do in these presumptions. The last part suggests that a focus on the negative liberty of the accused and the proportionality of the state's limits on those rights provides the best foundation for constitutional control of the criminal law.

The Article examines the “transnational” use of torture evidence, i.e., the use of evidence obtained by torture by third states or parties in national criminal trials. The analysis of the law of the international criminal tribunals shows that supranational torture evidence must be excluded since such evidence is unreliable and damages the integrity of the proceedings. The same applies to the admission of transnational torture evidence before national tribunals. The strict exclusionary rule of Article 15 Convention Against Torture (CAT) confirms this view. The rationale for this rule is found in the general unreliability of torture evidence, its offensiveness to civilized values and its degrading effect on the administration of justice. The burden of proof must, as a rule, rest with the state as the party that presents the controversial evidence. For practical and fundamental considerations of fairness, such evidence should not be admitted if there is a real, serious risk that it was obtained by torture.

It is not always easy to decide when we must turn to English law. And once it has been determined that reference to English law is appropriate, there is the further question of the substance and application of principles drawn from English law. In such case, English law forms part of the local law, and need not be ascertained as required by the rules of private international law in respect of foreign law.

This makes the local law directly dependent upon English case-law, which itself is constantly being renewed and developed. Such dependence may seem to impair the independence of the Israeli legal system. The question could not, of course, be raised during the Mandatory period at a time when there existed a possibility of appeal from the Mandatory Supreme Court to the Privy Council in Westminster. But after the establishment of the State Cheshin J. said:

In the case 9535/06 Abadallah Abu Massad and Others v Water Commissioner and Israel Lands Administration (2011), the Israeli Supreme Court ruled that the right to water deserves constitutional protection under Israel's Basic Law: Human Dignity and Freedom. The Court also found support for the right to water under both international human rights law and Israeli statutory law. At the same time, the Court held that the right to water is not absolute but must be balanced against the rights of the state. The case was brought by residents of unrecognised Bedouin villages in the Negev, a desert region in southern Israel, who do not have access to household water. The Court found that in exercising its discretion regarding additional water access points, the Israeli Water Authority could consider the ‘illegal’ nature of these villages. Applying the criteria of reasonableness and proportionality, the Court ultimately affirmed the Israeli Water Authority's policy in unrecognised villages in the Negev. Despite this administrative deference, the invocation of constitutional and international human rights law raises the level of scrutiny that should be applied to a review of the Israeli Water Authority's exercise of discretion. The Court's opinion is coloured and influenced by long-standing land disputes between the indigenous Bedouin population and the State of Israel. Drawing on empirical research conducted in December 2011, the analysis attempts to place the Abu Massad decision in its proper historical and political context. The dispute over land in the Negev can be traced back to the days of the Ottoman Empire. More recent efforts by the Israeli government as set out in the Goldberg Report and the Prawer Plan, and the international community's response to these efforts, are discussed. In light of the history and current political context, it may be prudent for the Israeli Water Authority to re-assess the effectiveness of its existing water policy in unrecognised Bedouin villages in the Negev.

Israel, unlike most modern States, does not have a Constitution embodied in a formal document which lays down the basic political assumptions on which the system of government is founded, and which is considered the “supreme law of the land”. The student of Israel's Constitution must, as in the case of the British Constitution, collate his country's Constitution, including its unarticulated “major premises”, from a close study of the practical workings of the system of government and from a number of diverse sources of varying legal force.

From a study of the workings of the system of government, Knesset (Parliament) legislation and the decisions of the courts, it would appear that Israel's courts, lawyers and others have asserted, almost without demur, the doctrine of the legislative supremacy of the Knesset as the underlying unarticulated major premise of Israel's Constitution. In accepting that assumption they seem to have chosen to follow the constitutional trail blazed by their British forerunners. This article is intended to test that assumption and to establish its exact application in the legal system.

The derivative forms of criminal liability — attempt and complicity — are the subject of a vast literature, yet there has not been a systematic, comprehensive examination of the preparatory offences in legislation, case law, or even in scholarly writings. One can hardly even find a satisfactory definition of such offences. Therefore, our first task will be an attempt to provide one, because absent a definition, we will not be able to proceed toward a solution to problems that are of no insignificant practical importance.

First among these problems is the question of the appropriate legislative policy to be followed in deciding when and in what areas to create preparatory offences. Second comes the question of whether it is appropriate to “derive” offences of attempt and complicity from preparatory offences, or, in other words, is it possible to speak of attempting a preparatory offence or being an accomplice to it. Third, should we make recourse to the principles applicable to criminal attempt in construing preparatory offences?

One of the main issues in almost every treatment of abortion in Jewish Law is the legal basis for its prohibition. The recent trend in Rabbinic literature to categorise abortion as a form of homicide, proscribed by Biblical law, seems to constitute a break with the classical Rabbinic view, according to which abortion is neither homicide, nor directly prohibited in the major literary sources of Jewish Law, i.e. the Bible and the Talmud. Moreover, in the few instances in which abortion is discussed in these sources, it would seem that no such prohibition exists.

This article will analyse the Biblical and Talmudic passages which deal with abortion, and survey the various Rabbinic opinions as to the legal basis for its prohibition. Particular attention will be paid to the argument that abortion is a biblically-proscribed form of homicide, and to the reasons which may underlie the adoption of that argument by a number of authorities in recent times. We will also analyse the significance in Jewish Law of the stages of foetal development.

Our analysis will be both historical and normative, and in this context it will be a valuable exercise to compare the position in Jewish Law to that in the Canon Law of the Church of Rome. Although the Church Fathers held that abortion was a form of homicide, and the contemporary position of the Catholic Church reflects this attitude strictly and unswervingly, the Medieval Canonists adopted the distinction between the formed and the unformed foetus, based on a tradition derived from the Septuagint version of the Biblical passage dealing with the consequences of striking a pregnant woman (Ex. 21:22–23).

The problem of democracy and judicial review is a problem engendered by successful constitutional courts. For where courts are not successful in establishing veto powers over legislation, no problem or only a very limited problem occurs. Of course any court interpreting statutes in the process of applying them does some law making. How much this law making interferes with democracy depends on how easy it is for the legislature to legislate. Where legislatures can amend statutes easily, they can easily correct “errors” of judicial statutory interpretation. Judicial review of the lawfulness of administrative action essentially involves the same power of statutory interpretation with the same potential for legislative correction.

Most of the nations of the world that do not have successful constitutional courts are not democracies. Indeed, no state without considerable claims to democracy has successful judicial review. These facts are clues to the obvious. Constitutional government is limited government. In the real world we do not encounter nondemocratic limited governments although we encounter many shades of more or less democratic, more or less constitutional governments. So there is some affinity between democracy and constitutionalism.

The enactment of Basic Law: Human Dignity and Freedom marks the beginning of a new era in Israeli law. This is a fitting opportunity to sketch an initial outline for the relationship between the constitution and the substantive criminal law, and the effect of constitutional principles on penal law. The truth be told, the constitutional principles already existed prior to the enactment of the Basic Law. And if, for example, we examine Prof. Feller's approach to criminal law, we cannot but be impressed by the highly developed constitutional element. Nevertheless, Basic Law: Human Dignity and Freedom does provide an excellent excuse for addressing the subject. Moreover, its enactment paves the way for certain interpretive changes in Israeli penal law, and because it allows for judicial review of the legislature of the future, some clarification is called for as to the limits of legislative power in the field of criminal law in light of fundamental constitutional principles.

Basic to constitutional law and criminal law is a shared image of human beings. It is a conception of human beings as “morally” autonomous, with the basic faculty to understand reality and distinguish right from wrong, able to contribute to developing social norms and to understand and internalize them, competent to decide how to act and capable of realizing that decision.

1. In his article “Criminal Jurisdiction over Aircraft Hijacking”, Dr. Y. Dinstein analyzes the provisions of the Convention for the Suppression of Unlawful Seizure of Aircraft, of December 16, 1970—hereinafter referred to as “the Hague Convention”. This convention deals with States' jurisdiction with regard to the offence of “hijacking”, as defined by Article 2 of the convention, in accordance with the nature of their connection with the offence committed.

The learned writer, in the course of his analysis, postulates three premises. The first premise is that Article 4 of the Hague Convention lays down an order of preference with respect to the jurisdiction of the States referred to in that Article. The second premise is that this order of preference is reflected in the order of the paragraphs of Article 4 which specify which are the states in question (paragraphs 1 and 2). The third premise is that the Hague Convention does not provide for universal jurisdiction in respect of the offence of hijacking.

The concept of “autonomy” and the related concepts of “self-rule” and “self-government” are terms of both constitutional law and international law. While they are of ancient origin, their current importance is due to their use in the Camp David Agreement relating to a Framework for Peace in the Middle East, of 17 September 1978. That agreement speaks of: providing “full autonomy to the inhabitants” of West Bank and Gaza; a free election of a “self-governing authority”; giving due consideration to “the principle of self-government by the inhabitants of these territories”; establishing “the elected self-governing authority” in the West Bank and Gaza; negotiating an agreement which will define the powers and responsibilities of “the self-governing authority” to be exercised in the West Bank and Gaza; and beginning the transitional period of five years when “the self-governing authority (administrative council) in the West Bank and Gaza is established and inaugurated.”

There has been a growing trend in recent years towards the adoption of evidence-based policy in a variety of fields, including criminal justice. The purpose of evidence-based policy is to guide the activities of organisations based on scientifically verified facts, enabling the development of effective and efficient policies. In this article, we introduce the commitment of the Israel Prison Service (IPS) to the implementation of evidence-based policy by detailing the processes and development of a large-scale research programme in the IPS. We illustrate how the cooperation and commitment of key individuals, including successive IPS Commissioners, have enabled the implementation of evidence-based policy in a hierarchal organisation. Within this context, we demonstrate how human agency is a key factor in the successful implementation of the policy in criminal justice settings. By following the different stages of development and implementation, the example of the IPS also highlights the importance of agencies taking ownership of science. We conclude by arguing that the road to evidence-based policy is a ‘winding road’, highlighting the key turning points that influenced the institutionalisation of the policy in the IPS.