Travel is a great teacher. It focuses our attention by compelling comparisons between the unfamiliar and the familiar. It develops perspective by inviting the measurement of differences and similarities between what we see before us and what we have left behind.

In visiting the brave new world of Israel, Americans note many features different from our own country and some that remind us of home. As to our attitude towards the law, however, there is no doubt that in spite of our very different histories we march to the same drummer with you. Israel and America are both law-based societies. We share in common the fundamental belief that no ordered society can exist or thrive except under the law, that all persons (including the state) are equal under law, and that individual liberty is dependent on the law and on its fair and steady enforcement by judges independent of the other branches of government.

Religious or communal affiliation is one of the major factors in the choice of law and jurisdiction in matters of personal status. First, a religious court has jurisdiction only if all parties belong to the religion or community of that court. Where the parties involved in a matter of personal status belong to different religious communities, only the President of the Supreme Court is entitled to confer jurisdiction upon a particular religious court. Secondly, religious affiliation determines the bond between a person and the substantive law which will apply to any matter of his personal status. The importance of such affiliation is declining as legislation fixing unified, territorial norms applicable to all religions and communities increases. However, because personal law continues to play a major role in our legal system, religious affiliation, too, continues to be a focal point of interreligious disputes. Here the lack of a consistent, unified system for regulation of these inter-religious disputes is particularly noticeable, and the solutions proposed are remarkable for their pragmatism and their evasion of the basic problems.

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).

The Jewish legal system's concept of Kofin al midat S'dom (kofin, in this essay) is a rule of equity whose scope of application is almost without parallel in other legal systems. Strict translation of this phrase, which is “one is compelled not to act in the manner of Sodom” is not very helpful. The rule is interpreted to mean that if A has a legal right and the infringement of such right by B will cause no loss to A but will remove some harm from, or bring a benefit to B, then the infringement of A's right will be allowed. Such a concept at once brings to mind the modern view concerning abuse of rights. There is, in fact, much in common between the two principles but they are certainly not the same. According to one legal system a certain given fact situation can have the legal principle of abuse of rights applied to it, while in another legal system a different rule of law would be resorted to. To illustrate: In certain jurisdictions the right to privacy is based on the concept of abuse of rights, while in others, as is the case in Jewish law, such a right is independent of the equivalent abuse of rights—kofin. So with other rights such as the right to light or unfair trade competition. An attempt will be made in this essay to show the range and the limits of the kofin principle. We will discuss those problems which are dealt with within the framework of kofin even if their non-Jewish parallel is one which is far from the concept of abuse of rights. Conversely, we will not examine those questions which, in other legal systems, fall within the ambit of abuse of rights but are not looked upon, in Jewish law, as problems to which the rule of kofin is to be applied, since they have been solved by other legal rules.

Numerous and complex problems relating to the prohibition of the use of force in international relations have arisen in the protracted Arab-Israel conflict. One of these—and certainly not the least important—is whether there exists any foundation, from a legal point of view, to the claim by the Arab States that the Charter of the United Nations and general international law entitled them to resort to armed force in order to take back the territories occupied by Israel in the Six Day War of 1967. This claim to a right to a military option has been put forward not only in slogans flaunted in fiery speeches by second-rate politicians or extreme party leaders, but by the Heads of State responsible for the formulation of their countries' foreign policy.

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.

Judges whose daily tasks are to interpret the law of their own State frequently find difficulties in expressing the exact nature and hierarchical value of the rules of international law, which from time to time they are required in some sense to apply.

Perhaps the classical example of this in countries applying the English common law is that of prize courts and the law which they should apply. Under international law belligerent States, by whom maritime captures (prizes) may be made, have a duty to create some forum before which issues can be tried as to the lawfulness of such captures and its consequences. As Lord Parker observed in The Zamora as to the title in the property seized, “from the moment of seizure the rights of all parties are governed by international law”. In the final ruling in that case, the Privy Council held that the neutral property at issue had been unlawfully requisitioned, even though such requisition was authorised by a British Executive Order-in-Council, because that Order-in-Council itself was inconsistent with the rules of international law governing requisition of neutral property.

It would seem particularly appropriate following the tribute which appeared in the previous issue of the Israel Law Review, to commence our excursion into Israeli labour law with one of Otto Kahn-Freund's thought-provoking observations.

“Over a large area of British industrial relations, the rule-making and the decision-making processes, the, as it were, ‘legislative’ and ‘judicial’ functions are as indistinguishable as they were in the Constitution of medieval England. … And just as in the common law the judge is rule-maker and decision-maker all at once, so in the dynamic system of collective bargaining the parties ignore the difference between interpreting an old rule and making a new one.” Thus, in England, as Professor Kahn-Freund points out, the almost universally accepted distinction between disputes of rights and disputes of interests is not considered relevant.

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.”

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—

The breach of contract or commission of a civil wrong gives rise to a right of the injured party to compensation for damage caused by the violation of his right. In principle, the amount of money to be received as compensation is determined in two stages: the first stage is the establishment of the real scope of the compensable damage, i.e. the definition of the loss or detriment with respect to which the victim is entitled to compensation; the second stage is the monetary assessment of the compensable damage—translating the loss or detriment into monetary units which will reflect the financial value of such loss or damage. The whole process is governed by the higher principle of restitutio in integrum, i.e. restoring the victim to his former position, which in the field of tort law means restoration of the victim to his position prior to the commission of the tort, and, in the field of contracts, means bringing him to the situation in which he would have been had the agreement been honoured.

The origin of the comparative study of Talmudic law lies in the Talmud itself, where we find instances in which the Sages formulated their halakhot in comparative terms, or took cognizance of non-Jewish legal positions.

There are two aspects to comparative legal studies in modern Talmudic research: first, that of pinpointing the influence of one system upon another; and second, that of obtaining a clearer and deeper understanding of each system by emphasizing the common and the unique elements in each. The first aspect is very much a matter of chance, and even when it is applicable, the results often constitute details which are not capable of being formulated in general terms. The second aspect—that of mutual clarification—is, however, generally applicable, and may be employed with profit in numerous instances.

Since the conclusion of the two Camp David Frameworks (reproduced in this issue), much has been said about a possible relation between them, namely, whether there is any “linkage” between the Framework which deals with the bilateral relations between Egypt and Israel, and the Framework for Peace in the Middle East (the Comprehensive Framework), in particular its provisions concerning Judea, Samaria and the Gaza District. After the conclusion of the peace treaty between Israel and Egypt, a similar question was raised with regard to a possible link between it and the Comprehensive Framework. This question has in fact been dealt with by several provisions of the Peace Treaty and related documents, i.e., the Preamble and Article VI paragraph 2 of the Treaty, and the Agreed Minutes, all reproduced in this issue.

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).

Third party involvement in keeping the peace in the Middle East has been a constant phenomenon accompanying the vicissitudes of the Arab-Israeli conflict from the war of 1948 up to the present day. The dominant pattern has been the employment of United Nations forces and observers, charged with supervising either the implementation of Security Council resolutions calling for the cessation of hostilities, or the implementation of agreements reached between the parties concerned. The uninterrupted presence of UN personnel in the Middle East has shown that the international community as a whole and the parties in conflict have considered UN peacekeeping essential for reducing tensions and instrumental in bringing to an end local flare-ups. It was only natural that immediately after the Yom Kippur War of October 1973 the states actively involved in the pursuit of peace should rely on the establishment of effective UN supervisory machinery to monitor the execution by the parties of the various security arrangements agreed upon. A United Nations Emergency Force was accordingly dispatched to the Egyptian-Israeli sector and undertook the task of supervision, with the cooperation of observers belonging to the United Nations Truce Supervision Organization. However, foreseen and unforeseen problems arose in the process leading from one disengagement agreement to another and to the treaty of peace between Egypt and Israel of March 1979.