I first visited Jerusalem in 1941. I was looking forward to an agreeable sick leave after a small flesh wound in the desert. Unfortunately as the train moved slowly up from Lydda, I felt more and more ill and finally I collapsed on the platform of Jerusalem station and was removed on a stretcher to a requisitioned Italian hospital. A ridiculous small insect had infected me with a tiresome small disease.

My visit was less disagreeable than its unfavourable beginning would seem. I soon recovered from my sandfly fever, but as they had carelessly placed me in a bed next to a patient suffering from diphtheria, I was incarcerated in the hospital, or so they supposed, in quarantine for another fortnight. This was not quite so aggravating as one might think. The Italian hospital was furnished with an outside staircase just opposite my bed, and after my temperature had been taken in the morning I escaped by it for most of the day. If I was missed, no one informed me, and, as I suppose it is now too late to court martial me, I can explain that with the fortnight's quarantine and the effective sick leave which followed (I spent it at Amdursky's Central Hotel in Ben Yehuda Street) I visited most of the sacred spots without either a professional guide or a Baedeker, except my grandmother's grounding in the Bible. It was not a bad way to see the holy city since, in the middle of the war, there was not much commercialisation, and no one paid much attention to a slightly bandaged lieutenant in the Rifle Brigade wandering about the city and its neighbourhood.

Benjamin Akzin is distinguished by a unique combination of qualities, qualifications and experiences—on the basis of which he has made and continues to make unusual contributions both to scientific knowledge and to murky political realities.

A short resumé of his career may give some indication of its wide scope and variety. But no such list can do justice to a man of Professor Akzin's stature whose personality has so many facets. He has lived for extended periods in a number of countries, including Israel, Poland, France, Austria, England and the United States. He studied at the University of Vienna, the Sorbonne and Harvard University, receiving three doctorates in law and political science. He has combined an academic life with a life of active politics. His political activities have included serving as Foreign Secretary of the Revisionist movement under Jabotinsky, and in senior professional staff positions, such as in the service of the United States Congress, political functions in the Zionist movement, both in Washington and New York. His academic positions range from being an assistant to Hans Kelsen, to building up the Faculty of Law and the Department of Political Science at the Hebrew University, as Dean and Department Head of these faculties respectively, and Haifa University, as its President.

Jacob, son of David and Bluma Robinson and the eldest of seven brothers, was born in the little Lithuanian village of Serijai, near Suwalk on the German frontier, then part of the Czarist Empire. Among his distinguished forebears was Rabbi Yom Tov Lipmann Heller, author of the Mishna commentary Tosephot Yom Tov. His father, a well-known scholar, teacher and maskil of Wistyten (Vishtinetz) and a prominent member of the Jewish community, had been its spokesman on several occasions, and had represented it in meetings both with the Czar and with the Kaiser. A sense of Jewish public service was natural in the Robinson household.

In the summer of 1914, as the war-clouds were gathering, Jacob graduated in the Faculty of Law of the University of Warsaw. He went there not so much from choice, but because Czarist anti-Jewish legislation prevented him from studying at the great Russian centres of higher learning. Shortly after the outbreak of the First World War on 1 August 1914 (in the East), he enlisted in the Russian Army under special recruitment plans for university graduates (universanti). He served for about a year, and then was taken prisoner by the Germans after Vilna fell to them, in 1915. He was to remain in captivity in German Prisoner of War camps until the end of the War. There he had a hard time of it, and during a period of about 30 months he was in no less that eight different POW camps, where he established himself as an unofficial leader and spokesman of the Jewish POW's and of the Russian POW's as well, no doubt an early manifestation of his sense of universal humanism which was to show itself on so many occasions later.

The privilege of giving a lecture in honour of so great a jurist as Lionel Cohen demands of the lecturer a fitting and challenging subject matter. My tribute to his memory takes the form of choosing such a topic. For the structure of Labour Law in Britain today has the appearance of an absurd paradox.

On the one hand, labour law still rests upon the traditional concept of the primacy of “voluntary” collective bargaining between employers and independent trade unions. Other than in exceptional war-time periods, the law, both in statutes and in certain areas of judge-made common law, recognises the priority to be accorded to voluntary agreements and arrangements, even to that “custom and practice” which is at the heart of the way things really work on the British factory floor. The law does not regulate the pattern of “bargaining units” as in the United States; it regulates neither the nature nor the administration of the collective agreement, even on interpretation of “rights”. as in so many European countries and in Israel; it establishes no national minimum wage. The law does not “intervene”. it is said, in industrial relations.

Even the exceptions prove the rule. Nearly four million workers of our 24 million workforce have their terms of employment legally determined by Wages Councils set up by Ministerial Order under statute. These bodies, first established in 1909, have on them employers' and workers' representatives with independent members.

In an epoch of inflation of the kind in which we are now living, the question of the correct date for assessing damage has come to be widely discussed. Should it be the date when the tort or breach of contract was committed, as the crystallisation doctrine urges? Or instead of the “date of the tort” or the “date when the damage occurs” should some other point of time be chosen, either the date of judgment or the date of payment? Or, more radically, should no particular date be adopted but subsequent events be taken into account in determining the existence and scope of the damage and assessing it, in so far as these events affect the damage, in the light of the proper interest of the injured party? (see infra, part 3).

This discussion covers some methods and institutions for changing procedures in the courts. More particularly, I refer to procedures for conducting litigations in courts of general jurisdiction, that is to say, civil procedure, criminal procedure and evidence.

Since criminal procedure and evidence are controlled here by statutes, I realize that when the terms “rules” or “regulations” are used you would normally think only of civil procedure. I use the term “rules” in a broader sense since in federal courts in the United States, most procedure governing civil and criminal trials and appeals, including evidence, stems from rules promulgated by the Supreme Court of the United States, subject to modification by Congress.

I shall describe briefly the history and present situation in the United States, making some reference to the British method, touch on the Israeli method, and then draw some general conclusions, raising some questions about the Israeli pattern as I understand it. These countries are comparable since each has a strong, independent judiciary and a tradition of freedom and the rule of law.

The study of labour law in Israel need not start before the occupation of Palestine by the British at the end of the First World War. The inheritance left to the British by the collapsing Ottoman Empire in many fields of law, and especially in labour law, was meagre and primitive. As a matter of fact, the Ottoman system did not even acknowledge the existence of labour law as such. Only a few provisions concerning labour could be found on the statute book, intermingled with provisions regulating the hire of chattels and animals.

During the Mandatory period, the British took it upon themselves to modernise local law. This, indeed, they accomplished in many fields of law. But labour law remained an exception. In this field they preferred to do as little as possible. This may be largely explained by their unwillingness to disturb the social and economic order which had prevailed in Arab society for centuries. Thus, the few labour laws enacted by the British up to the Second World War set very minimal standards. For example, the Women and Children (Industrial Employment) Ordinance of 1927 prohibited the employment of children under twelve years; but even this prohibition applied only to factories and workshops, and not to agriculture and other trades.

When an industrial concern pollutes the environment thereby interfering with neighbouring homeowners' use and enjoyment of their property, may the homeowners enjoin the pollution even where compliance with an injunction could force the polluting industry to stop production?

Faced with this kind of question the initial reaction of people concerned with protecting the environment against pollution is almost certain to be in favour of granting the injunction. However, the problem has received considerable attention in contemporary legal literature and much of what has been written tends to show that this reaction is both simplistic and somewhat unrealistic. It is simplistic because an economic analysis of the facts of any given situation—which for want of a better term may be called a “nuisance-situation”—may well reveal that the defendant should be allowed to continue his polluting activity (though other measures should be taken to protect its victims from its effects); it is unrealistic because even if an injunction is granted by the court, means will probably be found to enable the polluting activity to carry on if it is economically or socially desirable for it to do so.

An exemption clause which purports to affect the rights and liabilities of a stranger to the contract raises the question of the connection between privity and exemption clauses. It is usual to regard the denial of validity to an exemption clause referring to the liability of a stranger as deriving from privity. Let us therefore commence by clarifying the meaning of privity and its relationship to exemption clauses and then go on to explain our view that such clauses should operate in favour or against a stranger in accordance with general principles of the positive contract law. Since privity has two aspects — denying a contract the capacity neither to benefit nor to harm a stranger — our treatment of the influence of privity upon exemption clauses will likewise deal with exempting a stranger and fettering him. After describing the situation in English law, we will turn to Israeli law which is no longer identical with English law, regarding the relationship between privity and exemption clauses.

On two notable occasions in the past two years, it was found necessary to use legislation in order to buttress the potency of general collective agreements. The first of these occasions was when legislation was used to give overriding legal force to a general collective agreement between the Histadrut and the Government incorporating the tax reform recommendations of the Ben Shachar Committee. The second was a similar use of legislation with regard to the general collective agreement between the Histadrut and the Government incorporating the special increments recommendations of the Barkai Committee. The two collective agreements concerned shared one important quality: They both purported to derogate from rights previously enjoyed by employees under existing collective agreements. One of the reasons for legislative intervention to support these agreements was the existence of doubt as to the legal effectiveness of their attempt to derogate from the individual employees' rights.

The source of the doubt as to the legal effectiveness of such agreements lies in the existence of two distinct levels at which a collective agreement functions: the collective and the individual levels. At the collective level, conditions are determined by the collective bargaining parties, the employer or employers' organisation on one hand and the employees' organisation on the other; at this level, the collective agreement is a consensual arrangement between the parties to it, the parties fix the terms and have a contractual right to demand their enforcement. The terms fixed at the collective level take effect, however, also at the individual level; the individual employees of an employer bound by the agreement are both bound by the agreement and entitled to enjoy the rights bestowed by the agreement. The Collective Agreements Law gives forceful expression to the effect of the collective agreement's personal provisions at the individual level, giving them immediate and mandatory effect as part of each individual employee's employment contract.

One of the recurring issues of Israel labour law has been whether an employee may validly waive statutory rights conferred upon him. This issue had led to a head-on collision between the Supreme Court and the Labour Court, with the latter adopting a position directly contradicting the Supreme Court's precedents on this issue.

On certain issues the Courts are in agreement. Both concede that a waiver is unenforceable where the employee is unaware of his statutory rights. Both concur that labour legislation is cognitive in nature and that an employee may not initially “contract-out” statutory rights conferred upon him. However where the right has already “accrued”—that is, where the employee is entitled by law to claim certain statutory benefits as a result of past employment—the Courts are in open conflict. The Supreme Court has adopted the position that an employee may waive such existing and accrued rights by agreement, may compromise them by settlement and may submit any disputed issue respecting them to an arbitrator for determination.

One of the main driving forces of man is fear, and its very paralyzing effect has, in the solution of human conflicts, been sought as method for both attack and defence. No wonder then that Montesquieu recognized fear as the principle of the despotic type of government; while organized terror as practised nowadays on a wide scale has become an instrument for undermining the authority of established government.

Its origin can be traced to Anarchism, that frightful episode in “the war between two divisions of society,… the world of privilege and the world of protest…, the last cry of individual man,… the last fist shaken against the encroaching State”. But organization in every form was so repellent to the 19th century anarchists that they were incapable of drawing together, even for the sake of concerted action.

Foreign policy decisions constitute a main dimension of governmental activities from early history. Their significance for society varies with the acceptance of different ideological commitments in respect to external national goals, with changes in degrees of interdependence between nations and with transformations of the capacity to influence interaction with other countries through nationally controlled and goal-oriented activities. Changes in international scenery, in accepted values, in technology and in internal political structures are among the variables which illustrate factors that influence the significance of foreign policy decisions, and — even more so — their contents and role.

Looking at contemporary foreign policy decisions, we gain the impression that, for most European countries, the significance of such decisions is decreasing, with priority going to the domains of economics, quality of life and internal politics. But this is an illusion caused by too conservative and narrow a conception of “foreign policy decisions”. True, in many European countries the traditional main concerns of foreign policy decisions, such as defence matters, are regarded as decreasing in importance within the given situation. This may be correct at present, as far as it goes. But to deduce from so singular and narrow a phenomenon any general conclusions in respect of the diminishing significance of foreign policy decisions is, it is submitted, a serious mistake.

In a previous paper it was argued that neither the tacit consent theory nor the opinio juris theory were by themselves capable of explaining the nature of customary international law, although each of them does indeed stress an important aspect—the tacit consent theory that custom is a lawmaking process, and the opinio juris theory that there must be some difference between customary law and practices which do not express, or do not give rise to law. What has to be done is to reformulate these approaches in such a way as to preserve the insights of each, while avoiding their errors.

A good starting point is the older tacit consent theories of the Civilians and Canonists, which were described in the previous paper. Their approach has the following characteristics:

i) By “consent” they mean, not contractual consent, but simply the intention to create law; therefore—

ii) they are able to admit that custom can bind individuals that have no part in its creation, even without their consent;

iii) they consider that the rules of customary law are binding absolutely, and not merely on a reciprocal basis; and

iv) finally, these jurists show an awareness of the fact that the conditions which regulate the formation of customary law are themselves rules of law, rather than necessary truths that can be deduced from the nature of custom.

In Talmudic literature the term lifnim mishurat hadin (i.e., beyond the line of the law) is mentioned a number of times. Before analyzing the various Talmudic passages where this concept is found, we will ask a number of questions, some of which we will answer in this article. Not all of the answers will be unequivocal and some questions will remain, in the end, provocative and open. Hopefully, the paper will encourage further discussion of the concept lifnim mishurat hadin.

Is lifnim mishurat hadin a specific norm of behaviour which can be precisely defined, or is it rather a concept referring to recommended ethical behaviour, similar to general moral values and examples of ethical behaviour which abound in the Talmud but which have no clearly definable characteristics? If we conclude that lifnim mishurat hadin is indeed a precisely defined norm of behaviour does it stand on its own as a specific type of moral behaviour, or is it synonymous with certain other moral norms, dinei shamayim (the Laws of Heaven), midat hassidut (the degree of ethical perfection of men of piety and virtue) or one of the other ethical norms found in the Talmudic sources? If lifnim mishurat hadin is not just another term for some other moral norm, what is the difference between them? (A reasoned answer to this question cannot be given without a full discussion of all the other moral norms in the Talmud; therefore in this article we will only suggest approaches to answering this question). Are there differences of degree within the norm of lifnim mishurat hadin itself? Are there types of behaviour recorded in the Talmud, about which the phrase lifnim mishurat hadin is not used, but which are in fact examples of behaviour lifnim mishurat hadin? If so, is there a reason why such actions were not explicitly described as lifnim mishurat hadin?

The British strategy to tame the Palestine press was to be implemented through a sophisticated masterplan. The Press Bureau was reorganized and explicitly directed to woo journalists and thereby achieve press cooperation. Simultaneously, the iron fist of the Press Ordinance was cast, to be used in case gentle handling failed to bear the desired cooperation.

The British analyzed the pitfalls on the road to cooperation correctly. As early as 1932 the Press Officer observed that the “deep-seated antipathy of Arabs and Jews as represented by their respective presses” and “the fundamental opposition of all Arab press to the Mandate” might undermine the entire plan. But even this sober analysis could not foresee the dimensions of the coming crisis.

As Jewish immigration to Palestine and the economic prosperity of the country increased, the Arabs anxiety about their political future in Palestine intensified. In 1936, Arab tensions exploded in the Arab rebellion. Widespread terror, arson and general strikes engulfed the country, and this time they were directed not only against the Jews but also against the British Government. Under these circumstances, the British came to the conclusion that they could no longer support the idea of a Jewish National Home in Palestine. In 1939, the White Paper, expressing a shift in policy, was issued. His Majesty's Government rejected the idea that Palestine should become a Jewish State and announced that hereinafter, Jewish immigration to Palestine would be limited and Jewish purchase of Arab lands prohibited.

The strait of Bab al-Mandeb, “the gate of tears” or “the gate of the wailing yard”, joins the high seas of the Gulf of Aden and the Indian Ocean to those of the Red Sea. The name is primarily used by geographers to designate the narrowest part of the passage, between Ras Bab al-Mandeb on the Asian shore and Ras Siyan in Africa. At this point it is bordered on the east by the Yemen Arab Republic (Northern Yemen) and the People's Democratic Republic of Yemen (Southern Yemen), and in the west by the Republic of Djibouti (formerly the French Territory of the Afars and Issas). About 14 miles farther north, where the Red Sea (or, for that matter, the strait) is nearly 20 miles wide, lies the coast of Ethiopia (the province of Eritrea). All the riparians claim a territorial sea of 12 miles, and the Yemen Arab Republic, as well as the People's Democratic Republic of Yemen, also claim jurisdiction for certain purposes in an additional zone of 6 miles.

On the eastern shore of the strait of Bab al-Mandeb lies the peninsula of Ras Bab al-Mandeb, which is about 6–10 km. wide. It consists of rocky, volcanic plains with several hills of 200–300 m. The coast of Ras Bab al-Mandeb is surrounded by coral reefs of a width of up to 1500 m. The border between North Yemen and South Yemen passes down the middle of Ras Bab al-Mandeb.

The United Nations Conference on International Organization (San Francisco, 25 April to 26 June 1945) initiated an era of quinquilingualism in the conduct of international organizational affairs, with Chinese, Russian, Spanish, English and French serving as its official languages, and the latter two as its working languages. The text of the United Nations Charter, according to Article 111, is authentic in these five languages. The distinction between official and working languages introduced at San Francisco set the pattern for linguistic practices at the United Nations. Each organ of the United Nations has since adopted language procedures suitable to its requirements, with the practices of the General Assembly initially following the pattern of the same two working languages and five official languages established at San Francisco. According to the rules of procedure of the General Assembly as in force until 1 January 1974, working languages were those in which verbatim records and the Journal were issued and into which all speeches were translated; as for the official languages, all resolutions, important documents and summary records were made available in them, and verbatim records and documents only upon the request of a delegation.

Spanish was added to English and French as the third working language of the General Assembly on 7 December 1948. Two proposals for the inclusion of Russian and Chinese respectively among the working languages of the General Assembly were rejected in 1949. The General Assembly's rules of procedure were not further altered in this respect until 21 December 1968, when Russian was included among its working languages. An amendment submitted on that occasion by (Nationalist) China with a view to eliminating the distinction between official and working languages in the General Assembly and Security Council by granting Chinese the status of a working language was rejected. Chinese was included among the working languages of the General Assembly on 18 December 1973. At that point all five Charter languages acquired both official and working language status, and the distinction between the two classes of languages ceased to have practical relevance.