The ultimate stage of the criminal justice system — that of pardon, as well as amnesty, clemency, sentence reduction and early release — is one of the most neglected areas of criminological and penological concern. Indeed, there is a paradoxical symbolism in the fact that this final stage of the punitive process remains at the margins of academic concern. Essentially, for many prisoners, the actual penalty that they will serve is determined at this stage. The phenomenon of pardon is a variegated one, with many diverse expressions, and there is a pressing need for an overall integrative analysis.

Nafisi v. Nafisi (1996) 50(iii) P.D. 573

The parties were married in 1944 in Persia (Iran), where they were domiciled. In 1979 the husband visited Israel, and during his stay he bought a shop in Tel-Aviv, which he registered in his name. In 1983 the couple and their five children immigrated to Israel. They lived in an apartment registered in both their names. Shortly after their arrival in the country, the husband opened two bank accounts in his name and deposited amounts totalling $320,000, which he had brought with him from Persia. In 1987 the couple's marriage broke down. Despite the rift, they both continued to live in the family home. The wife petitioned the court for a declaratory judgment stating that the shop and the money deposited in the bank accounts were jointly owned by both spouses. The District Court ruled in her favour. The Supreme Court accepted the husband's appeal and held that the wife had failed to prove her right to community property. The wife requested a further hearing in the Supreme Court on the matter, and in the further hearing, the Court ruled in her favour, by a majority decision.

I first met Ze'ev Falk early in 1967, when I spent two months in Jerusalem in the course of my doctoral studies (with David Daube, in Oxford). His friendship and generosity to me during that period remain strong in my memory. Not only did 10 Harav Berlin become a home from home; from there he assisted me to meet others (not least, Nahum Rakover) who also became, in the years that followed, close colleagues and associates. His studies in Biblical legal terminology proved of great assistance to me, and his Hebrew Law in Biblical Times remains a useful starting point for the study of biblical legal institutions. In many respects, his early concentration on biblical law provided the foundations for his later thinking, for which he was perhaps better known in Israel, on the values of Jewish law and the problems presented by Jewish family law in modern times. I offer my tribute in the form of a study of Exodus 21:18–19, a text which, apart from its particular problems and interest, has proved a focus for debate upon the general character of early biblical law, and in particular the casuistic provisions of the Mishpatim.

In this paper I would like to examine the status of inheritors with respect to the religious obligations of a person who died and could not discharge them. Apparently, this question is completely unfounded: religious obligations are personal, and how could one person discharge an obligation by the act of another, and what possible religious value or significance could such an act have?

In our case the question is even more difficult, since the person under obligation is now dead and exempt from religious precepts. If so, what could the ramifications of his discharge from duties be? In the present discussion, I will question these premises and introduce two completely different approaches to understanding the concept of inheritance in Talmudic literature. I intend to draw attention to the close connection between the legal and religious parts of the Halakhah, which treat matters of religious permissibility and the fulfillment of religious precepts, in the same manner as they treat purely legal issues.

The European Convention on Human Rights is one of the manifestations of the Council of Europe, an organisation of European states founded in 1949 with the aim of strengthening the common democratic heritage. It is an international treaty which binds the contracting States to respect the list of human rights and freedoms it proclaims. An enforcement mechanism exists in the form of the European Court of Human Rights (in this paper called ‘the Strasbourg court’).

In brief, these rights and freedoms are the right to life (art. 2); freedom from torture or inhuman and degrading treatment or punishment (art. 3); freedom from slavery or forced labour (art. 4); the right to liberty (art. 5); the right to a fair trial (art. 6); freedom from retrospective criminal laws (art. 7); the right to respect for private and family life, home and correspondence (art. 8); freedom of thought, conscience and religion (art. 9); freedom of expression (art. 10); freedom of peaceful assembly (art. 11); and the right to marry and found a family (art. 12). Over the years, this initial list of rights has been expanded by a series of additional Protocols — not all of which have been ratified by all the Member States. The First Protocol, which Britain has ratified, guarantees the right to peaceful enjoyment of possessions, education, and free elections.

In March 1992, Israel's Parliament, the Knesset, enacted Basic Law: Human Dignity and Liberty. Some believe that this Basic Law has created a constitutional revolution in Israel, while others feel this view to be exaggerated. In any event, there is general agreement that the Basic Law, with its 13 brief sections, has effected many significant changes in numerous areas of law.

It is well known that criminal procedure and some parts of the law of evidence are particularly sensitive to constitutional changes. To what extent is this also true in Israel as a consequence of the Basic Law and interpretations given to it?

More particularly, what precisely does the Basic Law say, and what has the Supreme Court inferred from the principles of human dignity and liberty beyond the express provisions of the Basic Law? What influence does the Basic Law exert on new legislation and indeed on legislation preceding the enactment of the Basic Law itself? May one expect that the Supreme Court will adopt the idea that the Basic Law embodies an exclusionary rule of evidence obtained in breach of a constitutional right? These, and other relevant questions, will be discussed below. First, however, we shall refer briefly to the legal and social background of the Basic Law.

The purpose of this short essay is to examine how the constitution could contribute in the area of substantive criminal law. We should distinguish between two levels: the theoretical level and the realistic level. From a theoretical point of view, a lot could be expected from judicial review. The reason is the very broad gap between the principles of criminal law and the norms and real life of criminal law. Judicial review can function as a guardian — perhaps the guardian of the principles of criminal law.

To exemplify the gap between criminal law in theory and criminal law in practice, it is sufficient to mention three issues: Criminal law in theory is an instrument of last resort, but the reality of criminal law is that it is often an instrument of first resort. Secondly, in theory, the most basic principle of criminal law is the principle of legality, of prior warning, but when we read the statutory provisions of criminal law we understand that the citizen is not the real addresee of these norms. When we read case law in criminal law, we find out that real interpretation in criminal law has very little to do with prior warning.