When Dean Feller did me the honour of inviting me to give the Lionel Cohen lecture for 1973 one of the subjects I submitted, and the one accepted by him, was “Reforming the Law of Evidence—The English Experience”. For me those were the halcyon days before the publication of the 11th Report of the Criminal Law Revision Committee; the law of evidence in civil cases had been modernised by the Civil Evidence Acts of 1968 and 1972, and I pictured the draft Criminal Evidence Bill annexed to the 11th Report going merrily through Parliament, if not without some protest and amendment, at least with celerity and the certitude of becoming law. Alas, this was not to be. To describe the reception of the Report as “unenthusiastic” would be the understatement of the century; but, although I must confess to considerable pessimism concerning the questions when and to what extent the draft Bill will become law in England, I am pleased that it should continue to be the subject of my lecture, although the title of the latter had perforce to undergo some change in order to cater for the fact that the English experience of reforming the law of evidence is too incomplete to allow for profitable discussion.

Il y a des criminels que le magistrat punit, il y en a d'autres qu'il corrige … Ainsi il ne faut pas confondre les grandes violations des lois avec la violation de la simple police: ce sont choses d'ordre différent. (Montesquieu, Esprit des Lois, liv. xxvi, chap. 24)
Here is this important body of law … where … there is going on a judicial task that is one of interest and also one of considerable difficulty … That is what gives scope for students of law. Do not ignore it or brush it on one side or dismiss it as impossible of study.
(Sir Patrick Devlin, “Statutory Offences” (1958) 4
Soc. Pub. Teachers of Law 215)

The present article responds to Sir Devlin's appeal in favour of that body of law which, in the spirit of Montesquieu, deserves the distinctive name of “corrective law”. Its province mainly coincides with what is commonly called “public welfare” or “regulatory” offences, of which violations of traffic rules provide the most typical example.

Their common feature is that they are penalized independently of the state of mind of the perpetrator, being based on the principle of absolute or, at least, strict liability. To this principle the most authorized teachers of criminal law have expressed their hostility; and their reasons therefor are undeniably impressive. Nevertheless, far from dying out, the field of strict liability offences increases constantly and, by sheer weight of number and variety, they greatly exceed those of “ordinary” crime.

1. May a Judge Refuse to Pronounce Judgment?: In modern legal systems, the judge cannot as a rule evade his basic duty, that of adjudicating. He has the option of either allowing or of rejecting the plaintiff's claims. Under the rules of criminal procedure adopted by several countries, he may acquit for insufficient evidence. But he cannot be released from exercising his function as a judge, claiming either that the facts of the case are not sufficiently clear to him (factual doubt), or that the norm to be applied in the specific case cannot be determined (judicial doubt), or even that there exists no fixed norm for the determination of the case (lacuna in the law).

Thus the Code Civil des Français (or Code Napoléon) lays down explicitly: “A judge who refuses to decide a case, on the pretext that the law is silent, obscure or insufficient, may be prosecuted as being guilty of denial of justice”. This article is the outcome of a long evolutionary process. Prior to the French Revolution, before the separation of powers, the main question was not that of lacunae but rather that of the directions given to the judge in order to help him carry out his functions.

The application of foreign law in American courts forms the subject matter of much comparative law writing. Two alternative approaches are usually adopted by the comparative legal scholars. One studies pleading and proof of foreign law in American courts; the other studies the substantive use of foreign law by American courts. No studies of the actual use of Jewish law by American courts are to be found. In what follows an attempt will be made to fill the gap and to draw some conclusions concerning the relevance and advantages to the courts, the parties and society generally of such use of Jewish law.

All reported cases which have expressly made some use of Jewish law are collected and analyzed in this article. In addition, the application of Jewish law to the resolution of conflicts presently handled by the courts is discussed.

The reported judgments in which a party's appeal to Jewish law was considered relevant are classified according to American law classifications as opposed to Jewish law classifications. Finally, the actual relevance and the relevance in the eyes of the presiding judge of the Jewish law to the controversy before the court is examined.

One of the principal functions of military government in an occupied area is to return civil life to its normal course. Such a goal is not only a political objective whose advantages are obvious; it is also based upon the principles of International Law and the Law of Warfare. The military administration bears responsibility for restoring public order and safety and maintaining essential services, so that it may fulfil the civil functions of government for the welfare of the population in the occupied area.

In the intricate framework required to supply services to the population of the occupied area by the military administration, the local municipal authorities play a substantial role. These authorities regard themselves as being closer to the residents of the occupied areas, and thus they see it as a moral duty to take care of their population and provide it with daily services.

During periods of crises and war the population tends to a greater extent to shut itself within its immediate surroundings and to request aid and encouragement from familiar local bodies; thus it becomes more and more dependent on the local authorities.