Our purpose in this lecture is to deal with certain basic problems of the recent codification and recodification efforts, indicating particularly some of the major sources of their failures.

The Philosophical and Scientific Underpinning of Criminal Legislation: Both the American and the continental European law proceed either from an obsolete image of man or from a false conception of the impact of a given image on the legal issues at stake, especially those involving the ethical, constitutional demands of our times.

Jurists, lawyers and law professors on both sides of the Atlantic are still formulating criminal law issues in terms of the dichotomy of free will versus determinism. At one time, in Germany, legal insanity was defined in terms of “free determination of the will” and when prominent psychiatrists complained that on the basis of their particular discipline it was impossible for them to answer the question of whether a man did or did not possess such self-determination, legislators accommodated them, formulating the relevant question in terms of “capacity to conform to insight into the wrongfulness (or unlawfulness) of the act”.

The main modes of punishment in our penal system are imprisonment, suspended imprisonment and fines, the last being the most frequently used. Fines as a mode of punishment becomes more and more popular the more it is realized that a short sentence of imprisonment often serves no useful purpose and is sometimes even harmful. Furthermore, as criminal law expands into new areas, as a means for the enforcement of administrative regulations, on public health, road traffic, national economy, etc., fines are used more since in many of these cases imprisonment is not regarded as a suitable sanction.

Every one of the known aims of the penal sanction (retribution, deterrence, resocialization in their various aspects or, possibly a mere warning can be best achieved when the sentence is inflicted upon the defendant personally. There is no point, for instance, in imprisoning another person in place of the defendant or placing another on probation. In the same way fines too should be paid by the offender and not by anyone else.

In practice, the problem of another person taking upon himself the defendant's penalty arises mainly in respect to fines, because it is not likely that one person would be willing to suffer imprisonment on behalf of another and furthermore, the means of identification used by the prison authorities makes this extremely difficult.

This short article deals with two of the Deuteronomic laws: the law of the tithe (Deut. 14:22–28; 26:12–16) and the law of the Hebrew slave (Deut. 15:12–18). It is not intended to present a comprehensive study of these two laws, but to limit the investigation to the uncovering of those ancient laws referred to only by the author of Deuteronomy and not by the authors of the other Biblical codes, including that of the Covenant Code.

I. Bashanah hashlishit shnat hama'asar “in the third year, which is the year of tithing” (Deut. 26:12).

The reader of the law of the declaration of the tithe will quickly discern a contradiction: the tithe of the third year is given to the Levite, sojourner, orphan, and widow, bisharekha, literally, “within your gates” (within which there are no cultic places according to the laws of Deuteronomy—Deut. 26:2b). On the other hand, the tithe is declared in the Temple lifnei adonai “before the Lord” (Deut. 26:1s). Another surprising point is that the law creates an impression of unfamiliarity with the annual tithe. Apparently, only the triennial tithe is known: “in the third year, which is the year of tithing”.

Is a party who breaks his contract entitled to restitution? This is one of the most difficult problems in the law of contracts. Williston, for instance, remarks:

We shall examine this question in light of the provisions of the Contracts (Remedies for Breach of Contract) Law, 1970.

Sec. 9 of the Law reads as follows:

It is generally accepted that the source of the section lies in the traditional supremacy of the English Crown. Since the Crown is the lawmaker it cannot be fettered by the laws it makes unless there is express provision to that effect. On the other hand where laws confer rights upon the Crown, a contrary rule sometimes operates that a statute is to be interpreted in favour of the Crown, since in enacting it the King's subjects act as grantors of rights and the rule against derogation from grant takes effect. In point of logic, however, even without express provision there is nothing to prevent a lawgiver from placing restrictions upon himself.

In Jewish thought indeed although the law emanates from the Almighty, who is indeniably Supreme Authority—”the King of Kings”—it is deemed to apply even to Him.

It is surprising therefore to note that even in the United States, that model of democracy where the rights of the individual are so protected, the English approach has been adopted and extended to every government body even in the area of private law.