If an English lawyer looks at modern American literature on civil procedure, his first reaction tends to be one of incredulity or incomprehension; the literature deals with subjects of which he has never heard and seeks solutions to questions he has never thought of asking. After some reflection, however, it probably dawns on him that American scholars are writing against a background of assumptions about the process of litigation which he does not share and that those assumptions stem from developments which have occurred in the United States but which have not yet occurred in England or, for that matter, in the other countries of Western Europe. No one in England could write an article such as I received recently from the United States on “Conflict and Dissent in Class Actions” for the simple reason that the class action as it exists in the United States has not yet developed on our side of the Atlantic. Nevertheless, it is now clear that new demands are being made in Europe on the process of litigation, demands which may in time lead to developments such as have already occurred in the United States, and it is these demands which lead to the dilemmas to which my title refers. I want, therefore, to draw attention to two such demands—both very broadly stated—and to the dilemmas they produce, limiting myself mainly to England but with occasional glances elsewhere. This is not a lecture on American law, but it could perhaps be described as one on “pre-American” law.

In an article published in this journal in 1973, Professor George P. Fletcher maintained that there ought to be no limitation of proportionality on the exercise of self-defense. The requirement of proportionality signifies that there is a limit to the price society is willing or agreeable to pay for the protection of a legitimate interest against an unlawful attack. The right to use self-defense therefore rests upon the condition that there be some kind of relationship, which is not one of equivalence, between the interest attacked and that sacrificed in order to save it. In the absence of such a relationship, self-defense may not be employed. Thus, for example, in the case of a petty theft, if the interest attacked (ownership or possession of the property) can be defended only by inflicting serious injury—death or grievous bodily harm—upon the aggressor, one must refrain from doing so, even if this means sacrificing the interest at stake. If self-defense is not circumscribed by the requirement of proportionality, then the owner of an apple orchard who shoots and kills a thief, lacking any other means of stopping him from running off with the fruit he has stolen, will bear no criminal responsibility for his act.

In the Secret Monitoring Law, 5739–1979, the Israeli legislature enacted special protection of an individual's right to privacy with respect to his conversations. The Law prohibits:

a) the secret monitoring of a person's conversation without lawful authority,

b) knowingly using, without lawful authority, any information of the contents of any conversation obtained by secret monitoring, or knowingly disclosing any such information or the contents of any such conversation to a person not authorized to receive it.

The legislature, however, grants to certain investigative authorities (The Security Service and the Police Force) the right to conduct secret monitoring pursuant to certain statutory provisions. The legislature provided for this exception to the general prohibition whenever monitoring is deemed essential for reasons of state security, or in order to prevent offences or to detect offenders.