It may appear unduly pretentious to speak of the Spirit of the Law of a State which just completed but 25 years of independent legislative and judicial life. States with legislative and judicial records of hundreds of years may find it difficult, and perhaps also rather unprofitable, to delve into speculations of the Spirit behind their laws. In most cases, the general trend and the political motivation of the creation and the administration of law are anyhow known beforehand and well defined a priori—be it the realization of democracy by the rule of law, be it the implementation of socialism or communism, or the self-assertion of a fascist or communist dictatorship. Add to such trends and motivations the national legal traditions which a State inherited and consciously or unconsciously continues to maintain—and you will obtain, for what it may be worth or useful, a fair overall picture of the “Spirit”.of its laws.

The subject matter of our discussion today is entitled “Written or Unwritten Constitutions”—but the real issue before us is the supremacy of the legislature. A written constitution is normally thought and spoken of as a curb upon the supremacy of the legislature; and a constitution under which the legislature is supreme, is normally called “unwritten”. I shall not presume to advise you in Israel as to whether you should give yourselves a written constitution: all I can venture to do is to give you some personal reflections from my own experience, as one who has lived his life and administered the law under an unwritten constitution.

So far as constitutional law deals with the structure of government—how laws are to be made, how they are to be put into effect, how disputes as to rights and obligations under the law are to be decided—it may or may not, in a unicameral legislature, be advisable to require that amendments of what I may call the structure of the constitution should be by a particular majority. Opinions on this may be divided, and I am not going to take any stand. What I should like to give some reflections upon is the proposal that there should be a “basic law” setting out the fundamental human rights and liberties, and what the status of that law should be.

Since 1950 four Basic Laws have been enacted: The Knesset, Israel Lands, The President of the State and The Government.

Some months ago the Ministry of Justice presented to the Ministerial Committee on Legislation the draft of a new Basic Law called Basic Law: Legislation. If this draft is approved by the Government, it will be presented to the Knesset as a Government Bill. The draft includes an outline of the basic principles and powers relating to legislation and the provisions which call for specific attention are as follows:

a) A Basic Law shall bear the name “Basic Law”.

b) A Basic Law, a law amending a Basic Law or a provision of law contradicting a provision of a Basic Law, shall require—on its final reading—the vote of a majority of members of the Knesset, provided the Basic Law involved does not explicitly require a larger majority.

c) A provision amending a Basic Law or contradicting it shall have the force of law only if it states explicitly that it is to have that effect.

Close to one billion people, a third of the total population of the world, live under systems of government broadly defined as liberal-democratic, of which it can be said that authority rests on public opinion and is accountable to it. Out of the said number, only sixty million, i.e., 6%, live in states which have no formal written constitution. Great Britain is a notable example. New Zealand is another. Israel is a third in this exclusive company. In these countries it falls to the Courts, fortified as they are by the traditions of the Common law, to be the mainstay of the liberties of the individual. The English Common law, however, is “just like an English oak. You cannot transplant it to (another) continent and expect it to retain the tough character which it has in England. It will flourish indeed but it needs careful tending”. (per Lord Justice Denning).

The application of western principles of the rule of law to the reborn Jewish State was more in the nature of a grafting than of a transplantation. It was a combination which offered an interesting legal experiment. While drawing upon ancient legal traditions and heritage, the Israel courts were vitalized through their access to the legal experience of English-speaking countries, especially so since the Common law in its mother country exemplified the adaptations of old principles to new needs long before it was exported abroad.

To reconcile the true boundaries between the individual and the community is the highest problem that thoughtful consideration of human society has to solve. Jellinek, The Declaration of the Rights of Man and of Citizens (1901).

The legislative authority in Israel is all-powerful. Like the English Parliament, the Knesset “can do everything but make a woman a man, and a man a woman”. In the absence of a formal written Constitution, the Legislature enjoys legislative supremacy: the laws of the Knesset stand at the top of the normative legal order of the State, paramount in the prevailing legal system. Ranged against such a Legislature-giant, whose power knows no formal restraint, the Courts often feel like Lilliputians facing a Gulliver. There is, indeed, justification for this sense of inferiority harboured by the Judiciary. It is undoubtedly true that in the process of adjudicating disputes—between two individuals and between an individual and the authorities—judges apply, construe, and develop the existing rules of law and impart life to them.

In speaking to an international congress on a given field of Israel law it would be natural, in order to facilitate communication with our guests from abroad, to compare the local law with the rules prevailing in one or more foreign systems. By doing so, similarities as well as dissimilarities could be pointed out and thereby the local picture put into proper perspective.

Such comparison would have been easier had this congress taken place some years earlier, say in 1967. At that time a sweeping statement to the effect that the law of contract in Israel was the same as in England would have been fairly correct. To be true, some remnants from the pre-Mandate period of Ottoman legislation were still in force. But their impact on the living law was almost negligible in the face of the pervasive influx of English law and its nearly total domination in the field of contracts.

English principles and precedents were applied throughout, whether in compliance with the mandate contained to that effect in art. 46 of the Palestine Order-in-Council of 1922 (which was maintained on the establishment of the State) or, simply because English law and English law reports were better known to most lawyers, both on the bench and at the bar. The papers read by Judge Baker and Advocate Shimron at the International Lawyers' Convention here in Jerusalem in 1958 bear ample witness to this state of affairs.

Societies consisting of persons who have associated for a common interest and for objects other than that of deriving profits, which are generally known in this country as “Ottoman societies” are regulated by the Ottoman Law of Societies of August 3, 1909, which is based on a French law of July 1, 1901. Such a society is formed by agreement of the founders and does not owe its existence to any registration, but its founders must notify the competent official of the formation of the society immediately after its formation and supply him with the prescribed particulars. No such society may be established contrary to the provisions of the law, public morality or with the intention of disturbing the peace of the country or aiming at disintegration of the State, or changing the form of the ruling Government, or causing dissension among different communities, and it is prohibited to establish political societies under the title of races and nationalities.

Among Ottoman societies are the Histadrut, WIZO, Hebrew University and professional associations such as the Bar Association.

A few years ago a Supreme Court Justice remarked that in Israel the strike was a sacred tradition. Indeed it was. But now, it is more often regarded as a nuisance. This change of attitude has been reflected in the law.

In this country, as in some other countries, the law concerning labour disputes has swung back and forth during the years like a pendulum: from severe restrictions under the Ottoman Empire, through de facto recognition during the British mandatory period, to a privileged status after the establishment of the State of Israel. True, even after the establishment of the State, the right to strike has not been expressly guaranteed by any statute. But in this respect, it is not different from other basic rights, such as the freedoms of expression or assembly, which are in the nature of common law rights. In fact, it fares better, since other rights are subject under various statutes to substantial restrictions. Only the right to strike was left virtually free from such legal restraints. One might be led to believe that to the socialist leaders of the country, most of whom rose to the Government from the ranks of the trade union movement, the right to strike was dearer than other civil liberties. During the first twenty years of the State, on the few occasions on which the legislature touched upon the right to strike, it only acted to protect it. Most conspicuous is the provision that a strike shall not be regarded as breach of a personal obligation on the part of the individual employee.

One of the events marking the legal development of this country which has taken place since the first International Congress of Jewish Lawyers and Jurists, is the coming into being of a new system of Courts—the Labour Courts. Israel thus joined the ever increasing number of states having a special judiciary to adjudicate in matters of labour.

The Law establishing the Labour Courts came into operation on September 1, 1969, exactly four years ago. This period is too short for a sound evaluation and because of my position, I am to some extent, disqualified from evaluating results and achievements, even in as far as already warranted by experience.

Being fully aware of these limitations, in this address I will try to present this new component of the Judiciary of Israel, and to outline the place of the Labour Courts in the Legal and Labour Relations Systems of Israel.

Before dealing with the Labour Courts, their composition and jurisdiction, it would, I believe be proper to make some remarks on the labour relations system of Israel, and to comment on some basic features of our labour law. This has to be done, since the Labour Courts, although institutionally and constitutionally part of the Judiciary, are an integral component of the labour relations system, just as the Judiciary as a whole is an integral component of the socio-economic and political system of any state.

A few days after the State of Israel was established in 1948 a law was passed by the Provisional Council of State which enacted, that the law in force in Palestine on the eve of the creation of the new State should remain in force in Israel, with such modification as the establishment of the State and its organs rendered necessary, until varied or revoked by the legislative organs of the State.

That meant, in effect, that as far as Criminal Law and Procedure were concerned, the rules of English law were retained by the State of Israel.

The substantive criminal law, the Criminal Code Ordinance, as enacted by the British Mandatory Administration for Palestine, is still in force in Israel, except for those parts that have been repealed or amended by the Israel legislature. This Ordinance was enacted in 1936 and constitutes an attempt to codify the English Common law. Similar laws were passed by the British Colonial Administrations in Sudan (1924) and in Cyprus (1929).

Under one of the provisions of this Ordinance, the Code and the expressions used in it have to be interpreted and construed in accordance with the rules of English law and interpretation.

It is difficult to compress within thirty minutes or so, a talk on the general part of the criminal law in Israel, its sources, development, present status and future projection. The very nature of the topic, the wealth of detail connected with issues of criminal responsibility, the multitude of theories and controversial approaches, prevents this, particularly when bearing in mind that in such a talk one purports to cover a period of twenty-five years of dynamic development with a law operating in a changing society, in an emerging State in a world in flux.

I shall thus merely attempt to outline some of the salient features of legislation and precedent in the field of criminal responsibility, employing broad generalizations, and perhaps glean in some detail certain opinions—touching variously upon the responsibility issue—which appear to be in the nature of landmark decisions, introducing a new trend in the development of the law.

The problem of the Jews in the Soviet Union is one of the most important issues that dominates our life today. It is not my intention to deal with the numerous aspects of this problem nor to describe the history of the struggle of Soviet Jewry. I shall deal only with some of the legal considerations concerning this issue and more specifically with four of them:

1. Is Israel entitled, from the point of view of International Law, to raise the issue of Soviet Jews in International Organizations in general? Is it not a violation of the Charter of the U.N. and an intervention in the domestic affairs of a Sovereign State?

2. Does public protest help in the defence of the rights of the Jews in the Soviet Union?

3. Does the Soviet Union violate Soviet law or any international obligation in discriminating against Soviet Jews?

4. According to International Law, is Israel entitled to grant Israeli nationality to Jews living in the Soviet Union?