Duress, self-defense and necessity in israeli law

Israel Law Review

Volumn 30, Issue 1-2, 1996, Pages 188-206

  Enker, Arnold ^a  

^a BAR ILAN UNIVERSITY   (Israel)

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EID: 52849124977     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700015041     Document Type: Article

References (27)

1. The Criminal Code Ordinance was promulgated by the British High Commissioner and became effective in 1936. It was based on the English common law and is much the same as criminal legislation introduced by the British in other colonies. The history and sources of the Criminal Code Ordinance were uncovered and described in two important articles: Abrams, “Interpreting the Criminal Code Ordinance, 1936: The Untapped Well”, (1972) 7 Is. L.R. 25
2. Shachar, “The Sources of the Criminal Code Ordinance 1936”, (1979) 7 Iyunei Mishpat 75.
3. In 1977, work was completed on the New Version of the Criminal Code Ordinance. Since by then many provisions of the special part of the Ordinance had been amended by the Knesset, it would have been somewhat misleading to call the Code a “New Version” of the Criminal Code Ordinance. It was, in fact, in part, a New Version of the Mandatory Ordinance and, in part, original Israeli legislation. The Committee chose to call the code the Penal Law, 5737–1977. But despite the name, sections 21 and 22 of the Penal Law were not new Knesset legislation. They were merely a New Version of sections 17 and 18 of the 1936 Criminal Code Ordinance, which had governed duress and necessity since 1936.
4. Section 17 continues to be the governing law, in its Hebrew New Version. It is now section 21 of the Penal Law 1977. See n. 1, The Committee chose to call the code the Penal Law.
5. This matter was dealt with at length in Enker, Duress and Necessity in the Criminal Law (Bar IIan Univ., 1977).
6. Section 18 also provided the source in Israel law for self-defense. In this case, too, the legal literature proposed to solve the problem by interpreting the requirement of proportionality differently in cases of necessity and in cases of self-defense. Feller, “Necessity ‘Stricto Sensu’ as Negating the Illegality of the Act”, (1–972) 4 Mishpatim 5
7. Enker, Mishpatim, at 97–105.
8. See Stephen's History of the Criminal Law of England, vol. 2, (1883) p. 107.
9. R. v. Dudley and Stevens, (1884) 14 Q.B. 273.
10. In the fourth edition of his Digest of the Criminal Law, published after the decision in the Dudley case, Stephen expressed the opinion that he could “discover no principle in the judgment” (p. 25).
11. Feller, “discover no principle in the judgment”
12. Enker, “discover no principle in the judgment”, at 97–105.
13. Shachar, “discover no principle in the judgment”.
14. Attorney General v. Patniev, (1949–1950) 2 P.D. 424, at 447.
15. Feller, P.D.
16. Enker, P.D.
17. Enker, P.D., at 117–125.
18. P.D.
19. Afanjar v. The State of Israel, (1979) 33(iii) P.D. 141.
20. Special Military Tribunal 2/91, The Chief Military Prosecutor v. Lt. Col. “R”, at p. 8.
21. Attorney General v. Kaminsky, (1955) 9 P.D. 54.
22. Ashwal v. Attorney General, (1952) 6 P.D. 1116.
23. Kaminsky, P.D.
24. See, e.g., Enker, P.D.
25. S.Z. Feller, Elements of Criminal Law, vol. 2 (1987) para. 494, pp. 393–394
26. Fletcher, “Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory”, (1973) 8 Is. L.R. 367
27. Kremnitzer, “Proportionality and the Psychotic Aggressor: Another View”, (1983)18. Is. L.R. 178.