The privilege of giving a lecture in honour of so great a jurist as Lionel Cohen demands of the lecturer a fitting and challenging subject matter. My tribute to his memory takes the form of choosing such a topic. For the structure of Labour Law in Britain today has the appearance of an absurd paradox.

On the one hand, labour law still rests upon the traditional concept of the primacy of “voluntary” collective bargaining between employers and independent trade unions. Other than in exceptional war-time periods, the law, both in statutes and in certain areas of judge-made common law, recognises the priority to be accorded to voluntary agreements and arrangements, even to that “custom and practice” which is at the heart of the way things really work on the British factory floor. The law does not regulate the pattern of “bargaining units” as in the United States; it regulates neither the nature nor the administration of the collective agreement, even on interpretation of “rights”. as in so many European countries and in Israel; it establishes no national minimum wage. The law does not “intervene”. it is said, in industrial relations.

Even the exceptions prove the rule. Nearly four million workers of our 24 million workforce have their terms of employment legally determined by Wages Councils set up by Ministerial Order under statute. These bodies, first established in 1909, have on them employers' and workers' representatives with independent members.

This discussion covers some methods and institutions for changing procedures in the courts. More particularly, I refer to procedures for conducting litigations in courts of general jurisdiction, that is to say, civil procedure, criminal procedure and evidence.

Since criminal procedure and evidence are controlled here by statutes, I realize that when the terms “rules” or “regulations” are used you would normally think only of civil procedure. I use the term “rules” in a broader sense since in federal courts in the United States, most procedure governing civil and criminal trials and appeals, including evidence, stems from rules promulgated by the Supreme Court of the United States, subject to modification by Congress.

I shall describe briefly the history and present situation in the United States, making some reference to the British method, touch on the Israeli method, and then draw some general conclusions, raising some questions about the Israeli pattern as I understand it. These countries are comparable since each has a strong, independent judiciary and a tradition of freedom and the rule of law.

An exemption clause which purports to affect the rights and liabilities of a stranger to the contract raises the question of the connection between privity and exemption clauses. It is usual to regard the denial of validity to an exemption clause referring to the liability of a stranger as deriving from privity. Let us therefore commence by clarifying the meaning of privity and its relationship to exemption clauses and then go on to explain our view that such clauses should operate in favour or against a stranger in accordance with general principles of the positive contract law. Since privity has two aspects — denying a contract the capacity neither to benefit nor to harm a stranger — our treatment of the influence of privity upon exemption clauses will likewise deal with exempting a stranger and fettering him. After describing the situation in English law, we will turn to Israeli law which is no longer identical with English law, regarding the relationship between privity and exemption clauses.

The British strategy to tame the Palestine press was to be implemented through a sophisticated masterplan. The Press Bureau was reorganized and explicitly directed to woo journalists and thereby achieve press cooperation. Simultaneously, the iron fist of the Press Ordinance was cast, to be used in case gentle handling failed to bear the desired cooperation.

The British analyzed the pitfalls on the road to cooperation correctly. As early as 1932 the Press Officer observed that the “deep-seated antipathy of Arabs and Jews as represented by their respective presses” and “the fundamental opposition of all Arab press to the Mandate” might undermine the entire plan. But even this sober analysis could not foresee the dimensions of the coming crisis.

As Jewish immigration to Palestine and the economic prosperity of the country increased, the Arabs anxiety about their political future in Palestine intensified. In 1936, Arab tensions exploded in the Arab rebellion. Widespread terror, arson and general strikes engulfed the country, and this time they were directed not only against the Jews but also against the British Government. Under these circumstances, the British came to the conclusion that they could no longer support the idea of a Jewish National Home in Palestine. In 1939, the White Paper, expressing a shift in policy, was issued. His Majesty's Government rejected the idea that Palestine should become a Jewish State and announced that hereinafter, Jewish immigration to Palestine would be limited and Jewish purchase of Arab lands prohibited.