UPDATE: A Guide to Legal Research in Israel

 

By Michal Tamir

2011 update by Esther Mann Snyder

 

Prof. Michal Tamir is an associate professor in the Academic Center of Law and Science, Israel. She earned her LL.B. (Magna Cum Laude) from the University of Haifa in 1995. She then became a clerk of Israeli Supreme Court Justice Itzhak Zamir. After her admission to the Israeli Bar, she served a short time as a legal assistant in the Supreme Court. She received her LL.M. (Summa Cum Laude, 1999) and her LL.D. (SJD) (2005) from the Hebrew University of Jerusalem. The Topic of her doctoral dissertation is Selective Enforcement, with Prof. Itzhak Zamir as advisor. Throughout her studies, prof. Tamir won numerous prizes. In the 2005/6 academic year, she was a Global Research Fellow with the Hauser Program at the NYU School of Law. In the 2012/13 academic year she was a Tikvah fellow in residence, in the Tikvah Center for law and Jewish Civilization, NYU. Among the courses she currently teaches are ”Constitutional Law”, "Administrative Law", "Criminal Procedure", "Law of Tenders", "Human Rights in Private Law". Her main work focuses on issues concerning administrative and constitutional law, the interactions between private and public law and between constitutional law and criminal procedure. She has published two books “Selective Enforcement” and “The State Comptroller: Critical Look”, in addition to many articles in English and Hebrew.

 

Esther Mann Snyder earned her B.A. from Yeshiva University, and M.L.S. from Columbia University. Esther founded the Law Library at Bar Ilan University and has been its director for over 30 years. She taught legal research in the Law Faculty, founded the Committee of Law Library Directors in Israel and served on the Steering Committee of the Special Library Association in Israel. Esther wrote articles and a book on Israeli legal bibliography and research, Israel: A Legal Research Guide, published by Hein in 2000.

 

Published January 2016

(Previously updated by Esther Mann Snyder in Jan. 2011)

See the Archive Version!

 

 

 

1. Country Information

Established on May 14, 1948, in the wake of the Holocaust, the State of Israel brought to an end 2,000 years of exile of the Jewish people. It was the fulfillment of Zionism – a movement based on the idea of a national state in Eretz-Israel (Palestine). Israel spans 470 kilometers in length and is 135 kilometers at its widest point. Located in the Middle East, Israel is bordered by Lebanon, Syria, Jordan and Egypt. It lies at the crossroads of three continents: Europe, Asia and Africa. The climate is warm and sunny, with a rainy season from November to April.

 

The country’s population is heterogeneous, reflecting its history. Of the 8.4 million inhabitants of Israel, most are Jewish with a large Arab minority consisting of Moslems, and also a Christian community. The Druze constitute another, smaller minority. The Jewish population itself is multi-cultural, consisting of immigrants from many parts of the world. One can also distinguish, among the Jews, between secular and various types of religious groups. The official languages are Hebrew and Arabic, with English and other languages functioning in various areas. Israel’s capital is Jerusalem – a holy city for the three monotheistic religions. The two other main cities are Tel-Aviv and Haifa. Most of the inhabitants live in the cities, but there are also unique cooperative and communal settlements, like the kibbutz and the moshav, as well as villages and rural settlements.

 

Israel is a parliamentary democracy with legislative, executive and judicial branches. As a welfare state, Israel’s social service system is based on legislation that provides for workers’ protection and other national services. Although influenced by both common law and civil law, the Israeli legal system has its own special characteristics. There is no separation between state and religion since being Jewish describes both a citizen’s religion and nationality. Nevertheless, the state and its legal system are based on secular foundations.

 

2. History

Three layers of law, reflecting the historical background of Israel, can be identified in various degrees in contemporary law: Ottoman, British Mandatory and Israeli.

 

Ottoman Period: Between the years, 1517–1917 Palestine was ruled by the Turks as part of the Ottoman Empire. The local law was dominated by codes. The Mejelle, an Ottoman codification of civil law, held a major role. Drafted by Moslem scholars, it was influenced by Napoleon’s Code Civil and published in 1867-1877 by the Ottoman Sultan. The Mejelle was translated into Hebrew as well as English. See: Hooper, Charles A. The Civil law of Palestine and Trans-Jordan. 1933.

 

It consisted of legal provisions for obligations, torts, property, commerce, corporation and procedure, and was liberally illustrated by examples. The Mejelle was rescinded in 1984 by a special Israeli law. The Mandate government and the subsequent Israeli legislature rescinded most of the Ottoman laws, leaving only a few remainders that still exist today. For example, articles 80-82 of the Ottoman Civil Procedure Law (1879) are a part of Israel’s evidence law. The contemporary significance of the Ottoman legal system arises from the basic legal rule by which a legal system does not deny rights previously given by a former legal system. Thus, although the Israeli Real Estate Law rescinded the Ottoman Real Estate Law, it protected rights that had been gained according to it.

 

Mandate Period: In 1917, the British troops defeated the Turks and occupied Palestine. At first the British ruled by martial law, but a civil administration was in force de facto by 1920. After obtaining the Mandate on Palestine on July 24, 1922 from the League of Nations, the British started ruling de jure. On August 10, 1922, the Crown published an Order in Council, ratifying previous British legal actions and setting forth the Mandatory government structure. Article 46 of the Order in Council, which stated that a lacuna in the domestic law would be filled by absorption of English law, was the channel through which the English Law ruled in Palestine. Article 46 was rescinded in 1980 but its impact was profound and transcended its formal existence, as the reliance on British judge-made law contributed to the confidence in the creative power of the local courts. Another type of legislation was the ordinances enacted by the High Commissioner for Palestine in his capacity as legislator, and regulations issued by him in his capacity as executive. The jurisdiction of the Mandatory Supreme Court, dominated by British judges, was similar to the prerogative power of the High Court of Justice in England.

 

The official publication of legal materials by the Mandate government was printed in: The Official Gazette (O.G.) 1917-1922, followed by the Palestine Gazette (P.G.) 1922-1948. The main section contained notices of the government. Supplement 1 consisted of primary legislation called ordinances. Supplement 2 held subsidiary legislation – regulations. In some years, additional supplements were published containing patent and trademark materials. A compilation of laws in force in 1933 was produced in English, in 3 volumes, entitled The Laws of Palestine. It was prepared by an official of the Mandate government, Robert Drayton. It was translated into Hebrew and Arabic versions. Mandate laws continued in force after Israel gained independence unless or until superseded by legislation of the Knesset.

 

Some judicial decisions were published during the Mandate period but have no precedential value.

 

On November 29, 1947, the United Nations General Assembly passed a resolution calling for the establishment of a Jewish state in Eretz-Israel. The birth of the Israeli legal system was on May 14, 1948 when the British relinquished the Mandate over Palestine and the People's Council (a body representing the Jewish community) proclaimed the establishment of the State of Israel. The Declaration, known as the Declaration of Independence, ensured the governing continuum by stating that until the election of the permanent authorities, the People's Council would act as Provisional Council of State, and the People's Executive (the executive organ) would constitute the Provisional Government. The legal continuum was achieved by the first enacted law – the Law of Administrative Ordinance (1948), which provided that the existing law would remain in force subject to the laws, which would be enacted, and to such modifications as might result from the establishment of the state and its authorities. The Constituent Assembly was elected upon an ordinance that was passed by the Provisional Council. Its first law to be enacted was the Transition Law (1949), which laid the foundations for the permanent government. This law declared that the Israeli parliament would be named “Knesset” and that the Constituent Assembly would be named “The First Knesset”. The first Knesset enacted one of the most important laws of Israel – the Law of Return (1950), which expresses the historical connection between the Jews and the land, guaranteeing all Jews the automatic right to immigrate to Israel and become citizens.

 

Hostile relations between Israel and the surrounding Arabs states, military confrontations that took place from the very inception of the state and prevailing security problems have always had a fundamental impact on various aspects of the Israeli psyche. Thus, in 1948 the Provisional Council exercised the right given by the Administrative Ordinance and immediately declared a state of emergency in Israel, a declaration that still holds and which is periodically prolonged by the Knesset.

 

In 1967, during the Six-Day War, Israel captured territories including the eastern part of Jerusalem, part of Jordan (the West Bank), the Egyptian Sinai Peninsula and the Gaza Strip, and the Golan Heights region of Syria. Eastern Jerusalem was annexed to Israel in 1967 and the Golan Heights Law (1981) declared the application of Israeli law to the region. The other territories were under a regime of belligerent occupation, ruled by martial law by virtue of public international law. Nevertheless, the Israeli Supreme Court has been exercising review over the military commanders, stating that they are obligated to operate according to the provisions of Israeli administrative law such as the rules of natural justice. On the basis of the Camp David Accords (1978) and the Egyptian-Israeli Peace Treaty (1979), Sinai was returned to Egypt. In 1994, a peace treaty between Israel and Jordan redefined the permanent boundary between the countries. As part of the peace process with the Palestine Liberation Organization (PLO) and according to the Oslo accords signed in 1993 and 1995, the Palestinian Authority gained various degrees of control over some of the territories of the West Bank and the Gaza Strip. In 2004, after the State of Israel had come to the conclusion that there is no reliable Palestinian partner with which it can make progress in a two-sided peace process, it had developed the plan of unilateral disengagement. Accordingly, in 2005 Israel evacuated the Gaza Strip, including all existing Israeli towns and villages, and redeployed outside the Strip. The disengagement plan was based on the argument that Israel needed not maintain the status-quo only because it could not move to a final-status agreement in one-step. Instead, it could make incremental progress aimed at improving its military, political and economic position. Indeed, final agreements have not yet been reached to date covering all the territories and the continuation of the conflict still influences the political, social, economic and legal conditions in Israel.

 

3. The Legal System

Although the new state, founded in 1948, left part of the existing legal system untouched, it soon began to reconstruct it by making some reforms. This process has not been completed yet, but an impressive legal system has been developed over the 67 years of Israel’s existence. The footprints of various legal systems can be found in the Israeli system: the codification of private law often relies on European civil law; almost all public law is judicial as in the common law tradition; and the emerging constitution is influenced by American conceptions. Jewish law is applied in the Rabbinical courts and is sometimes referred to in the civil courts.

 

3.1 Constitutional Background

The country has no written constitution in the sense of a single document superior to all other norms. The Declaration of Independence established Israel as a Jewish, democratic state, which grants “complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex”, and “freedom of religion, language, education and culture”. Nevertheless, bearing no status of a formal constitution, the Declaration could only serve as a source of inspiration for the Supreme Court in developing the law, but statutes could not be declared invalid due to incompatibility with the declarations principles. The Declaration of Independence also states that the elected Constituent Assembly should adopt a constitution not later than October 1, 1948. Indeed, with the foundation of the State of Israel, it was assumed that the legal source of the rule of law and the state's commitment to basic rights and freedoms would take the form of a written constitution, as the authority to enact a constitution was given to the first Knesset (the Israeli Parliament), in its capacity as “Constituent Assembly”.  However, because of the heated debate between supporters and opponents of a formal constitution, a decision was made in 1950 to postpone the adoption of a constitution as one document and instead to prepare a series of individual chapters each in a form of a "Basic Law". Thus, to this day there is not a single-document written constitution.

 

To date, twelve Basic Laws dealing mainly with institutional aspects of state and human rights have been enacted. The existing Basic Laws are:

 

·       The Knesset

·       Israel Lands

·       The President of the State

·       The Government

·       The State Economy

·       The Army

·       Jerusalem, the Capital of Israel

·       The Judiciary

·       The State Comptroller

·       Freedom of Occupation

·       Human Dignity and Liberty

·       Referendum

 

Some of the Basic Laws include “formal entrenched clauses” that require a special Knesset majority to be modified.

 

In 1992, the Knesset passed two Basic Laws regarding human rights that constitute a partial Bill of Rights[1]. This development was crowned as “the constitutional revolution.” Given the central role basic rights have always played in judicial decisions in Israel, the revolution was not in the sense of defining protected rights, but in providing substantive restrictions over legislation that would be inconsistent with those rights and, as a byproduct, supporting the Supreme Court’s willingness to review such legislation. Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation include a “substantive limitation clause” declaring that infringement of the protected rights can only be done by a statute, or by virtue of a statue, that befits the values of the state of Israel, for a worthy goal and to an extent not exceeding what is necessary (a demand of proportionality). According to Supreme Court’s ruling, at least the entrenched basic laws (those that contain formal or substantive limitations) have constitutional status, meaning that they enjoy normative preference over other legislation. Thus, a statue can be declared invalid because of its infringement on a basic law’s provision.

 

The principle of Israel being a “Jewish and democratic State” originated in the Declaration of Independence and has been incorporated in the two basic laws regarding human rights, whose stated purpose is “to entrench in a basic law the values of the State of Israel as a Jewish and democratic State”. The important implications of this declaration, as well as its vagueness, have led to a wide debate about the interpretation and compatibility of the terms “Jewish state” and “democratic state”. Another question is whether the concepts of freedom of speech and the right to equality, which were developed by the Supreme Court through case law, are implied in the phrase “human dignity”. It is widely agreed that although not mentioned explicitly, these rights are protected by Basic Law: Human Dignity and Liberty. 

 

3.2 Legal Sources

Other legal sources, normatively inferior to the basic laws, are specified in the Foundations of Law Act (1980). This law rescinded Article 46 of the Palestine Order in Council, 1922 which subjected Israeli law to English guidance, and stated that “Where the court, faced with a legal question requiring decision, finds no answer to it in statute law nor in case law nor by analogy, it shall make decision in accordance with the principles of freedom, justice, equity and peace found in Israel’s heritage”.

 

3.2.1 Legislation

The main source of law is legislation. Three groups of legislation can be identified: primary legislation, secondary legislation and emergency legislation. Primary legislation refers to enactments of the Knesset, which are called “statutes” (enactments inherited from the British Mandatory period are called “ordinances”). The primary legislation covers most of the legal issues. Nevertheless, it usually leaves ample room for details to be stipulated in secondary legislation, enacted by administrative authorities empowered by the Knesset. Secondary legislation enactments are called “regulations”, “orders” or “by-laws”, all of which can be declared invalid due to want of power or on other grounds of judicial review. The state of emergency empowers the government to adopt by regulations any measures it deems appropriate for the defense of the state, public security and the maintenance of supplies and essential services. Emergency regulations may alter, suspend or modify laws of the Knesset for a limited period. These regulations provide the executive with wide ranging powers, yet the executive uses this power sparingly.

 

Primary Sources

 

The official enactments of the government are published in the Official Gazette, called in Hebrew "Reshumot." It is a chronological publication that began in 1949. It consists of a number of series as follows:

 

·       Sefer Hahukim – primary legislation

·       Hatza'ot Hok – draft laws

·       Kovetz Hatakanot – subsidiary legislation, regulations. It has two supplementary series dealing  with customs duties and purchase tax, and local government ordinances

·       Yalkut HaPirsumim – government notices

·       Kitvei Amana – treaty series

 

It also has series for patents, designs and trademarks. Unofficial compilations of laws and regulations, as well as online databases are listed in the Resources section, para. 8.

 

3.2.2 Case Law

The historical connection with English law associates the Israeli legal system with the common law. Indeed, another formal and highly important source of law is the precedent. According to Basic Law: The Judiciary, a court is bound by a higher court’s decision, whereas the Supreme Court is not bound by its own decisions.

 

Not only is legislation mediated through judicial interpretation as in the common law tradition (and not by doctrine as in civil law), but some areas of the law are almost totally judge-made. Thus, the decisions of the Supreme Court in its capacity as an administrative tribunal are the main source of Israeli administrative law. For example, the two rules of natural justice that bind all the administrative authorities (the rule against bias and the right to a hearing) have been developed through case law.

 

Moreover, the absence of a formal written constitution influenced the development of administrative and constitutional law dramatically. As Professor Itzhak Zamir stated:

 

In Israel, administrative law is, in a sense, more than just administrative law. It accounts for many of the norms and values which make Israel a free society governed by the rule of law. In many countries, this may be attributed to constitutional law. In Israel, however, in the absence of a written constitution, basic principles such as the rule of law, equality before the law, and fair government originated in administrative law, mainly through judicial review of administrative action [2].

 

In other words, constitutional law was developed through principles of administrative law. The main principle governing administrative power is that of administrative legality, which prescribes that an administrative authority possesses only such power as has been vested in it by statute. This principle serves also to safeguard human rights, as the administrative authorities are not allowed to infringe upon freedoms if there is no statute curtailing those freedoms. Although the primary legislation (before the enactment of the basic laws concerning human rights) could contain limitations on human rights, the Supreme Court employed the tool of creative statutory interpretation using the presumption that the Knesset intended to uphold such rights. Thus, the Supreme Court developed extensive case law dealing with tests of balancing basic rights with other rights and interests.

 

3.2.3 Analogy

Analogy, as a source of law, enables filling lacunae in a way compatible with other provisions of the legal system. Illustrating the principle of equality, analogy provides similar solutions to similar situations.

 

3.2.4 Israel’s Heritage

The vague reference in The Foundations of Law Act to “principles of freedom, justice, equity and peace of Israel’s heritage” was a source of some controversy as it raises the question of religious law as a formal source of law. Some interpret the phrase as synonymous with Jewish law, but the common view is that it refers to the “Jewish tradition”, which is a wider concept than “religious law”.

 

3.2.5 Usage and Custom 

Until 1984, usage and custom were also formal sources of law, by virtue of the Mejelle. Whereas, the bill for the rescindment of the Mejelle stated that as far as a custom had been absorbed into the Israeli system there was no intention to root it out, The Foundation Act does not mention custom or usage.

 

3.2.6 Jewish Law

The religious courts dealing with Jews in Israel, called the Rabbinical Courts, adjudicate according to Jewish Law. Jewish law is also used in the secular courts from time to time as another possible source of law. This is based on the Foundations of Law, 1980 which encouraged the use of Jewish legal sources although the term Jewish law is not expressly mentioned, preferring the terminology" principles of freedom, justice, equity and peace of Israel's heritage."

 

The term Jewish law covers a very broad range of topics. However, for use in the legal system the term (in Hebrew called Mishpat Ivri) in its currently accepted meaning includes only those parts of Halakha corresponding to the topics generally included in the corpus juris of other contemporary legal systems, namely, laws that govern relationships in human society and not precepts that deal with the relationship between people and G-d. [Elon, M. Jewish law: History, sources and principles. Jewish Publications Society, 1994, vol. 1, p.105].

 

The decisions of these courts are published in Piskei Din Rabbaniim, Vol. 1, 1953 – 22, 1997.

 

For additional information on Jewish Law as well as references and bibliography, see:

 

·       Esther M. Snyder. Israel Research Guide. Hein, 2000. pp. 52-66.

 

Here is a small selection of basic books in English on the topic of Jewish law:

 

·       Steven H. Resnicoff, Understanding Jewish law, LexisNexis, 2012.

·       Elon, Menahem. Jewish law: History, sources and principles. Translated from the Hebrew.

·       Jewish Publications Society, 1994. 4 v.

·       Jewish Law (Mishpat Ivri): cases and materials. NY, Bender, 1999. (Casebook).

·       Principles of Jewish law. Jerusalem, Keter, 1975. Collection of articles that appeared the Encyclopedia Judaica. Jerusalem, Keter, 1974. 16 v.

 

4. The Political System

The Israeli political system was described by Professor Eli Salzberger as an “intriguing combination of a Westminster and a Continental-European type of parliamentary democracy, with an increasingly effective American flavoring.”[3] The government is headed by a prime minister who generally leads a coalition government.

 

4.1 The President

The head of the state is the president, elected by the Knesset in a secret ballot for a seven-year term. Basic Law: President of the State defines the functions of the president, which are primarily ceremonial and formal, such as signing new laws and accrediting Israeli diplomatic representatives. In addition, the president exercises the discretional power to pardon prisoners or to commute their sentences.

 

After elections, the President holds consultations with all the parties elected to the Knesset (Parliament), after which he formally designates one Member of Knesset (usually the leader of the largest party) to form a government. Changes in the law since 1996 made it possible for the Prime Minister to dissolve the Knesset; however, to do it he must first obtain the consent of the President.

 

4.2 The Knesset (The Parliament)

The House of Representatives (The Knesset) is a single-chamber legislature consisting of 120 members, elected usually every four years. According to Basic Law: The Knesset, the elections are general, direct, equal, secret, and proportional countrywide. The "proportional" system of elections means that any list getting more than 2% of the votes makes it to the Knesset. The inherent fragmentation of the society is reflected by the number of parties. The resulting fragmentation of the Knesset always requires coalition-governments, i.e. the Prime Minister and the large parties are "hostages" to the small parties and any crisis can result in a vote of non-confidence. The recent March 2006 were the forth elections in less than seven years, or the fifth elections in less than ten years. No less than 31 lists ran in the elections (in a country of only seven million people), and as many as 12 parties made it into the Knesset.

 

The Knesset is a unique parliament because it not only enacts general legislation, but it also serves as a Constituent Assembly, the capacity in which constitutional laws are enacted. Another task is supervision of the Government, which holds office by virtue of the confidence of the Knesset.

 

The Knesset fulfills its functions by plenary, in which all its members sit, and by standing committees. The committees’ duties include inter alia the preparations of bills, which have to undergo three readings in the plenary in order to pass and become laws of the land.

 

Proceedings of the Knesset are published in a series called, "Divrei HaKnesset." They are also available on the Knesset website.

 

4.3 The Government

The Government, which heads the executive branch, is the main policy-making body, composed of cabinet ministers and headed by a prime minister. Most of the ministers are responsible for one or more departments of the administration, but ministers can also serve without portfolio. All the ministers are collectively responsible to the Knesset, for the decisions and actions of the government as a whole and for those of each individual minister.

 

The government, like all other authorities, must base its acts on law according to the principle of legality. Beyond the powers specified in various statutes, Basic Law: The Government states that subject to any law, the government is competent to perform any act that is not enjoined by law upon another authority. The extensive functions of the executive branch have tended to result in a growing bureaucracy.

 

The new government formed in May 2015 is Israel's 34st government, which reflects a life expectancy of two years per government.

 

4.3.1 List of Government Ministries

Currently, there are twenty nine Government Ministries: (This number can change when new coalition governments are formed)

 

1.     Prime Minister's Office

2.     Ministry of Defense

3.     Ministry of Public Security

4.     Ministry of Finance

5.     Ministry of Economy

6.     Ministry of Foreign Affairs

7.     Ministry of Interior

8.     Ministry of Justice

9.     Ministry of Public Security

10.  Ministry of Environmental Protection

11.   Ministry of Education

12.  Ministry of Religious Services,

13.  Ministry of Culture and Sport

14.  Ministry for Social Equality  

15.  Ministry of Agriculture and Rural Development

16.  Ministry of Science, Technology, and Space

17.  Ministry for the Development of the Negev and Galilee

18.  Ministry for Regional Cooperation  

19.  Ministry of Construction and Housing

20.  Ministry of Health

21.  Ministry of Aliya and Immigrant Absorption

22.  Ministry of Social Affairs and Social Services

23.  Ministry of Transport and Road Safety

24.  Ministry of Tourism

25.  Ministry of Industry, Trade, and Labor

26.  Ministry of Communications

27.  Ministry of National Infrastructures, Energy, and Water Resources

28.  Ministry of Public Diplomacy and the Diaspora

29.  Ministry of Intelligence Affairs

 

4.4 The Judiciary

The judicial authority in Israel is independent, which means that in the fulfilling of its functions it is not dependent on another authority or person. This independence is both personal and material. Personal Independence is ensured by the manner of appointment of the judge, his promotion, the length of his term of office, the condition of his service, his salary, his immunity and matters of judicial discipline. Material Independence is provided by Basic Law: The Judiciary, which declares that “in the discharge of his judicial functions, a judge is subject only to the law”.

 

Court sessions are public except under special circumstances where the law permits holding closed hearings. Israel rejects the institution of lay judges, so jurors do not participate in court proceedings. The system is adversary, namely the Anglo-American method of adjudication, in which the responsibility for finding the truth rests almost exclusively with the opposing parties and their lawyers, through examination and cross-examination. The attorneys are supposed to adduce and analyze sufficient material on which the court may base its decision. When more than one judge is presiding and the judges do not agree on the decision, the opinion of the majority prevails.

 

4.5 The State Comptroller

Basic Law: The State Comptroller charges the comptroller with the duty to supervise the ministries and other government institutions, the security forces, the local authorities and any other body that is subject to inspection under the law. In the process of control, the legality of the assets, finances, undertakings and administration of the bodies is examined. Appointed by the Knesset for a period of 5 years, the state comptroller answers only to the Knesset and is not dependent on the executive branch. The state comptroller also serves as a public ombudsman dealing with complaints regarding state authorities.

 

4.6 The Israeli Defence Forces (IDF)

The Israel Defense Forces (IDF) is a popular militia rather than a professional army, based on compulsory military service and reserve service. According to Basic Law: The Army, the IDF is completely subordinated to the government, which appoints the senior military authority on the recommendation of the minister of defense.

 

5. The Structure of the Judicial System

 

5.1 General Courts

According to Basic Law: The Judiciary, the system of the General Law Courts (the Regular Courts) is comprised of three instances based on hierarchy:

 

  1. The Supreme Court
  2. District Courts
  3. Magistrate's Courts

 

Each instance has a well-defined jurisdiction elaborated in the Courts Act [Consolidated Version] (1984). Any court can have residuary jurisdiction over a matter, which falls within the exclusive jurisdiction of another court only when such matter arises by virtue of being incidental to a matter properly before the court and within its own legal jurisdiction.

 

5.1.1 Magistrate’s Courts

The Magistrate’s Court is a trial court. Its authority is to deal with civil cases in which the sum claimed is not higher than 2.5 million New Shekels (approximately US $560,000), criminal cases concerning light and intermediate offences, and some real estate cases. Some of the judges are appointed in the capacity of traffic magistrates and empowered to try traffic offences and a range of offences related to vehicular traffic. Magistrate's Courts can also be empowered to act as Family Courts, Juvenile Courts, Municipal Courts and Minor Claims Courts. There are 31 Magistrates Courts in various parts of Israel.

 

Selected decisions appear as part of the District Court Reports series, Psakim and are accessible in online databases.

 

5.1.2 District Courts

The six District Courts have a double authority as trial courts and as appellate courts. As trial courts their jurisdiction is residual to the limited jurisdiction of the magistrate's courts. In addition, they hear civil and criminal appeals from rulings of the magistrate's courts.

 

According to the Administrative Affairs Court Act (2000), judges in the District Courts can also be authorized to deal with some disputes between citizens and administrative authorities. The Administrative Affairs Court deals with issues specified in the authorizing law, and the rest of public law issues still go directly to the High Court of Justice. This system is not equivalent to the separate system of administrative courts in continental countries, which have their own exclusive jurisdiction. Like magistrates, District Court judges may be empowered to sit as Juvenile Court judges.  There are 6 District Courts in Israel.

 

Printed court reports appear in the series Psakim published by the Israel Bar Association. 1948 – . Cases also appear in the online databases. See section 8.

 

5.1.3 The Supreme Court

The Supreme Court, situated in Jerusalem, has jurisdiction in two realms. Sitting as “The Supreme Court of Appeals” it hears civil and criminal appeals from the final judgments of District Courts sitting as trial courts, and appeals on leave from final judgments of District Courts sitting as appellate courts. Furthermore, carrying on the tradition of the British Mandate, the Supreme Court, sitting as the “High Court of Justice”, obtained the power to supervise governmental agencies. In this capacity, it has the original jurisdiction to supervise administrative actions of state authorities and statutory bodies, when petitioned by individuals who feel that they have been wronged by these bodies. This influences the scope of review as the High Court perceives its function not only as settling disputes, but also as a guardian of the rule of law, which includes basic values and administrative fairness. The High Court of Justice functions by means of prerogative orders (extraordinary remedies). The Supreme Court’s rulings are final.

 

5.2 Specialized Courts

Another part of the judicial system consists of tribunals of limited jurisdiction; each of them comprises an independent judicial system with an administration, permanent trained judges, and two instances. Usually, there is no right of appeal to the Supreme Court, and the only way to attack a final judgment is by a petition to The High Court of Justice, whose jurisdiction over the second instance of those tribunals is supervisory rather than appellate. The three important tribunals are:

 

1.     Religious Courts

2.     Labor Courts

3.     Military Courts

4.     Family Courts

 

5.2.1 Religious Courts

Israel continues the Ottoman tradition, which was not changed by the British Mandate, of according autonomy to the various communities on matters of “personal status” (personal, family and inheritance law). There are religious courts for the four main religious denominations: Jewish, Moslem, Christian and Druze. Each of them tries, on the basis of its respective religious law, cases applying to members of its own religious community who are citizens of the state. For example, Rabbinical Courts, which apply Jewish law, have exclusive jurisdiction in matters connected with marriage and divorce of Jews, and concurrent jurisdiction in other matters of personal status. In cases in which secular and religious courts have concurrent jurisdiction, the plaintiff, by choosing the court, determines if religious or state law will be applied. Although Basic Law: The Judiciary authorizes the High Court of Justice to review the religious tribunals only on matters concerning their authority, it has expanded its intervention in order to liberalize their judgments.

 

5.2.2 Labor Courts

A separate system of Labor Courts began functioning in Israel on 1st September 1969 in accordance with the Labor Court Law (1969). Three principal aims made it necessary to establish this special court system. The first was the concentration of judicial jurisdiction for the implementation of employee’s rights. The second was the desire to raise professional standards in dealing with particular issues, which are also of a public nature, and to accelerate the pace of judicial action while reducing their cost. The third was the improvement of labor relations.

 

The Labor Courts are of two instances: Regional Labor Courts and a State Labor Court. Both instances comprise judges and representatives of the public. The State Labor Court deals with appeals, but it has also a trial jurisdiction mainly of disputes involving workers’ and employers’ organizations. A party can appeal to the Supreme Court only from a criminal verdict of the State Labor Court, whereas over civil judgments the High Court of Justice exercises judicial review on the grounds of serious deficiencies such as want/excess of power, substantive error of law or infringement on the rules of natural justice.

 

5.2.3 Military Courts

The military courts’ system, which includes trial courts and a court of appeal, was established in The Military Justice Law (1955). Its authority is to try soldiers for military offences, and under certain conditions – also for civilian offences. Courts martial of the first instance consist of District Court Martial, Special Court Martial, Traffic Court Martial, Naval Court Martial and Field Court Martial. The first three are permanent courts and the two latter are established ad hoc for each case. The decisions of all these courts are subject to review by appeal to the Appeals Court Martial. A right of appeal to the Supreme Court is available if the judgment of the Military Court of Appeal raises a legal question of importance or difficulty. 

 

5.2.4 Family Courts

The Family Courts Act took effect in 1995. Its purpose is to concentrate the jurisdiction of all issues dealing with one family dispute in one court and one judge thus avoiding separate claims of relevant issues being heard in other civil courts. This law did not affect the jurisdiction of the Rabbinical Courts. There are 10 courts located in various areas of the country. Its decisions are published by Nevo Publ. Co. in Jerusalem and also appear in the online databases.

 

5.3 Arbitration and Mediation

 

Arbitration

Arbitration is one of several means recognized by Israeli law for solving disputes outside the courtroom (the other means are compromise and mediation). Arbitration is acknowledged by the judicial system as an external assistance to the courts, aimed at relieving them of part of their heavy burden. Arbitration is widely used in private and commercial disputes mainly because of its expediency. The Arbitration Act (1968) enables parties of a civil matter to agree to solve their dispute by arbitration rather than in court. The arbitrator may be nominated in a contract’s arbitration clause, or in an ad hoc arbitration agreement signed after the dispute arises, or appointed by a third party upon whom the parties agree. The parties are also free to agree upon the other components of the process: the determination of the applicable law, the procedure and rule of evidence to be applied, the deadline for the delivery of the award and other conditions. Unless otherwise requested by the parties, the proceedings are not subordinated to evidence and procedure rules applied in courts. There is no appeal of the award, and the only way to attack it is by an application to the District Court to set aside the award due to one of the reasons recognized in the law. 

 

Mediation

A 1992 amendment to the Courts Law (Consolidated version) – 1984, legislated the use of arbitration, mediation or compromise in deciding a case. However, the process of mediation whereby cases may be transferred to mediation by a judge with the consent of the parties was not formalized until a few years ago.  It has proven a useful way to bring about dispute/conflict resolution and thus reduce the caseload and delay in the courts. A committee was established to formulate the rules as to the requisite education and experience of mediators; these regulations appear in the Courts (Appointment of Mediator) – 1996.  

 

6. Appointment of Judges

All the authorities carry out the shaping of the judicial body, through the manner of judicial appointment, to ensure that the considerations taken into account are all relevant and material. Judges are selected and promoted by the Judges Nomination Committee, headed by the minister of justice and composed of nine members: three Supreme Court judges, two ministers, two members of Knesset and two representatives of the Israel Bar Association. Upon nomination, the president of the state formally appoints the judges. As all Israeli judges are professional, a lawyer’s diploma is prerequisite for appointment as a judge. Thus, magistrates are usually selected among experienced attorneys and can be promoted to the higher courts after certain periods in office. Law professors and other key position jurisprudent persons (like the attorney general) can be appointed to high instances directly. Appointment is permanent, with a retirement age fixed at seventy. 

 

There are four university faculties of law in Israel, and it is also possible to obtain a law degree at several private colleges. It takes three and a half years to graduate, followed by one year of internship (the current Minister of Justice has recently announced her intention to prolong the internship period to two years). License to practice law depends on admission to the Israeli Bar called the “Chamber of Advocates” and a prerequisite is passing the bar exams. Once admitted to the bar, an attorney may engage in any legal activities. The English distinction between barristers and solicitors was not adopted in Israel. The number of lawyers in Israel as of April 2015 is 56,750. This is a very high ratio of lawyers to the total population (1 lawyer for approximately every 145 persons). The bar is operated by virtue of the Chamber of Advocates Law (1961), which regulates its powers and functions. The bar is empowered, inter alia, to lay down the rules of ethics and professional conduct of its members and to exercise disciplinary jurisdiction over them.  

 

7. Impact of Law

Israel’s constitutional law and its governmental institutions demonstrate that it is a democracy founded on the rule of law.

 

The Supreme Court is an extremely important institution in Israel, playing a crucial role in enshrining the rule of law and protecting human rights. Even before the two basic laws dealing with human rights were enacted, the Supreme Court developed a comprehensive doctrine of individual rights, forming the foundation of constitutional law. Characterized by judicial activism, the Supreme Court has a vast influence on the shape of society. Thus, although there is no other precedent for judicial review by courts in an occupying country over the acts of its military authorities in the occupied territory, the High Court of Justice has taken steps to protect the rights of the population of the occupied territories by dealing with petitions and exercising judicial review over the military commanders.

 

Finally, it is important to note that due to the perennially precarious security situation in Israel, and to some of the contradictions engendered by Israel’s definition as Jewish and democratic, the judicial institutions (particularly the Supreme Court) come frequently under attack by various sectors of the population, and the achievements that have been reached must constantly be safeguarded.

 

8.    Resources and Bibliography

 

8.1 Encyclopedia Entry

Michal Tamir, Israel, in 2 Legal Systems of the World 755 (Herbert M. Kritzer ed., 1998).

 

8.2  Web Sites

 

1.     President of the State of Israel

2.     The Knesset – The Israeli Parliament

3.     Israel Government Portal – contains links to all governmental ministries

4.     The Judiciary Authority. Lists of all the courts in the country. Also contains decisions of the Supreme Court.

5.     Ministry of Justice: http://www.justice.gov.il/mojeng (paste the URL into a browser; access government website: http://www.gov.il/firstgov (available in ENG as well))

6.     The Israel Bar  Association – includes list of registered lawyers.

                                                        

8.3 Translations of Laws and Court Reports

All laws and court reports are published in Hebrew. There is no systematic translation to English, although there are some translations of selected items.

 

1.     LAWS OF THE STATE OF ISRAEL. Authorized translation by the Ministry of Justice. (Considerable time gap in publication.) V.1, 1948 - 45, 1989/90, and a Special volume – Penal Law, 1977.

2.     SELECTED JUDGMENTS OF THE SUPREME COURT OF ISRAEL. Authorized translation by Ministry of Justice. V.1,1948/53-10,1988/93. Publication ceased.

3.     Judgments of the Israel Supreme Court: Fighting Terrorism within the Law (Israel Supreme Court, 2005).

4.     Israel Law Reports 1992-1994 (Jonathan Davidson ed., Nevo, 2002).

5.     Asher F. Landau, The Jerusalem Post Law Reports (The Magnes Press, 1993).

6.     Arye Greenfield (A.G. Publications, Haifa) translates many laws and regulations, and also periodically publishes consolidations incorporating new amendments.

 

Few examples of available translations:

 

·       Securities law and regulation: updated and consolidated translation of the Securities Law

·       Licensing of Business law and regulations: include the Licensing Business Law

·       Joint Investment Trust Law

·       Labor Laws and legislation

·       International legal corporations

·       Foreign Enforcement Judgments Law, 1958 and the International Legal Assistance Law, 1998 (1999)

·       Income Tax Ordinance

·       Companies regulations: subsidiary legislation under the Companies Law, 1999 (2000)

 

8.4. Legal Research Tools

 

1.     Esther M. Snyder, Israel: A Legal Research Guide (Hein, 2000, 123 p).

2.     INDEX TO LEGAL PERIODICALS IN ISRAEL, 1976 – 2002. 2 vols. Ed. By E. Snyder and B. Razinsko.  Bar-Ilan University. Covers articles in Hebrew and English. Available online via the Law Library's website .

3.     The Library of Congress

4.     All the university law faculties have online book catalogs that are helpful in finding references to books in Hebrew and English: Hebrew University, Tel-Aviv University, Haifa University, Bar-Ilan University. There are also several colleges of law.

 

8.5 Law Reviews and Journals

 

In Hebrew:

 

  1. Mishpatim [Laws]  – The Hebrew University Law Journal. Vol. 1, 1968 – 39, 2010
  2. Mishpat Umimshal [Law and Government in Israel] – University of Haifa, Faculty of Law. Vol. 1, 1992 – 12, 2009. Haifa Faculty of Law: http://haifa.ac.il/index.php/en/.
  3. Hapraklit [The Attorney] –Israel Bar Association. Vol. 1, 1943 – 50, 2010
  4. Mehkarei Mishpat [Bar-Ilan Law Studies] – Bar-Ilan University, Faculty of Law. Vol. 1, 1980 – 26, 2010. Bar-Ilan Faculty of Law: http://law.biu.ac.il/en.
  5. Iyunei Mishpat [Law Studies]Tel-Aviv University, Faculty of Law. Vol.1, 1971 – 33, 2010
  6. Sháarei Mishpat [Gates to Law] – Sháarei Mishpat College of Law, Hod Hasharon. Vol. 1, 1997 – 5, 2009. Mishpat Academic Center of Law and Science: http://en.mishpat.ac.il/.
  7. HAMISHPAT [The law] – College of Management, Law Faculty. 1992-2009
  8. Moznei Mishpat [Netania Academic College law review], v.1, 2000 – 7, 2010.

 

In English:

 

1.     Israel Law ReviewThe Hebrew University, Faculty of Law. Vol. 1, 1970 -

2.     Tel-Aviv Studies In Law - The Cegla Institute of the Law Faculty of Tel Aviv University. Vol.1, 1975-15, 2000. Ceased publication.

  1. Israel Yearbook of Human Rights – Vol. 1, 1971 – 29, 2009. Nijhoff Publishers: http://www.brill.com/progression-international-law.

 

All the above periodicals are indexed in Index to Legal Periodicals in Israel, 1976-2002, 2 vols. The Index is accessible online via Bar-Ilan Law Library website, library. The full text of some articles are available online either through their publishing institution or on the website.

 

8.6 On-Line Databases of Laws and Court Decisions

 

  1. the Judicial Authority
  2. Cardozo Israeli Supreme Law Project
  3. Nevo – Nevo Publishers of Supreme Court Decisions and many other court cases
  4. PADOR  – Israel Bar association
  5. Takdin
  6. Dinim ve-od

7.     Data , Hok uMishpat

 

All of the above have similar coverage although the search engines in each are different.

 

8.7 Compilations of Laws

These are unofficial, commercial compilations of the laws in force, arranged alphabetically. They are multi-volume sets of loose-leaf volumes that are updated several times per year with new acts, amendments, etc.

 

  1. Dinim [Laws] – Ed. By E. Winograd, published by Halachot Publishers (green volumes).
  2. Hukei Medinat Yisrael. [Laws of the State of Israel]. Ed. By Y. Gideon. Published by Gideon Publishing House Ltd. (red volumes).

 

8.8 Case Reports

Until 1996 the Israel Bar publishing house published the decisions of the Supreme Court. Since 1997 the decisions of all the courts are published by Nevo Publishing Ltd, Jerusalem. They appear on the online databases mentioned above.

 

8.9 Bibliography of Recent Books and Articles Arranged by Subject

 

Administrative Law:

 

·       Barak-Erez, Daphne. Israeli Administrative Law at the Crossroads: Between the English Model and the American Model, 40(1) ISR. L. REV., 56 (2007).

·       Bracha, Baruch. Constitutional Upgrading of Human Rights in Israel: The Impact on Administrative Law, 3 U. Pa. J. Const. L. 583 (2001).

 

Civil Procedure:

 

 

Commercial and Corporation Law:

 

 

Comparative Law:

 

 

Constitutional Law:

 

·       Bendor, Ariel. Is It a Duck?–on the Israeli Written Constitution. 6 Yale Israel Journal 53 (2005).

·       Galnoor, Itzhak The judicialization of the public sphere in Israel. Israel Law Review 37:500-542, 2003/4.

·       Gavison, Ruth. Round Table: Israeli Constitutionalism. 6 Yale Israel Journal 25, 27 (2005).

·       Hirschl, Ran. Towards juristocracy: The origins and consequences of the new constitutionalism. Cambridge, MA:  Harvard Univ. Pr., 2004. [A section deals with Israel].

 

Criminal Law:

 

 

Family Law:

 

 

Gender Law:

 

 

General:

 

 

Human Rights:

 

 

International Law:

 

 

Judicial System:

 

 

Labor Law:

 

 

Legal History:

 

 

Legal System:

 

 

Private International Law:

 

 

Private Law:

 

 

Property Law:

 

 

Religion and State:

 

 

Terrorism:

 

 

Tort Law:

 



[1] Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. For an English translation, see Public Law in Israel 154-159 (Itzhak Zamir & Allen Zysblat eds., 1996).

[2] Itzhak Zamir, Administrative Law, in The Law of Israel: General Surveys 51, 52 (Itzhak Zamir & Sylviane Colombo eds., 1995).

[3] Eli M. Salzberger, A Positive Analysis of the Doctrine of Separation of Powers, or: Why Do We Have an Independent Judiciary? 13 Int’l Rev. L. & Econ. 349, 357 (1993).