A Guide to Legal Research in Israel

 

By Michal Tamir

 

Dr. Michal Tamir 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 Jeru sal em. The Topic of her doctoral dissertation is Selective Enforcement, with Prof. Itzhak Zamir as advisor.  Throughout her studies Dr. Tamir won numerous prizes. Among the courses she currently teaches are "Administrative Law", "Criminal Procedure", "Law of Tenders", "Human Rights in Private Law", "Equality in Law" and "Freedom of Occupation".  Her main work focuses on issues concerning administrative and constitutional law.  She published several articles in the leading Israeli law journals. She is currently an Assistant Professor in the Sháarei Mishpat College of Law. In the 2005/6 academic year she was a Global Research Fellow with the Hauser Program at the NYU School of Law.

 

Published August 2006

 

Table of Contents

1. Introduction
2. History
3. The Legal System

3.1     Constitutional Background

3.2    Legal Sources

3.2.1         Legislation

3.2.2        Case Law

3.2.3        Analogy

3.2.4        Israel's Heritage

3.2.5        Usage and Custom

4. The Political System

4.1     The President

4.2    The Knesset (Parliament)

4.3    The Government

4.3.1     List of Government Ministries

4.4    The Judiciary

4.5    The State Comptroller

4.6    The Israel Defense Forces (IDF)

5. The Structure of the Judicial System

5.1     General Courts

5.1.1         Magistrate's Courts

5.1.2         District Courts

5.1.3         Supreme Court

5.2    Specialized Judicial Bodies

5.2.1         Religious Courts

5.2.2        Labor Courts

5.2.3        Military Courts

5.3    Arbitration

6. Staffing
7. Impact Of Law
8. Bibliography

8.1 Books

8.2 Articles

8.3 Encyclopedia Entries

8.4 Web Sites

9. Resources

9.1 Useful Web Sites

9.2 Translated Cases and Laws

9.3 Legal Research Guides

                9.4 Law Reviews and Journals

9.4.1 In Hebrew

9.4.2 In English

9.5 Legal Databases

9.5.1 CD-ROMs

9.5.2 On-line

9.6 Commentaries

9.7 Compilations

9.8 Case Reports

 

 

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. It was the fulf il lment of Zionism – a movement based on the idea of a national state in Eretz-Israel ( Palestine ). Israel spans 470 k il ometers in length and is 135 k il ometers 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 Apr il .

 

The country’s population is heterogeneous, reflecting its history. Of the 7 m il lion inhabitants of Israel most are Jewish with a large Arab minority, Christian and Moslem. 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 v il lages 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.

 

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 civ il law, held a major role. Drafted by Moslem scholars, it was influenced by Napoleon’s Code Civ il and published in 1867-1877 by the Ottoman Sultan. It consisted of legal provisions for obligations, torts, property, commerce, corporation and procedure, and was liberally il lustrated by examples. The Mejelle was rescinded in 1984 by a special Israeli law. The Mandate and the subsequent Israeli legislature rescinded most of the Ottoman laws, leaving only a few remainders that st il l exist today. For example, articles 80-82 of the Ottoman Civ il 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.

 

In 1917 the British troops defeated the Turks and occupied Palestine . At first the British ruled by martial law, but a civ il 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 Counc il , ratifying previous British legal actions and setting forth the Mandatory government structure. Article 46 of the Order in Counc il , which stated that a lacuna in the domestic law would be f il led 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 sim il ar to the prerogative power of the High Court of Justice in England .

 

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 Counc il (a body representing the Jewish community) proclaimed the establishment of the State of Israel. The proclamation, known as the Proclamation of Independence, ensured the governing continuum by stating that unt il the election of the permanent authorities, the People's Council would act as Provisional Counc il 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 Counc il . 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 preva il ing security problems have always had a fundamental impact on various aspects of the Israeli psyche. Thus, in 1948 the Provisional Counc il exercised the right given by the Administrative Ordinance and immediately declared a state of emergency in Israel , a declaration that st il l holds and which is periodically prolonged by the Knesset.

 

In 1967, during the Six-Day War, Israel captured territories including the eastern part of Jeru sal em , part of Jordan (the West Bank ), the Egyptian Sinai Peninsula and the Gaza Strip, and the Golan Heights region of Syria . Eastern Jeru sal em 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 m il itary 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 v il lages, 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 m il itary, 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 58 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 civ il law; almost all public law is judicial as in the common law tradition; and the emerging constitution is influenced by American conceptions.

 

3.1 Constitutional Background

The country has no written constitution in the sense of a single document superior to all other norms. The Proclamation 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, this Proclamation could only inspire the Supreme Court in developing the law, but statutes could not be declared invalid due to incompatibility with the Proclamation. The Proclamation of Independence also stated 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, as stated in the Proclamation of Independence, 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 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, eleven Basic Laws dealing mainly with institutional aspects of state and human rights have been enacted. The existing Basic Laws are:

·         President of the State

·         The Knesset

·         The Government

·         The Judicature

·         The Army

·         Jerusalem

·         Israel Lands

·         The State Comptroller

·         The State Economy

·         Human Dignity and Liberty

·         Freedom of Occupation

 

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 B il l 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 by product, supporting the Supreme Court’s w il lingness 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 which 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 Proclamation 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 compatib il ity 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 Order in Counc il , 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 deta il s 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.

 

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 Judicature, 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. Professor Itzhak Zamir wrote that:

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 sim il ar solutions to sim il ar 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.

 

 

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]

 

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 primar il y 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 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 serves by confidence of the Knesset.

 

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

 

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 2006 is Israel 's 31^st government, which reflects a life expectancy of merely 22 months per government.

 

4.3.1 List of Government Ministries

Currently, there are twenty Government Ministries:

1.       Prime Minister's Office

2. Ministry of Defense
3. Ministry of Finance
4. Ministry of Foreign Affairs
5. Ministry of Interior
6. Ministry of Justice
7. Ministry of Public Security
8. Ministry of Environment
9. Ministry of Education, Culture and Sport

10.  Ministry of Agriculture and Rural Development

11.   Ministry of Science and Technology

12.   Ministry of Construction and Housing

13.   Ministry of Health

14.   Ministry of Immigrants Absorption

15.   Ministry of Social Affairs

16.   Ministry of Transport

17.  Ministry of Tourism

18.   Ministry of Industry trade and Labor

19.   Ministry of Communication

20.  Ministry of National Infrastructures

 

4.4 The Judiciary

The judicial authority in Israel is independent, which means that in the fulf il ling 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 sal ary, his immunity and matters of judicial discipline. Material Independence is provided by Basic Law: The Judicature, 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 responsib il ity 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 Judicature, 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.

 

5.1.2 District Courts

The five 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 judges.

 

5.1.3 The Supreme Court

The Supreme Court, situated in Jeru sal em , 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 Judicial Bodies

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

 

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 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 Judicature 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. 

 

5.3 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.  

 

6. Staffing

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 get a law degree at several private colleges. It takes three and a half years to graduate, followed by one year of internship. 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 31.12.2004 was 31,311. This is a very high ratio of lawyers to the total population. 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. Bibliography

8.1 Books

1. Henry E. Baker, The Legal System of Israel (Israel Universities Press, 1968).

2. Ariel Bin-Nun, The Law of the State of Israel : An Introduction (2d ed., Rubin Mass Ltd., 1992).

3. Menachem Goldberg, labour Law in Israel (Sadan Publishing, 1982).

4. Stephen Goldstien ed., Israeli Reports to the Tenth International Congress of Comparative Law (The Harry Sacher Institute for Legislative Research and Comparative Law, 1978).

5. M.D.Gouldman , Israel Nationality Law (The Hebrew University of Jerusalem, Institute for Legislative Research and Comparative Law, 1970).

6. Menachem Hofnung, Democracy, Law and National Security in Israel ( Dartmouth , 1996).

7. David Kretzmer, The Legal Status of the Arabs in Israel (Westview Special Studies on the Middle East, 1990).

8. Smadar Ottolenghi, The Law of Arbitration in Israel (Kluwer Law International, 2001).

9. David Reifen, The Juvenile Court in a Changing System – Young Offenders in Israel (University of Pennsylvania Press, 1972).

10. Amos Shapira & Keren C. DeWitt-Arar eds., Introduction to the Law of Israel (Kluwer Law International, 1995).

11. Shimon Shetreet, Justice in Israel : A Study of the Israeli Judiciary (Martinus Nijhoff Publishers, 1994).

12. Itzhak Zamir & Sylviane Colombo eds., The Law of Israel : General Survey (The Harry and Michael Sacher Institute for Legislative Research and Comparative Law, 1995).

13. Itzhak Zamir & Allen Zysblat, Public Law in Israel (Clarendon, 1996).

14. Yaacov S. Zemach, The Judiciary of Israel (3^rd ed., The Institute of Judicial Training of Judges in Israel , 2002).

 

8.2 Articles

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

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

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

4. David Kretzmer, The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?, in Public Law in Israel 141 (Itzhak Zamir & Allen Zysblat eds., 1996).

5. David Kretzmer, The Supreme Court and Parliamentary Supremacy, in Public Law in Israel 303 (Itzhak Zamir & Allen Zysblat eds., 1996).

6. Asher Maoz, Constitutional Law, in The Law of Israel : General Surveys 5   (Itzhak Zamir & Sylviane Colombo eds., 1995).

7. 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 (1993).

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

9. Itzhak Zamir, Administrative Law, in Public Law in Israel 18 (Itzhak Zamir & Allen Zysblat eds., 1996).

10. Allen Zysblat, The System of Government, in Public Law  in Israel 1 (Itzhak  Zamir & Allen Zysblat eds., 1996).

11. Allen Zysblat, Protecting Fundamental Rights in Israel without a Written Constitution, in Public Law in Israel 47 (Itzhak Zamir & Allen Zysblat eds., 1996).

 

8.3 Encyclopedia Entry

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

 

8.4 Web Sites

1. The Israel Bar

2. Disengagement Plan of Prime Minister Ariel Sharon

3. The Washington Institute for Near East Policy

4. Israel Government Portal

 

 

9. Resources

9.1 Useful Web Sites

1. President of the State of Israel

2. The Knesset – The Israeli Parliament

3. Israel Government Portal

4. The Judicial Authority

5. The State Comptroller and Ombudsman

6. The Israel Bar

 

9.2 Translated Cases and Laws

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

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

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

4. Selected Judgments of the Supreme Court of Israel (Imprinted by the Ministry of Justice, Jeru sal em ; distributed by Oceana Publications, New York ).

5. Arye Grienfield (A.G. Publications) translated many laws and regulations, and also incorporated amendments.

Few examples for available translations:

·         Securities law and regulation: updated and consolidated translation of the Securities Law, 1968 and of the relevant subsidiary legislation (2000)

·         Licensing of Business law and regulations: include the Licensing Business Law, 1968 up to amendment no. 16, Licensing of Business Regulations (General Provisions) 2000, and other subsidiary legislation (2000)

·         Joint Investment Trust Law, 1994: second edition, updated and consolidating translation, incorporating all amendments through amendment no. 5 (1999)

·         Labor Laws and legislation: text based primarily on translations published by the Israeli Ministry of Justice, edited by Arye Grienfield (3^rd ed., 1995-1997)

·         International legal corporations: full text consolidated and updated translations of the Foreign Enforcement Judgments Law, 1958 and the International Legal Assistance Law, 1998 (1999)

·         Income Tax Ordinance (8^th ed., 1996-1997)

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

 

9.3 Legal Research Guides

1. Esther M. Synder, Israel : A Legal Research Guide (W.S. Hein & co., 2000).

2. The Library of Congress

 

9.4 Law Reviews and Journals

9.4.1 In Hebrew

1. Mishpatim [Laws] – The Hebrew University Student Law Journal

2. Mishpat Umimshal [Law and Government in Israel] – University of Haifa , Faculty of Law

3. Din Udvarim [Discussion] – University of Haifa , Faculty of Law

4. Hapraklit [The Attorney] – published by the Israel Bar

5. Mechkarei Mishpat [Law Research] – Bar- Ilan University , Faculty of Law

6. Iyunei Mishpat [Law Studies] – Tel- Aviv University , Faculty of Law

7. Sháarei Mishpat [Gates to Law] – Sháarei Mishpat College of Law

 

9.4.1 In English

1. Israel Law Review – The Hebrew University , Faculty of Law

2. Tel-Aviv Studies In Law - The Cegla Institute of the Law Faculty of Tel Aviv University .

3. Israel Yearbook of Human Rights – Martinus Nijhoff Publishers

 

9.5 Legal Databases

9.5.1 CD-ROMs

1. Takdin – developed by C.D.I. Systems (1992) Ltd.

Offers legislation, regulations and decisions from all the courts in Israel (enables linkage between a CD and an updated web database).

2. Pdor – produced by the Israeli Bar Association.

Offers legislation, regulations, court decisions and some law periodicals (there are special CD-ROMs for insurance and tort, labor law, and ethics).

3. Dinim ve-od - Halachot Publishers

Offers legislation, regulation and decisions from different courts (there are special CD-ROMs for labor law and tax law).

 

9.5.2 On-Line

1. Data – The center for online legal data

2. Nevo – Nevo Publishers

3. PsakDin.co.il

4. Takdinet – the online Takdin

5. Dinim ve-od – the online Dinim

 

9.6 Commentaries

In addition to the books elaborated in the Bibliography, there are some more legal commentaries in English:

 

1. Rabbi Dr. Moshe Chigier, Husband and Wife in Israeli Law (Harry Fischel Institute for Research in Talmud and Jurisprudence, 1985).

2. Menacem Elon [et al.], Jewish law (Mishpat Ivri): cases and materials (Matthew Bender, 1999).

3. Alon Kaplan, Israel : Law and Business guide (Kluwer Law and Taxation Publishers, 1994).

4. Amos Shapira & Keren C. DeWitt-Arar, Introduction to the Law of Israel (Kluwer, 1995).

5. Alfredo Mordechai Rabello & Petar Sarcevic – ed., Freedom of contract and constitutional Law (Harry and Michael Sacher Institute for Legislative Research and Comparative Law, 1994).

 

9.7 Compilations

1. Dinim [Laws] – published by Halachot Publishers (“the green compilation”).

2. Hachakika Bemedinat Israel [the Legislation in the State of Israel] – edited by Zvi Preisler, published by Ktuvim Publishers.

3. Gideon – published by Gideon Publishing House Ltd. (“the red compilation”).

 

9.8 Case Reports

Until 1996 the Israel Bar publishing house published the decisions of the Supreme Court. Since 1997 the decisions are published by Nevo Publishing Ltd.