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