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
- Introduction
- History
- 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
- 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)
- 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
- Staffing
- Impact Of Law
- Bibliography
8.1 Books
8.2 Articles
8.3 Encyclopedia Entries
8.4 Web Sites
- 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