Israeli law

Last updated

Israeli Supreme Court, 50th anniversary celebration Flickr - Government Press Office (GPO) - A CEREMONY MARKING 50 YEARS OF LAW HELD AT THE SUPREME COURT IN JERUSALEM.jpg
Israeli Supreme Court, 50th anniversary celebration

Israeli law is based mostly on a common law legal system, though it also reflects the diverse history of the territory of the State of Israel throughout the last hundred years (which was at various times prior to independence under Ottoman, then British sovereignty), as well as the legal systems of its major religious communities. The Israeli legal system is based on common law, which also incorporates facets of civil law. The Israeli Declaration of Independence asserted that a formal constitution would be written, [1] though it has been continuously postponed since 1950. Instead, the Basic Laws of Israel (Hebrew : חוקי היסוד, romanized: ħuqey ha-yesod) function as the country's constitutional laws. Statutes enacted by the Knesset, particularly the Basic Laws, provide a framework which is enriched by political precedent and jurisprudence. Foreign and historical influences on modern-day Israeli law are varied and include the Mecelle (Hebrew : מג'לה; the civil code of the Ottoman Empire) and German civil law, religious law (Jewish Halakha and Muslim Sharia; mostly pertaining in the area of family law), and British common law. The Israeli courts have been influenced in recent years by American Law and Canadian Law [2] and to a lesser extent by Continental Law (mostly from Germany). [3]

Contents

History

The core of Israeli law derives from the common law legal system established by the British in the territories they captured during the Palestine Campaign of 1918. This legal system was established by senior judicial officer, Orme Bigland Clarke, who was appointed by General Edmund Allenby in 1918. [4] This legal system continued to operate during the British military administration of Palestine (1917–20) and the civilian government of Mandatory Palestine, which operated under the Constitution of Mandatory Palestine, as enacted through a British Order in Council. This common-law system derived from English law, with certain modifications such as the absence of jury trials. Other aspects of the law were codified, such as the criminal law, which was practically the same as the criminal code used in British India and various other British colonies.[ citation needed ]

On 14 May 1948 the Israeli Declaration of Independence was signed, declaring the creation of the new State of Israel. This declaration includes a list of principles of the new state: [5]

THE STATE OF ISRAEL will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.

However, the declaration is not a constitution and the principles outlined have been held to not be legally binding directly by Israeli Supreme Court. Instead, the declaration is seen as a outlining the principles of the Israeli state that are to be taken into account by judges when interpreting legislation or the common law. [6] For example, in Movement for Quality Government in Israel v. The Knesset (2024), president Esther Hayut stated "In my view, the Declaration of Independence, the Basic laws, and the statutes enacted by the Knesset over the years, as well as the case law of this Court, clearly inform us that the identity of the State of Israel as a Jewish and democratic state cannot be questioned – not even by the constituent authority." [7]

The existing British common law as used within Mandatory Palestine at the date of independence remained binding; however it became subject to modification by Israeli judges in developing case law and legislation passed by the Knesset. This reception of existing law was enabled the first legislative act of the Provisional State Council, which enacted a reception statute as part of the "Law and Administration Ordinance" published on 19 May 1948, four days after the Declaration of Independence. [8]

Some aspects of Turkish Ottoman law still remain operational today, such as placing personal status and marriage law in the hands of religious courts. Also the Turks had adopted a Napoleonic-style land-registration system, by documenting land ownership through a sequence of "block and lot entries" to manage and record land ownership[ clarification needed ]. Many Turkish land laws remain in force.[ citation needed ]

Following independence the young State of Israel was eager to gain recognition in the international arena by joining international treaties and participating heavily in the negotiations of international treaties, e.g., the 1929 Warsaw convention.

During the 1960s there was a rush to codify much of the common law in areas of contracts and torts. The new laws blended common law, local case-law, and fresh ideas. In 1977 the Knesset codified the penal code. Since the 1990s the Israeli Ministry of Justice, together with leading jurists, has been laboring on a complete recodification of all laws pertaining to civil matters. This new proposed civil codex was introduced in 2006, but its adoption through legislation is expected to take many years, if not decades.[ citation needed ]

As a result of Enclave law, large portions of Israeli law apply in Israeli settlements and to Israeli residents in the occupied territories. [9]

Court system

The Israeli legal system is structured around three main levels of courts, operating in a hierarchical manner: the Magistrate Courts, the District Courts, and the Supreme Court.

The Magistrate Court (Beit Mishpat Hashalom) handles civil cases of less than 2.5 million shekels, excluding disputes over the ownership of land, as well as criminal cases in which the maximum sentence is 7 years. Magistrate Courts are found in most Israeli towns. The Magistrate Court has 6 subdivisions. (1) The Juvenile Court deals with criminal offenses committed by people who were not 18 on the date of prosecution and some issues relating to the removal of children from parental custody. (2) The Family Court deals with all civil cases where the parties are close family members. (3) The Small Claims Court deals with cases of less than 30 thousand shekels. (4) "Hotsa'a Lapoal" is the bailiffs office for judgment debt collection. (5) The Traffic Court deals with all traffic offenses. (6) The Court of Local Issues deals with all offenses prosecuted by local authorities (parking tickets, planning violations etc.).

The District Court (Beit Mishpat Mehozi) serves as the court of first instance in a wide range of cases, including serious criminal offenses, civil claims for amounts exceeding 2.5 million shekels, real estate ownership disputes, and specific issues determined by law. It has jurisdiction over most administrative cases and hears appeals from the Magistrate Court. There are six courts, one in each of Israel's districts: Jerusalem (also has extra jurisdiction of extra territorial matters), Tel Aviv, Haifa, Center (in Petah Tikva), South (in Beer-Sheva), and North (in Nazareth).

The Israeli Supreme Court (Beit Mishpat Elyon) mostly hears appeals from the District Court but also sits as the High Court of Justice (Bagatz), with the authority to review petitions against state authorities, other bodies, or individuals holding public positions. It can adjudicate on any matter it deems necessary for justice, especially those outside the jurisdiction of other courts or tribunals.

The Labour Tribunals (Batei Ha'din Le'avoda) hears all cases where the parties are employer and employee, all cases against the National Insurance Institute and some other socially oriented matters. it is an independent system composed of five district tribunals (Jerusalem, Tel-Aviv, Haifa, South and North) and one national tribunal in Jerusalem (Beit Ha'din Ha'artzi).

There are also religious tribunals in Israel. Some specific legal matters in Israel (e.g., matters of personal status such as marriage and divorce) come under the jurisdiction of the religious tribunal system. There is a list of legally recognized religious communities: Jewish, Muslim, Greek Orthodox Christian, Catholic Christian etc. The small Protestant Christian community in Israel is not recognized; the Jewish community for this purpose does not include the non-Orthodox denominations, Reform and Conservative. Each religious community has its own religious court. For example, Jewish weddings are sanctioned only by the local Religious Council, and divorces of Jews are handled exclusively by the Rabbinical Courts. The judges (dayanim) of the Jewish Rabbinical Courts are all Orthodox rabbis. The Family Court holds parallel authority over matters incidental to divorce, such as property distribution and child custody, enabling both the family and rabbinical courts to address these issues, contingent on the preferences of the couple or individual involved.

The judges of the various courts are chosen by a committee comprising nine members: three Supreme Court Judges, two government ministers (one is the Minister of Justice), two members of the Knesset (one from the opposition), and two representatives of the Israel Bar Association. The composition of the committee is slightly different when it chooses Labour Court Judges or judges of the religious tribunals.

Current legislative proposals to alter the judicial system

The 2023 Israeli judicial reform is a proposed series of changes to the judicial system and the balance of powers in Israel put forward by the current Israeli government, and spearheaded by Deputy Prime Minister and Minister of Justice Yariv Levin and the Chair of the Knesset's Constitution, Law and Justice Committee, Simcha Rothman. It seeks to curb the judiciary's influence over lawmaking and public policy by limiting the Supreme Court's power to exercise judicial review, granting the government control over judicial appointments and limiting the authority of government legal advisors. If adopted, the reform would grant the Knesset the power to override Supreme Court rulings by a majority of 61 or more votes, diminish the ability of the court to conduct judicial review of legislation and of administrative action, prohibit the court from ruling on the constitutionality of basic laws, and change the makeup of the Judicial Selection Committee so that a majority of its members are appointed by the government. The legislation is currently being considered by the Knesset and the relevant committees.

On September 12, 2023, Israel's High Court of Justice (Bagatz) conducted a pivotal session to evaluate the "reasonableness clause." This session led to the annulment of a specific amendment to the Basic Law: The Judiciary. This amendment had previously stipulated that the Court was barred from assessing the reasonableness of decisions made by the government, including those by the Prime Minister and other ministers. The majority ruling granted the High Court the authority to annul Basic Laws and intervene in extreme and exceptional cases where the Knesset exceeds its foundational authority. This decision sparked wide public and political reactions, with significant implications for Israel's democratic framework and the balance of power between its branches of government.

See also

Related Research Articles

<span class="mw-page-title-main">Judge</span> Official who presides over court proceedings

A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. In an adversarial system the judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility and arguments of the parties, and then issues a ruling in the case based on their interpretation of the law and their own personal judgment. A judge is expected to conduct the trial impartially and, typically, in an open court.

Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important for the idea of separation of powers.

<span class="mw-page-title-main">Israeli system of government</span>

The Israeli system of government is based on parliamentary democracy. The Prime Minister of Israel is the head of government and leader of a multi-party system. Executive power is exercised by the government. Legislative power is vested in the Knesset. The Judiciary is independent of the executive and the legislature. The political system of the State of Israel and its main principles are set out in 11 Basic Laws. Israel does not have a written constitution.

The Courts of England and Wales, supported administratively by His Majesty's Courts and Tribunals Service, are the civil and criminal courts responsible for the administration of justice in England and Wales.

<span class="mw-page-title-main">Legal system of Macau</span>

Macau law is broadly based on Portuguese law, and therefore part of the civil law tradition of continental European legal systems. Portuguese law is itself highly influenced by German law. However, many other influences are present, including Chinese law, Italian law, and some narrow aspects of common law.

<span class="mw-page-title-main">Supreme Court of Israel</span> Highest court in the State of Israel

The Supreme Court of Israel is the highest court in Israel. It has ultimate appellate jurisdiction over all other courts, and in some cases original jurisdiction.

<span class="mw-page-title-main">Menachem Elon</span> Israeli High Court judge

Menachem Elon (Hebrew: ) was an Israeli jurist and Professor of Law specializing in Mishpat Ivri, an Orthodox rabbi, and a prolific author on traditional Jewish law (Halakha). He was the head of the Jewish Law Institute of the Hebrew University of Jerusalem.

<span class="mw-page-title-main">Aharon Barak</span> Former President of the Supreme Court of Israel

Aharon Barak is an Israeli lawyer and jurist who served as President of the Supreme Court of Israel from 1995 to 2006. Prior to this, Barak served as a Justice of the Supreme Court of Israel from 1978 to 1995, and before this as Attorney General of Israel from 1975 to 1978.

<span class="mw-page-title-main">Judiciary of Israel</span> Part of the article of the series of government of Israel

The judicial system of Israel consists of secular courts and religious courts. The law courts constitute a separate and independent unit of Israel's Ministry of Justice. The system is headed by the President of the Supreme Court and the Minister of Justice.

<span class="mw-page-title-main">Supreme court</span> Highest court in a jurisdiction

In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, and highcourt of appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of a supreme court are binding on all other courts in a nation and are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts. A Supreme Court can also, in certain circumstances, act as a court of original jurisdiction, however, this is typically limited to constitutional law.

In world politics, Jewish state is a characterization of Israel as the nation-state and sovereign homeland of the Jewish people.

<span class="mw-page-title-main">Judiciary of Spain</span>

The Judiciary of Spain consists of Courts and Tribunals, composed of judges and magistrates (Justices), who have the power to administer justice in the name of the King of Spain.

<span class="mw-page-title-main">Judiciary of Syria</span>

The judicial system of Syria is a synthesis of Ottoman, French, and Islamic laws. The civil, commercial and criminal codes are primarily based on the French legal practices. Promulgated in 1949, those laws have special provisions sanctioned to limit application of customary law among beduin and religious minorities. The Islamic religious courts continue to function in some parts of the country, but their jurisdiction is limited to issues of personal status, such as marriage, divorce, paternity, custody of children, and inheritance. Nonetheless, in 1955 a personal code pertaining to many aspects of personal status was developed. This law modified and modernized sharia by improving the status of women and clarifying the laws of inheritance.

<span class="mw-page-title-main">Ayala Procaccia</span> Israeli Supreme Court justice

Ayala Procaccia is a retired Israeli Justice of the Supreme Court of Israel. Before being elected to the Supreme Court in 2001, she served as a judge in the Jerusalem Magistrates’ Court until 1993 and in the Jerusalem District Court from 1993 to 2001. While active in the Israeli law courts, Ayala Procaccia worked to change Israeli law to champion equality for all, regardless of gender or religion. Proponents of Procaccia say that she strives for an equitable and just society; critics of her work said that she promoted a judicial dictatorship over the government.

The Israeli Judicial Selection Committee is the body that appoints judges to Israeli courts.

<span class="mw-page-title-main">Law of the Bahamas</span>

The basis of the Bahamian Law and legal system lies within the English Common Law tradition. Justices of the Supreme Court, Registrars and Magistrates are all appointed by The Governor-General acting on the advice of the Judicial and Legal Service Commission, which is composed of five individuals who are headed by the Chief Justice as their chairman. The Chief Justice and the Justices of the Court of Appeal, including the President, are appointed by the Governor-General on the recommendation of the Prime Minister after consultation with the Leader of the Opposition. Once appointed, the salaries and other terms of appointment of the Chief Justice, Justices of Appeal and Justices of the Supreme Court cannot be altered to their disadvantage. Justices of the Supreme Court can serve until the age of 65 years and, where agreed among the judge, the Prime Minister and the Leader of the Opposition, may serve until the age of 67. Justices of Appeal can serve until the age of 68 years and, where agreed among the judge, the Prime Minister and the Leader of the Opposition, may serve until the age of 70 years. The law of The Bahamas makes provisions for the appointment of 12 Justices to the Bench of the Supreme Court, inclusive of the Chief Justice, and for five Justices of the Court of Appeal, inclusive of the President. The Chief Justice, as Head of the Judiciary, is an ex officio member of the Court of Appeal, but only sits at the invitation of the President.

<span class="mw-page-title-main">Aviad Hacohen</span> Israeli attorney and professor of law

Aviad Hacohen is an Israeli attorney and professor of law.

"Jewish and democratic state" is the Israeli legal definition of the nature and character of the State of Israel. The "Jewish" nature was first defined within the Israeli Declaration of Independence in May 1948. The "democratic" character was first officially added in the amendment to Israel's Basic Law: The Knesset, which was passed in 1985.

<span class="mw-page-title-main">Basic Laws of Israel</span> Fourteen quasi-constitutional laws

The Basic Laws of Israel are fourteen quasi-constitutional laws of the State of Israel, some of which can only be changed by a supermajority vote in the Knesset. Many of these laws are based on the individual liberties that were outlined in the Israeli Declaration of Independence. The Basic Laws deal with the formation and role of the principal institutions of the state, and with the relations between the state's authorities. They also protect the country's civil rights, although some of these rights were earlier protected at common law by the Supreme Court of Israel. The Basic Law: Human Dignity and Liberty enjoys super-legal status, giving the Supreme Court the authority to disqualify any law contradicting it, as well as protection from Emergency Regulations.

<span class="mw-page-title-main">2023 Israeli judicial reform</span> Legislation limiting judiciary independence

The 2023 Israeli judicial reform is a set of five changes to the judicial system and the balance of powers in Israel that was proposed in January 2023. The intent of the measures is to curb the judiciary's influence over lawmaking and public policy by limiting the Supreme Court's power to exercise judicial review, granting the government control over judicial appointments and limiting the authority of its legal advisors. The effort was led by Deputy Prime Minister and Minister of Justice Yariv Levin and the Chair of the Knesset's Constitution, Law and Justice Committee, Simcha Rothman.

References

  1. ↑ ...WE DECLARE that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948
  2. ↑ Slaughter, Anne-Marie. "The Real New Order," Foreign Affairs, 76.5(14):183-97.
  3. ↑ Ruth Levush (15 January 2001). "Features – A Guide to the Israeli Legal System". LLRX . Retrieved 7 May 2017.
  4. ↑ Founding Father, Jerusalem Post
  5. ↑ "The Declaration of the Establishment of the State of Israel". Ministry of Foreign Affairs . Government of Israel . Retrieved 28 May 2024.
  6. ↑ Rogachevsky, Neil; Zigler, Dov (2023). "The Laws of Israel and the Declaration of Independence". Israel's Declaration of Independence: the History and Political Theory of the Nation's Founding Moment. Cambridge, United Kingdom: Cambridge University Press. doi:10.1017/9781009090841.013. ISBN   978-1-316-51477-1.
  7. ↑ Hayut, Esther (1 January 2024). "Movement for Quality Government in Israel v. The Knesset". Versa Opinions of the Supreme Court of Israel. Cardozo School of Law. para. 206.
  8. ↑ Law and Administration Ordinance , 1948 – №1, Section 11
  9. ↑ Orna Ben-Naftali; Michael Sfard; Hedi Viterbo (10 May 2018). The ABC of the OPT: A Legal Lexicon of the Israeli Control over the Occupied Palestinian Territory. Cambridge University Press. pp. 52–. ISBN   978-1-107-15652-4.

Bibliography

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.