Volume 11

Law & Social Change

Abstracts:

Towards a hybrid paradigm of polygamy in Israeli law: A reflexive journey following the work of Richard T. Ford

Rawia Aburabia

This article seeks to engage with Richard T. Ford’s legal criticism of multiculturalism and
Afro-American identity politics in his essay, “Beyond Difference: A Reluctant Critique
of Legal Identity Politics,” in the context of race, culture and racism among hegemonic
groups in the United States. It attempts to draw on the experience of the Palestinian
minority in Israel to argue that the multicultural approach exhibits analytical blind spots
and operative limitations similar to the African-American experience outlined by Ford.
Specifically, I pose polygamy in Bedouin society as a case study through which to discuss
Israeli legal policy and analyze how it approaches polygamy, both intellectually and
normatively.
The article consists of five parts. In the first part I outline Ford’s central points of
critique of the multicultural approach in the United States. I pay particular attention
to his criticism of multiculturalism’s paradigm of cultural difference and his argument
regarding how insistence on it can lead to a cultural rights “trap.” Multiculturalism, to
Ford, obfuscated the racial history in the United States and called for a model that affixes
stabilized racial identities reducible to a single hue in multiple cultures.
The article’s second part lays the foundations towards revisiting the failure of the
multicultural approach in Israel and details the gap between multicultural rhetoric and its
application to the Palestinian minority in Israel. I argue that Israeli authorities’ approach
to polygamy is not multicultural and that the resulting model does not acknowledge the
ethno-colonial dimensions of the discrimination against the Palestinian minority in Israel.
Stressing the intersectionality of feminism and multiculturalism, I discuss the feminational
obstacle facing Bedouin women.
In the article’s third part I detail the reality of polygamy in Israel today and point out
the state’s motives for not intervening in it. In the fourth part, I turn to the enforcement
of the injunction against polygamy, underscoring normativity in the inter-ministerial
task force appointed to combat it and criticizing the preservation of certain cultural
representations of Bedouin women by state authorities in ways that undermine their legal
status. Finally, in the fifth part I propose a hybrid approach to combating polygamy that
draws on Ford’s notions of racial justice and incorporates a liberal feminist basis with
postcolonial sensibilities. Such an approach, I argue, can bring into account the different
dimensions of the oppression faced by Bedouin women and the Palestinian minority at
large without foisting inflexible categories upon them that force them to choose between
their feminist struggle and remaining committed to their national struggle, and to turn to
the Israeli state for redress of social wrongs.

Full article is available in Hebrew here

Beyond “Beyond the Garden and the Jungle”: On the Rise of the “Difference Discourse” in Mizrahi Scholarship

Lihi Yona

Recent years have borne witness to the rise of the “difference discourse” in Mizrahi
theory. This kind of discourse seeks to trace and delineate a distinct Mizrahi essence.
One seminal work under this strand of research is Nissim Mizrahi’s “Beyond the Garden
and the Jungle: On the Social Limits of Human Rights Discourse in Israel” (hereinafter:
“Beyond the Garden”). In his article, Mizrahi describes the gap between “the Mizrahi
world of meaning” and the human rights discourse in Israel, presenting the former as
closer to the political right-wing, as favoring community values over full equality to all
community members, and as prioritizing intra-Jewish solidarity over all-encompassing
universal solidarity.
This article challenges this theory in two ways. On the ontological-epistemic level, it
undermines the characterization of the Mizrahi world of meaning described in “Beyond
the Garden,” as well as the very possibility of formulating such a world of meaning,
whatever its content may be. On the normative level, it highlights two challenges arising
from the need to preserve and respect—according to multiculturalist paradigms—the
Mizrahi world of meaning. First is the intersectional challenge, posed by those who
are at the intersection of more than one type of oppression, a challenge that centers
on power relations within Mizrahi communities, such as between Mizrahi men and
women. Secondly, the fear of leniency towards Jewish supremacist views is discussed, a
concern that highlights power relations between the Mizrahi community and other, more
marginalized groups, such as Palestinians and refugees.
This article also discusses and critiques the Mizrahi petition against the Nation
State Law as another site for the construction of the “difference discourse,” this time
from the left-wing side of the political map. It concludes with a preliminary account of
nonessentialist strategies for promoting legal equality for Mizrahi Jews.

Full article is available in Hebrew here

Culturism: Dilemmas of Cultural Sensitivity in Majority-Minority Relations

Amalia Sa’ar

This article explores a central dilemma concerning minority rights, namely the doubleedged
effect of culturally sensitive policies that increase tolerance towards minorities
while diminishing the rights of some of their members, particularly women. The dilemma
is exemplified in two case-studies: respectively concerning polygamy among the Negev
Bedouins and gender-segregated higher education programs for ultraorthodox Jews. I
argue that the suspension of liberal values in the name of cultural sensitivity draws on an
essentialist approach to culture, which I dub “culturism.” More often than not, it is used to
silence discussions about discrimination or to blur political bargains with minority elites.
I offer instead the term critical cultural sensitivity, which acknowledges the unmarked
privileges of the dominant majority and the diverse voices and interests among the minority.
Critical cultural sensitivity alerts us to the misuse of “culture” to exclude minorities from
the liberal practice of context-bound choice between competing values. It likewise allows
democracy supporters among the majority and the minority alike to hold dialogues about
diversity, which are not constrained by populist reifications of minority culture.

Full article is available in Hebrew here

What do we have in the box? Multiculturalism in Jewish Law Tribunals

Shifra Mescheloff

This article seeks to examine the phenomenon of multiculturalism among Jewish law
tribunals. These tribunals generally serve as arbitrators in civil disputes involving parties
belonging to the religious and ultra-Orthodox public, enabling these communities to
realize their religious outlook in the legal arena as well. However, to the extent that this
public is diverse and divided into groups, the tribunals also differ—in both legal and
procedural law. The multitude of shades has even intensified since the High Court ruling
in the case of Sima Amir, which made it clear that state rabbinical courts dealing with
family law have no authority to adjudicate as arbitrators in civil disputes. This ruling
has contributed to the establishment of dozens of other courts, some of which have been
established in an attempt to provide interested parties an opportunity to get Halakhic
rulings maintaining predefined rules, deliberative transparency and affinity for state law.
The obvious differences between the tribunals and the sectoral split mean that usually
every religious or ultra-Orthodox subgroup appeals to a tribunal on which its affiliated
rabbis sit. However, sometimes the parties to the conflict do not come from the same
religious/ultra-Orthodox sector and there are religious, sectarian and cultural gaps between
them. There are also various issues that accompany the parties throughout the process:
the need to choose an agreed tribunal to hear their case; the difficulty of conducting a
hearing and obtaining appropriate representation given the large gaps between the parties
themselves and between the parties and the tribunal; and cultural background conflicts
that sometimes make it difficult for the parties to assert their rights. The article gives some
examples of these difficulties, stemming from the experience of the Jewish Law Clinic. It
analyzes their significance to reducing or alternatively intensifying multicultural tensions
in religious society and their influence on the individual’s ability to assert his rights.

Full article is available in Hebrew here

System Judges: The Rise of the Judicial Bureaucracy and its Implications

Alon Jasper

The Israeli path to the judiciary is unusual from a comparative perspective. It incorporates
properties common both to common law and civil law systems. In the past thirty years,
this hybrid stance was further intensified by the emergence of a new phenomenon: the rise
of system judges. These are lawyers—predominately women—who early in their legal
careers began working in the judiciary, as law clerks and/or registrars, and were appointed
to be judges from those positions. These judges are not recognition judges, nor are they
strict career judges with a separate career path.
This article presents this phenomenon and explores it. It traces its contours through
the biographies of the judges. Based on an empirical study that covered the biographies
of all judges appointed from between 1948 and 2017, it presents the different patterns in
judicial appointments, such as a decline in the direct appointment of lawyers to appellate
courts; the growth of the judicial staff, and the gradual rise of system judges across
the judiciary.
The article further elaborates on the central factors that shaped the system judges
pathway. It argues that it has emerged not as the result of a premeditated plan, but rather
through a series of seemingly technical reforms pushed by different actors in the judicial
nomination committee, the Knesset, the government, and the director of the courts. Even
though the process was promoted by different actors and in different arenas, the article
demonstrates the central role played by the managerial shift of the judiciary in the past
decade, and by the attempts to promote judgeship as a separate profession.
Finally, the article discusses two possible implications that the emergence of
system judges may have for the judiciary as a whole: the potential of system judges to
institutionally solidify the voice of the judiciary, and the potential of system-judgeship as
a pathway for marginalized groups.

Full article is available in Hebrew here

The Right to Violate Crime Victims’ Rights: A Constitutional Review

Michal Tamir and Dana Pugach

This article deals with the constitutionality of the provisions that protect state officials
under the Victims’ Rights Act.
The Israeli Crime Victims’ Rights Law of 2001 (CVRL) accords certain victims
limited rights. For example, it allows victims of serious sexual and violent offences
to confer with the prosecutor and to express a view prior to the finalization of a plea
agreement. However, the allocated rights are not enforceable, as the CVRL does not
provide any legal remedy to a victim whose right has been breached, nor does it provide
a meaningful judicial review.
This article claims that the unenforceability of the law means that the CVRL prevents
victims from exercising their right to go to court. It impairs their right of integrity and
dignity; it infringes upon property rights, following the de facto repeal of their right to sue
for damages; and it even infringes upon the victims’ right to equal treatment, as compared
to other victims of negligence by public officials, who may sue the state and its officials
for negligence, under certain conditions.
It follows from this analysis that under a constitutional review, establishing that this
provision is in breach of basic rights, it should conform to the terms and conditions
provided in the limitations clause of Basic Law: Human Dignity and Liberty. In essence,
it is necessary to show a due purpose and that the measure which harms the rights is
proportionate to reaching the goal. We contend that even if there is a due purpose, the
provision is not proportional, mainly because a different measure, less harmful, could
have been used—a partial immunity for the state and state officials. Thus, the provision
of section 21 is unconstitutional.

Full article is available in Hebrew here

Elderly victims of crime in the course of the criminal process

Keren Tzafrir

In recent decades, the elderly population of the world has been growing at a rapid rate.
As a result, special attention must be paid to the needs of the elderly in various areas
of life, including the legal domain. Yet an understanding of these needs has not fully
permeated the criminal justice system, which tends not to see the elderly as a distinct
target population that deserves special attention. Therefore, old people who are victims
of a crime are doubly vulnerable, as they belong to two risk groups: victims of crime and
old age.
In recent decades, the preoccupation with the rights of victims of offenses as objects
of independent rights has been gaining momentum globally as well as in Israel. However,
elderly victims of crime are not included in this discourse as a distinct population with
unique characteristics and needs. Unlike other populations, which are recognized as
having unique characteristics that confer special rights on them as victims of crime—
such as victims of sexual offenses, children, or persons with disabilities—the elderly
population has not had its special needs addressed explicitly. Moreover, the unique needs
of the elderly have not been defined, despite studies conducted primarily in the field of
victimology that attribute special characteristics to elderly victims, both with respect to
the type of offenses that are typically committed against them, and with respect to the
reactions of the elderly to these offenses.
In this article, I argue for the need to recognize elderly victims of crime as a separate
category of victims of crime in Israel. This recognition is important for examining the
solutions offered to elderly victims of crime today and the degree to which these solutions
suit the needs of the elderly, and for devising new solutions that meet the unique needs of
the elderly in the course of the criminal process.

Full article is available in Hebrew here

The State, Holocaust Survivors and Lawyers Representing Them

Yael Havassy-Aharoni

The legal fees of lawyers representing Holocaust survivors have been regulated since the
State of Israel determined the reparations for the survivors. In recent years there have
been several changes in this field: in the past all survivors recognized by the state were
entitled to receive a monthly stipend. Since 2014, some groups of survivors receive an
annual payment. Another change in this field is the fact that the Minister of the Treasury
granted compensation, annual or monthly, to various groups and communities based
on administrative decisions. At the same time, between 2014 and 2016 legislative
amendments significantly changed the relationship between survivors and their lawyers,
extremely limiting the latter’s right to collect legal fees for work provided. The legislative
amendments were applied retroactively to procedures that had already been completed or
were being processed when the changes occurred.
This article details the chronology of events that took place in recent years in the courts,
the Knesset and government ministries and analyzes them with the model developed by
Galanter in “Why The Haves Come Out Ahead: Speculations on the Limits of Legal
Change”. This analysis leads to the conclusion that the protection of Holocaust survivors
by limiting lawyers’ fees has serious deleterious consequences that should be redressed—
whether by court decisions favoring lawyers where they have been successful, even if
only partially, or by creating a platform for representation in significant cases in this field.

Full article is available in Hebrew here

Trade union recognition regulations: It’s about time to suggest a new alternative

Atzmon Lifshitz

The right of employees to become unionized in their workplace is a universal right that was
approved by the International Labour Organization (ILO) in the 1948 and 1949 treaties.
These treaties, which were approved by Israel, served as the basis for the Collective
Agreements Law (CAL) that was approved by the Israeli parliament in 1957.
According to par. 3 of the CAL, the threshold for trade union recognition is that at
least one third of the employees, which are part of the bargaining unit, must support the
unionization process.
In the last sixty years there has been no significant debate in the academic arena, or
in the political or legal institutions, in regard to par. 3 of the CAL, asking whether the
current rules should remain or be changed. It should be noted that different countries
have different procedures/thresholds in regard to the trade union recognition process.
However, what is common to all the different procedures is that all employees have the
basic democratic right to vote (for/against/abstain) and be part of the process. Israel is
the only country in which only the votes of the employees that support the unionization
process count. So the process can be approved, even if two thirds of the employees are
against it.
My main aim in this article is to show the need for a change in the current model of
trade union recognition in Israel, which has existed in the last sixty years. I suggest an
alternative to the current procedure, which will not hurt the basic right to organize. On
the other hand, the suggested alternative meets the basic elements of democratic values
that exist in any social organizations. I hope that this article will spark an academic/
legal/political discussion on a very important subject that has slipped “under the radar”
since 1957.

Full article is available in Hebrew here

Volume 11

Table of Contents:

Abstracts: