With the publication of this, the fifth volume of Ma’asei Mishpat, the idea of public-interest lawyering involving a uniquely significant knowledge of the role of law in advancing social changes seems to be taking root in the legal community. The four previous volumes amply demonstrated that the viewpoint of public-interest lawyers, who routinely deal with moving the law in the direction of social reform, is central to illuminating both the strengths and weaknesses of the use of law. The walls separating academic writing from public-interest endeavor have fallen, and a fruitful discussion has begun between theory and practice on key questions such as the goals of public-interest lawyering, the reciprocal relations between lawyers for social change and their clients, as well as broader questions regarding the role of law as an agent of change or conservation. The fifth volume of Ma’asei Mishpat seeks to delve into these important questions and further elaborate on the…

Full introduction is available here.

Cracking the Foundational Myths: Independence, Autonomy and Self-Sufficiency

Martha Albertson Fineman

Feminist legal theorists can legitimately complain that most mainstream work fails to take into account institutions of intimacy, such as the family. Discussions that focus on the market typically treat the family as separate, governed by an independent set of expectations and rules. When theoretical focus is turned to the nature of actions of the state, the family (if it is considered at all) is cast as a separate autonomous institutions. Theorists who focus on the individual seem to deny the family any potential relevance or theoretical significance.

This reliance on the 'assumed family' distorts analysis and policy. In economic and other important public policy discussions, we focus on the appropriate relationship between the market and state, with the family relegated to the 'private' sphere. Discussions proceed as though the policies that are designed to affect these institutions in the public sphere have only few implications for the unexamined private family.

This paper argues that we do not begin our lives in equal circumstances but in unequal contexts. In order to rethink how we might constitute a just system for handling dependency, our society must move beyond simplistic catch words and engage in a nationwide debate. Society’s winners and losers become so, in large part, because of benefits and privileges or disadvantages and burdens conferred by family position and unequal distribution of social and economic goods. The approach to a resolution to this type of inequality is not found in simplistic and hypocritical prescriptions, ideological placebos of independence, autonomy, and self-sufficiency…

Full article is available in Hebrew here.

Following Fineman’s Theory of Collective Responsibility: Analysis of the Long-term Care for the Elderly in Israel

Shiri Regev-Messalem

Full article is available in Hebrew here.

The Law of the Street

Adi Blutner and Gil Rothschild

This Article would like to suggest an alternative to an accepted legal approach which tends to treat the urban street as a means of passage between private spaces, and to promote instead a thicker conception concerning the variety of interests this space has the capacity to advance. This refers to, among other things, the potential of the urban street to serve as a complementary space for conducting one’s life — as a site of daily affairs, a social meeting place, a refuge from the troubles of home, and a space for holding political demonstrations, parties, cultural events, etc. Positing this conception as the point of departure for the legal regulation of human conduct in the street may lead to a more equitable distribution of this space, help to develop relations of trust among all of its users, and provide an answer to diverse human needs.

In this Article we have sought to point to legal norms’ part in constituting the urban street as a social space and to suggest a framework for a critical examination of the way in which they fulfill that role. After laying the theoretical and normative foundations for the proposed model, we will try to demonstrate its applicability by examining several cases in which the Israeli courts have dealt with the events of the social protest in the streets of Tel Aviv-Yafo. In our view, the main advantage of the proposed model lies in its ability to expose the way in which entrenched social perceptions actively participate in shaping the Israeli spatial reality — all that, through the intermediation of legal norms whose full range of action may sometimes escape our eyes.

It is our hope that the analysis presented in the framework of the Article will help yoke Israeli law to the complicated effort of creating a vital urbanness with the capacity to fulfill a broad spectrum of social interests…

Full article is available in Hebrew here.

“Lost Identity”: Between Law and Society in the Ringworm-Treatment Victims' Group

Inbal Maimon-Blau

This Article describes the social and legal struggle waged by the ringworm-treatment victims’ group on behalf of social change, from their point of view. The X-ray treatments for ringworm disease were carried out mainly on children of Mizrachi immigrants during the years 1948-1960. Despite medical discoveries already in the 1960s regarding the connection between those treatments and illness (such as various types of cancer), it was only in the 1990s that any social concern about the matter was aroused. Only in 1994 was a law enacted in regard to it, and the legal development began only in the 2000s; the first legal recognition of tort, in the framework of a judgment on the right to compensation, came only in 2009. The Article examines the social and legal development in the group members’ struggle, points to the tight link between the two, and offers an explanation for these differences, predicated on the political identity of the members of the victims’ group — their being Mizrachim. The Article deals with this important and fascinating topic to which but little attention has been devoted in Israeli academic writing generally, in the legal field in particular. It conducts an analysis from an original and unique angle, which examines the social-legal structuring of the victims’ group, focusing on their Mizrachi identity — accordingly, while using and developing the Mizrachi critique of the law. The Article is, then, another strand in the developing Mizrachi discourse, which is come to describe injustices towards Mizrachim that have been neglected and which challenges the accepted academic description of the story of Mizrachi struggles…

Full article is available in Hebrew here.

Disability Allowances by Dint of Nazi Persecution and Israeli Society's Perception of the Holocaust: An Analysis from the Standpoint of Disability Studies' Critique

Nitzan Halperin

This Article examines the status of disability allowances by dint of Nazi persecution as reflected in the critique of disability studies. That critique exposes the existence of a hierarchy of disability allowances in Israeli society, one based on the circumstances in which the harm by dint of which the allowance is granted was incurred. Against the background of this critique, the Article examines the influence of historical, political and social factors on the institutionalization of the status of disability allowances by dint of Nazi persecution in the hierarchy of allowances. During the 1950s, when the disability allowances were institutionalized, preferential material status was awarded to allowances to disabled IDF veterans, followed by allowances to the disabled of the war against the Nazis, and lastly allowances to the disabled from Nazi persecutions. The Article shows that this hierarchy was influenced by Israeli society’s attitude toward the Holocaust and toward Holocaust survivors, as having failed to meet the collective values of heroism that Zionist society stood for.

Beginning in the second decade of the State of Israel’s existence, there was a change in the perception of the Holocaust by Israeli society, with the Holocaust being gradually embraced as part of the Israeli identity and as an ethos of heroism. The Article shows that this change led to an improvement in the status of disability allowances by dint of Nazi persecution. That change was expressed through three trends in legislation and in judicial ruling, which demonstrate the expansion of collective responsibility toward the disabled by dint of Nazi persecution, a narrowing of the hierarchical gap between the allowances granted to them and to others, and a turn toward social legislation which grants Holocaust survivors an allowance without their having to prove any disability.

Full article is available in Hebrew here.

The Politics of LGBT Rights: Between (Homo) Normativity and (Homo) Nationalism and Queer Politics

Aeyal Gross

This paper examines the politics of LGBT rights in Israel, employing critical analysis of the terms "homonormativity" and "homonationalism": homonormativity has been described as a neoliberal sexual politics, which does not contest the dominant heteronormative institutions and is anchored in domesticity and consumption; homonationalism has been described as national homonormativity, in the framework of which domesticated homosexuals provide ammunition to nationalism.

The discussion of homonationalism points to a process in which the homosexual changes from someone perceived as a threat to the state and its security, to someone who is considered embedded within the state and who distinguishes it, by virtue of the tolerance shown toward him, from other countries. Homonormativity and homonationalism are preconditions for "pinkwashing" — the use of LGBT rights for propaganda purposes. The paper points to the need for non-reductive conceptions of the connections between homonationalism, homonormativity and pinkwashing, as also to the contradictions within the idea of homonormativity itself between domesticity and consumption.

The murderous attack on the gay youth group in Tel Aviv was a turning point in the politics of LGBT rights. The responses to it marked the rise of the new homonationalism, but also the strengthening of critiques of it in a way that created divisions among activists. The Article points to the "deal" that was contrived in the shadow of the attack between the gay establishment and the national establishment, and to the crisis of queer politics. In response to the rise of homonormativity and homonationalism, there has been a strengthening of the politics of identity of groups excluded from it, and queer politics as a politics that challenges essentialist notions of identity is in crisis. Sometimes, the queer idea turns into just another identity ("q") in the alphabet soup, at the expense of its critical potential and effectiveness.

I also address the judgment of the Israeli Supreme Court in the Jerusalem Open House case which is a turning point, both in the context of the recognition of equality for the gay community, and for the way in which the Supreme Court adopted the discourse concerning LGBT rights as the markers of Israel as a liberal democracy, distinguishing it from other countries…

Full article is available in Hebrew here.

Implicit Exclusion Mechanisms in Residential Screening Processes in Israel

Adi Nir-Binyamini and Tal Ganor

Last year a petition was submitted in principle against the Law of Admission Committees to Community Settlements, in the name of a family whose request to be admitted to a settlement had been rejected. In the framework of the petition, we devised a deliberative strategy, based on structured cooperation with the Department of Sociology, for the purpose of establishing a legal-social picture extending beyond the petitioners’ particular matter.

We have sought to examine how separate organization takes place in the field — alongside the existing legal arrangement, which is supposed to generate mechanisms to monitor and supervise the screening processes — and preserves mechanisms of exclusion. A discussion of the law itself, we think, will not suffice to present a social-political-legal picture broad enough to lead to social change.

Through a sociological analysis of in-depth interviews, we have sought to afford expression to those who have given up along the way, and to expose what fails to be uncovered in the framework of the judicial discussion. We have worked on the assumption that focusing on the admission committee as the crucial point in time helps to deconstruct the particular story from the social context. We have therefore sought, by means of a broader approach, to examine the effects of processes taking place alongside the formal process, the existence of hidden mechanisms, and the scope of the exclusion phenomenon. By exposing these hidden mechanisms in the screening processes and analyzing the gap between the legal norm and its actual application, we have sought to deepen the legal picture and provide an alternative picture to the one offered by the written arrangement.

In the Article we shall survey the screening processes for admission to residence in settlements, and analyze the failures in achieving a decisive resolution in the matter of admission committees. We will present the reasons that led to choosing the above deliberative strategy and the conclusions of the sociological analysis. Lastly we shall discuss qualitative action research as a possibility of connecting between research and social activism, and as having fruitful potential both for academia and for practice — in the hope of encouraging social lawyers, researchers and jurists to continue examining its feasibility…

Full article is available in Hebrew here.

An Interview with Chief Justice (Ret.) Dorit Beinisch

Shiri Regev-Messalem and Hagai Kalai

Full interview is available in Hebrew here.

The Role of the Court in the Formation of an Israeli Asylum System

Tally Kritzman-Amir

This Article seeks to conduct an initial examination of the significant judgments delivered in the matter of refugees’ and asylum-seekers’ rights in Israel. In some of the cases, the courts have located the discussion of refugees’ and asylum-seekers’ rights within a paradigm that I shall call the paradigm of migration policy. This paradigm advocates granting broad discretion to the legislative and executive branches, considerably restricting any possibility of intervention by the courts, from a conception which holds that migration issues are political issues and there are no binding legal norms that dictate the considerations of migration policy. I will demonstrate how this paradigm is expressed in three types of judgments: those dealing respectively with interpretation of the definition of a refugee, with the rights of refugees, and with the admission policy to Israel implemented at the borders.

I will suggest that organizations that wish to promote refugees’ and asylum-seekers’ rights should strive to locate the discussion of their rights in one of two paradigms: the paradigm of refugee law, which posits dealing with refugees’ rights as essentially different from dealing with migration laws from the court’s institutional viewpoint. That is because refugees’ rights are subject to the binding normative framework of the treaty in regard to refugees’ status and not only to political considerations. This paradigm deals with honing the essential distinction between refugees and other migrants as one from which stems the claim of a right of stronger moral validity on the part of the refugees. The second paradigm is the paradigm of general administrative law, which conceptualizes dealing with refugees’ rights in terms of the general discourse regarding the obligations of the administrative authorities towards those who receive services from them. These two paradigms are not immune to criticism, which I shall also reference…

Full article is available in Hebrew here.

Institutional Challenges to Requests for Retrials in Israel

Efrat Fink and Rottem Rosenberg-Rubins

Since the establishment of the State of Israel, the Supreme Court has overturned convictions and granted retrials in 21 cases only; of these, only 14 defendants were ultimately acquitted. In this Article, we claim that the small number of requests for retrials granted in Israel stems from several institutional challenges that prevent the submission of sufficient requests for retrials and restrict the possibility of persuading the Court to overturn convictions. These challenges include the lack of an institution with sufficient authority to examine false convictions; improper post-conviction preservation and unlawful destruction of exhibits; limitation of the right to disclosure of material and post-conviction testing of exhibits; and limitation of post-conviction witness interviews. We claim that in order to properly identify and overturn false convictions, a number of changes are required — some of them intact in Britain and in the United States — including the granting of authority to an institution to examine false convictions, regulation and assimilation of updated legislation for the preservation of material and exhibits, granting the right to post-conviction disclosure and testing of material and exhibits, and regulation of post-conviction witness interviews. In order to enable change, additional partners and public awareness must be recruited.

The analysis of the institutional challenges in Israel shall use the Public Defender’s Office’s experience in attempting to overturn Kamal and Muhammad Sbehi’s conviction of the murder of Dafna Karmon in 1984…

Full article is available in Hebrew here.

The Protest and the Economy

Joseph Zeira

This Article asserts that the reasons for the outbreak of the social protest can be better understood against the background of the economic policy of all the Israeli governments in the past 20 years. That policy greatly reduced public expenditures relative to product and thus considerably eroded social services such as education, healthcare, public housing and welfare. Likewise, it caused significant erosion in workers’ pay relative to output, due to an increase in the share of contract workers, a weakening of the labor unions, and lack of enforcement of the minimum wage. That economic policy was not required to maintain a low public-sector deficit, as it was used to lower the direct tax rates, which benefited mainly the relatively high-income earners. Nor was it required, the Article contends, for the sake of economic growth, since the long-term effect of an increase in public spending, and with it of a rise in tax rates, on output is not large, and its sign is not distinctive. That economic policy continuously contributed to increasing inequality in Israel and with it to growing distress of a large public, which felt that its economic future became increasingly uncertain. At some point that public stood up and made its voice heard, echoing from one end of the country to the other…

Full article is available in Hebrew here.