Law & Social Change - Volume 7
Table of Contents:
Shifra Mescheloff, Dilemmas of Representation in Jewish Courts for Monetary Disputes.
Netanel Dagan, On the scant legal Attention to the Implementation of Punishment in Israel.
Yossi Wolfson, Years of the Pig
Abstracts:
The Case of Natural Gas Exploration from Israel: Between 'the political and the Legal Representation
Efy Michaeli, Ofer Sitbom and Eran Tzin
The 2011 social protest, which erupted in Israel and around the world. Have exposed the limits of democracy in its present form. Accordingly, current democracy serves the wealthy few ("the 1%"), while the vest majority of the public is shut out of the decision making process. A recurrent dement of the protesters, therefore, was for the participation and representation of the public officials. As such, the protesters demanded to reconstitute "the political." That is, the level of heterogeneity, where power belongs to nobody. "The political" stands in stark contrast to the dimension of "politics." The latter refers to the theater of everyday policy making, performed by political actors and various interest groups, whose aim is keeping the current order intact. This demand was also present in the public struggle against the Israeli government's decision to allow the export of a large part of the natural gas that was discovered off the coasts of Israel. Through discussion of the role of the law in this struggle, the article argues for a change in the role of cause lawyers: instead of pushing for legal action independently of social processes and of political support, which might lead to Pyrrhic victory, it suggests the cause lawyer should focus on finding legal tools to support the demand for an equal place near the table and for the existence of transparent, open and participatory debate.
Full article is available in Hebrew here.
Dilemmas of Representation in Jewish Courts for Monetary Disputes
Shifra Mescheloff
The article deals with the dilemmas facing a religious lawyer who represents impoverished people, especially frim the religious and ultra-Orthodox sector, in hearings in private courts for monetary disputes that rule in accordance with Jewish Halacha based on arbitration agreements signed by both sides. The paper surveys, as an example, an extreme case that was handled by the Civil Legal Aid Clinic in Jewish Law Tribunals, which sharply underlines the dilemmas which constantly accompany the clinic's work. This paper displays the way the Jewish Law tribunals act, and the differences between them in procedure and in essence. It shows the different Halachic attitudes they have towards Israeli law, and their stances concerning the sides being represented by jurists. The article deals with several essential dilemmas that center on the difficulty a religious lawyer confronts in beating a double identity. On the one hand, he is part of the Israeli juristic community, and his tool is the state's law. On the other hand, He is a religious person identifying with the desire to implement Jewish law, to be part of the religious community, and to accept the authority of the religious leadership. He is undecided whether the (sometimes slight) possibility of achieving legal results favorable to the specific applicant justifies cooperating with a tribunal regarding whose Halachic policy he has reservations. Or perhaps he should focus on improving the system from the outside by promoting criticism and legislation. The paper also deals with the limitations of pluralism in connection with alternative dispute resolutions where they appear to harm the rights protected by the rules of liberal justice.
Full article is available in Hebrew here.
Is it Finally Friday? Work and Rest in employment of Migrant Caregivers on Israel
Hanny Ben Israel and Michal Tadjer
The purpose of this paper is to propose an appropriate direction for future jurisprudence regarding the right of migrant caregivers to weekly rest, after the Supreme Court rules, in the matter of Yolanda Gloten, that the Hours of Work and Rest law, 1951, does not apply to their work. The paper describes the unusual legal regime designed and applied to the work of migrant caregivers in Israel, a combination of draconian immigration law and dwindling labor law. The authors argue that appropriate legal policy should try to restrain the severe implications on migrant caregivers' basic cogent rights as a result of Gloten, through interpretation that seeks to uphold the rights set forth in the Hours of Work and Rest Law that were not addressed directly in the judgment. The exceptional nature of the Gloten precedent, undermining the most basic principles of labor law, requires careful judicial application in future cases. This interpretation is mandated further by the strong emphasis, articulated in Gloten, on the need for legislation, which is clear today is not forthcoming. The authors focus on the right to weekly rest, one right (out of several) which is now denied of caregivers as a direct result of Gloten, and suggest a number of interpretive ways leading to the result of upholding the basic right to weekly rest of 36 consecutive hours, enjoyed by every worker in Israel.
Full article is available in Hebrew here.
Chronicle of Legalistic Violence: Reforms in The Israeli Act of Debt Collection and Developments in Debt Collection Letters.
Assaf Derri
The article examines the covert but meaningful evolution of the legal field of debt-collection in Israel in the past decade. Under the guise of technical-administrative reforms, essential changes have taken place which carry outstanding repercussions that exceed the narrow domain of debt-collection. Of the various changes and reforms which the Israeli Act of Debt Collection of 1967 has undergone, the article focuses upon three: the courts; the outsourcing and privatization of debtors' inquiries; and the removal of debt-collection magistrates from the judicial system and their subordination to the Debt Collection Authority. The article also examines the changing tendencies of preliminary warning letters which creditors' lawyers send to debtors before initiating legal action. A comprehensive examination of the recent changes in the applicable law as well as the warning letters, in light of the debt collection system's nature as an enclosed space characterized by unique language' culture and tradition, leads to the inevitable conclusion that the court of law, as an institution, is being excluded from the legal field of debt collection. The fundamental and constituting ethos of the court, namely the pursuit of truth and justice, as well as the potential for complexity that is inherent to the judicial process, becomes unfit for the debt collection system which resembles, more and more, a modern, industrialized system that strives towards unification and efficiency, thus reinforcing and reaffirming the existing power-relations in society. As far as debtors are concerned, the meaning of this is that the final separation that potentially protects the individual from the violence of the law, is removed.
Full article is available in Hebrew here.
On the scant legal Attention to the Implementation of Punishment in Israel
Netanel Dagan
The article discusses the scant attention dedicated to the implantation of criminal punishment in the Israeli legal community. Three are suggested for the current neglect: the attitude towards prisoners; lack of disciplinary coherence within the legal field (and between law and criminology); and the assumption that prison law (and the law related to the administration of punishment) does not merit to be part of the law school curriculum. In contrast, the article argues that prison law holds great importance in theory and practice for future lawyers in all areas of law. Aside from understanding the actual application of criminal punishment, this field represents a superb case study to test the limits of the state's legal to power to punish. In addition, it offers a perspective on the law in extreme cases. It is of special importance to those interested in social change due to the vulnerability and indivisibility of the prisoners and the unique nature of prison. Finally, the article argues for recognition of the importance of the subject both in the academic community and in legal practice.
Full article is available in Hebrew here.
The Butterfly Effect: Cause Lawyering in Shifting From Older Person's Guardianships to Support Model of Legal Capacity
Meytal Segal-Reich and Michael (Mickey) Schindler
Nomination of a guardian constitutes a serious infringement of a person's liberty. Restrictions are imposed and decision regarding the ward' lives, including residence, financial and medical issues, are placed in the hands of their guardians. In Israel, this is especially true in the case of older persons, in which guardianship is usually plenary and permanent. In addition to limiting autonomy, nomination of a guardian also has negative therapeutic implications, such as a decline of self-esteem. In light of this, many countries embraced the notion of guardianship as a last resort after considering less restrictive options.
The most innovative legal arrangement in the field of legal capacity, which evolved out the UN Convention on the Rights of Persons with Disabilities (2006), is the support model of legal capacity. This model undermines the incapacity paradigm. It is based on the perception that all people have legal capacity and therefore should be assisted and and supported in practicing their legal capacity. This model aims to empower individuals, to assist them in making their own decisions according to their wills and preferences. This model has great importance for older persons. Relying on a diagnosis of dementia, for instance, which is highly prevalent in old age, has become illegitimate for appointing a guardian. Cognitive decline is no longer a reason for limiting legal capacity, but grounds for making adjustments to its realization.
This paper offers a support model of legal capacity, which was implemented I practice. It also presents a unique model of cause lawyering, which was used to enhance the shifting from the guardianship in old age to the support model of legal capacity. One of the main results of these actions was a precedent ruling, which implemented the model in the case of an older person with dementia.
Full article is available in Hebrew here.
Yossi Wolfson
The struggle of Israeli animal protection organizations to set minimum standards for the Israeli pig meat industry, and to ban some of its cruelest practices, is a test case that allows a glance into Israeli animal protection law and the tactics of animal protection organizations. The law prohibits causing animal arbitrary or disproportionate suffering. However, to implement this rule, regulations are usually needed, setting specific provisions regarding concrete practices. To push the authorities to enact such regulations, the organizations use a combination of activities such as undercover investigations, media exposures, reports and petitions to the Courts. At the same time, they maintain a professional dialogue with the authorities, based on the adoption of scientific language, which examines the suffering of animals with objective research tools, devoid of any emotional involvement. Animal welfare science, which became established as a response to the demands of the legal system, supplies such tools, and sheds more light on the extant of harm done to animals in agriculture.
Animal agriculture is based on absolute objectification of animals and deprivation of most of their basic needs, to the degree of imprisoning them in stalls that prevent them from almost any movement for their entire lives. Animal protection law generally reduces the use of the cruelest practices. Nevertheless, it is far from providing animals real opportunity to express their natural behavior or truly satisfy their needs. It goes without saying that it does not abolish their exploitation. This tension projects on the modes of action taken by animal protection organizations and raises dilemmas that are relevant also to struggles in the field of human rights.
Full article is available in Hebrew here.
How to treat corpses? On the right of a person to tell the story of her life upon her death
Alon Harel
The article examines two decisions of Israeli courts concerning the treatment of corpses. In the first case, Mr. Avni asked that his corpse be left to be eaten by animals and, after his request was denied, he asked that his corpse be thrown into the sea. The case raises questions how to treat corpses and who ought to make such decisions.
The article offers four possible answers:
1) the state ought to make decisions concerning the treatment of corpses.
2) each person ought to make a decision as to the ways in which his or her corpse will be treated.
3) the relatives of the deceased ought to make such decisions.
4) the religious/cultural/ethnic group ought to make such decisions.
The article examines the ways in which corpses are currently treated and exposes the underlying justifying normative framework.
Finally, the article rejects the reliance on human dignity as the basis for making decisions with respect to the treatment of corpses and argues that the issue ought to be governed by the right to freedom of expression. A person who makes decisions with respect to the way his/her body is treated tells us thereby his/her life-story. The way the corpse is treated is an expressive act in which the deceased (or at times the relatives or the religious/cultural community) express their views as to the relations between the living and the dead, the ways in which the dead ought to be remembered (or forgotten) and even with respect to the meaning of life.
Full article is available in Hebrew here.
Trailing Error: Legal and Practical Difficulties in the Establishment and Activity of the Commission for Inspection of the State Prosecution in Israel
Limor Peled and Rafi Reznik
The labor dispute that emerged between the public prosecutors’ trade union and the Ministry of Justice during 2014-2015, as a result of the establishment of a new Commission for inspection of the State Prosecution and Legal Representatives to the Courts, is a unique one. The public attorneys resisted the commission’s discretion to conduct personal review of their every action. Out of a real concern for the public attorneys’ rights and image, the public prosecution’s independence, and indeed for the strength of the rule of law. The article details these concerns, which have started to materialize during the commission’s first year of activity, and divides them into three categories: difficulties regarding the establishment of the commission; infringements of workers’ rights; and damage to the organization’s proper management methods and institutional hierarchy. The authors argue that the commission’s first year of activity demonstrates that these concerns are substantial.
Full article is available in Hebrew here.
A Wrong Objection – On a Necessary Audit and Redundant Objection to the Commission for Inspection of the State Prosecution
Michal Tamir
Administrative authorities, which are accountable to the public, should be subject to external audit. The audit protects the public, as people try harder when they know if its existence; and it also protects the authority, since it increases transparency and hence public faith. The wider discretion the public authority has, the greater the importance of the audit. that is the reason why the audit of prosecution authorities is so crucial. This is further indicated in Israel, due to the absence of an external mechanism for approval of indictments; the enormous power of the attorney General; the existence of many enforcement practices that are not anchored in the law; and the diffuse powers of prosecution.
The article supports the continued existence of the Commission for Inspection of the State Prosecution and Legal Representatives to the Courts. The article suggests that the commission’s powers should be regulated by legislation, and should be extended to apply to the Attorney General. The proposed outline is of designated professional body with responsibility for systemic audit as well as personal complaints. This layout allows feedback: multiple individual complaints in a particular area may indicate a systemic problem; and systemic reviews can shed light on individual complaints. A professional body will promote accountability and transparency on the one hand; and on the other hand, will be sensitive to the uniqueness of the prosecution, in order to protect the independence of its discretion and avoid abuse of power to submit a complaint.
Full article is available in Hebrew here.
