Law & Social Change - Volume 8
Table of Contents:
Abeer Baker, Palestinian Prisoners: The Community and the Individual – An Inside Look.
Edna Harel-Fisher, Is Collaborative Governance Possible in the Field of Regulation in Israel?.
Abstracts:
Equality's Covets an Overts: An Introduction to the Translation of "Covering" by Kenji Yoshino
Yofi Tirosh
This essay accompanies the Hebrew translation of experts from Kenji Yoshino's 2006 book, Covering. The essay seeks to explicate the book's contribution to the Hebrew reader, as well as to contextualize it within antidiscrimination theory. Yoshino's book can be described as offering a complex and challenging intervention to the age-old important conundrum of sameness and difference in equality theory. Yoshino suggests broadening the way the law understands individual liberty and the condition that enable human flourishing and equal recognition. He argues that the law should recognize that difference based on race, sex, or sexual orientation is meaningful not only statistically, but sociologically. Stigma and stereotypes directed at members of excluded groups are often based on negative reactions towards their bodies and behavior, which is perceived as exceptional. Through personal examples, cases, and studies, Yoshino shows that demands to downplay difference limit equality and liberty even if they do not amount to discrimination as presently recognized by the law. Through his theoretization of the change in how American law and society treated gays and lesbians, Yoshino shows that social actors and institutions no longer ask minorities to change their identity or to hide it by passing as straight, white, etc., but rather they expect minorities to cover – i.e. to avoid from "flaunting" their social difference. Such claims impede on individuals' ability to prosper as humans – since humans constitute their identity and selfhood through embodied practices and signification. The essay also addressed the book's relevance for Israeli law and society, and its potential for emerging groups who seek legal protection from discrimination, such as fat people. Finally, It reviews and assesses and the critique that was directed towards the book, and the limitations of its argument.
Full introduction is available here.
Establishing Peace in Tunisia: Law, Protest and the National Dialogue Quartet
Yaniv Roznai and Amaud Kurze
Against the backdrop of increasing securitization in Tunisia's democratic transition process, this article examines the role of different social actors to maintain peace and stability, and who were awarded the 2015 Peace Nobel Prize, for their efforts to keep the country from slipping into chaos and conflict in 2013. Tunisia was facing some of the same issues as Egypt: an Islamist-led government that was ignoring the secular opposition when crafting a new constitution, protests in the street, high-profile assassinations and radical Salafist activities. Contrary to Egypt, Tunisia's political elites continued the path towards democratic consolidation. This achievement, however, would not have been possible without the brokerage of the "National Dialogue Quartet." The quartet consist of the union federation UGTT, the Confederation of Industry, Trade & Handicrafts, the Tunisian human rights league and the order of lawyers. These social actors served as a crucial mediator between the secular and Islamist forces in the country in order to broker a compromise on the constitution and create a technocratic interim government and an independent election commission. In their article, the authors map the different roles of involved actor notably focusing on the intersection between contentious politics, collective action and law. They also provide a section with lessons learned for future revolutions and transitions.
Full introduction is available here.
A Kosher Differentiation: Is Jewish Culinary Consumerism in Need of a Unique Legal Protection, and What about Veganism?
Asaf Harduf
The Law against Kosher Fraud 1983 sets many protections to Jewish religious consumers. Lately the Supreme Court ruled that this unique law is required to protect the Jewish religious consumers, in addition to regular consumer law. In other words, although the Consumer Protection Law 1981 offers a wide and abstract consumers protection, which may be applied to diverse consumer issues, the legislator granted an additional protection to the Kosher food issue. The article reexamines the assumption that the Jewish religious culinary is unique, under two layers. The first critically examines the criteria offered by the Supreme Court to differentiate kosher food consumption, as well as additional criteria: the inability of consumers to examine the product, in curable consumer harm, the complexity of the ideological rules, a wide social sensitivity and achieving religious goals. The secong layer examines if the above criteria suggest additional unique protections, focusing on veganism, a currently expanding ideological consumption, as a test case. The article finds that many of the criteria do suggest a wide protection for veganism, including the marking of vegan food.
Full introduction is available here.
Minority Position and Collective Responsibility: On the Freedom of Speech of Cabinet Members
Barak Medina and Uria Beeri
The prevailing approach is that the constitutional convention of cabinet members' collective responsibility entails the ideal of solidarity as well: Cabinet members are not permitted to publicly disagree with decisions of the cabinet. This Essay questions this premise. It is suggested that the public interest in effective parliamentary, judicial and public scrutiny of the Executive Branch trumps the interest in coordinated activities of the government. Cabinet members owe a fiduciary duty not only to the cabinet but also to parliament and the public at large. Consequently, while a cabinet member is not allowed to thwart governmental decisions, a cabinet member should be free to present his reasoned disagreement with a certain decision or policy of the government, to assist parliamentary and judicial supervision of the government.
Full introduction is available here.
Palestinian Prisoners: The Community and the Individual – An Inside Look
Abeer Baker
The struggle of Palestinian prisoners in Israel since 1967 has led the Israel Prison Service to acknowledge them as a group with its own unique political status, as distinct from the criminal prisoner population. IPS acknowledges their right to manage their own affairs within the prison, through their self-organizing based on political affiliation and with IPS recognition of their respective group representatives who negotiate on their behalf concerning everyday matters of prison life. In this way, over the years, a well-established prisoners movement has arisen, with its own system of decision making and prioritizing. An exceptional deterioration in the conditions of imprisonment has evoked a collective response by prisoners, generally effective, leading to an improvement in their welfare in Israeli prisons.
Nevertheless, alongside the advantages attributable to recognition of the principle of self-representation by Palestinian prisoners and their acting as a collective, there are also disadvantages. The collective aspect of prison life does not enable the individual prisoner to choose not to affiliate with an organization, and the judicial system uses the collective affiliation as justification for damaging the rights and benefits of individual Palestinian prisoners in Israel.
This article addresses the catch-22 in which a Palestinian prisoner in Israel finds himself in seeking to obtain a benefit or exercise a right regarding the conditions of his imprisonment or release, when he is requires to reject the characteristics of the group with which he is – willingly or not – identified, imbued with a separate political identity, as a condition for receiving that benefit or exercising that right. The article will also briefly address the new trend for increased petitioning by Palestinian security prisoners through individual judicial channels, despite the catch-22 already described. These petitions to the court, the article will argue, occur due to erosion in the collective political power of the Palestinian Prisoners Movement in Israel and may even amplify this erosion.
Full introduction is available here.
"Poverty Cases": T he Public Offender's Struggle With Crimes Perpetrated on account of Economic Hardship
Tal Kaslasi-Gogstein
The article discusses "poverty cases", a unique category of criminal cases litigated by the public defense office. At the root of the accused's behavior in these exceptional cases are severe socio-economic hardships. The main characteristic of these cases is that the felony was committed in order to achieve basic means of subsistence. In most cases, the severity of the crime is low and no actual harm is caused to a third party.
The article discusses the course of treatment and legal representation in these poverty cases, with reference to two case studies that describe how social and economic hardships led to criminal involvement of the accused and even to his arrest. The article begins with a discussion regarding the experience gained from the legal representation in poverty cases, formulates optional strategies of dealing with the charges, and continues with detailing the relevant legal arguments.
The legal arguments attack the decision to file charges and are based mainly on administrative and constitutional law. Three legal arguments are presented – the ultima ratio principle, violation of social rights and the lack of public interest. The purpose of these principles is to explain the appropriate basis and guidelines to consider while making a decision to file criminal charges in these unique situations. Later on' as part of the discussion of the relevant legal doctrines – "Judicial Review of Administrative Actions in Criminal Proceedings Doctrine"' and "Abuse of Process Doctrine" – a discussion is held on the implementation of the arguments in case studies and the foregone conclusions from them. Also, the article discusses the possibility of raising the traditional criminal defense claim in poverty cases – the necessity defense.
The argument presented in the article is that in poverty cases, even if in formal terms of substantive criminal law there is a possibility of incrimination and conviction for acts committed by the accused, there is room to avoid filing criminal charges, due to lack of public interest in a criminal charge, and since the harm caused to the accused, as an outcome of the criminal proceedings, is disproportionate.
Full introduction is available here.
Can the Interrogative’s Consent be Considered an Authoritative Source for a Search in His Mobile Phone?
Adi Rittigshtein-Eisner
This article concerns the criminal investigative practice of searching the content of a person’s cellphone, conducted on the sole basis of (alleged) consent, rather than a judicial search warrant.
The article argues that this investigative practice has no legal basis, and has therefore been unlawfully adopted in Israel.
Due to the very nature of cellphones and the manner in which they are now used, a police search for a cellphone can amount to a significant invasion of privacy – for the person under investigation and for anyone with whom that device was used to communicate. Most people do not realize how much information can be retrieved or recovered by searching their cellphones, nor can they be expected to fully appreciate this, let alone while under pressure of police interrogation. Accordingly, “informed consent” to a cell phone search is something of a contradiction in terms.
Consent, therefore, cannot provide adequate legal basis for searching the content of a person’s cell phone. Conducting such a warrantless search, moreover, is inconsistent with the jurisprudence of the Israel Supreme Court regarding personal computers, which are deemed to be foundational property and are protected as such.
Full introduction is available here.
The Court’s Role in Determining Criteria for Implementing the Right to Heath Care Services within Reasonable Time and Distance
Ruthie Hostovsky
The National Health Insurance Law (NHIL) obligates the sick funds to provide public health services within reasonable time and distance. Nevertheless, up to this day, there are no standards that define the required time and distance. Therefore, the accessibility of many Israeli residents to their legal right to healthcare is being denied, together with their constitutional right to dignity and equality. In this article I argue that the state’s fear that standardization would require a budget increase has never been examined, and thus, never been proven. However, since the state and the legislature chose not to create standards, the judiciary branch has the exclusive authority to define the meaning of reasonable time and distance under the NHIL. The article presents the few rulings that were made by the Israeli courts regarding this issue, the courts’ tendency to reject principled arguments that intend to advance the public interest and to cling to the individual case brought before them. In light of this situation, I suggest generating a mechanism that will increase the number of rulings regarding this matter and create binding standards.
Full introduction is available here.
Is Collaborative Governance Possible in the Field of Regulation in Israel?
Edna Harel-Fisher
Following the translation of the important article “Collaborative Governance in Theory and Practice” by Chris Ansell and Alison Gash, published in the previous volume, this article raises some questions concerning the use of the Collaborative Governance Model according to the critical variables identified, for forming Regulation in the Israeli system. Question are raised from the perspective of the principles for forming regulation according to the Israeli governance and legal system. Emphasis is given to regulation forming, as opposed to other forms of governance and regulatory actions.
The issues dealt with in the paper focus on the features of the representative-Democratic system in Israel, the Rule of Law Principle and the Government’s duty to use its powers. These features are less compatible with the consensus-oriented decision making process described for Collaborative Governance. Regulation forming procedures are dealt with in the light of variables pointed out by Ansell and Gash as the incentives for stakeholders to participate, leadership. And institutional design. A tension described between the notion of Governance, as used by policy makers in Israel, and its use for Collaborative Governance, will reappear following the experience gained by the use of related models in the Israeli system. Taking into account these remarks, it is suggested that regulation should be formed by the authorized body, while Collaborative Governance can provide some assistance to procedures of regulation formation, as well as to decisions taken regulator, concerning individual cases. In order to gain from the merits of Collaborative Governance in the Israeli regulatory sphere, the author suggests the use of a slightly different model, which will fit the appropriate cases. The similar model is known as Establishment by Law, or Regulatory Agencies set by law. These bodies may serve as a permanent collective forum, usually of stakeholders and public interest representatives, that will preform a decision making process by consensus for forming regulation, following some important advantages described by Ansell and Gash.
Full introduction is available here.
