Law & Social Change - Volume 2

Introduction

Ofer Sitbon

The publication of the third volume of Ma’asei Mishpat comes after a prolonged gestation period. The warm reception the periodical has been accorded since the release of the first volume shows that its appearance is welcome news to the community of public interest lawyers in Israel. The periodical’s articles have been cited in court decisions and in academic writing; many of them are being studied in various courses of law faculties throughout the country; and legal clinics are making use of them to strengthen theoretical aspects of their practical work. The language of public interest lawyering, then, is taking its rightful place in the existing legal discourse, and the third volume of Ma’asei Mishpat seeks to deepen this laudable trend…

 

Full introduction is available here.

 

 

The Hollow Hope – Can Courts Bring About Social Change? A Book Review of Gerald Rosenberg's 2nd Edition (2008)

Ruth Gavison

The article first describes the book’s challenging thesis: Rosenberg contends that (a) it is essential to examine the question of the power of the courts critically and in detail in order to bring about social change, and (b) that such critical examination suggests that both the restrained model – arguing that courts can never bring about change – and the activist model – claiming that courts are a unique and critical tool in the struggle for such change – are incomplete. The courts can contribute significantly to social change only when they are not acting alone, and when the obstacles to change are not extensively supported by social and political forces. When opposition is pervasive, progressive decisions of the courts may in fact create a serious backlash.

 

Next the article critically examines Rosenberg’s thesis in the context of the United States. It points out weaknesses in his analysis of the decision regarding segregation in schools and the struggle for same-sex marriage rights. The article argues that Rosenberg’s is a challenging and important thesis in Israel as well, and that it is important that designers of the constitution, as well as forces fighting for social change and the legal players themselves, should be aware of it and of its implications. Those who want to attain social reform must act in ways that will make their action effective, using the most suitable tools; important as they may be, laws and the courts are just one component in this struggle. Using them in improper fashion may not only slow down social progress itself, but also may well hinder the ability of law and the courts to fulfill their distinctive role in a democratic society…

 

Full article is available in Hebrew here.

 

 

An Interview with Prof. Herman Schwartz, Founder of the US-Israel Civil Liberties Program of the New Israel Fund

Neta Ziv

 

Full interview is available in Hebrew here.

 

 

The Discourse of Rights and Environmental Quality: Can the Two Coexist?

Arye Vanger & Gilad Ostrovsky

In the framework of the welcome expansion of activity on behalf of environmental protection in Israel, recent years have witnessed the rising use of legal instruments, on the basis of the discourse of rights. This use rests more and more on the conception that the right to suitable environmental quality is a basic human right that needs to be anchored, either independently or as a right deriving from the Basic Laws on Human Rights.

 

A discourse of rights is a form of discussion and reasoning between two sides holding a dialogue, but one that is asymmetrical and uneven; it is a contentious discourse between one side demanding rights to satisfy its own interests, and another side which is required to provide the rights demanded. The article contends that, in the environmental context, the discourse of rights deals primarily with the quality of life rather than environmental quality, reflecting the theoretical confusion surrounding the two concepts. The article presents the case that the discourse of environmental rights is neither suitable nor effective for dealing in a real and fundamental way with the problems of environmental quality. To do so requires first and foremost a change of the ethical/moral prism through which we view and understand the problems of environmental quality, and a transition to a discourse of responsibility, social solidarity and moral obligation. Such a change in the discourse can prepare the ground for building political, economic, social and legal institutions and mechanisms, which may lead to the application of these principles…

 

Full article is available in Hebrew here.

 

 

On Lawyering in the High Court of Justice’s Petitions Department

Osnat Mandel

The public lawyer works on behalf of several masters, all of whom are at the same time subservient to the abstract norm of promoting and defending the public interest. However, the transition from the abstract to the concrete realities of daily life is accompanied by disputes, sometimes substantive and legitimate, often charged and stormy. The profound change which has taken place in recent decades in the Israeli judicial system in general—and, in particular, in public law and the grounds for judicial review—has fundamentally transformed the legal working environment to which public lawyers must adapt themselves. This change is manifest in the lawyers’ working procedures, including the type of information they need to gather, the range of agencies to whose positions they must hearken, the need to take into account a broad spectrum of considerations and values, the quality of the examination and the nature of the discretion they wield — all of this in order to best represent the public interest. This interest is not represented only by the position of the body against which the petition has been filed, but is made up of a variety of interests, which turns the lawyer’s work into an intricate endeavor saturated with dilemmas.

 

The article casts light on these dilemmas through a description of the lawyers’ work in detail, specifying the different stages in the handling of a petition, and the primary loci of decision-making. The description itself resolves some of the dilemmas with which the lawyers must contend. Others, though, remain unanswered, and are meant to provoke further thought on what the public interest is and who should define it…

 

Full article is available in Hebrew here.

 

 

Legislative Lawyering as an Instrument of Social Change

Debbie Gild-Hayo & Sigal Shahav

The article presents various aspects of legislative lawyering, and this instrument’s unique contribution to achieving social change. Following a preliminary theoretical discussion, the article poses the various dilemmas and difficulties that its use entails, which stem from its taking place in the political arena. While practicing this instrument, it is necessary to contend with unequal power relations, clashing interests, the difficulty of promoting unique issues, media effects, and the consequences of its being an aggressive, belligerent arena. The article next maps the various ethical, moral and tactical dilemmas which face the legislative lawyer. It then points to a long series of advantages which legislative lawyering offers, first and foremost the ability to achieve broad and substantial change in law during the process of legislation, but also the participation and representation of disadvantaged or excluded populations; influence over the social discourse; admission of a rights discourse; shaping of the public agenda, etc. These advantages are illustrated by three examples from the experience of the Association for Civil Rights in Israel: the Communications Data Law, Employment of Policemen for Pay Law, and the duty of representation in criminal proceedings.

 

Legislative lawyering, then, is an extremely efficient, vital and irreplaceable instrument for advancing social change. The dilemmas and difficulties it involves take away nothing from the advantages of its use, but demand, at most, due familiarity and the adaptation of suitable working methods…

 

Full article is available in Hebrew here.

 

 

By neither Law nor the Histadrut Alone: Promoting Organizing as an Effective Instrument for Self-Enforcement of Workers’ Rights and for Social Empowerment

Itai Svirski

The article presents a project, the first of its kind, for promoting organizing among nonunion workers, in the framework of the Clinic for Law and Social Welfare at Tel Aviv University. In the absence of reasonable state enforcement of the norms of labor law, and in economic spheres where the Histadrut (the General Federation of Labor in Israel) fails to enforce the norms it itself has established, experience from the project has shown that promoting organizing, even if not in the framework of the Histadrut, is a vital and effective instrument in enforcing workers’ rights, as well as in improving their pay and conditions beyond existing rights—more so than recourse to the labor courts or promoting legislation.

 

Discussing the Clinic project allows the article to proceed to discussion of the nature and identity of lawyering for social change in Israel, and thereby to present a position supportive of such lawyering that overcomes the limitations inherent in the standard legal route; diverts the brunt of activity from the court to the community itself; and focuses on organizing and empowering it.

 

The project’s success shows—despite the important warning against a mere “indirect” use of law and a diminishment of the importance of the lawyer’s legal expertise — that community lawyering can combine the significant and trailblazing use of legal instruments with the preservation and enhancement of the community’s independent power by extrajudicial means…

 

Full article is available in Hebrew here.

 

 

Where Is My Voice? A Feminist Journey through the Druze Community on the Way to a Different Kind of Lawyering

Nanny Balas

Through the eyes of a student, the article tells the story of the “Women Legal Leaders and the Legal Feminism Clinic” Program at Haifa University (a joint venture of Itach-Maaki - Women Lawyers for Social Justice and the Haifa Faculty of Law), and the story of the “Key for Rights” project, initiated by women leaders from the Druze community together with the author, in order to address the issue of Druze women who have divorced or are seeking to divorce their husbands. Both these stories raise crucial questions concerning the capacity and limits of the law as an instrument of social change, and the appropriate place for lawyers in this type of initiative. In presenting its conception of a “different kind of lawyering” from a community aspect, the article poses a feminist alternative to conventional legal work and deals with questions arising from the application of this conception to lawyering for social change. These questions lead to a reconsideration of the goals of the academic arena, dealing with the possible ramifications of these conceptions for legal education and the place of academia in the world of social change…

 

Full article is available in Hebrew here.

 

 

Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G.

Lucie E. White

 

Full article is available in Hebrew here.

 

 

Feminist-Community Lawyering, Hollywood Style: North Country

Orit Kamir

This article combines three perspectives best known as “law and film”, “community lawyering” and “feminist law”. The article analyzes the 2005 Hollywood film North Country primarily in the context of two movie genres: “The Woman’s Film” and the “Law and Lawyers Film”. Reading North Country in this complex cinematic context reveals how, through unconventional references to familiar Hollywood formulas, it constitutes an innovative possibility, constructing a blue-collar woman who, through her war on sexual harassment in the workplace, becomes a social activist and a community leader, and prevails on all fronts: winning her legal suit, transforming her community’s values, and regaining her family. It remains to be seen whether the film’s box-office success will convince Hollywood to turn its formula into a movie “sub-genre”.

 

The analysis presented in this article points to the analogy between North Country’s indebtedness to the two genres, “The Woman’s Film” and “Law and Lawyers Film”, which echo and enhance each other. The first constructs the film’s unique feminist stand, while the other structures its attitude toward lawyering at large, and community lawyering in particular. The combination of these two positions creates the film’s distinctive model of “feminist-community lawyering”.

 

The article’s concluding Postscript reads North Country as echoing Unforgiven, a western that exposes the human costs of honor-based social norms, and offers human dignity and respect as alternative bases for codes of values and conduct…

 

Full article is available in Hebrew here.

 

 

“Once There Was a Most Hungry Man”: On Justice, Poverty and Community Lawyering

Michal Tadjer

The article presents a Jewish folktale of the Middle Ages, which deals with a judicial procedure interpreting a loan contract between someone “most hungry” and the lender of an egg to him. In the story, King Solomon, in his capacity as community lawyer, overturns a ruling which has resulted in an injustice to a private person. Although it fails to set a legal precedent, the story illustrates a sort of socioeconomic precedent; it describes the victory of the “most hungry” in a system where their chances of such were practically nil, using the in-house system instruments of rhetoric, commonsense and community lawyering. Through analysis of the story, accompanied by cases and dilemmas from the work at “Kav La-Oved” (Workers’ Hotline), the article examines what contemporary community lawyers can learn from a socio-legal problem which preoccupied disadvantaged populations in the Middle Ages, from the handling of the problem in and outside the courts, and from the way it was eventually resolved at the end of the story…

 

Full article is available in Hebrew here.

 

 

Law’s Influence on the Commercialization of Healthcare Services in Israel

Dani Filc

The article discusses the partial process of privatization of the Israeli healthcare system and the way in which the legal system - in legislation and in decisions of the Supreme Court - has influenced and continues to influence the process. The article presents the three primary modes of privatization of healthcare services in Israel: privatization of funding, privatization of ownership, and privatization of the organizational culture. It goes on to discuss the major laws regulating the provision of healthcare services: the State Health Insurance Law (and subsequent amendments and revisions) and the Patient’s Rights Law. Finally the article examines how a number of Supreme Court decisions have supported the process of commercialization of healthcare services in Israel…

 

Full article is available in Hebrew here.

 

 

“Stop the Revolution without Me”: On the Promulgation and the Disciplining of the Discourse of Distributive Justice and Social Rights

Ricki Shiv

Can a change be sparked - and if so, how - in a socioeconomic conception from out of the internal logic of the liberal discourse on which law is founded? Can a social struggle be advanced by means of the courts, in a manner which employs “legitimate” discourse but nonetheless effectively deconstructs the hegemonic discourse in matters of distributive justice and social rights?

 

In the past decade the critical discourse in the matter of distributive justice and social rights, which was fairly marginal until the turn of the 21st century, has captured a place of its own at the heart of social consensus and in the courts, attaining scientific prestige in the meantime as well. The article’s major contention is that while the “promulgation” and inclusion of social rights in the mainstream public discourse has brought them inside its ambit—they can be spoken about, and one can even posit a social-democratic conception as an alternative to the dominant position—it has also disciplined them in the framework of hegemonic truth and silenced the critical stance. The “truth” which has come to rule supreme is a liberal approach whose point of departure is the human dignity of the individual, and the conception of social rights it has adopted is, commensurately, very narrow. The social-democratic voice, which saw social rights as an instrument of structural change in Israeli society, has been lost and swallowed up by the dominant discourse…

 

Full article is available in Hebrew here.

 

 

Barack Obama, Community Lawyer

Yuval Elbashan

The article focuses on the experience and insights gathered by Barack Obama, the first Black President of the United States, from his work as a community organizer, primarily indeed as a community lawyer, and which he applied effectively in his electoral campaign for the presidency. Analysis of the campaign shows that Obama adopted the proactive doctrine as outlined in the basic texts of the community lawyering field, including methods to harness support of the masses in politics, and in some senses implementing these methods led to his historic victory. This is surprising, for it is the first time that use has been made of basic concepts in the field - such as “legal empowerment, “active listening”, “community organization”, “participation” and “process work” - not just in working with disadvantaged communities in the back alleys of America, but verily in the system’s glittering display window.

 

The article surveys the major principles of community lawyering that Obama adhered to, while describing his endeavors and professional worldview as a community lawyer and social activist before becoming involved in politics. In this context, the choice of the slogan “Yes, We Can” does not appear accidental. As opposed to run-of-the-mill stump speeches in which the candidate lauds himself in the first person, leaving power in his hands and enfeebling the voters, President Obama’s voice not only did not silence the masses, but empowered them—in a manner analogous to the community lawyer who is always at the bid and call of a disadvantaged client on whose behalf he or she is leading the legal campaign, and contrary to the traditional kind of lawyer that will often silence and weaken the client. The United States may have chosen a new President, but what this bruised and battered nation also got for free was something no less important: a community lawyer…

 

Full article is available in Hebrew here.

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