Law & Social Change - Volume 3

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 Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . .

William L. F. Felstiner, Richard L. Abel, Austin Sarat

The emergence and transformation of disputes, especially before they enter formal legal institutions, is a neglected topic in the sociology of law. We provide a framework for studying the processes by which unperceived injurious experiences are-or are not-perceived (naming), do or do not become grievances (blaming) and ultimately disputes (claiming), as well as for subsequent transformations. We view each of these stages as subjective, unstable, reactive, complicated, and incomplete. We postulate that transformations between them are caused by, and have consequences for, the parties, their attributions of responsibility, the scope of conflict, the mechanism chosen, the objectives sought, the prevailing ideology, reference groups, representatives and officials, and dispute institutions. We believe the study of transformations is important. Formal litigation and even disputing within unofficial fora account for a tiny fraction of the antecedent events that could mature into disputes. Moreover, what happens at earlier stages determines both the quantity and the contents of the caseload of formal and informal legal institutions. Transformation studies spotlight the issue of conflict levels in American society and permit exploration of the question of whether these levels are too low…

 

Full article is available in Hebrew here.

 

 

Summaries: From Perceived Injustices to Legal Remedies: After Naming, Blaming, Claiming

Daphne Barak-Erez

The article examines the Naming-Blaming-Claiming model, developed by Felstiner, Abel and Sarat, according to which the existence of a legal cause of action is not a “natural” reality, but rather the product of a process consisting of the following stages: a perception of injustice (naming); an attribution of fault to the party responsible for that injustice (blaming); and the request for redress to correct the injustice which had occurred (claiming). The analysis of the model, which has already become part of the legal terminology, is pursued in reference to examples illustrating its application, from such perspectives as the feminist critique of law, the recognition of social rights, the fight against corruption, international human rights law and antidiscrimination law (with special emphasis on reforms also relevant to Israeli law). The article continues by focusing on situations in which the Naming-Blaming-Claiming process does not transpire in full – for example, when there are a perception of injustice and an assignment of fault, but these do not lead to a lawsuit; when there is a blaming stage which leads to a lawsuit, but with no prior stage of naming and thus the legal suit faces difficulties; or when naming and claiming occur in the absence of social consensus regarding the blame that should be attributed to the guilty party. The article also points to the obstacles that exist at the claiming stage (from the perspective of access to justice) and to the choice faced at this stage between bringing a legal action and pursuing other forms of public advocacy (most often focused on shaming). The article concludes by cautioning that the Naming-Blaming-Claiming model should not be understood as reflecting the dynamics of every litigation, but rather as a conceptual tool which sheds light on the difficulties in the transformation of disputes into a full-fledged, effective claim for redress…

 

Full article is available in Hebrew here.

 

 

“The Other Inside Us”: On “Culture-Sensitive” Cause Lawyering

Hadar Dancig-Rosenberg & Yifat Ferder

This article discusses the cultural challenge posed by the provision of legal assistance to victims of domestic violence from among cultural minority groups. Due to the special nature of these groups, this kind of legal assistance must take regard of the particular cultural world of each victim, of her “otherness”, and of her special needs that require creative solutions. The article describes the dilemmas faced by lawyers who assist victims of domestic violence, which are greatly amplified when the latter come from cultural minority groups. Against this complex background, the aim of the article is to structure an innovative effective model of “culture-sensitive” cause lawyering, based in part on principles drawn from models prevalent in the therapeutic field. This proposed model is accompanied by examples illustrating the need to place emphasis – already in the framework of theoretical and clinical legal education – on the development of skills and competencies borrowed in part from the therapeutic professions. The exposure of future lawyers to this “other” conception of lawyering and the discovery of “the Other inside us”, already in the early stages of legal education, has the potential to transform the law into a more humane and accessible social tool for the client. This approach accords with the perception of the law as an agent of therapeutic value to its audiences – a view which draws upon Therapeutic Jurisprudence and which runs like a thread throughout the article…

 

Full article is available in Hebrew here.

 

 

Cause Lawyering as Grace: The Case of Legal Assistance to Homeless People in the “Someone to Run with” Project

Dana Freibach-Heifetz

The aim of this article is to assess the latent possibilities in cause lawyering, as regards the reciprocal relations between cause lawyers and the populations they serve, and especially as regards the significances of the interpersonal lawyer-client interaction. It does so by documenting and examining the activity of Tel-Aviv University’s Legal Clinic for Law and Welfare in a unique project of assistance to young homeless people, which was provided during the years 2003-2009 at the day center of the “Elem” NGO. The article presents the project and examines it from the philosophical perspective of the concept of “secular grace”, which the writer has developed elsewhere.

 

The article is divided into four parts. In the first part the project, the clients’ characterizations and the nature of the work are described. The second part outlines the theoretical perspective from which the relations between the students and the homeless people involved in the project are examined, a perspective centering upon the concept or the ethical ideal of secular grace. The third part brings a variety of voices of participants in the project, testifying to their personal experiences in its framework: students on the one hand, and social workers at the “Elem” center, who accompany the homeless people, on the other. Against this background, it is argued that this innovative legal project can be seen as fertile ground for relations of secular grace. In the fourth part the meaning of the picture arising from the previous parts is clarified, and various insights are proposed regarding the nature of cause lawyering from a viewpoint that focuses on the personal experience of the lawyers…

 

Full article is available in Hebrew here.

 

 

On the Spectrum and Beyond It: Representing Autistic Persons – Diversity, Abilities, Rights, and What Lies in Between

Roni Rothler & Ronen Gil

The article tracks the journey of Ronen Gil, an autistic person, first diagnosed at the age of 36, to obtain his rights from the authorities, promote equality of rights for persons with disabilities, and win social recognition of his diversity. Through its description of the road taken by Ronen, who chose to make his private campaign public, the article presents the emergence and consolidation of the autistic communities in Israel and around the world, and the ideology behind them. These communities represent and manifest, in their way, the social model of disabilities – according to which disability is a problem that stems from a gap between one’s characteristics and those of one’s environment, rather than simply from any medical, pathological, or personal situation. To the autistic community, excluding autistic people as having a severe disability in social, communicative and behavioral skills reflects a narrow and external viewpoint, which does not take into account the experience, abilities and motivations of the autistic person. The community aspires to recognition of diversity, and abandonment of any attempt to “cure” its members.

 

The article describes the extraordinary relationship between Ronen and the Disability Rights Legal Clinic, to which he turned in his fight to obtain his rights – a relationship that went far beyond the bounds of classic relations between lawyer and client, and turned into a voyage of mutual discovery, riddled with dilemmas and conflicts. In contending with the difficulties faced by autistic people (especially those at what is considered a high function level), when they come to claim their legal rights vis-à-vis governmental authorities, Ronen and the Legal Clinic formed a partnership and alliance, which reflect the attempt to overcome the structural social balance of power, and empower persons with disabilities…

 

Full article is available in Hebrew here.

 

 

Can Anyone Hear Me? On the Gender-Sensitive Representation of Girls in Care and Supervision Proceedings in Juvenile Courts

Sharon Sionov, Shiran Reichenberg & Reut Rosner

The article deals with the dilemmas encountered by the writers, who on behalf of the Hebrew University’s Youth Representation Legal Clinic have been representing girls in legal proceedings under the Juvenile Law (Care and Supervision). It begins by describing the existing professional-therapeutic discourse toward girls in distress, which preserves the existing social conceptions regarding their place in society (lack of access to law and justice; exclusion from the legal system; being in fact a disadvantaged, silenced and excluded population). The article describes then the current legal state of affairs in proceedings before juvenile courts, and discusses the uniqueness of representing young girls. The current legal situation enables the preservation of the same existing social conceptions, for despite the law proposals following the Rothlevy Commission, there has been no real change in this area. The article criticizes (through feminist critique, among other things) the paternalistic approach nowadays employed toward girls in Israel and explains the significance of the silencing of their voice in the proceedings undertaken against them. It also critically analyzes the standing of minors in Juvenile Court and existing approaches to representing minors, ultimately proposing an alternative model of representation – a holistic model, according to which the Clinic operates, which involves the girl in the decision-making in her matter. The article describes the dilemmas and doubts arising for a lawyer who represents a girl in such proceedings, attempting to promote gender-sensitive representation for girls. The final aim of the article is to make these girls’ voice heard…

 

Full article is available in Hebrew here.

 

 

 “Nicht von Unsere” ("Not One of Ours"): Ethnic Discrimination in Haredi Society and the Legal Representation of Disadvantaged Population Groups from Within it

Aviad Hacohen

The “Emmanuel affair” exposed one of the most sensitive nerves in Haredi society: ethnic discrimination in Haredi educational institutions. Although the phenomenon has been known for many years, both within the Haredi sector and outside it, to date not much has been done to eliminate it. The article examines the obstacles faced by those who strive to represent a member of the Haredi community through the employment of legal tools, and attempts to unravel their root causes. The article points to, among other things, objective factors that make representation difficult, such as the lack of access to lawyers; the difficulty of obtaining the reliable information required to conduct a legal proceeding; and a lack of awareness of various rights and the possibility of having them enforced.

 

The article also points to subjective factors that handicap the representation of members of the Haredi community, including a principled, ideologically motivated unwillingness and reluctance to turn to a civil-secular legal system and to judicial channels, which are not based on the Halakha (Jewish religious law); separatism and polarization; and unequal power relations between victims and those who violate their rights. The article also examines the obstacles that third parties pose to the exercise of rights by members of the Haredi sector, such as intimidation and social exclusion.

 

It examines the roles played by the courts and lawyers in the promotion of basic rights within Haredi society, and proposes ways to ease the tensions and develop the use of legal tools in order to further that aim…

 

Full article is available in Hebrew here.

 

 

Constitutional Theory, Strategy and Public Interest Lawyering in the Case Annulling Prison Privatization

Gilad Barnea & Yael Berda

The article, written by lawyers who petitioned to the Supreme Court against the law allowing the establishment of a private prison, discusses the lessons from the judgment, which invalidated the law, towards the continued legal and public battle against the privatization of state services. The article analyzes three different aspects: political theory, constitutional theory and the strategy of cause lawyering. The primary contention in the petition, which was an innovation from the viewpoint of constitutional theory, was that the privatization of state services, which constitute part of the state’s sovereign function, in effect strikes at the governmental and institutional structure of the state. This is a broad conception of human rights, which also encompasses the principles of the rule of law and of the separation of powers. The damage to the governmental structure, following the state’s forfeiture of core powers, may lead to the violation of rights protected by the Basic Law: Human Dignity and Freedom. In addition, the article posits the legal work against privatization of prisons within the framework of the different kinds of public interest lawyering. It also refers to the ideologically and morally complex legal strategy adopted by the writers who, as social activists, view their activity as part of the public campaign against privatization of state services in general, and the prison system in particular. Finally, the writers chart the possible legal steps using the institutional-structural approach to assail other examples of privatization…

 

Full article is available in Hebrew here.

 

 

The Public Petitioner and the Court: Lessons from the Case Annulling Prison Privatization

Efy Michaely

The Supreme Court’s judgment in the case annulling prison privatization poses a number of significant guideposts for the community of public petitioners, concerning how it should conduct itself. This article will deal with two of them.

 

The first guidepost concerns the considerations which the public petitioner must take into account prior to petitioning the Court. The discussion in this context centers on the consideration regarding the chances of success of the legal procedure in Court in light of the community of public petitioners’ function in society. The article contends that in many cases, petitioning the Court is of great importance, even if it ultimately fails to achieve the redress that is sought in the framework of the concrete legal action. The conclusion, then, is that in certain cases the chances of success of the concrete legal action should carry only little weight, and it is necessary to assess the implications of the legal debate and of a Court decision in the matter over the long term, transcending the limits of the specific legal proceeding.

 

The second guidepost discussed in the article concerns the important cooperation between public petitioners and academic scholars, and its contribution to the public battles currently being waged in the Court. The article shows how such cooperation greatly contributed to the management of the petition against privatization of the prisons, and to the presentation of a reasoned, well grounded argument in a legal matter of principle that was encountered by the Supreme Court for the very first time…

 

Full article is available in Hebrew here.

 

 

A Decade Since the Qa’adan Judgment: Critical Reflections on Equality

Yousef T. Jabareen

This article critically analyzes the Qa’adan case, a decade following the judgment which was handed down by the Supreme Court. Its primary contention is that although the Court ruled in favor of the plaintiffs and determined that discrimination on a nationalist basis does exist in the allocation of State-owned lands, there are a number of significant flaws in this judgment which cast a shadow over the plaintiffs’ legal achievement and undermine it. These flaws are the result of a narrow individualistic conception of the principle of equality, that was adopted by the Court in its judgment, and that also begot the laconic and essentially meaningless redress offered to the injured population group.

 

Underlying the critique in the article is the theoretical distinction between two conceptions of equality: liberal-individualistic and transformative-collective. This distinction reflects two theories of human and civil rights, which differ in their conception of the most essential principle of democracy and the way to fulfill it following a long history of discrimination. The article contends that in Qa’adan, the Court, influenced by the political atmosphere in the country, adopted the first, individualistic conception of equality. This narrow conception ultimately works to preserve the existing division of power in society and to perpetuate discrimination against minority groups. This, in opposition to the transformative-collective conception of equality, which has the ability to create meaningful change in the lives of Arab citizens, and to enable society in Israel to deal with past injustices. This conception views discrimination and racism as social diseases that are harmful to society as a whole (and not, as arises from the individualistic conception, the product of a few bad apples), and the struggle against them is a part of the overall struggle against all forms of injustice and discrimination in society. Therefore a new jurisprudence is required, a jurisprudence that will lead to an essential transformation in the conditions of Arab citizens’ lives – from a situation that perpetuates discrimination, to one which aspires to substantive equality...

 

Full article is available in Hebrew here.

 

 

Individualism and Post-Nationalism in the Qa’adan Case: a Reply to Yousef Jabareen

Yaacov Ben-Shemesh

This article wishes to reply to Yousef Jabareen’s critique of the judgment in the Qa’adan case. Jabareen criticizes the Supreme Court for its treatment of the plaintiffs in the case, Adel and Iman Qa’adan, as two individuals seeking to improve the quality of their lives. In Jabareen’s view, this treatment, which disregards the couple’s nationality, reflects a liberal-individualistic conception of equality that he holds to be narrow and insufficient in the context of Israel’s Arab citizens’ struggle for equality. Instead he proposes a transformative-collective conception of equality, which does take into account the individual’s group membership and the historical and social significance of that belonging. Not denying the advantages of such a conception, this article wishes nonetheless to point out the advantages of the liberal conception of equality, from both the aspect of individual liberty and that of society. Its primary contention is that looking at individuals as characterized first and foremost by their national identity narrows both the scope of individual liberty, and the variety of collective identities that may exist in a society. That is true not only at the level of principle, but especially so in the case of the Qa’adans…

 

Full article is available in Hebrew here.

 

 

Social Change in the Shadow of the Tender Culture, the Commodification of Work and Judicial Deficiency

Eran Golan

The article analyzes the legal reality which has made possible the transformation of a large percentage of the workforce in the economy in general, and in the public sector in particular, into service contractor workers. In the article this reality is called the “commodification of work”, a term that means the shunting aside of classical labor law in favor of commercial and tender law, and the creation of a sphere in which the lowest bid wins, which in effect determines how the employment contract of service contractor workers will be executed. This commodification has led to a systematic violation of the protective rights of disadvantaged and poor workers, those for whom the traditional tools of labor law, such as striking and workers’ organizing, are no longer built to effectively assist them. The article also surveys how the General Histadrut, the largest trade union in Israel, has been neglecting these workers for years, and how a new model has emerged of fictitious collective labor relations, good on paper only.

 

The article also analyzes the legal system’s refusal to deal with a reality of systematic violation of the rights of disadvantaged workers, and its rejection of the use of latitudinal measures, such as class action suits, which are intended to provide effective solutions for such violations. Faced with no other choice, NGOs working for social change have found ways around the law to promote the desired change, through administrative bodies, Knesset members, and enlistment of the mass media. Nevertheless, contends the article, even in light of the successes these organizations have had in changing the tender culture, their activities cannot substitute for a workers’ organization that is democratically active in the field in respect of all the members which it purports to represent…

 

Full article is available in Hebrew here.

 

 

Root-Canal Work for the Basket of Healthcare Services: Extending the Discussion’s Limits

Roni Katzir

By discussing the government decision to add dentistry to the basket of healthcare services, the article aims to propose ways of breaking through the fictitious boundaries that impede the public discourse on the topic of updating the basket. The common view is that due to budgetary constraints, clear-cut preference should be given to lifesaving drugs. The article will attempt to show that the aspiration to equality and distributive justice requires that, alongside the medical and economic considerations that currently guide the basket’s committee, account should also be taken of social considerations that express the needs and preferences of all the individuals in society. For example, the understanding that lack of funding for a trivial medical service – such as root canal treatment – significantly undermines the ability of children from disadvantaged populations to become integrated in society, may well change the way priorities in the distribution of the healthcare budget are determined.

 

Furthermore, in the attempt to expand the budgetary framework of funds to be distributed, renewed discussion can and should be devoted to the overall composition of the basket of healthcare services (app. 25 billion NIS) and not only to its annual increment (app. 400 million NIS). It would thus be possible to extend the discussion to the diverse medical needs, and perhaps even to prevent the confrontation between a child in need of a filling and a cancer patient fighting for her life…

 

Full article is available in Hebrew here.

 

 

On Remaining Silent before the Law in the Film Il Y A Longtemps Que Je T’Aime

Yofi Tirosh

The film Il Y A Longtemps Que Je T’Aime (“I’ve Loved You For So Long”; France, 2008) raises a number of intriguing questions regarding the tension between silence and speech. It is centered on an accused woman who has chosen to give no explanation in words as to the motive for her criminal act: not in the course of the criminal proceeding that determined her criminal liability, nor during her incarceration, nor, still, for a long time after her release from prison. Her silence leads to her conviction and to harsher punishment than would have been her lot had she offered some explanation, just as speaking would have made it easier for her to build a new life after her release from prison and dispel the suspicious mystery surrounding her past. This article proposes ways to understand this silence, and, more generally, points to the silences of legal subjects in various legal contexts and attempts to classify and map these silences. The aim of the article is both to deepen and to challenge the understanding of judges, lawyers and jurists regarding the different kinds of silence before the law and to assess the practical consequences arising from the decision of clients, accused, plaintiffs and defendants – to remain silent…

 

Full article is available in Hebrew here.

 
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