This fourth volume of Ma’asei Mishpat is being published at the end of a historic and turbulent year. It has seen the fall of autocratic regimes and been witness to a global upsurge of disaffection and protest in the face of the harsh distributive consequences of the dominant economic-social system of recent decades. These developments did not pass over Israel either, which experienced an extraordinary summer of civic and democratic struggle in which the demand for social reform gained enormous currency. This favorable hour of bent ears and eager spirits is also a great opportunity for the community of public interest lawyers in Israel to continue working in the various arenas – the courts, the Knesset, civil society and the law schools – on behalf of social justice, solidarity and human rights. At a time when these values lie at the heart of a bitter cultural and political struggle, Ma’asei Mishpat continues to be the home of that community, and aspires to offer a platform for open and fruitful debate on these issues…

Full introduction is available here.

Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change

Marc Galanter

This essay attempts to discern some of the general features of a legal system like the American by drawing on (and rearranging) commonplaces and less than systematic gleanings from the literature. The speculative and tentative nature of the assertions here will be apparent and is acknowledged here wholesale to spare myself and the reader repeated disclaimers. I would like to try to put forward some conjectures about the way in which the basic architecture of the legal system creates and limits the possibilities of using the system as a means of redistributive (that is, systemically equalizing) change. Our question, specifically, is, under what conditions litigation 1 can be redistributive, taking litigation in the broadest sense of the presentation of claims to be decided by courts (or court-like agencies) and the whole penumbra of threats, feints, and so forth, surrounding such presentation. For purposes of this analysis, let us think of the legal system as comprised of these elements: * This essay grew out of a presentation to Robert Stevens ’ Seminar on the Legal Profession and Social Change at Yale Law School in the autumn of 1970, while the author was Senior Fellow in the School’s Law and Modernization Program. It has gathered bulk and I hope substance in the course of a succession of presentations and revisions. It has accumulated a correspondingly heavy burden of obligation to my colleagues and students. I would like to acknowledge the helpful

Full article is available in Hebrew here.

An Interview with Dr. Yoav Sapir, the Incoming Public Defender

Ofer Sitbon

Full interview is available here.

Beyond the Garden and the Jungle: On the Social Limits of the Human Rights Discourse in Israel

Nissim Mizrachi

This article deals with the gap between the universality of the message of human rights, equality and social justice being promulgated by human rights NGOs in Israel and the social particularism of both its proponents and opponents. One of the primary questions discussed is why is it that, time and again, the “target populations” offer such stiff resistance to the universalistic message of equality, justice and liberation so eagerly pressed upon them. This article proposes an interpretive framework which goes beyond the assumptions common to most social activists and critical academics in Israel. Its central contention is that the politics of universality, grasped from a liberal viewpoint as a key to social reform, is experienced by various groups in Israel’s Jewish society as a grave threat to their core identity. These groups view the human rights message as a problem rather than a solution.

The conclusion arising from this analysis is that a liberal position, one that is fully aware of its own normative assumptions while recognizing the existence and validity of alternative worlds of meaning, is vital for the creation of a dialogic space. Such a space is needed both to ensure Israel’s democratic nature and to shape a shared public space characterized by solidarity and mutual respect.

The interpretive framework presented in this article is not limited to the domestic case; it can shed light on the manifestations of resistance to the human rights message in global contexts. This article, then, offers the initial outline of a critical-sociological analysis which seeks to surpass both the limits of the Israeli case and those of the liberal grammar, which have so far set the theoretical and research agenda of contemporary sociology and anthropology…

Full article is available in Hebrew here.

On the Nature of Discrimination: Mizrachis in Israel between the Visible and the Invisible

Yifat Bitton

This article seeks to identify factors that enhance the plausibility of legally recognizing discrimination against a certain group, and factors that weaken it. In pursuit of that mission, instead of revisiting the equality principle and analyzing its components in depth, this article returns to the concept of “discrimination” with the goal of ascertaining what exactly the “disease” that the principle of equality seeks to “cure” is. Legal reality proves that equality tends to cure discrimination of a certain kind more easily than other kinds. The article identifies the elements that disease is composed of, analyzes through them the reasons why antidiscrimination law cannot cure certain versions of discrimination, and proposes, in a nutshell, a simple way to change this situation.

The article identifies two characteristics of discrimination which distance certain types of discrimination from the healing effect of antidiscrimination laws: The first is the case of de facto discrimination, which is not anchored de jure in legislation. The second concerns discrimination arising out of a framework of social “similarity” rather than social “difference.” To demonstrate its contention, the article reviews the struggle for equality in education of two groups identified as suffering from de facto discrimination in a social framework of “similarity” – Mizrachis in Israel and Mexican-Americans in the United States. The review reveals how both have suffered and, to an extent, are still suffering from a lack of proper legal recognition due to the unique characteristics of the discrimination against them. The comparative analysis leads to the conclusion that weakened and discriminated against groups of this kind are not accorded due recognition, do not enjoy similar access to the antidiscrimination system, and are therefore deprived of legal relief that is crucial to them on their way to achieving equality. Finally, the article advances a new and more holistic approach, which soberly appraises the reality outside the limits of the law, thereby securing to such groups, too, what was promised by liberal theory to all of its adherents: equality…

Full article is available in Hebrew here.

Law under Protest: Lawyers and the Social Protest Movement of Summer 2011

Amir Paz-Fuchs

This article examines the role of law and lawyers in the protest movement of summer 2011. One of the interesting, not to say peculiar, phenomena of that protest was the paucity of reference to the legal aspects of social policy. Instead, most of the attention was directed at the economic aspects of policy. Though their importance shouldn’t be dismissed, changes in economic policy are eminently reversible and always subject to fluctuating budgetary constraints. More importantly, changes in economic policy adopt the rules of the game regarded as given and operate in their framework. Contrarily, “legal” changes are, in fact, changes in the rules of the game themselves – and, as a result, their broader implications are more significant, and more resistant to the shifting winds of the hour.

Why, then, did the voice of law fall silent in the framework of the social struggle? This article offers two possible explanations. The first points to the fact that in Israel and around the world generally, the “science of economics” has gained the ascendancy in public policy discourse. That marks the end of an era in which law and economics were joint leaders, and economics alone is left – in its framework the discourse is conducted and solutions are proposed. The second explanation concerns the people involved. As opposed to the alternative experts committees, which served the purposes of the protest movement, the Committee for Socioeconomic Change headed by Prof. Manuel Trachtenberg included no lawyers at all, and there were only a few serving on its subcommittees. It is no wonder, then, that its recommendations, which were published in late September 2011, do not include any significant legal changes. The article analyzes the recommendations and confronts them with those of the alternative committees, as an interesting and important test case of the role that law might have played in the most significant social protest movement that Israel has seen to date…

Full article is available in Hebrew here.

The Search for “Social Remedies”

Liron David

Social rights are gradually winning recognition and standing in Israeli law, though the court jurisprudence in this field is in its infancy. This article proposes to discuss the importance of protecting social rights in Israel, with emphasis on a new aspect: the remedies, those provided and those that could be provided by judicial instances, with the Supreme Court at their head, for the violation of these rights.

The remedial component in protecting social rights has received little attention in court jurisprudence, and it is in the stages of initial consolidation in Israel and around the world. This article seeks to combine reference to the general field of remedies and reference to the topic of human rights and their violation. Its first part deals with the purposes underlying the laws of remedies, and also analyzes the complexity of social rights. Its second part deals with the protection of social rights in international and Israeli law, examining the use made of remedies for that purpose. That survey leads to the conclusion that there are indeed specific “social remedies” that can be made use of to protect against the violation of social rights in Israel.

The article seeks to broaden the existing discourse in the field of social rights from the aspect of enforcement and theory, and to promote thinking about the existing limitations in the field of social remedies when appeal is made to judicial instances to enforce the protection of these rights. The analysis may afford tools for those who step forward to protect social rights in Israel in the legal system and also contribute to the understanding of the complexity of law as an instrument for social change…

Full article is available in Hebrew here.

Where Is the Legal Blogosphere in Israel?

Yuval Roitman & Ayelet Oz

In recent years we have been witnessing the rise of a new genre of legal literature. In the United States, Israel, and many other countries around the globe, each day a large number of short essays on legal issues is published in different Internet websites, mainly dedicated legal blogs. The parties to this huge creative endeavor, which is known as “the legal blogosphere”, include lecturers from the academia, private attorneys, and other legal functionaries.

Whereas the development of the legal blogosphere in the U.S. has been described, explained and analyzed in academic studies, legal writing on the Internet in Israel has yet to receive any academic attention. This article, then, is an initial survey of the legal blogosphere enterprise in Israel. First, the article describes the current structure of the legal blogosphere in Israel, presenting a preliminary index of the active legal blogs in Israel. That presentation is accompanied by a detailed review of the structural and institutional reasons why the legal blogosphere in Israel is very limited in comparison to its extensive and well-developed counterpart in the U.S. Second, at the normative level, the article details the potential this creative enterprise holds for promoting social change. In that context, we argue that a vibrant and flourishing legal blogosphere will increase access to justice in Israel, get the general public involved in thinking about legal issues, and enhance many jurists’ ability to exert an influence on the public discourse…

Full article is available in Hebrew here.

Preventive Lawyering as a Tool for Working with Disempowered Communities

Yuval Elbashan

Since disempowered litigants, by definition, do not have many resources, they do not know in real time what is happening in their surroundings and have difficulty correctly assessing the significance of those events and their legal and other implications. That is also the reason why they have difficulty understanding the need to perform certain legal actions within a defined period of time, in order to minimize potential damage in the future. It is also plainly apparent that such litigants do not have sufficient monetary resources or connections to consult with legal experts in these early stages, which only aggravates the consequences to them, for not infrequently it means certain loss in the legal proceeding to recognize and enforce their rights.

One way to solve this problem – or, at the least, to try to minimize its harmful influences – is the adoption and use of the preventive lawyering approach by community lawyers. This article examines that approach with a special emphasis on a possible combination of the preventive lawyering approach and that of therapeutic jurisprudence. That combination, centering on the performance of outreach and prevention, is one of the most important tools every lawyer should have in her/his toolbox who wants to make use of law to eliminate poverty and reduce human misery…

Full article is available in Hebrew here.

Elad Roth Is Not a Homo: Queer Theory in Legal Practice

Hagai Kalai

The article offers, on the basis of queer theory, a normative alternative to the current legal discourse. While the current legal discourse contains a presumption of stable and “natural” identities (essentialism), the article will show why such a presumption is not required and how a legal discourse can acknowledge the performative aspect of individuals’ identity.

The first part of the article presents the existing difficulties in the essentialist way that Israeli (and Western) law deals with categories of identity, through two primary examples. First, the article examines the Roth vs. TimeOut case, in which compensation was awarded for the identification of Elad Roth as a homosexual, contrary to his “true” sexual orientation. Second, the article examines the Supreme Court ruling in the matter of The Open House for Tolerance and Pride, and the essentialist reasons adduced for the invalidation of the budgetary discrimination against it in Jerusalem.

The aim of the article’s second part is to present a theoretical apparatus that makes it possible, through the deconstructive components of queer theory, to extract from it normative meanings. In that framework the model challenges the distinction between essentialist and radical theories, showing how both reflect fundamentally an essentialist conception and do not allow any departure from the categorical discourse of identities. In contradistinction, the article seeks to characterize the movement of discursive power and to define legal human rights as equality in discursive power.

Lastly, the third part of the article shows how that theoretical apparatus can be translated into an actual legal outcome, by returning to the Roth affair and reanalyzing it. Although that analysis does not demarcate the limits of an individual’s control over the discursive power exerted upon her/him, it does show how the court ruling in the Roth affair manifests a distinctive discrimination, not only against LGBT individuals, but against the LGBT subject position in the general societal discourse…

Full article is available in Hebrew here.

Social Businesses in Social NGOs in Israel: Issues in Taxation and Incorporation

Galia Feit

Social businesses have become, in recent times, the bon ton of civil society and an interesting, thought-provoking model of operation for corporations in the free market, philanthropic organizations and the government authorities in Israel. Though there is no accepted definition of the term “social business,” researchers and those active in the field largely agree that it is concerned with activity on behalf of a social cause, using a business model or methodology. In this article the groundwork is laid for an examination of the limits of the definition of social businesses. For example, the questions that ought to be asked are what a “social cause” is, and who gets to decide which “social cause” should be pursued in the form of a business model. Furthermore, does it suffice that funds deriving from the activity are dedicated to a social cause, or does the social cause have to be manifested in the business activity itself? What constitutes a “business model” also ought to be examined. Is a sustainable model which covers only its expenses enough, or is a profitable business model desirable? And where do the profits go to?

In its first part, the article presents the teachings of Muhammad Yunus in this matter, which underlie the issues the article deals with. In its second part it presents current examples from the field of social business in Israel, and analyzes possible courses of action open to an NGO that wants to establish a social business as part of its activities. The relevant laws concerning value-added tax and income tax serve as the prism for my discussion, importantly in two respects: first, on the immediate level, the obscureness of the tax laws regarding this issue is revealed, and in parallel their importance to the decision-making process of an NGO attempting to develop a social business model. The arguments lead to the conclusion that in order to encourage and incentivize the establishment of social businesses it is necessary to take action to amend or clarify the tax laws. Secondly, discussing the definition of social businesses through tax laws illuminates aspects of distributive justice and the distribution of wealth that should be reexamined also regarding the activity of “regular” businesses in the free market…

Full article is available in Hebrew here.

The Israel Railways Workers’ Struggle against Privatization and Outsourcing: Lessons Learned from the Court Decision

Amnon Portugaly & Moran Svorai

The Finance Ministry, the Ministry of Transport and the management of Israel Railways Corporation have been leading the effort to privatize the railroad enterprise for some time. These efforts have included attempts to split the railway system into separate entities, and an increased reliance on outsourcing. This has been accompanied by broad and continuing activities designed to reduce the existing system’s ability to optimally sustain itself. These attempts would result in a model resembling that of the British railroad privatization from 15 years ago, which failed dismally.

In recent months the Israel Railways workers’ union has responded with extensive work stoppages and strikes, resulting in inconvenience to the traveling public. On September 28, 2011 The National Labor Court confirmed the workers’ right to strike in protest of the decision to outsource the maintenance work. The court further ruled that the workers are a ‘main protagonist’ and that the employer has the obligation of full disclosure to, and consultation and negotiations with, the workers’ union regarding the employer’s intentions to make structural changes in the company, including outsourcing plans.

This ruling of the National Labor Court, which constitutes a precedent, has important implications for our society. The article argues that the struggle of the Israel Railways workers to limit privatization, outsourcing, and employment under personal employment contracts, together with the High Court’s decision in the matter of privatization of prisons, is another milestone in the determination of how such social questions are resolved…

Full article is available in Hebrew here.