Israeli law

The law of Israel is a mixed system of common law and civil law.

Sources of Israeli law

The sources are:

• Ottoman casuistic muslim law Matrimonial and Real Estate Registration מג'לה
• British common law
• Israeli codification (torts and contracts)
• International treaties voted by Knesset into local law
• Declaration of the Establishment of the State of Israel – nonbinding manifesto
• Law of the United States – precedents, caselaw, Model rules and the Restatements.

Historical perspective to the sources of law affecting legal practice in Israel today:
Very little Turkish Ottoman law is left today. The Turks, who did not wish to interfere with the freedom of religion, ordered that each resident surrender to the Religious Courts of his personal affiliation for personal status and matrimonial purposes. This system, in general, survived. Also the Turks adopted the Napoleonic Land Registration system, through a successive Block and Lot entries. Although this is a more rational system than the American Grantor-grantee index registration system, today, land registration in Israel is in a state of chaos. In order to find who an owner is at any given time, an attorney must conduct a series of costly investigations with various arms of the Government, and sometimes with the private building company books. No title insurance is offered in Israel. Malpractice suits against real estate attorneys are quite common.

The British who were given a League of Nations mandate to govern old Palestine, implemented the Common Law system in Palestine, except for the jury system. Legal precents in torts and contracts were borrowed from England, and certain legal areas were codified, in order to assure legal certainty. Thus, the Penal Code in Israel was practically the same as those used by the British in India or other colonies and territories.

With the establishment of Israel in 1948, English law as it was frozen on the date of independence remained binding, with post-1948 English law developments being under advisement only.

Upon Independence, a Bill of Independence was signed as a manifesto for the new born State. While it was drafted as a universal and democratic declaration capturing noble ideas prevalent at the time, it is nonbinding, and hardly ever used as a guiding tool.

Since independence, the young State of Israel was eager to gain recognition in the international arena by way of joining international treaties, and participating heavily in the negotiations of such international treaties. To the extent they were ratified and voted by the Knesset as a law, they are binding just like any other domestic law. For example, see the Warsaw convention.

During the 1960s last century, there was a rush to codify much of the Common Law in areas of contracts and torts. The new laws were a blend of Common Law, local caselaw, and fresh ideas. Today, however, a reading of the plain language of such statutes is never enough to ascertain one's legal position, since Israeli Judiciary feels rather free to add unwritten concepts of good faith, balancing of equities, reasonableness, and even reliance on obscure exceptions, and exceptions to the exceptions.

Today, in the area of Constitutional law and civil rights, caselaws from Canada are very appreciated. Otherwise, in commerce, cyberspace and other modern causes of actions developed in the United States, Israeli Judges, particularly at higher courts, tend to embrace them. Israeli Judges do not see the United States as an aggregation of 50 different jurisdictions, and a federal system, as well as model Restatement rules. Rather they classify any legal document originating from the United States, under the omnibus rubric of "American Law". Peculiarly, the non-binding American Model Rules and Restatement, which are hardly ever cited in a United States brief, are accorded a lot of weight in Israeli Courts, much more than in their Country of origin.

Questions of first impression brought before the Supreme Court of Israel, often result in a comprehensive comparative analysis and compendium of solutions and approaches from around the world, including Germany, New Zealand and South Africa, even if the parties never cited one foreign case. Such legal opinions become a showcase for a Judge's legal ability, scholastic prowess, analytical skills and writing samples. The litigants, however, may be waiting for a judgment to be rendered two or three years after final oral argument.

Religion and law in Israel

The interplay between law and religion in Israel is a significant factor responsible for the degradation of the quality of life for many Israelis. When the State of Israel was established in 1948, certain agreements were made between the secular parties and the religious parties in the Knesset to preserve the character of Israel as a Jewish State. Since then, religious parties have always managed to maintain their power in the Knesset as kingmakers, and they are courted by any winning party for inclusion into the government coalition by offerings of appropriation budgets, jobs and positions and a promise to maintain the status quo in the secular-religious state of affairs.

Under Israeli law, Judges are encouraged to interpret laws, and fill in voids in the law (Lacuna) according to the spirit of ancient Jewish law and Halakha.

Separate from the Civil Court system, an entire system of Religious Courts is in place, compelling residents to seek personal status relief in such Courts. There are different Courts for all religions and sects recognized by the State of Israel, and a citizen must petition the Religious Court to which he belongs. Thus, a divorce in Israel between members of two different religions is unobtainable. Ideologically non religious, atheists, agnostics and others whose religion is suspected may not get a divorce in the State of Israel, and they are compelled to surrender to the jurisdiction of a religious Court.

For the Jews, the Rabbinical Courts are the address for divorce. However, the Rabbinical Judges ("dayanim") are appointed from among the ultra orthodox Yeshivas. While support and equitable distribution of property are governed by civil law, and such reliefs are available in Civil Courts, if a man files for divorce in a Rabbinical Court before the wife filed in a civil Court, the Rabbinical Court may claim jurisdiction over the property and support issues as well. Since under Jewish law, a divorce Get must be delivered by the husband to the wife voluntarily, husband are known to hijack the wives' property unless their financial or other demands are met. Women whose husbands refuse to deliver a Get, or if a husband voluntarily disappears, are called "Chained Women" Agunot, they can not remarry, and this status may last for decades.

Marriages, too, must be performed according to a person's religion. There is no civil marriage in Israel. Thus, there are no inter-religious marriages in Israel. Under Jewish law, certain persons are forever precluded from marriage, or certain combinations or groups are also precluded, for example, a Cohen may not marry a divorced woman. Those who are denied marriage licenses can only marry abroad. Cyprus is a popular marriage destination, and marriage by correspondence through Paraguay used to be popular as well. If at least one party to such civil overseas marriage is Jewish, Rabbinical law requires that a Jewish Get be obtained. The dayanim are known to abhor civil marriages and treat them as a nullity. In some cases, couples who came before a Rabbinical Court for a consent divorce found that the Rabbis sua sponte annulled their civil marriage, and refused to grant equitable distribution of property.

Other religious holds on the law in Israel are:

• No inter-faith adoptions.
• Converts into Judaism must follow ultra orthodox paradigms, and undergo long studies and tests, without assurance of acceptance.
• Severe restrictions on pig farms and shrimp ponds, and some local zoning against sale of pork and non-kosher food.
• A Certificate of Kashrut requires payments to a Kashrut inspector.
• No public transportation on Saturdays.
• Law of Return.
• The State maintains a Registry of mamzers or illegitimate children.
• In June 2007 a draft law was voted on in the Knesset designed to ban a pride parade in Jerusalem, because of its "offensiveness to Jewish Culture" (See Pride parade#Jerusalem).
• Ethical issues in medicine and biotechnology, such as stem cell research, cloning, euthanasia, and surrogate pregnancy are incorporated with strong emphasis on the attitude of Halakha on the subject.
• Construction, road and infrastructure development are regularly stalled for fear they may be encroaching on a site where Jews may have been buried. This is achieved by filing objections with the relevant District Planning and Building Board. Archeological digging permits are similarly affected.
• Hotels in Israel are denied operating licenses if not accommodating certain aspects of Jewish Law. Thus, no unkosher food may be offered in Israeli hotels, and Sabbath elevators stopping automatically in every floor must be installed.
• Employment restrictions on Saturdays, including increased wages for employees clocking hours on the Sabbath.

See also

• Common law
• Civil law (legal system)
• Legal systems of the world
• Basic laws of Israel
• Land and Property laws in Israel
• Prevention of Infiltration Law

External links

• The Bar of Israel
• The Courts of Israel (Judicial branch of Israel)
• The Knesset (Legislative branch of Israel)
• Israeli Ministry of Justice (Executive branch body responsible for the judicial branch of Israel)
• Regularly-updating articles on law in Israel