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 Independence[1] - nonbinding manifesto
• American Law US precedents, caselaw, Model rules and the Rstatement.

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 affilliation for personal status and matrimonial purposes. This system, in general, survived. Also the Turks adopted the Napoleonic Land Registration system, through a succesive 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 seies of costly investigations with arious 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 thosed used by the Brits in India or other colonies and territories.

With the establishment of Israel in 1948, English law as it 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 Constitutuional 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 lovingly emrace 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 nonbinding 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, oftentimes result in a comprehensive comparative analysis and compedium 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.

Future trends

Predicting future trends in Israel's legal system is impossible. The legal system is as capricious as the Country of Israel itself. Power struggles among Judges have become the norm. When in 2007 one Tel Aviv Judge sued her supervising Judge, no eyebrows were raised. When the President of the Supreme Court in Jerusalem Aharon Barak vacated his post, a noisy and ugly mudslinging among contenders gliched over to the media. Even the position of a minister of Justice has hardly been kept long enough by anybody to achieve any significant changes.

In a judicial system where no Judge feels bound by the doctrine of stare decisis, and where wild interpretations of statutes that twist the plain meaning of the law upside down are the norm, it is not surprising that a proper analysis of future trends is a fool's job. The legal system is Israel is already so uphapazard, and to some extent corrupt, and with abundant nepotism, that a recent survey in June 2007 indicated 33% of the populations believes that the legal system is corrupt and untrustworthy.

A major overhaul is required, but when all major players are ego driven and publicity hungry, it is hard to predict a rosy future for the Israeli legal system.

Religion and law in Israel

The interplay between law and religion in Israel is a significant factor responsible for the the degradation of the quality of life for many Israelis. to some, the imposition of religious dictates equals torture under auspices of the State. 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 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 winninig party for inclusion into the government coalition by offerings of excessive appropriation budgets, jobs and positions and a promise to maintain the status quo in the secular-religious state of affairs to the detriment of, and at the expense of, most non-religious citizens of the Country.

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. The fact that most of it is written in Aramaic or Ancient Hebrew and the text of it is hardly understood by most lawyers notwithstanding.

Seperate 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, and they have no tolerance for secular lifestyle, and are biased in favor of men and against women. 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, a tactical move which normally spells out victory for the husband and extreme misery and humiliation for he wife. 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, with the blessing of the Rabbinical Court. Women whose husbands refuse to deliver a Get, or if a husband voluntarily disappears, are called "Chained Women" Agunot [2], they can not remarry, and this status may last for decades[3].

Marriages, too, must be performed according to a person's religion. There are 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. Again, such ancient and arbitrary laws are imposed on a secular society and causes tremendous anguish and complications. 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 abhore 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 annuled their civil marriage, and refused to grant equitable distribution of property, much to their amazement.

Other religious holds on the law in Israel are:

• No inter-faith adoptions.
• Converts into Judaism must follow ultra orthodox paradigms, and undergo long and exhausting 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, often under the table, thus increasing the cost of doing business.
• No public transportation on Saturdays.
• The national airline, (El Al) although privatized, is under threat of boycott if it would ever choose to fly on Saturdays.
• Law of Return.
• The State maintains a Registry of Bastards, the infamous Mamzer book of illegitimate children
• Assaults on gays and lesbians inspired by Halakha. For example, in June 2007 a draft law was voted on in the Knesset disgned to ban a pride parade in Jerusalem, because of its "offensiveness to Jewish Culture". (SeePride parade#Jerusalem).
• Ethical issues in medicine and bio-technology, such as stem cell research, cloning, Euthanasia, and surrogate pregnancy are incorporated into the long 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, if a bone or two are found on site. 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 accomodating 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.

Lawyering and Practicing in Israel

A lawyer practicing in Israel faces many challenges, including the interpretation of law and lack of predictability, cultural attitudes that affect attorney-client relationships, judicial temper and built-in sanctions in the law that penalize negligent work, keeping up with new developments, maintaining relations with adversaries, and external forces, such as power clashes between the Executive and the Judiciary arms of government.

Blending all these factors may result in what appears to be an extremely argumentative, vindictive, formalistic, lengthy, overburdened with paperwork, expensive and frustrating legal environment.

• Saturated Legal Market in Israel. There are approximately 35,000 attorneys licensed in Israel, with law schools producing new graduates at the rate of 2,000 new lawyers a year. This creates a tight and highly competitive market. Market surveys find that the percentage of attorneys per one thousand inhabitants in Israel is one of the highest in the world. Consequently, attorneys in Israel are forced to reduce rates and offer sub-specialties in niche practices to be competitive.

• Old School v. New Generation Lawyers in Israel. The legal community is divided into two groups: “Old School” attorneys and Fresh Graduates. The latter are defined as those admitted within the past 10 years. This phenomenon is a product of the opening of Law Colleges (as opposed to established universities), within the past 15 years, where admission requirements have been significantly reduced. Thus, it is said that the Fresh Graduates are inferiorly trained. However, in reality, the recently graduated outnumber the Old School by a ratio of approximately 2:1. Old School lawyers cloak themselves with an aura of dignity and respect, and tend to spice their arguments with ancient proverbs in Aramaic, as well more archaic Talmudic lessons. The younger generation is constantly being criticized for speaking plain Hebrew, introducing slang, and discarding unnecessary formal gestures. It is claimed that they devalue the reputation of the profession.

• Collegiality in Legal Practice. Collegiality was inherited from British Common Law as the notion that attorneys who are members of the same profession are akin to brothers and sisters, and must accommodate each other’s prior engagements, and treat each other with respect and dignity. Ethical rules establish this in no uncertain terms, and attorneys using vulgar and profanities against their colleagues are vigorously prosecuted. However, recent years have muddled the notion of collegiality in Israel, and it no longer the same as practiced in the U.S. or the U.K.. In fact some observers lament the loss of collegiality, which has all but become extinct in Israel. There are several undesired outcomes resulting from this trend. A lawyer practicing in in Israel must constantly guard against adversaries communicating ex parte with the Court, or submitting Court applications without notice to the other side. Asking for the favour of an extension may never be taken for granted. This trend also contributed to the creation of a “win at all costs” culture, which results in professional frustration and desperation among many litigators.

• Societal Norms in a Country at War. Observers of the legal profession, and other monitoring associations have noted that the general stress of living in a country which is in a constant war has created a nasty, vindictive legal culture, where it is commonly believed by Israeli lawyers that the key to winning is by humiliating, inflicting pain and smear campaigns. Many indicted officials in Israel commonly defend themselves claiming that the indictment was tailored, i.e. manufactured and concocted to take revenge by use of unsubstantiated proof. Legal scholars from around the world, as well as NGOs who monitor international civil rights, such as Amnesty, regularly note that the legal system itself, although it facially appears to be democratic and socially advanced, embodies into it draconian and inhumane tools designed to oppress the Arab minority and the Palestinians who are affected by the political policy of occupation [5] and apartheid, which Courts tend to overlook in the face of human misery.

• Interpersonal Relations and Self Fulfilment. The addition of thousands of new lawyers every year, creates a"focus on yourself" culture that is so pervasive, some critics report that even Judges worry only about their reputation and promotion. Reports in Israeli press in 2007 have traced legal stories in the news to leaks from the Judge’s family members in order to aggrandize their names. A feedback survey conducted by the Israeli Bar among lawyers assessing Judge’s performance report complaints of excessive judicial insults, judicial impatience and unpreparedness. it is common criticism in Israel that Judgements written by Judges can never be predicted, as the doctrine of stare_decisis (controlling precedent) is not followed, thus adding a frustrating dimension to the legal practice. In addition, complaints to the Chief Supervising Judge at Israel’s Court Administration, which were made public, report Judicial bias in favour of comrade attorneys, nepotism, using official position to influence appointments of family members to Judicial posts, and non-merits promotions. There is also an inherent conflict of interest, when certain lawyers are members of the Committee for Election of Judges, which gives these lawyers and the law firms they are affiliated with powers to affect Judge’s promotions. Another factor affecting a build up of professional frustration is the severe backlog in rendering Judgments. Judge can keep cases open for five years and more. Such cases languish without activity for years after trial, and there is actually no mechanism in place to expedite the issuance of judgments. The long life of a case in Court is said to be a hindrance on effective justice. At the Supreme Court in Jerusalem, ordinary litigants can expect their first Court appearance scheduled one year, or more, after filing, and Judgments can languish for two or three years after final oral argument.

• The Judiciary’s Skirmishes as Reflecting on the Legal Practice in Israel. Israeli press is saturated with reports of animosity among Judges in Israel. Recently, a Tel Aviv Judge sued her Supervising Judge for refusal to grant her certain administrative privileges. In 2007, the current President of the Israeli Supreme Court, the Hon. Dorit_Beinish, is involved in a highly publicized and bitter power clash with the current Minister of Justice, Prof. Daniel_Friedmann. Prof. Friedman is reported to be so furious that his female Professor friend, Nili Cohen's candidacy to the Supreme Court has been torpedoed by Beinisch, that he is now (2007) on a mission to scale down the supreme Court powers and jurisdiction to the bare essentials. Prof. Friedman was appointed Minister of Justice in 2007 by Prime Minister Ehud Olmert, (himself under several criminal corruption probes), following the resignation of Haim_Ramon, the former Minister, now convicted on sexual harassment charges. The fact that the Minister of Justice is being indicted, tried and convicted of sexual harassment charges is yet another factor that does not reflect well on the integrity of the legal system in Israel, and is a cause for a general uneasy feeling among lawyers in Israel.

• Climate of Legal Uncertainly. The legal system in Israel is criticized for lack of any ability to predict the outcome of a case, or to provide clients at initial consultation a reasonable and prudent analysis of the chances of success. This is chiefly attributable to the legacy of Aharon_Barak's contribution during his tenure at the Supreme Court. Scholars and practitioners attribute Mr. Barak is the introduction of the doctrines of "reasonableness" and "balanceability" to almost any aspect of the law. Under the Barak legacy, Judges are now required to balance every cause of action or defence that comes before them according to the balance of bona fides in a case. Consequently, legal practitioners complain that Israeli law has been stripped of all certainties and nothing is absolute anymore. Any given statute can no longer be read verbatim, because at trial, a Judge may balance the equitities directly in opposition to what the law says. This makes an attorney's job in Israel one of the harder than ever, despite the extensive codification of Common Law. Notably, Mr. Barak is responsible for abolishing the requirement that a litigant prove "standing" in a case, and thus the doors of the Supreme Court opened to anybody to Petition against governmental actions.

• Advocacy in Israel. Ordinarily lawyers are exopected to win cases with persuasive and eloquent argumentation at Court. However, due to Courts’ overburdened calendars, much of the legal work is nowadays an exchange of paperwork. It is criticized that the old art of advocacy in Israel has been reduced to the ability to manufacture mountains of paperwork, and thus the chances of success in a case depend on fight back by creating even taller mountains of documents.

• Attorney Mistakes and Malpractice. Courts in Israel are rather strict in the face of attorney mistakes. Strict adherence to formal rules of civil procedure is absolutely required. Israeli Judges are not forgiving when it comes to minor attorney procedural mistakes. Even the slightest procedural mistake, such as incorrect title of a motion, or an incorrect reliance on a subsection of a statute, can unleash sarcastic criticism from a Judge, and penalized with costs assessed against the client. There is criticism that Judges who do so, tend to forget that the client, a live human being is about to suffer tremendously, financially and otherwise from his attorney’s malfeasance. Many times such costs are exorbitant and disproprtionate to the monetary value of the case. Lawyers in Israel are more than willing, and even eager to sue one another for malpractice for even the most insignificant legal mistakes, contrary to most Common Law jurisdictions, where it is hard to find attorneys willing to sue their colleagues. There is no "Statement of Client Rights" which lawyers must adhere to, and therefore many clients end up signing retainers with vague language that eventually enriches the lawyer, and leaves the client very little of the proceeds.

• Financial Rewards and Verdicts at Court. In general verdicts in favor of plaintiffs are rather low, and miniscule by American standards. For example, a typical libel suit may normally result in a $12,500 verdict. Wrongful deaths recoveries are limited to the proven financial earning ability of the deceased, that must be meticulously documented. Recoveries in insurance claims are also tied in to formulas that cap maximum value of life, and require extensive pretrial practice. However, an unsuccessful application to Court may result in costs against the losing client. Such costs are tied in to the generally hourly billable rates, and are liberally handed out.

• The Role of the Israel Bar Association upon the Legal practice. The [Israel_Bar_Association] does not play a major role in the legal practice. Other than its licensing, accreditation and disciplinary powers, its other activities are voluntary , and score little participation. Most lawyers do not see its relevance in their daily practice and shun away from participation in its events, and from the Bar elections. The Central Committee is mired with hostilities, with Central Committee members regularly suing each other. The tenure of Dr. Shlomo_Cohen as Chairman of the Israel Bar has generated much criticism. Cohen launched a campaign to invade the reserve funds of the Tel Aviv District. Other litigation started concerning endorsements of malpractice insurance policies, and another litigation was commenced against an offspring voluntary organization, the International Jewish Lawyers' Association, following some violence at a conference. Complaints have been launched to the Bar’s Ombudsman about wasteful job handouts, exploitation of Bar resources as amicus curiae in private litigation, irrelevant publishing house, overseas trips and over-politicization of the Bar.

See also

• Common law
• Civil law
• Legal systems of the world
• Basic laws of Israel

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)