Some form of assisted dying (voluntary euthanasia and/or assisted suicide) is lawful in the Netherlands, Belgium, Oregon, and Switzerland. In order to be lawful in these jurisdictions, a valid request must precede the provision of assistance to die. Non-adherence to the criteria for valid requests for assisted dying may be a trigger for civil and/or criminal liability, as well as disciplinary sanctions where the assistor is a medical professional. In this article, we review the criteria and evidence in respect of (...) requests for assisted dying in the Netherlands, Belgium, Oregon, and Switzerland, with the aim of establishing whether individuals who receive assisted dying do so on the basis of valid requests. We conclude that the evidence suggests that individuals who receive assisted dying in the four jurisdictions examined do so on the basis of valid requests and third parties who assist death do not act unlawfully. However, further research on the elements that may undermine the validity of requests for assisted dying is warranted. More research on the reasons why requests for assisted dying are refused is also desirable. (shrink)

This article is about the information relevant to decision-making capacity in refusal of life-prolonging medical treatment cases. We examine the degree to which the phenomenology of the options available to the agent—what the relevant states of affairs will feel like for them—forms part of the capacity-relevant information in the law of England and Wales, and how this informational basis varies across adolescent and adult medical treatment cases. We identify an important doctrinal phenomenon. In the leading authorities, the courts appear to (...) count the first-personal phenomenology of the available options among the information that adolescents seeking to refuse life-prolonging treatment must understand and appreciate in order to possess capacity; adults are not held to this (higher) standard. We evaluate this differential treatment in light of philosophical work on transformative choice—decisions involving options whose sensory character, and effect on our values and preferences, are grasped only through experience itself. (shrink)

Following independence in 1948, the Hebrew University of Jerusalem founded a law faculty and modeled it on the European example. Today, the Israeli law faculty is much more similar to the U.S. law school than to institutions of legal education in Europe. This Article traces the history of the changes in Israeli legal education. It argues that the shift began after 1967, faced resistance in the 1980s, and gained momentum in the 1990s. Presently we may be witnessing the (...) beginning of a shift away from U.S. influence and back to Continental Europe or even Asia. The Article discusses three major educational components, which together signaled the shift to U.S. influence: a student-run law review, curricular reform, and open and lively class discussion. The Article then offers several factors to explain the shift: judicial opinions that began to rely on American decisional law, the adoption of the U.S. model of practice by the legal profession, the privatization of law schools, globalization, and Americanization and foreign affairs. Finally, the Article considers the contribution to Americanization made by active U.S. attempts to export American law to other legal systems. (shrink)

Israeli enforcement law uses both direct and indirect enforcement — the former via attachment of assets, and the latter via imprisonment of the debtor. The use of indirect enforcement via imprisonment is problematic, as it violates the basic rights of the debtor. I will argue that in response to this problem, the law created a framework for the "debtor of limited means." I will demonstrate that not only does this create an improper definition of the task of the Chief (...) Enforcement Officer, but that it is also an inefficient way of dealing with an insolvent debtor. I will propose that the system differentiate between debtors who cannot pay their debts and those who do not want to pay their debts. I believe that encouraging the insolvent debtor to file for of bankruptcy will avoid the problem of imprisonment and enable the Chief Enforcement Officer to return to his natural role as judge of enforcement. Additionally, I suggest creating a separate track of "consumer enforcement," which would avoid the whole system of installments, imprisonment, and debtors of limited means, at least regarding consumer credit. (shrink)

Adolescents are routinely treated differently to adults, even when they possess similar capacities. In this article, we explore the justification for one case of differential treatment of adolescents. We attempt to make philosophical sense of the concurrent consents doctrine in law: adolescents found to have decision-making capacity have the power to consent to—and thereby, all else being equal, permit—their own medical treatment, but they lack the power always to refuse treatment and so render it impermissible. Other parties, that is, individuals (...) who exercise parental responsibility or a court, retain the authority to consent on an adolescent’s behalf. We explore four defences of the doctrine. We reject two attempts to defend the asymmetry in the power to consent to and refuse medical treatment by reference to transitional paternalism. We then consider and reject a stage of life justification. Finally, we articulate a justification based on the distinctiveness of adolescent well-being. (shrink)

In August 2001, the Israeli Ministry of Health issued its Limitation of Smoking in Public Places Order, categorically forbidding smoking in hospitals. This forced the mental health system to cope with the issue of smoking inside psychiatric hospitals. The main problem was smoking by compulsorily hospitalized psychiatric patients in closed wards. An attempt by a psychiatric hospital to implement the tobacco smoking restraint instruction by banning the sale of cigarettes inside the hospital led to the development of a black (...) market and cases of patient exploitation in return for cigarettes. This article surveys the literature dealing with smoking among psychiatric patients, the role of smoking in patients and the moral dilemmas of taking steps to prevent smoking in psychiatric hospitals. It addresses the need for public discussion on professional caregivers’ dilemmas between their commitment to uphold the law and their duty to act as advocates for their patients’ rights and welfare. (shrink)

The Israeli law of abortions (1977) legally authorises hospital committees to decide upon women's requests for selective abortion. One of the law's clauses determines that abortions can be approved in cases of an embryopathy. However, the law does not provide any clear definitions of those fetal ‘physical or mental defects’ in terms of severity and/or likelihood, which remain open to interpretation by the committee members. This paper aimed to determine which ethical methodologies are used by committee members and advisors (...) as they face the dilemma of abortion approval due to mild to moderate possible embryopathy. Twenty interviews demonstrated that they use mainly a combination of deontology and a contextual–relational model. Their ethical considerations are both contextual such as the family's/woman's relational network and are influenced by the ethical principles of autonomy and in cases of late abortions the value of life. The findings reveal a paradoxical picture: on the one hand, committee members hold liberal perceptions and in practice abortion requests are very seldom rejected. On the other hand, the Israeli abortion law and practice of abortion committees is still problematical from liberal and feminist rights perspectives. This paradox is discussed further by reflecting upon the relevant theory as well as the Israeli context. The paper concludes by suggesting that within the specific Israeli sociopolitical climate the requirement for committee approval of what should be a private decision might be necessary in order to placate religious or other opposition to abortion. (shrink)

Bassan’s article on the posthumous use of sperm presents a complicated picture of Israeli law.1 On the one hand, as previous reviews show,2 Israel is unique in terms of the extent of this phenomenon. The number of applications to the courts to approve the use of sperm posthumously is substantial and has been increasing since the outbreak of the war on October 7. On the other hand, there is no clear legal policy in this area. In other words, Bassan’s (...) article shows that the rights of relevant parties in this context are not adequately regulated. This, as elaborated below, is the result of a lack of primary legislation, together with disagreement among relevant policymakers. The outcome is feelings of frustration, confusion, and even anger among the deceased’s close relatives.3. (shrink)

This article discusses two issues of majority-minority relations in deeply divided societies. The first is the legitimacy of the transfer of a homeland minority — along with the territory it inhabits — to a neighboring kin-state against the will of the minority or most of its members. The second is the constitutional validity of legislation that renders citizenship or the right to vote contingent upon an oath of allegiance to the state or to its fundamental attributes. These two interrelated steps, (...) advanced by a central partner in the current government coalition in Israel, are aimed at the Arab-Palestinian minority. This article’s main focus is the examination of Israeli constitutional law safeguards that may prevent the implementation of these initiatives, which I find to be very dangerous. (shrink)

The Israeli approach to advertising consists of two complementary sets of norms, legal norms and moral‐ethical norms. Advertising legislation demands honest disclosure. The Israeli legislator refrains from intervening in fundamental rights such as freedom of expression, free trade, occupation, and liberty of contract in advertising. However, there are also few interventions to prevent phenomena that are dangerous or abusive, especially to groups needing protection. The Israeli courts do try to apply moral considerations in cases tried by them, (...) but living up to moral responsibilities is different from complying with legal obligations. Advertisers in Israel have a(i) Treatise(r), consisting of ten ethical guidelines, which neither sums up advertising ethics in its entirety nor is legally binding. Sociological and psychological features of the culture need to be examined in order to spell out what truth and honesty in advertising actually mean in this society, and the manner in which these values are practised. Lacking sanctions in public law against misleading consumers or manipulation based on false facts, consumers must find remedy in civil actions which rely on moral and ethical rules. (shrink)

The research examined the use of moral justification as a mediating mechanism of stress, used by compulsory Israeli soldiers who had served at army roadblocks in the West Bank. Employing Bandura’s model of moral disengagement, we expected that the greater the justification of army roadblocks by the soldier, the more he would feel adjusted to army demands. Feelings of adjustment to this situation were examined using three components: cognitive, affective and behavioral. The sample was composed of 170 Israeli (...) ex-soldiers who had served for at least 1 month at army roadblocks in the West Bank during the Al-Aksa Intifada. The results supported the hypothesis regarding association between moral justification and feelings of adjustment at the end of army service. The mediating hypothesis was partially supported. Significance of moral justification as a mechanism of coping with the enforced situation of military law is discussed. (shrink)

This paper examines the ways Israeli law differentiates betweensingle and married women. The first section explores the littlewe know of single women and single mothers' realities. The secondsection analyses Israeli laws related to military service,housing assistance, homemakers' status in the social securitysystem, ways of becoming a mother, and public support formothers. The legal analysis reveals complex distinctions betweensingle and married women ranging from ignoring single women whenthey have no children and encouraging them to marry, toambivalence towards single women (...) who want to conceive, and ontosubstantial public support for single women who are alreadymothers. The article points to directions of change needed so thelaw will adequately address single women's choices and needs. (shrink)

Background Coping with end-of-life issues is a major challenge for governments and health systems. Despite progress in legislation, many barriers exist to its full implementation. This study is aimed at identifying these end-of-life barriers in relation to Israel. Methods Qualitative in-depth interviews using professionals and decision makers in the health-care and related systems were carried out, along with two focus groups based on brainstorming techniques consisting of nurses and social workers. Data was managed and analyzed using Naralyzer software. Results Qualitative (...) analysis showed identification of six primary barriers: 1) law, procedures, and forms; 2) clinical aspects; 3) human aspects; 4) knowledge and skills of medical teams; 5) communication; and 6) resource allocation. These were further divided into 44 sub area barriers. Conclusions This study highlights the role of the family doctor in end-of-life by training physicians in decision-making workshops and increasing their knowledge in the field of palliative medicine. Effectively channeling resources, knowledge, and support for medical teams, by accounting for the structure and response of the units for home treatment will improve patient’s access to information on and support for end-of-life laws, as well as reduce legislative barriers in other countries that face the same issues. (shrink)

Dealing with major issues in Jewish biomedical law, this book focuses upon the influence of morality, the rise of patient autonomy, and the role played by scientific progress in this area of Jewish Law. The book examines Jewish Law in comparison with canon, common, and modern Israeli law.

Solidarity between the citizens of a country is both good and desirable, and public educational institutions are the clear site of education for such civil solidarity and its natural place is in Civics lessons. Nevertheless, this paper argues that it is impossible to educate for solidarity for all citizens in a liberal-democratic state when civic classes teach basic civil laws that exclude groups or minorities and expel them from the general civil population. Therefore, we can ask: What are the modes (...) of action that are open to Civics teachers and other educators who are caught in this trap when trying to educate for solidarity? As a reply to this question and by borrowing ideas from Michel Foucault’s thought, this paper equips teachers with some guidelines for pedagogical resistance to the excluding wave, that enable strengthening an inclusive civil solidarity, and demonstrates the applicability of these guidelines in the Israeli reality. (shrink)

This Article studies the Israeli courts’ approach to choice of law in securities class actions against dual-listed companies, and its unexpected adverse effects on Israeli shareholders. Israeli courts apply American law to dual-listed companies, as an inducement for companies to list their shares for trade on the Tel Aviv stock exchange. However, one of the outcomes of this choice was to enable American attorneys to include Israeli-traded shares in American securities class actions. The Article claims that (...) this outcome might undermine Israeli shareholders’ rights and reduce their expected compensation. (shrink)

In 1948, when the State of Israel was founded, 125,000 people were members of credit cooperative societies, which provided over 20 percent of all market financing. For several years this number continued to rise, reaching a total of 250,000 members in more than 100 credit cooperative societies. Credit associations — part of the thriving cooperative movement of early Zionism — symbolized the attempt to create a new and just Jewish society by fusing socialist and capitalist ideals. From the mid-1950s, however, (...) in a rapid process of centralization of Israel’s capital market and financial institutions, almost all credit associations were absorbed into Israel’s commercial banks and dissolved. Today, Israel’s two largest banks control over 63 percent of credit provision, and 90 percent of credit is provided to less than 1 percent of borrowers. The official policy of the Bank of Israel is to rule out the establishment of credit associations, credit unions or other non-bank financial institutions. In the light of current renewed interest in "social businesses," i.e., innovative business models designed to achieve desired social outcomes, this Article traces the waning of credit associations in Israel, and the role law has played in that process. Their disappearance from the capital market marked not only a change in economic policy, but also the final abandonment of the ideals which underlay the provision of cooperative financial services: mutuality, partnership and solidarity. (shrink)

According to the classic view of architecture, its primary function is to create spatial law and order so as to improve the functioning of man in the architectural environment. Classical works on the theory of architecture focused on those qualities that portrayed architecture as having a clearly positive dimension, the pursuit of which should be the primary task of an architect. Is it true, however, that architecture has only one common meaning? This assertion is undermined by buildings constructed on borderlands, (...) which are imposed on one community by another. An example is the wall being erected by Israel since 2002 to separate the state from the West Bank. While it has become a symbol of security and order for the Israelis, it is an emblem of enslavement and chaos for the Palestinians who have been trapped on the other side of the barrier. (shrink)

During combat, soldiers make critical split-second choices about matters of life and death dozens of times a day. These individual decisions accumulate to determine the outcome of wars. In this book, Marcus Schulzke examines the theory and practice of how military ethics can guide conduct in counterinsurgency, which are particularly difficult operations because the opponent operates outside of the laws of war. Schulzke surveys the ethical traditions that militaries borrow from; compares ethics in practice in the US Army, British Army (...) and Royal Marines Commandos, and Israel Defense Forces; and draws conclusions that may help militaries refine their approaches in future conflicts. The work is based on interviews with American, British, and Israeli soldiers who were deployed between 2000 and 2012, review of training materials and other official publications, published accounts from combat veterans, and observation of US Army focus groups with active duty soldiers. Examining three distinct national militaries illuminates positives and negatives is different approaches to military ethics. Schulzke makes a convincing argument that while moral warfare is an illusive goal, it is possible to make incremental improvements that can reduce war's destructiveness while improving the success of counterinsurgency operations. (shrink)

Fertility treatments, which are part of "assisted reproductive technologies" (ART), mainly undertaken through in vitro fertilization (IVF), offer the opportunity to infertile couples to conceive. IVF treatments are undertaken in Israel in significantly higher numbers than in the rest of the world. As such, Israel provides an important case-in-point for examining the validity of the actual claims used to justify the more generous public funding of IVF treatments at the policy level. In this article, we utilize an analytical philosophy approach (...) to conduct this examination. First, we highlight two fundamental concepts that were used at the Israeli public policy level in order to justify the generous public funding of IVF treatments. These concepts are “emotional vulnerability” and the “worthlessness of the childless,” where the latter emphasizes the infinite value of children. Then, by applying the perspective of the European model of Bioethical Principlism, and focusing the attention to these two concepts we show that these justifications are invalid. Specifically, it is suggested that these concepts are on the one hand both relying on and expressing the principles of vulnerability, dignity, and integrity; yet on the other hand, these concepts are also undermining the very principles of bioethics they are supposed to express and rely on. Based on this suggested criticism, we offer two “take home” messages informed by our analysis of the Israeli case, but reaching beyond it. (shrink)

Basic human rights are supposed to protect people from abuse and harm. They are the means whereby we protect our humanity. One would expect, therefore, that basic human rights would be valid and sacred in any context, including industrial relations. However, the complexity of the employee–employer relationship obscures this issue, and it is not clear whether such rights can be protected or whether they are valid in the context of industrial relations. Since rights are relational, they are preconditioned on the (...) special nature of the relationship between employee and employer. Hence, the specific meaning that these rights have in industrial relations cannot be grounded in the notion of human rights as such, but rather depends on the special relationships between employers and employees. Though much legislation has been passed to regulate the relationship between employees and employers, the issues surrounding this relationship remain one of the most debated topics in business ethics. Our paper focuses specifically on the right to equal pay and the right to privacy. With respect to the right to property, the paper examines whether there is a conflict between general human rights and the fundamental right of employers to their property. The Israeli legislature has responded to this conflict by enacting ‘protective laws’ that legally outline and mandate certain human rights. Under these laws, employees are prevented and prohibited from waiving the rights granted to them by law, even if employed in private industries. Despite this legislative effort, market forces are at times stronger, and consequently some basic rights are not fully applied or implemented. (shrink)

It is often argued that courts avoid foreign laws because they prefer local law. It would make sense if they did—after all, foreign law can be hard to understand and complicated to employ, and it is also... foreign. Aiming to investigate this assumption through a qualitative analysis of all available cases on one question and comparing the findings with the approach towards local matrimonial property cases in Israel, this Article finds something rather different. At least as regards Israeli judges (...) discussing matrimonial property, it appears that sometimes judges do not prefer the lex fori but something else. The Article discusses one case that reveals what could be described as a judicial mutiny, where judges chose to apply neither foreign law nor local law per se. In the case of matrimonial property, a particular legal norm seems particularly close to the judges’ hearts. So much so that despite legislative intervention designed to change the judicially-shaped law, the courts continue to apply their own, judicially created law. (shrink)

This article suggests enacting an accession tax instead of the estate duty – which was repealed in Israel in 1981. This suggestion evolves from historical and normative explorations of the tension between perceptions of familial intergenerational property rights and justifications for the “death tax,” as termed by its opponents, i.e., estate and inheritance tax. First, the Article explores this tension as expressed in the history of the Israeli Estate Duty Law. This chronological survey reveals a move from the State’s (...) taken-for-granted interest in revenue justifying the Law’s enactment in 1949; moving on to the “needy widow” and “poor orphan” in whose name the tax was attacked during the years 1959–1964, continuing to the abolition of the tax in 1981 in the name of efficiency and the right of the testator to transfer his wealth to his family, and finally cumulating with the targeting of tycoon dynasties that characterizes the recent calls for reintroducing the tax. Next, based on the rich literature on the subject, the Article maps the arguments for and against intergenerational wealth transfer taxation, placing the Israeli case in larger philosophical, political, and pragmatic contexts. Lastly, it associates the ideas of accession tax and “social inheritance” with inspirational sources for rethinking a realistic wealth transfer taxation to bridge the gap between notions of intergenerational familial rights and intergenerational social justice. (shrink)

The world famous Eltroxin saga of 2009–2011, which ignited heated public debates in Europe, Canada, and Australia, reveals the problematic nature of standalone autonomy protection cases. Eltroxin is a life-sustaining thyroid hormone replacement medicine used by millions worldwide; it was reformulated in 2008, and around 10% of patients were badly affected. Poor communication and lack of professional information triggered public hysteria as a global wave of complaints about harmful side effects, including hair loss, weight gain, extreme fatigue, headaches, diarrhoea, and (...) heightened heart rates, flooded the media. Israeli Eltroxin users (around 250 thousand people) were similarly unaware. Following many media reports and ministerial regulations, a high-profile consumer class action was launched against Perrigo, the distributor. Ten years of court proceedings culminated in a compensation settlement of approximately US$ 14 million. This relatively low sum covered the injuries of those patients who were physically affected; compensation for standalone autonomy injuries to all patients (who were denied information about changes to their life-sustaining medicine) was refused. The monetary settlement and court decision were hugely disappointing to the class plaintiffs, and a negative signal was sent to the proponents of consumers' and patients' personal autonomy. However, the class action still marked a positive change in pharmaceutical protocols for relations between health authorities, commercial pharmacy entities, and patients/consumers as seen by the proactive communication around a subsequent Eltroxin reformulation in 2020 in Israel, Europe, and South Africa (Aspen Pharmacare, 2020).1 This paper highlights the vast potential value of consumer class action proceedings, and pharmaceutical consumer (patient) class actions in particular, for public welfare and private autonomy. The paper will explain leading Israeli case law related to consumer autonomy protection in tort law and will argue that this law still holds the unique protection of autonomy as a basic human right and accordingly recognises harm to autonomy as a viable form of damage. Additionally, it illustrates why and how consumer protection class actions are an important tool for protection of human rights in general and of patients' rights in particular. (shrink)

The prevailing discourse in Israeli academia on justifying the values of Israel as a “Jewish and democratic state” takes the form of a debate involving questions of group rights of a national minority, as in any liberal democracy. The framework of this discourse relies on three interconnected, hegemonic assertions. These assertions assume the applicability of equal individual rights, put aside the Occupation of the West Bank and Gaza as irrelevant for the “Jewishness” of the state as it belongs to (...) a different rule of recognition, and conceptualize the Green Line based on majority-minority relations with Jewish group rights, including the Law of Return, as not leading to discrimination against individuals. I contend that these assertions are invalid and that colonialism is the relevant framework of Israel’s constitutional identity in Palestine (the Green Line, the West Bank including Jerusalem and Gaza). I argue there is one Constitution in Palestine based on one conception of sovereignty, regardless of any rules of recognition where the Law of Return, together with the value of “preserving a Jewish majority,” constitutes its very essence that targets the Palestinians as such. The Article presents a case-law study regarding family life between spouses and their children in Palestine. This case-law reveals an unfamiliar phenomenon. Unlike the plurality of written laws that characterize colonial regimes, the Israeli legal system introduces a unique model in which racial domination is created mostly by decisionism of the Court, out of the written laws and regardless of any rule of recognition. (shrink)

Jews and Arabs in Israel often agree that there is a reciprocal relation between rights and duties, though they derive opposing conclusions from it. Jews infer that Arabs are not entitled to the same rights and privileges as Jews are, since they do not shoulder an equal share of the duties. Arabs, by contrast, argue that they are under no duty to share the burdens, particularly military or national service, since their rights are not fully respected. The Paper assesses these (...) opposing claims and ends up rejecting both. It argues that the rights to which citizens are entitled do not depend on citizens carrying out all their social or legal duties, while the citizens’ duty to contribute to the welfare of their countries by national service or other means is generally not contingent on the countries’ fulfillment of its duties towards them. The Paper focuses on national service by Israeli Arabs and suggests that that there is nothing wrong in making such service mandatory though there are practical considerations against doing so and that making such service optional is an excellent alternative, one that should be encouraged as much as possible. (shrink)

There is renewed scholarly interest in studying the dynamics of constitutional revolutions and the explanations for the rise of constitutional courts around the world. At the same time, there is growing discussion of democratic backsliding and concern that democracies are exhibiting extremism, weakening of opposition forces and constitutional courts, and violations of civil and political rights that are pertinent to vibrant democracies. Scholars try to study both phenomena and understand the relationship between them. Israel is an important case study for (...) both agendas. This Article analyzes the jurisprudence of Aharon Barak, one of the greatest jurists of our time with a worldwide reputation for revolutionizing both Israeli constitutional law and comparative constitutional law. It explains the tactics and strategy used by Barak to revolutionize Israeli constitutional law on issues of reasonableness, proportionality, standing, justiciability, constitutional review, equality, and supra-constitutional law. It reveals how each revolution paved the way for the next. It offers explanations for the effectiveness of these judicially-led revolutions as well as possible bases for their legitimation. Barak was a common law judge and ultimately treated parliamentary sovereignty as a doctrine arising from common law and constrained by common law, though he never quite put it in these terms. The Article concludes with explanations for the political backlash experienced by the current Israeli Supreme Court that some have characterized as democratic backsliding. It argues that the Court contributes to the development of law as part of a dialog and interaction between the different branches of government. As the Court operates within these dynamics, it must understand and take into account the institutional, political, and social environments in which it operates to preserve legitimacy and achieve efficacy. Barak was a strategic player that laid foundations for an expansive judicial power, but his Court was very prudent in utilizing that power. His successors may have contributed unintentionally to the backlash against the Court by following Barak’s substantive jurisprudence, but not necessarily his prudent tactics and strategy. (shrink)

Journal Name: The Law & Ethics of Human Rights Issue: Ahead of print.

This article examines the role bureaucracy has in enhancing the social diversity of judiciaries. It does so by analyzing the Israeli judiciary and its reforms over the last three decades, and the interaction of these reforms with the appearance of intersectional judges—Arab women, Jewish women of Orthodox background, and Jewish women from geographic and economic peripheries—into the Israeli judiciary. Based on an original empirical study, the article shows that the career paths of intersectional judges include administrative roles in (...) the judiciary more often than non-intersectional judges. The article further demonstrates how these administrative career paths were shaped by bureaucratic-minded reforms. The Israeli case study thus shows how the bureaucratic design of the judiciary can accommodate diversity efforts, sometimes unintendedly, and discusses the merits, boundaries, and drawbacks of such bureaucratic design. (shrink)

ArgumentThis article describes how science and law were called upon (and failed) to resolve a controversy that created a painful rift between the Israeli State and some of its elite soldiers. The controversy, which came to be known as “the Kishon affair,” erupted in 2000, when veterans of an elite and secretive unit in the Israeli navy claimed that pollution in the Kishon River where they had trained and dived during their military service had been the cause of (...) a rash of cancers. The veterans demanded that the Ministry of Defense take responsibility for their illnesses, finance their medical treatment, and support their families if they die. The military denied the causal connection between the polluted river and the veterans’ cancers and rejected their demands. The dispute quickly escalated into a bitter public controversy, and a high-rank commission comprised of one of Israel's top jurists and two prominent scientists was called upon to study the disputed causal relation and reveal its true nature. However, after nearly three years of intense inquiry the jurist and the scientists reached opposing conclusions: the jurist found a causal connection while the scientists rejected it. (shrink)

Religion-state issues are particularly contentious in the Israeli context and they are often resolved by litigation before the Supreme Court in its capacity as the High Court of Justice. A recent controversy that reached Israel’s High Court of Justice in 2005 involved a petition to recognize the validity of non-Orthodox conversions to Judaism. This paper examines the role of the press in constructing the controversy and the image of the High Court of Justice by analyzing all the reports and (...) editorials in both an elite and in a popular newspaper, published from a week before the decision was issued until to 1 month afterwards. It looks at the visual, inter-textual and linguistic features of the articles and analyzes the frames used in representing the Court, the petitioners, and the controversy. We found that two distinct frames were used by the papers to convey the essence of the controversy in the Tushbeim case. While the organizing idea in Haaretz, the elite newspaper, was one of Israel as a civic state, Yediot, the popular newspaper, emphasized the religious dimension of Israeli nationhood. Moreover, contrary to widespread perceptions of the popular press, it presented a wider range of views than did the elite newspaper, which tended to praise the Court and to support the decision. However, both papers avoided challenges to the basic issue of whether religious authorities should control the definition of the character of Israel as a Jewish State. Thus, the media in effect defined the terms of the struggle over the Jewish identity of the state within consensual boundaries. (shrink)

The case of Israel generally, and specifically regarding the justifications put forth for the Law of Return by a wide range of liberal scholars, accents the main problems and weaknesses of liberal legality. Part one of the paper rethinks aspects of liberal legality and its artificial nature in light of debates surrounding the Law of Return. Debating both the case of Israel and the insistence of many Israeli scholars on justifying the Law using liberal terms, this part reveals certain (...) aspects of liberalism that usually remain hidden. Part III comments on Israel and evaluates the Law of Return while comparing it to similar laws, arguing that even after revisiting liberal legality, the Law of Return scores badly according to the criteria of liberal legality. Thus, the first analysis places Israel within a paradigm, revealing that Israel may not be so exceptional. For those who view liberalism as a pure, ideal theory this paper points to the dark side of liberalism, and thereby suggests that Israel might not be the only “pariah” state, but even within the new paradigm , the Law of Return is at the extreme end of the spectrum and scores badly. (shrink)

The present paper is devoted to a detailed presentation of a new Military Ethics doctrine of fighting terror. It is proposed as an extension of the classical Just War Theory, which has been meant to apply to ordinary international conflicts. Since the conditions of a fight against terror are essentially different from the conditions that are assumed to hold in the classical war (military) paradigm or in the law enforcement (police) paradigm, a third model is needed. The paper proposes such (...) a model in the form of principles that should govern the activity of a democratic state when faced with terror. Eleven principle are proposed. Two are on the level of the state, including the Principle of Self-Defense Duty. Six are related to military preventive acts against activities of terror, including new formulations of a Principle of Military Necessity, a Principle of Distinction, and a Principle of Military Proportionality. Principles of Low Probabilities, Time Span Considerations and Professional Understanding are also included. Finally, three principles that are related to consciousness-directed activities against terror are added: a Principle of Permanent Notice, a Principle of Compensation, and a Principle of Operational Deterrence. The exposition of the principles is accompanied by arguments about their moral justification. The doctrine has been developed on the background of the IDF fight against acts and activities of terror performed by Palestinian individuals and organizations. (shrink)

Delaware’s famous corporate law and its highly respected specialized Court of Chancery attract entrepreneurs from all over the world, who choose the small state as their locus of incorporation and litigation forum, and global investors who choose Delaware law as the law governing their corporate investments and mergers and acquisitions. Other jurisdictions vie with Delaware in regard to these choices. This interjurisdictional competition makes Delaware a significant global norm exporter in the field of corporate law because jurisdictions emulate some of (...) its corporate law. Israel leads the global pack. For two decades, it has been approximating its corporate law to Delaware’s and emulating its principal institutions, including by establishing a specialized Chancery-like court whose judges seek guidance in Delaware’s case law in deciding open corporate law questions. This Article employs qualitative methods—interviews with M&A practitioners from the United States, the United Kingdom, and Israel. We use the interviews to assess whether the project of approximating Delaware corporate law has succeeded in shifting incorporation decision preferences away from Delaware to Israel and watering down the natural reluctance of global investors to accepting an unfamiliar corporate law when engaging in cross-border corporate M&A transactions involving an Israeli party. Our findings indicate that the approximation project has countervailing effects, opinions about its success being polarized and nuanced; that approximation increases the familiarity of domestic practitioners with the foreign law being emulated, making the emulated law easier to implement; and that approximation creates more room for other aspects of interjurisdictional competition to influence private choices. (shrink)

The malicious acts of terrorism in New York and Washington emphasized the need for states to combat terrorism. Likewise, Israel has suffered various terrorist attacks since its establishment. There are distinctive features in contemporary terrorism which call for a new assessment of its nature and the status of terrorists in domestic and international law. In October 2000, a violent conflict erupted between organizations operating within the territory of the Palestinian Authority--an entity that is not a state but is a sovereign (...) authority--and the State of Israel. This is a new type of armed conflict, one different from that treated in the international law of armed conflicts. No clear view exists as to the rules which should be applied in such a situation. This is one of the questions that shall be raised in this article. As a result of the violence against Israel, Israel initiated a policy which the media has called 'Israel's elimination policy', but which I believe may be more appropriately described as 'preventive action' taken by Israel within the framework of a military policy aimed at neutralizing terrorist organizations by targeting the perpetrators or their commanders. In this article I shall examine whether this policy is legitimate as a matter of law and morality. (shrink)

We report here on recent developments in Israel on the issue of sex selection for nonmedical reasons by preimplantation genetic diagnosis. Sex selection for medical reasons is generally viewed as uncontroversial and legal in European and American law. Its use for nonmedical reasons is generally illegal in European countries. In the United States, it is not illegal, although in the opinion of the Ethics Committee of the American Society for Reproductive Medicine, it is problematic. This position is undergoing reconsideration, albeit (...) in a limited way. (shrink)

The American Declaration of Independence served as a starting point for the drafting of the Israeli Declaration of Independence of 1948. Most of the original content was lost in the long process of translation and adaptation, but, using David Armitage’s recent terminology, the Israeli text remained as "generically promiscuous" as its predecessor, combining a "manifesto" of justifications for the assumption of sovereignty, a formal proclamation and a proto-Bill of Rights. This Article depicts the work of Mordechai Beham, the (...) Israeli Declaration’s first draftsman, as a remarkable exercise in choosing contemporary, locally-valid "answers" to the fundamental "questions" posed by Thomas Jefferson and his contemporaries in 18th century America on human values, national identity, statehood, and God. The analysis is partially based in the current debate on "legal transplantation," arguing that the outstanding success of the Israeli Declaration stems from both the quality of the American original and the massive work of adaptation to Israeli soil. (shrink)

The conventional wisdom is that any trading scheme that is not for investment purposes but, rather, for the purpose of inflating or deflating the market price, namely, manipulation, is fraudulent. This paper treats manipulation as a form of communication between the manipulator and the market. As with any communication, it may sometimes be fraudulent, but often it is based on the manipulator’s knowledge, or genuine belief, that a certain stock is being traded at a discount. Under the assumptions of the (...) CAPM, such an informed party should use this information to trade for investment purposes only, but liquidity and risk constraints, which are ignored by the CAPM, often do not allow him to invest; instead these constraints force him to bid the market up. The manipulator’s effect on the market arouses analyst attention and induces the market to update its evaluation of the firm’s value. The more liquid the market, the faster the market updates its evaluation of the firm’s value, and thus the greater the value to the manipulator if his scheme is based on information. I support this theoretical claim with an empirical study of stock manipulation indictments brought by the Israeli Securities Agency during the last decade. The study treats each indictment as a competition between two rival analysts: the Agency, which recommends a “hold” at the pre-manipulation price and a “sell” at the post-manipulation price, and the manipulator, who recommends a “buy” at the pre-manipulation price and a “hold” at the post-manipulation price. Examining the long-run performance of the forty-five stocks that were the subjects of the indictments, I find that investors could gain by following the advice of the Agency. However, the long-run performance of the twenty-two most liquid stocks shows that these stocks experienced a significant positive abnormal return. This finding provides support for my claim that information is a driving force behind many manipulative schemes, especially those that are conducted in liquid markets. (shrink)

Notions of human rights as enshrined in international law have become the “idea of our time”; a “dominant moral narrative by which world politics” is organized; and a powerful “discourse of public persuasion.”1 With the rise of human rights discourse, we need to ask, how do protagonists make human rights claims? What sort of resources, techniques, and strategies do they use in order to publicize information about human rights abuses and stipulations set out in international law? With the democratization of (...) mapping practices, various individuals, organizations, and governments are increasingly using maps in order to put forth certain social and political claims. This article draws on the sociology of knowledge, science studies, critical cartography, cultural studies, and anthropological studies of law in order to analyze how various international, Palestinian, and Israeli organizations design maps of the West Bank Barrier in accord with assumptions embedded within international law as part of their political and new media activism. Qualitative sociological methods, such as in-depth interviewing, ethnography, and the collection of cartographic material pertaining to the West Bank Barrier, provide the empirical tools to do so. The maps examined here exemplify how universalistic notions of international law and human rights become a powerful rhetorical tool to make various and often incommensurable social and political claims across different maps. At the same time, international human rights law, rather than dictating local mapping practices, becomes inevitably “vernacularized” and combined with local understandings, cultural preferences, and political concerns. (shrink)

One of the main characteristics of this phase of the Israeli-Palestinian conflict is the resort by Palestinian groups to suicidal terror. This paper focuses on the unique nature of suicidal terror, since, I believe, it is this kind of terror that presents the most immanent threat to the foundations of politics and law in the free world. The article begins with a phenomenological exploration of the effect of suicidal terror on politics in Israel, inspired by the work of Hannah (...) Arendt. It presents the various manifestations of the suicidal terror as a new Paradigm of Violence. This new paradigm poses a great threat on politics: as the terrorists waive their effort to stay alive, deterrence becomes useless; the Israeli politics, in response, redraws the boundaries of the collective according to demographic lines; the feelings of helplessness reduces politics to personal tragedies giving up on normative arguments and long term policies. Compassion replaces persuasion. The attempt of an organized army to respond effectively to suicidal terror is ridden by the dilemma of effectiveness-legitimacy, that is, the more the response is effective, the more difficult it becomes to retain the distinction between the actions of the army and the actions of the terrorist. Moreover, during the attempt to bring the actions of the army to the review of the court, the legal system itself is infected by the same dilemma. The article examines the response of the Israeli Supreme Court to several petitions that questioned the legality of the means employed by the IDF in its fight against terror. These cases provide a unique opportunity to examine the way in which terror infiltrates into the very legal system that is called upon to respond to it, mainly by changing the legal language. The question that guides my discussion is what effect terror exerts on politics and law, and can law provide a way to resist the destructive influence of terror on the political system. (shrink)

August 2006 marked the 10th anniversary of landmark legislation when Israel’s parliament passed the unique Patient’s Rights Law. This law underscores the importance of medical ethics in Israeli society. During a seminar at the Shaare Zedek School of Nursing, third-year students performed a qualitative research study investigating ethical issues arising in the field of nursing, and how nursing staff dealt with these issues in relation to the law. The research was conducted using semistructured questionnaires. The results showed that the (...) staff participants knew the law, but did not differentiate between legal and ethical problems. The establishment of a framework for dealing with these issues would help to promote professional ethics, encourage broad-based agreements related to ethical decisions, reduce ethical conflict, and increase implementation of the law on patients’ rights. (shrink)

This Article discusses the first steps of Israeli copyright law, dating it back to Ottoman times, which is earlier than thus far discussed in the literature. The account provides an early case of legal globalization through colonialism. The imposition of copyright law in Palestine enables us to observe the difficulties of applying an uninvited legal transplant and to trace its dynamics. The discussion queries the fate of copyright law in Mandate Palestine from two perspectives. First, the Colonial-Imperial point of (...) view: I ask why the British government imposed copyright law in the newly administered territory only a month after the establishment of the civil administration in 1920 and then replaced it in 1924. The answers are to be found in the general imperial agenda, its Palestine agenda, as well as the nature of copyright and the personal background of those involved. Second, from the local point of view, I trace the first steps of copyright law within the Hebrew community and especially within the literary circle in the 1920s. The local needs of the literary field concerned the author-publisher relationship, attribution, the integrity of the work and international transactions. However, the answers to these problems were not found in the law but rather in private ordering, namely contracts and social norms. (shrink)