Israel Studies Review

Law is an important ingredient in politics, and politics is an important layer in law. Law is always being shaped, formed, articulated, and enforced in the context of socio-political power relations. This is true regarding any political regime, and it is also true in Israel. While the number of publications on law and society in Israel is vast and multi-disciplinary, edited volumes on law, politics, and society in Israel are relatively rare. Hence, the initiative of the Israel Studies Review to dedicate its first guest-edited issue to the topic “Law, Politics, Justice, and Society: Israel in a Comparative Context” is certainly an encouraging move as part of a more general effort to promote research on the multifaceted aspects of Israel’s society, nation-state, law, and political regime.

The only form of marriage that is recognized under Israeli law is religious marriage. Following the Supreme Court's ruling in the landmark 1963 Funk-Schlesinger case, Israeli authorities must register couples who marry abroad as married. In a 2006 decision, the Supreme Court held that the rabbinical court system has jurisdiction over the divorce of couples who marry civilly abroad and that it has exclusive jurisdiction over the dissolution of civil marriages of Jews residing in Israel. The Court's decision was based on Halachic principles and was pre-approved by a rabbinical court panel. However, rabbinical courts have been insisting on performing a full get (religious divorce) procedure even for civilly married couples. This article analyzes this phenomenon and speculates as to the reasons for and the direction of these developments.

This article argues that Israel's non-assimilationist policy toward Palestinians-what I term Israel's 'rule of difference'-is embedded in the state's security conception. Under the guise of protecting the state and its people, Israel has successfully achieved two essential prongs of this political objective. Dating from the 1948 War, the state has created a series of legal mechanisms that have enabled it to expropriate Palestinian land. Similarly, it has refused to allow Palestinian political associations that espouse nationalist views or challenge the Jewish character of the state to organize or run candidates, even if their programs are clearly non-violent. Ultimately, the state has effectively blocked Palestinians' ability to participate in shaping policy. Ensuring security has thus aided the state in preventing the assimilation of this group into society.

This article examines the tension between liberalism and Orthodoxy in Israel as it relates to censorship. The first section aims to explain Israel's vulnerability as a multicultural democracy in a hostile region, with significant schisms that divide the nation. The next section presents the dilemma: should Israel employ legal mechanisms to counter hate speech and racism? The third section details the legal framework, while the fourth reviews recent cases in which political radicals were prosecuted for incitement to racism. The final section discusses cases in which football supporters were charged with incitement after chanting “Death to Arabs“ during matches. I argue that the state should consider the costs and risks of allowing hate speech and balance these against the costs and risks to democracy and free speech that are associated with censorship.

In recent decades, the role that national supreme courts have played in shaping and determining institutional change has been studied from a number of angles. However, this vast literature has not produced a dynamic model that is capable of illuminating the impact of supreme courts on national policy or institutional change. This article proposes such a dynamic model using perspectives based on the 'shared mental model' and the concept of 'political entrepreneurship'. Adapting hypotheses from the neo-institutionalism literature, it develops a procedural model for analyzing how political rules are changed formally in a democratic system. The analysis also explores the political entrepreneur role that supreme courts play in developing institutional change and addressing social problems. This model is then used to study the Supreme Court in Israel.

This article describes an emerging trend in Israeli private law that strives to incorporate a culture of social responsibility into everyday life. Implemented through the legal principles of 'good faith' and 'public policy' in contracts, this applies mainly to the social responsibility of corporations. The adoption of such concepts in interpersonal relationships emphasizes that this approach aims to include all components of the legal system. The basic Israeli social and constitutional principles are analyzed, along with the role that individuals and business participants, not only government authorities, play in the structuring of a freedom-seeking society. The article concludes that this new trend also corresponds to the social discontent that was evident in Israel during the summer of 2011, as well as to a new way of thinking about the concept of capitalism in the business literature.

Examining two Israeli cases, this article addresses the highly controversial question about the privatization of state authority. The first concerns the Supreme Court decision that prohibits private prisons, a ruling that reflects the deep-rooted assumption that criminal punishment is a matter of state authority. The second case refers to the Israeli religious organization Takana Forum, which seeks to handle sexual offenses committed by authoritative figures within its community. The relation between privatization, privacy, and multiculturalism is presented as potentially perpetuating patriarchal authority in family life, education, and punishment. Following this discussion, different models of privatization based on the nature of the respective privatized authority are presented. The article concludes with an analysis of the conflict between communal and state law and its potential effect on Israel's collective co-existence.

This study examines the impact of the Israel Land Administration (ILA) reform of 2009 on Israeli land policy in general and on the status of agricultural land in particular. Despite repeated statements by government representatives that the reform pertains only to urban land, my analysis reveals that this legislation has dramatically changed the relationship between urban and agricultural land in Israel. For more than a century, agricultural land enjoyed both substantive and quantitative supremacy over urban land, but after the reform was approved, urban land became the default land definition. I suggest explanations for these fundamental changes and discuss their implications for the future, including the need to formulate new definitions for land uses in both the agricultural and urban sectors.

Starting in the early 1950s, Israeli women's organizations persistently promoted legislation that aimed to ensure wives' just share in marital property, until in 1973 the Knesset enacted the Spouses (Property Relations) Law. This remarkable struggle was then forgotten. The long history of this law as told here, along with parallel Israeli legislative and judicial developments related to property relations between spouses, reveals the political activities of women's organizations during the decades in which it is generally believed that they neglected their political-feminist agenda. It also discloses the substantial gap between the organizations' vision of a community property regime throughout marriage and the regime of property separation enacted into law. This case study sheds light on how social organizations attempt to promote legal reforms and on the consequences of their compromises.

The Making of an Underclass: The Palestinian Citizens of Israel Nimer Sultany

Between Citizenship, Equality, and Law: The Language of the Summer 2011 Social Protests Shulamit Almog and Gad Barzilai

How Do Israelis and Germans Assess the Justice of Their Pension System? Clara Sabbagh and Pieter Vanhuysse

Miri Talmon and Yaron Peleg, eds. Israeli Cinema: Identities in Motion (Austin: University of Texas Press, 2011), 391 pp., cloth $55.00, paper $35.00.

Raz Yosef, The Politics of Loss and Trauma in Contemporary Israeli Cinema (New York: Routledge, 2011), 206 pp., cloth $125.00.

Nir Cohen, Soldiers, Rebels and Drifters: Gay Representation in Israeli Cinema (Detroit, MI: Wayne State University Press, 2012), 256 pp., paper $27.95

Itamar Rabinovich, The Lingering Conflict: Israel, the Arabs, and the Middle East, 1948-2011 Review by Daniel Kurtzer

Yoav Gelber, Nation and History: Israeli Historiography between Zionism and Post-Zionism Review by Shlomo Aronson

Asher Susser, Israel, Jordan, and Palestine: The Two-State Imperative Review by Paul L. Scham

Michael Feige, Settling in the Hearts: Jewish Fundamentalism in the Occupied Territories Review by Arye Naor

Juliana Ochs, Security and Suspicion: An Ethnography of Everyday Life in Israel Review by Dganit Manor

Daniel Byman, A High Price: The Triumphs and Failures of Israeli Counterterrorism Review by Samy Cohen

Michael Lerner, Embracing Israel/Palestine: A Strategy to Heal and Transform the Middle East Review by Kenneth Waltzer