bluuebunny/crossref_metadata_2025_split huggingface dataset:
The Judicialization of the Public Sphere in Israel
Authors: Galnoor Itzhak 
Published: February 2016

AbstractJudicialization in this article is the predisposition to find a solution in adjudication to types of dispute that had been settled previously in a socio-economic-political framework. “Legislative judicialization” (or over-legalization) is also a predisposition according to which the variegated spheres of our lives need to be regulated through a formal code of laws. In the political arena the questions relating to judicialization are: Is the assumption that legal decisions are able to save politics – mainly democratic values and abiding by the derived rules of the game – a valid one? Can one institution of the political system (broadly defined) – the law court – rescue the two other, the parliament and the government, in difficult times? Assuming that “successful” intervention by the judicial institution will cause the other two to abide strictly by the rule of law, could it at the same time curb their effective steering capacity, which is their main task? And conversely, if the steering capacity and the leadership ability to make “good” decisions are so flimsy – would it not be desirable to have judicial review to ensure that the political institutions at least make “proper” decisions that are not extremely unreasonable? These are the main questions discussed in this article.The findings regarding the judicialization of politics point out not only to the eagerness of the law courts, but mainly to the weakening of the political system, to the point where the Knesset, the Government and the political parties find it most difficult to function without the assistance given them by the law courts. And yet, did the judicial branch “save” the other two branches? Obviously, this has not happened thus far. In Israel, a profound democratic deficit exists in the political system due to the fact, among other things, that the political institutions are incapable of coping with the continuing internal and external crises. In Israeli society, judicialization is but a symptom of a wide-ranging predicament that requires a richer bill of fare than more laws and more adjudication. It consists of: the social grounding of democratic values; renewal of trust and confidence in the political institutions; strengthening the political parties; recognition of the contribution of civil organizations and the media; strengthening the local authorities, and more. This is the real arena, because there is a breaking point to the over-judicialization of the public sphere beyond which lies total anarchy.
The Quest for Legitimacy in American Administrative Law
Authors: Breger Marshall J. 
Published: February 2016

In the United States, administrative law suffers from a perceived lack of legitimacy largely due to a lack of democratic accountability or what some have called a democratic deficit. These misgivings stem, in part, from a deep-seated American distrust of bureaucracy. This Article examines how the quest for legitimacy has led practitioners (and theorists) of administrative law to undertake four interrelated projects: the Accountability Project, the Rationality Project, the Transparency Project, and the Participatory Project all designed to create a substitute or shadow form of democratic legitimacy.Through an examination of these projects, I clarify how they try to address the democratic deficit, and whether they effectively do so. Specifically, this article investigates the impact of judicial review, informal rule-making, increased access to information, and public participation as efforts to meet the legitimacy challenge. Moreover, it disputes the contention that the pursuit of democratic legitimacy is less consequential for administrative law than the need for bureaucratic rationality, by illustrating that bureaucratic rationality is but one component of a larger scheme intended to serve as a functional substitute for legitimacy. At bottom, because Americans do not share the fondness for the technocratic model displayed by many other legal systems, legitimacy projects have an enduring place in American administrative law.
The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict
Authors: Droege Cordula 
Published: February 2016

International human rights law and international humanitarian law are traditionally two distinct branches of law, one dealing with the protection of persons from abusive power, the other with the conduct of parties to an armed conflict. Yet, developments in international and national jurisprudence and practice have led to the recognition that these two bodies of law not only share a common humanist ideal of dignity and integrity but overlap substantially in practice. The most frequent examples are situations of occupation or non-international armed conflicts where human rights law complements the protection provided by humanitarian law.This article provides an overview of the historical developments that led to the increasing overlap between human rights law and humanitarian law. It then seeks to analyse the ways in which the interplay between human rights law and humanitarian law can work in practice. It argues that two main concepts inform their interaction: The first is complementarity between their norms in the sense that in most cases, especially for the protection of persons in the power of a party to the conflict, they mutually reinforce each other. The second is the principle of lex specialis in the cases of conflict between the norms.
Marriage Regulations of the Dead Sea Community
Authors: Falk Ze'ev W. 
Published: February 2016

One of the so-called “Damascus Covenant” fragments discovered in Qumran Cave 4 calls for bona fides in negotiations leading to marriage.The following is Baumgarten's reading of the text and his translation:4. … And concerning what is said (Lev. 25:14)5. [“When you sell anything to or buy anything from] your neighbour, you shall not defraud one another,” this is the expli[cation …6. …] everything that he knows that is found …7. … and he knows that he is wronging him, whether it concerns man or beast. And if8. [a man gives his daughter to another ma]n, let him disclose all her blemishes to him, lest he bring upon himself the judgment9. [of the curse which is said (Deut. 27:18)] (of the one) that “makes the blind to wander out of the way”. Moreover, he should not give her to one unfit for her, for10. [that is kil'ayim, (plowing with) o]x and ass and wearing wool and linen together (Deut. 22:10–11) …The first item (lines 4–9) should be read against the background of rabbinical morals extending to the rule of fraud to other forms of injury by word of mouth:a. Just as a concept of ona'ah (fraud) exists regarding sales, there exists a concept of ona'ah (offence, fraud) by mere speech. One should not ask for the price of goods without having the intention of buying, one should not remind a repentant person of his sinful past or a proselyte of his ancestors' deeds. This was meant by the admonition: “Do not offend or oppress the stranger, for you were strangers in Egypt”.
Proculus v. Labeo
Authors: Hausmaninger Herbert 
Published: February 2016

After Felix Wubbe's study ‘Iavolenus contra Labeonem’, any attempt to draw general conclusions from differences of opinion voiced by two classical Roman jurists concerning specific points of law must appear less than promising. According to Wubbe's finding, not even the critical comments which Iavolenus (head of the Sabinian law school) appended to the posthumous works of Labeo (who supposedly founded the rival Proculian school) seem to yield any tangible evidence of methodological or other principles fundamentally distinguishing the two jurists. How then could one expect controversies within one and the same Proculian school, namely the rejection or modification of individual opinions of the jurist Labeo by his successor Proculus, to offer insights of a jurisprudential nature, particularly with respect to the character of the early classical law schools and the so-called school conflict between Sabinians and Proculians?Reflections of this kind may, indeed, dampen expectations, yet there is little reason to despair. With some patience it should be possible to conduct an analysis of the content and form of Proculus' criticism aimed at Labeo that will lead to observations supporting or amplifiying other information (e.g. concerning the relationship of Celsus to Proculus) and will eventually enable us to draw a broader picture.
The Ban on Circumcision as a Cause of Bar Kokhba's Rebellion
Authors: Rabello Alfredo Mordechai 
Published: February 2016

As far as we can determine from papyri and from Greek and Roman historians, circumcision was practiced among various nations in the Roman Empire, particularly in Egypt and Arabia. A few of the most important examples will suffice.Herodotus addresses circumcision in Egypt and elsewhere:… but my better proof was that the Colchians and Egyptians and Ethiopians are the only nations that have from the first practised circumcision. The Phoenicians and the Syrians of Palestine acknowledge of themselves that they learned the custom from the Egyptians, and the Syrians of the valleys of the Thermodon and the Parthenius, as well as their neighbours the Macrones, say that they learnt it lately from the Colchians.
The End of Roman Juristic Writing
Authors: Watson Alan 
Published: February 2016

I first met Reuven Yaron in 1958, and we immediately became fast friends. The friendship with him and Shoshana has deepened over the years, and will continue. He and I have frequently read one another's draft papers. I thank him for many years of intellectual and emotional support, and hope he will take pleasure in this offering that he has had no possibility of criticising in advance.The traditional date for the end of classical Roman law is 235 when the emperor Alexander Severus was murdered, or slightly later with the death of Modestinus, the last of the great known jurists. Thereafter, few original juristic books were written, and it is widely but not universally believed that a decline in legal standards began almost at once.For many scholars there seems to exist a connection, sometimes simply implicit, between the failure of jurists to write new books, and a decline in legal standards. I should like to suggest there was a different reason for jurists ceasing to write new law books. They had already written them all! The claim that for the period, say fifty years, after around 235, all the law books had already been written seems extreme, but is easy to substantiate.
The Practice and Case Law of Israel in Matters Related to International Law
Authors: Giladi Rotem M. 
Published: February 2016

The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (“the Interim Agreement”) represents another stage in the implementation of the framework established in the Declaration of Principles signed between the Government of Israel and the Palestine Liberation Organization (the “PLO”), commonly known as the “Oslo process”. In essence, the Interim Agreement provides for the establishment of self-government arrangements in the West Bank and the Gaza Strip, as envisaged in the Declaration of Principles, while explicitly superseding the arrangements which applied in the Gaza Strip and the Jericho Area since May 1994. In addition, the Interim Agreement provides for “direct, free and general political elections” to be held in the West Bank and the Gaza Strip.The aim of this section is to acquaint lawyers with the general framework of the Agreement, and the primary legal and political issues dealt with by the Interim Agreement, rather than to describe the specifics of each of its many provisions. Where required, reference will be made to the Declaration of Principles and to previous Agreements concluded between the Parties. At times, reference will also be made to the Camp David Framework of 1978.
The Implementation of Constitutional Reform in the United Kingdom: Principles and Problems
Authors: Oliver Dawn 
Published: February 2016

First, I want to express my gratitude and sense of honour in being invited to deliver the Lionel Cohen lecture for 1995. The relationship between the Israeli and the British legal systems is a close and mutually beneficial one, and we in Britain in particular owe large debts to the legal community in Israel. This is especially the case in my field, public law, where distinguished academics have enriched our academic literature, notably Justice Zamir, whose work on the declaratory judgment has been so influential. Israeli courts, too, have made major contributions to the development of the common law generally and judicial review very notably.In this lecture I want to discuss the process of constitutional reform in the United Kingdom, and to explore some of the difficulties that lie in the way of reform. Some quite radical reforms to our system of government — the introduction of executive agencies in the British civil service, for instance—have been introduced without resort to legislation. There has been a spate of reform to local government and the National Health Service.
Israel's Involuntary Outpatient Commitment Law: Lessons from the American Experience
Authors: Kanter Arlene , Aviram Uri 
Published: February 2016

In 1991, Israel enacted a new mental health law entitled the Treatment of Mental Patients Law, 1991. This law includes, for the first time, a provision authorizing involuntary outpatient commitment (“IOC”). In its simplest form, IOC is the procedure by which an individual who is determined to be mentally ill is ordered to comply involuntarily with mental health treatment outside of a hospital setting. The new Israeli involuntary outpatient commitment provision, known as “compulsory ambulatory care”, provides that an individual who meets the standards for civil commitment may be committed to involuntary outpatient treatment as a condition of release from inpatient care, or as a dispositional alternative to involuntary hospitalization.Originally enacted in the United States as a condition of release for persons being discharged from mental hospitals, or as an alternative to involuntary hospitalization, involuntary outpatient commitment has now been enacted in various forms in different countries throughout the world. The new Israeli IOC law is modeled after American IOC laws, (particularly those enacted in the early 1980's), which seek to provide involuntary mental health treatment to persons who do not meet a strict test of dangerousness for involuntary commitment.
Aspects of Negligence in Israeli Criminal Law
Authors: Lederman Eliezer 
Published: February 2016

The Israel Penal Law, 1977, which is deeply rooted in English common law, contained, until recently, very few definitions of basic criminal concepts. Negligence was one of the definitions lacking. The law seldom used this term explicitly when defining specific offenses in the code. The newly enacted General Part of the Criminal Law, as part of its systematic treatment of essential criminal notions, is the first piece of Israeli legislation to cope with this term.The various aspects of negligence have been developed in Israeli criminal law since the early 50's, mainly through Supreme Court decisions, first and foremost with reference to negligent homicide. This mode of development of law has inherent limitations, since its shaping depends on occurrences of events and the consequent raising of relevant questions of law in the courtroom. However, in the Israeli case, this evolutionary process has not hindered the development of the status and importance of the said mode of fault.
The Structure of Criminal Liability: Complicity
Authors: Gur-Arye Miriam 
Published: February 2016

The notion of “wrongdoing” is not recognized by the Draft Code. Nor does it classify the criminal law defences as either justification or excuse. Rather, the Draft Code distinguishes between “an offence” and “an act”. The term “offence” is used to cover cases where theactus reusis committed with the mental state required by the definition of the offence, by an offender who is criminally liable. An offender who has a defence, even a personal one, such as insanity, mistake, or duress, commits “an act”. The term “act” is used to indicate that defences negate the criminal nature of the act.I have elsewhere elaborated on the question whether or not a criminal code which aims to reform the criminal law should distinguish between justification and excuse. There I have both discussed and evaluated,inter alia, the proposals of the Draft Code in this context. Therefore, I shall not elaborate on this subject any further. I shall rather focus on the law of complicity and shall discuss three main issues.
Restitution of Victims by the Offenders
Authors: Karp Judith 
Published: February 2016

It is with great pleasure that I address you today at this Conference in Jerusalem. I believe that there is a profound symbolic meaning in putting the subject of victims of crime on the agenda of a conference in Israel, the homeland and the state of a people who, throughout history, have experienced much victimization.Unfortunately, it seems that the historical collective experience of victimization does not necessarily enhance the understanding of the phenomenon of victims of crime — neither that of secondary victimization by the criminal justice system itself nor the responsibility of society to address victims’ needs and problems.It seems that the criminal justice system in Israel, to a certain extent, is still detached from the victims rights movement which has been developing with growing impact during the last decade in the Western world. It is true that in recent years specific issues concerning victims of crime, such as violence in the family and child abuse, have been a topic of growing interest and action in Israel. As a result, legislation has been passed by the Knesset to deal with these issues and the groundwork for an infrastructure of social services is being laid. However, this does not appear to be a result of a genuine or widespread recognition of the social and legal importance of the commitment which a society should have towards the plight of crime victims. Rather, it seems to be more of a reaction to various political pressure groups.
Miscarriage of Justice and the Right to Representation
Authors: Mann Kenneth 
Published: February 2016

In modern criminal procedure it is generally held that reliability of results and basic fairness in criminal trials require that a defendant have legal counsel. Prevention of miscarriage of justice is tied closely, in the minds of policy makers and judges, with vigorous representation by competent counsel. As against these presuppositions how should one understand a modern system of criminal procedure, such as that in Israel, that does not have a broad right of representation for suspects or defendants in criminal cases?It is by now axiomatic in England and the United States that nearly all defendants in criminal cases have a right to representation. This right encompasses not just the opportunity to bring one's privately retained counsel to court, but also an irrebuttable claim by indigents to have the counsel's bill paid by the state or other public entity. The right to counsel is a broad right, entailing a principle of equality in which representation by counsel is independent of the defendant's ability to pay. In Israel, in contrast, the right to representation in criminal cases is significantly narrower.
Appellate Review of Judicial Fact-Finding Processes and Decisions
Authors: Jung Heike 
Published: February 2016

At first glance, appellate control of judicial fact-finding appears to be a precise and nicely circumscribed topic. This impression is grossly deceiving. To begin with, in a comparative context, it is inevitable to hint at the underlying structural features of the German criminal procedure, since appellate control is not a free-floating self-explanatory element of the criminal justice system, but built upon a particular procedural structure. Secondly, the control of fact-finding by the appeal court forms only a small and perhaps even the least important phase of the fact-finding process. Therefore it needs to be located within the larger perspective of the procedural fact-finding process as a whole. Thirdly, it goes without saying that the control process by way of appellate review is largely shaped by the different legal instruments of control. Knowledge of their operation and legal scope with particular emphasis on the fact-finding process cannot be taken for granted, even given an all-German audience.Fourthly, the appellate control of judicial fact-finding cannot be understood by way of abstract description only: such a description needs to be underpinned by examples. This puts me in a predicament, since the pertinent standards developed by the appellate control amount to no less than an aggregate of the German law of evidence. Hence I have to restrict myself to a few paradigmatic examples hoping that they will reveal the structural pattern if there is one.
The European Court of Justice: Of Institutions and Democracy
Authors: Shapiro Martin 
Published: February 2016

The problem of democracy and judicial review is a problem engendered by successful constitutional courts. For where courts are not successful in establishing veto powers over legislation, no problem or only a very limited problem occurs. Of course any court interpreting statutes in the process of applying them does some law making. How much this law making interferes with democracy depends on how easy it is for the legislature to legislate. Where legislatures can amend statutes easily, they can easily correct “errors” of judicial statutory interpretation. Judicial review of the lawfulness of administrative action essentially involves the same power of statutory interpretation with the same potential for legislative correction.Most of the nations of the world that do not have successful constitutional courts are not democracies. Indeed, no state without considerable claims to democracy has successful judicial review. These facts are clues to the obvious. Constitutional government is limited government. In the real world we do not encounter nondemocratic limited governments although we encounter many shades of more or less democratic, more or less constitutional governments. So there is some affinity between democracy and constitutionalism.
The Practice and Case Law of Israel in Matters Related to International Law
Authors: Giladi Rotem M. 
Published: February 2016

For the last two years, a five-party mechanism consisting of delegations of Israel, the United States, France, Syria and Lebanon, charged with implementing an Israeli-Lebanese understanding concerning South Lebanon has been in operation. Away from the public eye, this forum has thus far held around fifty sessions, each of which concluded with the producing of an agreed Report. Despite its limited powers and narrowly defined mandate, the significance of this forum cannot be ignored; its existence and the mode of its operations also gives rise to several important legal questions.This review will start by describing the historical and legal circumstances leading up to the April 1996 Understanding and the establishment of the Israel-Lebanon Monitoring Group. Thereafter, the operation of the Monitoring Group, its composition, functions, procedure and decision-making process will be presented. Then I will discuss the major legal questions arising from the existence and operation of the Monitoring Group. The documents relative to the work of the Monitoring Group are annexed to this review.