Kara Sears
Israeli law is primarily based on a common law legal system, influenced by the country's diverse history and the legal systems of its religious communities. The Israeli Declaration of Independence, established in 1948, asserted the intention to create a formal constitution, which has yet to be realised. Instead, Israel's legal framework is structured around the Basic Laws, a set of quasi-constitutional statutes enacted by the Knesset, the country's parliament. These laws are subject to interpretation by the judicial system, with the Supreme Court playing a pivotal role in shaping administrative and constitutional law. The Knesset has also been working towards a complete recodification of civil laws, reflecting the dynamic nature of Israel's legal system.
| Characteristics | Values |
|---|---|
| Basis of legal system | Common law |
| Influence of religious law | Torah, Mishna, Talmud, Jewish law |
| Influence of secular law | Ottoman, British, Napoleonic |
| Constitution | Basic Laws of Israel, no formal written constitution |
| Legislative body | Knesset |
| Highest court | Supreme Court |
| Lower courts | Magistrate Courts, District Courts |
| Jury system | No |
| Influence of precedent | Yes |
| Influence of doctrine | No |
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What You'll Learn
Influence of British and Ottoman rule
The Israeli legal system is based on common law, which also incorporates facets of civil law. The Israeli Declaration of Independence asserted that a formal constitution would be written, but this has been continuously postponed since 1950. The existing British common law used within Mandatory Palestine at the date of independence remained binding but became subject to modification by Israeli judges.
Influence of Ottoman Rule
Ottoman rule in Palestine lasted from 1517 to 1917. During this time, the Jews, together with most other communities of the empire, enjoyed a certain level of prosperity. Under the millet system, non-Muslims were organised as autonomous communities based on religion. Jews were the predominant power in commerce and trade, as well as diplomacy and other high offices. In the 16th century, the Jews rose to prominence, and Joseph Nasi, a Jew, was appointed Sanjak-bey (governor) of the island of Naxos, a rank usually only bestowed upon Muslims.
The first Jewish synagogue linked to Ottoman rule is Etz ha-Hayyim in Bursa, which passed to Ottoman authority in 1324 and is still in use today. After Sultan Mehmed II's conquest of Constantinople, he ordered that Muslims, Christians, and Jews from all over his empire be resettled in the new capital. Within months, most of the Empire's Romaniote Jews were concentrated in Constantinople, where they made up 10% of the city's population. However, this forced resettlement was perceived as an "expulsion" by the Jews.
Ottoman Jews were obliged to pay special taxes to the Ottoman authorities, including the cizye, the ispençe, the haraç, and the rav akçesi ("rabbi tax"). Local rulers also sometimes levied taxes in addition to those sent to the central government. Despite these taxes, some historians claim that Salonica, a city with a large Jewish population, was seen as the "New Jerusalem" and has been named the "Mother of Israel".
Influence of British Rule
Following the arrival of the British in 1917, the Jewish leadership proposed that the proper Hebrew name for the country be ʾĒrēts Yiśrāʾel (Land of Israel). A compromise was reached, and it was decided that the initials standing for this designation would follow the word "Palestine" in Hebrew in official documents. The British kept their promise to the Zionists, and British actions were seen to favour the Zionist enterprise. For example, Jewish Agency purchases, which often involved the British police expelling peasant farmers, included covenants forbidding sale to non-Jews, which were later incorporated into Israeli law.
On 3 July 1944, the British government consented to the establishment of a Jewish Brigade within the British Army, and many veterans of this brigade later played a major role in the foundation of the Israel Defense Forces (IDF). However, the British also maintained a ban on Jewish immigration, and violent uprisings against the British Mandate took place in the 1940s.
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Religious communities and their legal systems
Israel's legal system is based on common law, which also incorporates facets of civil law. It reflects the diverse history of the territory of the State of Israel, which was under Ottoman and then British sovereignty prior to independence.
The Israeli legal system also reflects the legal systems of its major religious communities. There are religious tribunals in Israel, and some specific legal matters, such as marriage and divorce, come under the jurisdiction of the religious tribunal system. There is a list of legally recognized religious communities in Israel: Jewish, Muslim, Greek Orthodox Christian, Catholic Christian, etc. Each religious community has its own religious court. For example, Jewish weddings are sanctioned only by the local Religious Council, and divorces of Jews are handled exclusively by the Rabbinical Courts. The judges of the Jewish Rabbinical Courts are all Orthodox rabbis.
The small Protestant Christian community in Israel is not recognized, and the Jewish community for this purpose does not include the non-Orthodox denominations, Reform and Conservative. There are also other religious communities that are not recognized and, therefore, have no jurisdiction over their members, such as Anglicans, Church of Scotland, Protestant-Lutherans, Unitarians, Baptists, Quakers, and Bahai.
The government has offered to fund Christian schools fully if they became part of the public school system, but the churches rejected this option, stating they would lose autonomy over decisions such as hiring teachers, admitting students, and the use of school property. The government funds approximately 34% of the budget of Christian school systems in the “recognized but not official” category.
The Israeli Supreme Court has ruled that the Israeli Declaration of Independence is not a constitution and is not legally binding. However, the declaration outlines the principles of the Israeli state that judges must consider when interpreting legislation or common law. These principles include freedom of religion, conscience, language, education, and culture, as well as the safeguarding of the Holy Places of all religions.
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The Basic Laws of Israel
The Basic Laws address the formation and functions of Israel's key state institutions, as well as the relationships between these institutions. They also protect civil rights, although some of these rights were historically protected by the Supreme Court of Israel under common law. The laws are subject to interpretation by the judicial system, and in some cases, the Knesset can override Supreme Court rulings.
The first Basic Law, passed in 1958, established Jerusalem as the seat of the Knesset, comprising 120 members. It outlined the electoral system, voting rights, election dates, the service of Knesset members, their parliamentary immunity, and the work of the Knesset and its committees. This law stipulated that direct and proportionate-general elections could only be revised with the vote of 61 Knesset members.
The Second Basic Law, passed in 1960, emphasized the unique relationship between the People of Israel and the Land of Israel. It ensured that state-owned lands, constituting around 90% of Israel's territory, would remain national property. This law prohibited the transfer of ownership of state lands, except in specific cases outlined in the legislation.
The Third Basic Law, enacted in 1964, focused on the status, election, qualifications, powers, and term of the President of the State. The Fourth Basic Law, passed in 1975, provided a framework for budget laws, taxation rules, compulsory loans, payments, fees, and other economic aspects.
The Fifth Basic Law, adopted in 1976, reiterated the subordination of the Israel Defense Forces to the government. It clarified the compulsory nature of military service and enlistment, as well as the instructions and orders of the army, with the defense minister in charge.
Other notable Basic Laws include "Basic Law: Human Dignity and Liberty" and "Basic Law: Freedom of Occupation," which were passed in 1992. These laws contain clauses prohibiting the violation of the rights they enumerate, unless overridden by laws befitting the values of the State of Israel and enacted for a proper purpose.
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The role of the Knesset
Israel's legal system is based mostly on common law, which has been influenced by the country's diverse history and the legal systems of its major religious communities. The Knesset, Israel's unicameral legislature, plays a crucial role in this legal system.
The Knesset first convened on February 14, 1949, in Jerusalem, replacing the Provisional State Council. It is composed of 120 members, known as MKs, who are elected every four years. The Knesset passes all laws, including the Basic Laws of Israel, which function as the country's constitutional laws in the absence of a formal constitution. These Basic Laws address issues such as human rights and the powers of the Supreme Court. The Knesset also elects the president, prime minister, and state comptroller, approves the cabinet, and supervises the work of the government.
One of the key roles of the Knesset is its legislative function. It can pass any law by a simple majority, even if it conflicts with the Basic Laws, unless the Basic Law includes specific conditions for its modification. The Knesset has the power to amend and adopt the Basic Laws, acting as a Constituent Assembly. Knesset members often join caucuses to advocate for specific topics, and the Knesset has the power to waive the immunity of its members.
The Knesset also plays a role in overseeing the executive branch. It can remove the president and state comptroller from office, and it has the authority to dissolve the government through a constructive vote of no confidence. Additionally, the Knesset can dissolve itself and call for new elections. However, until new elections are completed, the Knesset maintains its authority in its current composition.
The Knesset's role in the Israeli legal system is significant, as it not only passes laws but also interprets and amends the Basic Laws, oversees the work of the government, and elects key officials. The Knesset's actions shape the country's legal framework and ensure that the government operates within the parameters set by these laws.
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The absence of a formal constitution
Israel's legal system is primarily based on common law, which has been influenced by the country's diverse history and the legal systems of its religious communities. While the Israeli Declaration of Independence stated that a formal constitution would be written, this has been continuously postponed since 1950.
The absence of a formal written constitution in Israel has had a significant impact on the development of its administrative and constitutional law. This absence has led to a unique situation where administrative law encompasses many of the norms and values that characterise Israel as a free society governed by the rule of law. These norms and values would typically be attributed to constitutional law in other countries.
The Basic Laws of Israel function as the country's constitutional laws, providing a framework that is enriched by political precedent and jurisprudence. These laws are based on the individual liberties outlined in the Israeli Declaration of Independence and cover areas such as the formation and role of state institutions, relations between authorities, and the protection of civil rights. However, the Basic Laws do not address all constitutional issues, and there is no clear rule determining their precedence over regular legislation, often leaving interpretation to the judicial system.
The Knesset, Israel's parliament, has been working towards a complete recodification of all civil laws since the 1990s. This proposed civil codex was introduced in 2006, but its adoption is expected to take a significant amount of time. The Knesset also plays a crucial role in interpreting and applying the Basic Laws, with the power to override Supreme Court rulings and make changes to the composition of the Judicial Selection Committee.
The Israeli Supreme Court has played a pivotal role in shaping the country's legal landscape, particularly through its decisions as an administrative tribunal. The Court has asserted its authority over military commanders, holding them to the provisions of Israeli administrative law, including the rules of natural justice. Additionally, the Supreme Court has contributed to the development of constitutional law, as seen in the landmark 1995 Bank Mizrahi v. Migdal Cooperative Village case, which established the Basic Laws as a written constitution that the courts could uphold through judicial review.
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Frequently asked questions
Yes, Israeli law is based mostly on a common-law legal system. However, it also reflects the diverse history of the territory of the State of Israel and the legal systems of its major religious communities.
The existing British common law used within Mandatory Palestine at the date of independence remained binding and became subject to modification by Israeli judges. Some aspects of Turkish Ottoman law also remain operational today.
The sources of Israeli law include the Mecelle (the civil code of the Ottoman Empire), English civil procedure rules, and the law of the Torah, Mishna, and Talmud.
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