For generations the question of the political form worthy of its apparent telos has occupied the best legal, philosophical and rabbinical minds of the Jewish tradition. Resolution of the political question presupposes resolution of the theological question of whether the Jewish people indeed have a unique telos, and whether this telos is linked to a particular political or social form. This ongoing deliberation is one of the defining features of the inter-generational dialogue within the Jewish heritage.

When the Zionist movement declared its intention to initiate the founding of a Jewish State in Zion, this decision caused unprecedented turmoil in Jewish communities. For some, the creation of a political entity in the Land of Israel signaled a brash and unwelcome rejection of the Orthodox belief that the return will occur only in the days of the Messiah, until which time political inaction is the appropriate conduct.

Many scholars have written about the changes in international law in recent years. Many have seen this change in the environment of international humanitarian law as a result of greater application of human rights in this area of law (IHL). This Article approaches the changes in international humanitarian law from a different perspective, that of law and economics.

The main claim in this Article is that recent changes in international humanitarian law can be seen as a change from a rule based normative system, to a standard based one. The difference between a rule system and a standard system rests not in the complexity of the norms, but by whom and when changes are made. In a rule—decisions are made before the fact, and in a standard—decisions are made after the fact. This Article then evaluates the advantages and disadvantages of this move from rules to standards, and offers observations and future avenues of research.

Notwithstanding of the considerable body international law dealing with occupation, identification of the normative standards against which law and order is maintained continues to challenge the international community. That challenge is centered on the existence of an unclear and often awkward interface between international humanitarian law and international human rights law.

Policing represents the normal means by which order is maintained in society. In occupied territory the preference should be for maintaining order by means of properly trained police forces seeking to apply international human rights law standards. However, the security threat is often not limited to criminal activity with there being striking similarities between attempting to maintain order in occupied territoty and battling insurgencies in internal armed confits. This then points to the application of international humanitarian law to govern the use of force.

Despite ongoing disagreement about which paradigm should be applied the question remains whether the proponents of the two frameworks can break free of their normative chains to craft a realistic approach to maintaining law and order. Suggested approaches include the situation based approach of applying the appropriate body of law to specific fact situations and the blended approach of borrowing from each normative regime to address the unique situations confronting security forces. Which ever approach is adopted the emphasis must remain on the right to life to ensure true respect for the rule of law is maintained.

Although Israel no longer effectively controls Gaza, Israel's overwhelming physical dominance over Gaza, coupled with the historical links of dependence, were likely central to the balancing formula applied by the High Court of Justice in Bassiouni v. The Prime Minister. The proposed solution—Israel assumes obligations that go beyond the requirements of International Humanitarian Law (IHL) in situations of siege but that fall short of the requirements applicable in situations of occupation—is the “basic humanitarian needs” standard.

The main weakness of the Court's decision is not the final outcome it prescribes but the underdeveloped legal analysis of the alternative grounds for imposing obligations on the Israel. This unnecessarily complicates attempts to grasp the full implications of the decision and to identify its precedential value. However, the judgment should be viewed as endorsing the need to step outside IHL and look for additional legal norms governing humanitarian interests which may reflect our moral sensibilities and contemporary needs in a more appropriate manner than the traditional rules of IHL.

Contemporary immigration has reinforced calls for minority rights in liberal states, which accrue to immigrants (but also to citizens) qua member of an ethnic minorify group. It is often overlooked that such minority rights may be of two kinds: multicultural rights that protect cultural differences or antidiscrimination rights that attack discrimination on these grounds. I argue that the importance of multicultural rights has been greatly exaggerated, and that much of the work attributed to them has in fact been accomplished by group-indifferent individual rights. By contrast, antidiscrimination rights are growing stronger; even in Europe. However, to the degree that it tackles indirect discrimination, antidiscrimination cannot but be factually group-making, even in states that reject multiculturalism.

Section IX of the ICRC Interpretive Guidance on Direct Participation in Hostilities asserts: ‘In addition to the restraints imposed by international humanitarian law on specific means and methods of warfare, and without prejudice to further restrictions that may arise under other applicable branches of international law, the kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances’. The present article scrutinises arguments that have been, or can be, advanced in favour of and against a ‘least harmful means’ requirement for the use of force in situations of armed conflict as suggested in Section IX. The principal aim of the article is to examine the question whether such an additional proportionality requirement forms part of the applicable international lex lata.

This article asserts that a challenge exists in deflecting the prevailing view that a general gap of legal applicability exists in respect of legal regulation of the war on terror. This “gap” is articulated by a focus on a new phenomena—namely the emergence of Al Qaeda as a non-nationally motivated, transnational terrorist organization whose actions and actors do not “fit” existing legal norms and sanctions. In addressing that challenge, this article will rebut the argument that suggests a legal lacuna exists, and that no appropriate legal tools are available to states and international organizations as they confront the post September 11th context. In particular, the argument asserts that existing legal norms provide sufficient coverage to respond to the conflicts experienced in the contemporary moment, as well as to the state and non-state entities participating in them. The article suggests that clarity about the boundaries between the legal regime of international human rights law and international humanitarian law would assist closing off perceived regulatory gaps. It contends that the usual rationale given in favor of parallel application, namely higher protection for the victims of conflict, substantially underestimates its other valuable policy and instrumental benefits. Specifically, the traditionally vaunted victim centered rationale does not sufficiently weigh the value of affirming consistent rule of law coverage to situations of conflict. The article asserts that while further regulatory measures may be possible and even desirable to confront the contemporary challenges of conflict forms (including terrorism), a combined or dynamic approach to the law of war and international human rights law provides sufficient traction and norm content to address and be relevant to present needs.

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.

Criminal laws must conform to each state's constitutional law. In both Israel and Germany, the highest courts have ruled on the compatibility of criminal prohibitions with constitutionally protected rights. One recurrent issue is the relationship between criminal prohibitions and the right to liberty, which is constitutionally guaranteed in both countries. The authors show that there are clear parallels in the case law of Israeli and German courts with regard to liberty. Human dignity is likewise protected in both legal systems, although it plays a different role in each. Under article 1(1) of the German Basic Law, human dignity enjoys “absolute” protection, which leads to problems in defining human dignity and accommodating countervailing interests in individual cases. In Israel, by contrast, human dignity is placed on the same level as liberty in the constitutional hierarchy of rights and is not afforded any “special treatment” by the Supreme Court. The authors suggest an intermediate solution: human dignity should not be granted “absolute” protection but should be treated with the greatest respect when criminal laws are reviewed for their constitutionality.

To claim that the Land Law, 1969 is the most significant private law enactment to have been promulgated hitherto by the Knesset may perhaps be regarded as somewhat of anexaggeration. Nevertheless, it would seem incontrovertible that this statute is at any rate among the most basic and extensive to have been enacted by the Knesset in the realm ofprivate law. In order to appreciate the particular importance of this statute it is sufficient to consider two provisions thereof, namely, the abolition of recourse to English law as a source for complementing the local law in all matters relating to land; and, secondly, the repeal of the Ottoman land legislation. Some preliminary remarks may be of assistance in appreciating the full import of these two provisions.

The Israel Law of Marriage and Divorce is unique in many aspects. In European and European-based systems of law, the rivalry between Church and State ending in the triumph of the State over the Church is a matter of past history. Ecclesiastical courts were long ago deprived of jurisdiction in matters of marriage and divorce. Canon law, nevertheless, continues to this day to be the source of the law of the land in this field in all jurisdictions of both Roman civil and common law, even after the pollution and dilution in varying degrees of such source by the secular powers. Principles rooted in canon law were incorporated wholesale in the secular law of the land, and thus made to apply to the entire population irrespective of individual religious affiliation. The continuous activity of a single system of lay courts dealing with matrimonial issues in the course of its general preoccupation with the administration of justice, utilizing a single set of laws of evidence and rules of procedure, gradually welded the principles taken over from the canon law and die law emanating from other sources into one homogeneous body.

Israel alone, among all Western systems of law, retains the law relating to the creation, incidences and termination of the matrimonial status in its almost unadulterated form of religious precepts, and maintains a ramified system of religious tribunals for the administration thereof. This enables nearly all to achieve either marital bliss or, if necessary, the happiness resulting from the dissolution of a miserable marriage in the manner sanctioned by the authorities of their own religious denomination.

There is a tendency among the judiciary to apply the standard of ‘effective control’ as the applicable yardstick for apportioning responsibility for wrongful acts between the United Nations and the member states contributing troops to UN peace-support operations. This is evidenced by recent decisions in the cases of Srebrenica (Dutch Court of Appeal, 2011), Al Jedda (European Court of Human Rights, 2011) and Mukeshimana (Belgian First Instance Court, 2010), which appear to repudiate the ‘ultimate authority and control’ standard espoused by the European Court of Human Rights in Behrami (2007). This process may have been set in motion by (the current) Article 7 of the ILC's Draft Articles on the Responsibility of International Organizations, which may in due course reflect customary international law. From a policy perspective, the application of an ‘effective control’ standard is highly desirable, as it locates responsibility with the actor who is in a position to prevent the violation.

In the case 9535/06 Abadallah Abu Massad and Others v Water Commissioner and Israel Lands Administration (2011), the Israeli Supreme Court ruled that the right to water deserves constitutional protection under Israel's Basic Law: Human Dignity and Freedom. The Court also found support for the right to water under both international human rights law and Israeli statutory law. At the same time, the Court held that the right to water is not absolute but must be balanced against the rights of the state. The case was brought by residents of unrecognised Bedouin villages in the Negev, a desert region in southern Israel, who do not have access to household water. The Court found that in exercising its discretion regarding additional water access points, the Israeli Water Authority could consider the ‘illegal’ nature of these villages. Applying the criteria of reasonableness and proportionality, the Court ultimately affirmed the Israeli Water Authority's policy in unrecognised villages in the Negev. Despite this administrative deference, the invocation of constitutional and international human rights law raises the level of scrutiny that should be applied to a review of the Israeli Water Authority's exercise of discretion. The Court's opinion is coloured and influenced by long-standing land disputes between the indigenous Bedouin population and the State of Israel. Drawing on empirical research conducted in December 2011, the analysis attempts to place the Abu Massad decision in its proper historical and political context. The dispute over land in the Negev can be traced back to the days of the Ottoman Empire. More recent efforts by the Israeli government as set out in the Goldberg Report and the Prawer Plan, and the international community's response to these efforts, are discussed. In light of the history and current political context, it may be prudent for the Israeli Water Authority to re-assess the effectiveness of its existing water policy in unrecognised Bedouin villages in the Negev.

In Talmudic literature the term lifnim mishurat hadin (i.e., beyond the line of the law) is mentioned a number of times. Before analyzing the various Talmudic passages where this concept is found, we will ask a number of questions, some of which we will answer in this article. Not all of the answers will be unequivocal and some questions will remain, in the end, provocative and open. Hopefully, the paper will encourage further discussion of the concept lifnim mishurat hadin.

Is lifnim mishurat hadin a specific norm of behaviour which can be precisely defined, or is it rather a concept referring to recommended ethical behaviour, similar to general moral values and examples of ethical behaviour which abound in the Talmud but which have no clearly definable characteristics? If we conclude that lifnim mishurat hadin is indeed a precisely defined norm of behaviour does it stand on its own as a specific type of moral behaviour, or is it synonymous with certain other moral norms, dinei shamayim (the Laws of Heaven), midat hassidut (the degree of ethical perfection of men of piety and virtue) or one of the other ethical norms found in the Talmudic sources? If lifnim mishurat hadin is not just another term for some other moral norm, what is the difference between them? (A reasoned answer to this question cannot be given without a full discussion of all the other moral norms in the Talmud; therefore in this article we will only suggest approaches to answering this question). Are there differences of degree within the norm of lifnim mishurat hadin itself? Are there types of behaviour recorded in the Talmud, about which the phrase lifnim mishurat hadin is not used, but which are in fact examples of behaviour lifnim mishurat hadin? If so, is there a reason why such actions were not explicitly described as lifnim mishurat hadin?

Introduction: With the increasing tendency in Israel to replace the old Ottoman civil law, thefamiliar question of the reception of Jewish (talmudic) law has once again become the subject of lively discussion. In his policy speech in the Knesset the then new Minister of Justice, Mr. Y. S. Shapiro, declared as his objective the gradual severance of Israel law from the present pervasive influence of the English legal system. He was too cautious to take a definite stand on the question of the reception of Jewish law (or any other specific system) to replace the present law, but aspirations towards this goal have recently been expressed on various occasions by representatives of different parties. The forceful demand “to base the laws of the State on the Halacha” comes especially from die religious parties. But representatives of the non-religious parties also recommend the reception of Jewish law in those areas of private law where no decisions on ideological grounds need to be made.

In point of fact, the unanimity with regard to the reception of Jewish law is based on two outlooks differing in origin. Non-religious circles view Jewish law as a cultural creation of national significance, comparable to the revival of the Hebrew language. The firm establishment of Israel law on Jewish legal principles is advocated as an expression of spiritual independence, stressing the historical continuity of the people residing in Zion.

At issue is the appropriate legal reaction to so-called “selective” conscientious objections in the current Israeli context, accounting for both consequential considerations and deontological ones. It is argued that a relevant distinction in this respect is between objections committed by members of a permanent minority, which are based on views that are practically excluded from the political discourse, and objections which are guided by what Rawls calls “political principles”, that is, “the principles of justice which regulate the constitution”. This distinction can explain and justify the current policy of the Israel Defense Forces (IDF) of granting exemptions to Ultra-Orthodox Jews and to Arabs (even if not all these cases reflect so-called “full” conscientious objection) while denying an exemption to those who refuse to serve based on their opposition to the IDF's activities in the Occupied Territories. However, it is argued that the important expressive role of such refusals requires a more measured approach, by either legitimizing a limited number of such acts or imposing only minimal sanctions (while formally de-legitimizing such acts). These arguments are preceded by an assessment of an alternative possible justification of legitimizing refusals, to prevent the implementation of unlawful activities by the IDF. It is argued that this purpose does not justify legitimization of refusals except in particular instances that are specified.

Disputes about the Christian Holy Places have played a major part in the history of the Middle East and indeed of Europe for many centuries. The main issues of these conflicts are still unsolved, and the fact that the Sanctuaries are now under the control of the State of Israel has added a new dimension to the problems.

This study tries to investigate the question of the jurisdiction over the Christian Sanctuaries as it presents itself today. It does not deal with the Holy Places of Judaism and Islam since their treatment, in spite of many common elements, requires different considerations.

The disputes about the Christian Holy Places are essentially disputes among Christian communities, and not, as might be assumed, controversies between Christians on one side and members of other religions—Moslems or Jews—or the government of the country, on the other. They spring ultimately from the divisions of the Church; and although political and national interests frequently played a part, they must be seen first and foremost in the context of the religious issues involved.

The inter-relation between government policies, public opinion and court decisions are the subject of intense discussion in academic literature. Constitutional theorists maintain that courts are required to defend individual rights, especially minority rights. Courts are also expected to refrain from excessive interference in decision-making processes conducted by the other two branches of government. Both these themes are derived from the assumption that courts, unlike the legislature and the executive branch, are not representative institutions. They are not required to reflect the preferences of the majority in their decisions. Rather, the reverse is expected: to confront decisions which endanger the rights of minorities. The “success” of courts in maintaining their institutional autonomy — according to this view — is evaluated by their ability to withstand political pressures and effect their counter-majoritarian role.

Political scientists, on the other hand, are concerned with the extent to which courts in fact fulfill this counter-majoritarian role. Some argue that the counter-majoritarian function of the court is no more than a doctrinal aspiration, perhaps even a myth. Constitutional courts, they argue, serve more to legitimize socio-political reforms and broader cultural propensities which were previously endorsed by the political establishment and public opinion, than to confront majoritarian decisions. Others maintain that, while courts are not wholly insulated from public opinion, they still manage, on many occasions, to retain their institutional autonomy vis-à-vis political pressures.