Are human rights norms applicable to occupied territories in general, and to the West Bank and the Gaza Strip in particular? The article examines the controversy that had arisen between Israel and the UN treaty monitoring bodies in relation to this question and critically analyzes Israel's three objections to such applicability: 1) the mutual exclusivity of humanitarian regime and human rights regime in occupied territories, the former being thus the only applicable law; 2) a restrictive interpretation of the jurisdictional provisions treaties; and 3) the lack of effective control in some of the territories. The article posits that the universal object and purpose of human rights treaties, which inform the proper interpretation of their jurisdictional clauses, require their applicability in all territories subject to the effective control of the state parties, as well as to other extra-territorial exercises of government power directly affecting individuals. Consequently, international human rights law and international humanitarian law apply in occupied territories in parallel and not to the exclusion of one another. This position is confirmed by extensive practice of the international human rights monitoring bodies, the International Court of Justice (ICJ), and by some decisions of the Israeli Supreme Court. In conclusion, the paper posits that Israel's refusal to apply the six principal human rights treaties to which it is party to the Occupied Territories is incompatible with its international law obligations and proceeds to propose modalities for the co-application of both human rights and humanitarian law in occupied territories.

Traditional legal doctrine pictures land ownership in the form of a cone down to the center of the earth. This article suggests that it is desirable for the law to enable subsurface subdivision into separate, three-dimensional property units, constituting separate subjects for title and transactions. Thus the law would contribute to the public interest in recognizing the subsurface space as a separate property unit from both the functional and the planning aspects.

Before three-dimensional registration can begin, it is necessary to create an infrastructure of professional standards for three-dimensional survey for registration purposes. The creation of such standards constitutes one of the main goals of the world survey profession.

It may be assumed that there is a downward limit below which the subsurface has no effect on the surface space and vice versa. In this case, the traditional doctrine may be seriously contested by the argument that those deep levels of the earth should be defined as a collective property. However, it is not practical to establish a fixed downward limit upon ownership of subsurface space. When expropriating the subsurface, it is necessary to compensate the landowner for the consequential damage, as well as for the direct damage incurred. There is some doubt whether compensation should be paid for subsurface area that the landowner could not reasonably and practically exploit. As soon as the axiomatic impediment to three-dimensional subdivision is removed, the importance of long-term planning for subsurface use will increase.

This article addresses the constitutional discourse surrounding the status of economic and social rights in Israel. It examines the principal interpretive strategies adopted by the Supreme Court with regard to the 1992 basic laws (in particular, with respect to the right to human dignity) and criticizes the Court's reluctance to apply analogous strategies to incorporate economic and social rights into Israeli constitutional law. Potential explanations for this biased approach are also critically discussed. The ensuing outcome is a constitutional imbalance in Israeli law, which perpetuates the unjustified view that economic and social rights are inherently inferior to their civil and political counterparts, and puts in question Israel's compliance with its obligations under the International Covenant of Economic, Social and Cultural Rights. At the same time, encouraging recent Supreme Court decisions, particularly the YATED and Marciano judgments, indicate growing acceptance on the part of the Court of the role of economic and social rights in Israeli constitutional law, and raise hopes for a belated judicial change of heart concerning the need to protect at least a ‘hard core’ of economic and social rights. Still, the article posits that the possibilities of promoting the constitutional status of economic and social rights through case-to-case litigation are limited and calls for the renewal of the legislation procedures of draft Basic Law: Social Rights in the Knesset.

This paper examines the historical background and the social processes that have changed the perception of child abuse in Israel from almost complete lack of awareness to concern and formal societal reaction during the 1990s. The recent emergence of child abuse as a social problem and the consequent actions of scrutiny and surveillance through legislation, law enforcement, punishment and educational prevention is set within the cultural milieu of the past two decades. This sociological analysis shows that there was a gradual transition from a private condition to a public “social problem”. The social actors involved in this process primarily included social workers, professional educators, academics, the daily press, members of Israel's Parliament and law enforcement agents.

For various scholars and professionals, the incident that triggered awareness and concern about child abuse in general and child sexual abuse in particular was the tragic death of young Moran Denemias in 1989. However, in our paper we posit that this single tragic incident in itself did not prompt officials or the general public to view it as part of a larger problem. The general political tendency to overreact to the emerging issue of abuse, and the rapidity with which the Law for the Prevention of Abuse of Minors and Helpless Persons was passed at the end of the 1980s can be explained by a general moral sentiment that matured decades earlier.

One of the outstanding products of civil-secular law in Israel is the institution of cohabitation. In Israeli law, the term “cohabiting couples” is used to refer to couples who conduct marriage-like relationships, but who, from a legal point of view, are not given the legal status of married couples. In Israel there is a trend toward narrowing the legal gap between cohabiting couples and married couples, and broadening the conditions that confer the status of cohabite. In present-day Israeli legal discourse, support for these trends is seen as a secular, liberal and progressive stance, while opposition to them is viewed as religious, moralistic and conservative.

This study aimed at enriching the public legal debate on cohabiting couples from a civil liberal point of view. In order to accomplish this task, I wish to re-examine the laws relating to cohabitation, in intention to break the conventional modes of thinking, and examine the laws dealing with cohabitation from an all-encompassing civil viewpoint, one which does not focus specifically on the unique Israeli context. Only after the more general discussion will we consider the position of Israeli law and consider the possibility of applying the general discussion to the specific Israeli context, keeping in mind the role of cohabitation in Israel as an alternative to the religious marriage. Previous projects I have conducted dealt specifically with the internal relationships including the mutual obligations between cohabitants. In this project, I wish to continue probing the Israeli family law situation but this time I wish to broaden the discussion by examining the external rights of cohabiting couples.

The discussion will expose the basic flaw in the Israeli context which makes the implementation of a fundamental civil structure difficult in terms of Israeli law. I shall explain why this flaw has a more serious impact in the context of “external rights” than in the context of internal commitment issues. Therefore beyond making proposals for specific amendments in relation to existing cohabitation laws, I shall clarify why it is necessary to develop additional alternatives to marriage which can also provide an alternative to cohabitation.

The article examines the approach of leading rabbis toward levirate marriages following the establishment of the State of Israel. Chief Ashkenazi Rabbi Herzog supported the abolishment of levirate marriages and attempted to impose on all ethnic communities the Ashkenazi approach, which since the 13th century favored chalitza. Chief Sephardic Rabbi Uziel supported rabbi Herzog although the levirate commandment takes precedence over chalitza in the Sephardic and oriental traditions and is practiced in these communities. In 1950, the two Chief Rabbis led a council of rabbis that enacted a regulation rejecting levirate marriages and favoring chalitza. Rabbi Uziel believed that two opposing traditions governing an issue as central as family law are not appropriate in a modern state. He perceived the levirate marriage, which binds women in matrimonial relations against their will, to be inconsistent with their status in the modern era. The strong roots of the Ashkenazi Halachic tradition, which has for many generations rejected levirate marriages, allowed him to demand that all ethnic groups adopt it. Rabbi Yossef and other oriental critics regard his actions as submissive to Ashkenazi tradition, a criticism I reject. Rabbi Yossef vigorously opposed the abolition of levirate marriages, and in a decision in 1951 he claimed that it was invalid. It was the beginning of his struggle against what he perceived as Ashkenazi dominance and Sephardic submission, demanding the restoration of the oriental and Sephardic traditions. In time, this became an explicit ideological-political stance under the motto leachzir atara le'yoshna. I suggest that Rabbi Yossef endeavors to restore the golden age of the Bashi sages in Jerusalem, chief among them Rabbi Elyashar, at the twilight of the Ottoman period.

Judicialization 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.

At the turn of the millennium, some of the most controversial topics being internationally debated were the issues of embryonic stem cell research and cloning. Stem cell research involves the exploration of the medical possibilities latent in primary, relatively undifferentiated cells. Such research, however, is not fully supported by the entire scientific community or by all of the general public due to the ethically controversial practices involved in such research. Generally, stem cell research requires the destruction of an embryo, which is perceived by some as the destruction of human life, or at least the destruction of an entity bearing the potential to evolve into human life. Thus, despite its vast potential, stem cell research has been condemned by some as disrespectful of the value of human life, and even as murder. Similarly, therapeutic cloning techniques have been attacked as unnatural and unethical, especially due to their close affiliation with reproductive cloning. The wide variety of opinions held throughout the globe has lead to a diverse spectrum of legal arrangements. Various governments have chosen to regulate this matter in various ways. Some have explicitly addressed the matter in primary legislation, while others have chosen more indirect ways of “resolving” the situation. Still others have chosen to “ignore” the problem by neglecting to establish a clear legal policy. This article reviews the various ethical and legal perspectives held with regard to these controversial fields and suggests the preferability of one particular ethical tendency and one particular method of regulation.