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Anat Stern

This article examines Jewish civilian criminality during the 1948 War and the way it was handled by military forces. It demonstrates the dilemma the Haganah forces were confronted with in dealing with civilian criminality in the absence of a functioning civil court system, and the various measures taken against civilian profiteering and looting. In July 1948, the practice of trying civilians in military courts was terminated due to an appeal to the Israeli High Court of Justice by one of the looters. This article examines these issues, thus allowing a different periodization of the 1948 War, based on a legal rather than on a military perspective.

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Freedom from Religion in Israel

Civil Marriages and Cohabitation of Jews Enter the Rabbinical Courts

Zvi Triger

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.

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Israeli High Court Rulings on the Security Wall

National and International Effects

Udi Sommer

With the ever-growing significance of international law both domestically and internationally, courts mediate much of the give and take between the international system and the national political arenas, thus acting in settings where global and local are mixed. Such a pivotal position, I argue, lends courts the ability to maximize a twofold utility, which is inextricably linked. First, on the international level, judicial institutions play an increasingly important role and form what is essentially a transnational epistemic community. Second, on the domestic level, courts capitalize on this pivotal position to become increasingly central in the decision-making process, forming alliances with other domestic players and thereby securing the implementation of judicial rulings. A case study of decisions of the Israeli Supreme Court concerning the security fence Israel built around the Occupied Territories is offered as an empirical test for the Court-Pivot Dual Utility Model that I present in this article.

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Assaf Meydani

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.

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Udi Sommer

This article analyzes decision making in national security cases on the Israeli Supreme Court and draws broader comparative conclusions. In the post-9/11 era, security has topped the national agendas in numerous established democracies, with repercussions involving their courts. Analyses of decision making on national security in Western judiciaries may benefit from lessons from the Israeli Court, which has been a pivotal player in this domain. A formal model analyzes how internal court institutions plus the rationality of individual justices are conducive to strategic Court behavior. Predictions are tested empirically using an original database with security decisions from 1997 to 2004. The findings indicate that constitutional design, Court leadership, ideology of the ruling coalition and interest group activity have influenced decisions of the Israeli Court on national defense. This study builds on and expands existing scholarship on the complex links among law, politics, and national security in Israel and beyond.

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Khul‘ Divorce in Egypt

How Family Courts Are Providing a ‘Dialogue’ between Husband and Wife

Nadia Sonneveld

In the year 2000, Egyptian women were given the right to unilateral divorce through a procedure called khul'. Khul' became the source of much controversy in Egyptian society, and most judges interviewed by the author expressed a negative viewpoint when asked about it. Nevertheless, the introduction of the Family Court system in 2004, with the explicit aim of solving marital disputes through mediation and communication, has made possible a 'dialogue' between husband and wife in a khul' procedure. This applies even in situations where mediators and judges profess an unfavourable opinion of women who file for khul' divorce.

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Using International Criminal Law to Resist Transitional Justice

Legal Rupture in the Extraordinary Chambers in the Courts of Cambodia

Mikael Baaz and Mona Lilja

An increasing body of literature focuses on negotiations of transitional justice, but not much has been written so far regarding contestations over its practices and the refusal of states and individuals to participate. Given the remaining legalistic dominance, this is particularly true regarding the field of international criminal law. Very little, if any, work in international criminal law engages with the topic of “resistance.” Departing from this gap in research, focusing on Cambodia and the Extraordinary Chambers in the Courts of Cambodia (ECCC), the objective of this article is to introduce, discuss, and analyze the “strategy of rupture”—as developed by the late French lawyer Jacques Vergès—and the ways in which this legal defense has been applied in practice at the ECCC in order to resist not only the Tribunal per se, but also the entire Cambodian transitional justice process and, by extension, the post–Cold War global liberal project.

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Deliberation and Courts

The Role of the Judiciary in a Deliberative System

Donald Bello Hutt

We lack analyses of the judiciary from a systemic perspective. This article thus examines arguments offered by deliberativists who have reflected about this institution and argues that the current state of deliberative democracy requires us to rethink the ways they conceive of the judiciary within a deliberative framework. After an examination of these accounts, I define the deliberative system and describe the different phases deliberative democracy has gone through. I then single out elements common to all systemic approaches against which I test whether the regard that the authors show for the judiciary in deliberative terms can be maintained and argue in the negative. I conclude by pointing at the necessity to think about the definition of deliberative systems, and to the value of these discussions for debates on the legitimacy of judicial review when it is exercised under the form of judicial supremacy.

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Marvin J. Heller

The phenomenon of the Court Jew does not cease to fascinate us. Our attention is at first drawn by the contrast of Jews as advisers and confidantes to princes and monarchs, not infrequently in a kingdom or duchy which otherwise forbade residence to Jews, or, if it did allow it, segregated them in ghettos with the concomitant disabilities that results from such a status. The image of these court factors (Hoffaktor, Hofjude) is further enhanced by their use of the trappings of the eighteenth century nobility, while, more often than not, they not only adhered to the faith of their fathers, but actively worked for and interceded on behalf of their co-religionists.

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Judicial Review in Context

A Response to Counter-majoritarian and Epistemic Critiques

Marcus Schulzke and Amanda Carroll

This essay defends judicial review on procedural grounds by showing that it is an integral part of American democracy. Critics who object to judicial review using counter-majoritarian and epistemic arguments raise important concerns that should shape our understanding of the Supreme Court. Nevertheless, critics often fail to account for the formal and informal mechanisms that overcome these difficulties. Critics also fail to show that other branches of government could use the power of Constitutional interpretation more responsibly. By defending judicial review in the American context, this essay demonstrates that judicial review is not inherently undemocratic.