In the early 1990s, soon after Israel had ratified the UN Convention on the Rights of the Child, the Israeli Supreme Court issued several rulings that focused on the issue of children's rights, which would now be addressed as a fundamentally new doctrine. Presented as reflecting a significant change in the attitude of the case law, this doctrine was ascribed to the ratification of the Convention and to the enactment in 1992 of Israel's Basic Law: Human Dignity and Liberty. In this article, I argue that the recognition of children as rights bearers is not new and that signs of it are evident in the Court's case law dating back to the early years of Israel's existence. The development of the case law, however, has not been linear. In this article, I analyze the spiral progression of this process and suggest explanations for the particular course that Israeli case law has taken with regard to the recognition of children's rights.
A Spiral Progression
This article addresses the impact of family law on women during the Middle Byzantine period, 726–1204. Restricted to household roles, marriage provided betrothed women, wives, and mothers with certain legal protections. In the Middle Byzantine period conceptions and practices concerning betrothal, marriage, and dissolution of marriage were not consistent because both the church and the state determined sometimes contrasting rules and laws. The civil law protected women with respect to betrothal and marriage; pressure from the church, however, resulted in harsh laws concerning dissolution of marriage. Canon law nevertheless claimed that both sexes had quite identical legal rights in divorce, and women escaped from unhealthy marriages in certain circumstances. It seems that through its own legislation and its impact on civil law, the church enforced women’s position in marriage. At issue is whether this favorable treatment corresponded to social changes that improved the position of women in the Middle Byzantine era.
Filippo M. Zerilli
This introductory article aims to clarify why soft law is an interesting field to explore from a legal anthropological perspective and to point out a number of issues this theme section suggests taking into consideration. The article provides the context for the theme section, inserting soft law within global legal concerns and processes. It outlines the emergence of the notion of soft law, and summarizes the controversies it has raised among legal scholars and law practitioners. Then it explains why, despite the elusive character of the notion and its uncertain normative status, as soon as we move beyond a number of emblematic concerns for law practitioners, soft law mechanisms and practices appear to be a vantage point to explore the emerging transnational legal order, and particularly the relations among state, supra-state, and non-state (private) forms of regulation. Finally, the article introduces the articles in the special section of this issue by highlighting the ways in which they empirically deal with soft law practices and global legal pluralism in a variety of social fields and contexts, using ethnographic sensitivity and imagination.
Critical Notes on Agamben’s Political Messianism
Throughout history, Jewish notions of justice, hope and redemption have inspired political visions within as well as beyond the Jewish tradition. In the past century, examples can be drawn from Ernst Bloch to Walter Benjamin and Jacques Derrida. Also in the present politico-philosophical debate, a number of prominent voices draw explicitly on Jewish sources in their attempts to formulate radical visions. This article engages with one of the more influential figures in this respect, Giorgio Agamben. Although Agamben offers a highly original and constructive reading of Jewish notions of justice, hope and redemption, it will nevertheless be argued that he fails to do justice to an essential element in Jewish conceptions of liberation. In consistently posing ‘law’ as the counterpole to liberation, Agamben disregards the extent to which law, in the Jewish tradition, is constitutive of justice, hope and redemption. Moreover, in equating ‘law’ with coercion and oppression he also fails to recognize the progressive force of the politico-juridical system, which is the target of his critique.
Both courts of law and political theorists have grappled with the problem of giving the concept of ‘need’ a place in our reasoning about the rights and wrongs of property regimes. But in the U.K., legal changes in the last fifteen years have eroded the legal possibilities for striking some compromise between the claims of the needy and the rights of property owners. Against this backdrop this article compares three theoretical accounts of how the fact of human need should impact upon our thinking about property rights: the rights-based arguments of Jeremy Waldron, the radical democratic theory of Lawrence Hamilton and the anarchist commentary of Colin Ward. While ‘theories’ of need have paid much attention to the nature of need ‘itself’, the article argues that this comparison reveals another issue that is just as important: where and how should claims of need be registered in legal and political processes?
Local Legal Conceptions in Svan Villages, Georgia
Stéphane Voell, Natia Jalabadze, Lavrenti Janiashvili and Elke Kamm
Traditional law continues to be relevant for the Svans (Georgians), who usually live in the highlands of the Caucasus, but who have also migrated to various parts of Georgia. To grasp its practice we draw on approaches in which its use is discussed as a strategy for '(re)asserting collective identities' (Benda-Beckmann) in order to enforce specific goals. But our research also shows another dimension of traditional law: more than in actual conflict resolutions, traditional law is found in narratives, that is in memories of how conflicts were resolved earlier and should be solved today. These stories, however, of how and when traditional law should be applied rarely correspond to lived reality. Drawing on Brubaker and Cooper, we argue that beside a rather instrumental motivated use of traditional law in asserting collective identities, its contemporary practice can only be fully understood if we also acknowledge its non-instrumental practice.
Individualism and the Family
Succession law has faced enormous challenges in recent years, as changes in family structure have begun to emerge. The purpose of this article is to examine how Israeli succession law defines and shapes familial relations and the function of the different actors (legislature and courts) in this process. In addition, the article analyzes the tension between the free will of the property owner and familial obligations related to inheritance law. In doing so, it focuses on two legal rules: intestate succession rules, which reflect the role of the legislature in defining the family, and undue influence, which demonstrates the role of the courts in shaping familial structures.
Evolving Principles of Social Responsibility in Israeli Private Law
This article describes an emerging trend in Israeli private law that strives to incorporate a culture of social responsibility into everyday life. Implemented through the legal principles of 'good faith' and 'public policy' in contracts, this applies mainly to the social responsibility of corporations. The adoption of such concepts in interpersonal relationships emphasizes that this approach aims to include all components of the legal system. The basic Israeli social and constitutional principles are analyzed, along with the role that individuals and business participants, not only government authorities, play in the structuring of a freedom-seeking society. The article concludes that this new trend also corresponds to the social discontent that was evident in Israel during the summer of 2011, as well as to a new way of thinking about the concept of capitalism in the business literature.
Diego von Vacano
The article argues that Plato's Laws contain an implicit conception of freedom, particularly in Book III. It proposes that, while the concept is not treated systematically by Plato, it merits attention due to its presence in the text. I argue that there is a Form of Freedom in the book. It is comprised of two dimensions: an organic and a civic component. They are mediated by human agency. However, freedom in its ideal form is only possible for a select intellectual elite that can grasp these two dimensions. This elite is composed of a few wise elder men who take up the task of lawmaking as a ludic or playful enterprise. I also argue that degeneration away from true freedom is possible when political elites mislead a community away from Plato's ideal, such as with Cyrus in Persia. Ultimately, Plato's idea of freedom tells us that liberty is only truly available to a select few, not to a broad citizenry. Thus, freedom and democracy are not tied intimately but are opposed to each other.
Culture, identity, and language issues within the Northern Ireland Bill of Rights process
This article explores the use of soft law by those involved in the drafting of a Bill of Rights for Northern Ireland, drawing in particular on the author's experiences as legal adviser to the Culture, Identity, and Language Working Group of the Northern Ireland Bill of Rights Forum. The article reflects on the extent to which the Council of Europe's Framework Convention for the Protection of National Minorities 1995 and other relevant international instruments can be considered as forms of international soft law. It then highlights controversies that have arisen in debates over the content and scope of provisions addressing culture, identity, and language issues in any future Bill of Rights for Northern Ireland.