The state of Israel, the biblical home of the Jewish people, was “reborn” on May 14, 1948, and was established as a parliamentary system. Reforms that have taken place over a long period have created a system that is a combination of other forms of government and criminal justice systems, resulting in a hybrid system. Although it is characterized mostly by Western culture, the legal system does not fit neatly into either the common law or to the civil law families of legal systems (Levush, 2001.) This paper will examine the Israeli legal system, its characteristics, along with some of the strengths and weaknesses that come along with it.

When it was established in 1941, Israel was formed as a Jewish, democratic state that respects human rights. Since its beginning, the Israeli parliament, known as the Knesset, has passed new legislation and that, in combination with the Israeli Supreme Court, has changed the system into a contemporary, sophisticated system (Levush, 2001.) The legal system that currently exists has been heavily influenced by the citizens who have been involved in its evolution, many of whom were educated in Europe. When the state was reborn as Israel, the intention was to establish a formal constitution in the future. Instead, The Israeli Declaration of Independence is seen as a document that combines the wishes and intentions of Israel without granting the judiciary the ability to strike down legislation that contradicts its intentions. In cases in which Israeli legislation is subject to various interpretations, the Supreme Court finds that the laws should be interpreted in a way that is true to the principles expressed in the Declaration (Levush, 2001.) Although a formal constitution has never been enacted, the Israeli Supreme Court has provided basic constitutional standards that exist in other Western democracies within their constitutions.

The fact that Israel does not have a formal constitution strikes me as an advantage, since in the United States, there is constant debate, with no certain answers, about what the intentions of the founders were regarding the Constitution. Because there is certainly no way that the Founding Fathers could envision the sorts of changes that we have experienced in our society, such as privacy issues pertaining to women’s reproductive health and the Internet, sometimes legal cases come up time and time again to determine how they fit into the Constitution when in fact, they could never have been addressed in the Constitution. Rather than being written in stone, our Constitution should be a living, evolving document. My impression is that in Israel, because there is no Constitution but rather laws that are passed and amended based on changing society and the modern world, their legal standards can be more tailored to fit the times in which we live.

Legislation in Israel regulates the issues that it addresses as well as becoming a source for the development of new norms; legislation passed by the Knesset is extremely powerful. In addition, the judicial system in Israel is granted tremendous judicial discretion and power in order to create case law (Levush, 2001.) The standard of  “stare decisis” is the basic principle, holding that a rule determined by a court will be the guide to any lower court decisions, and the Supreme Court is not necessarily limited by its own decisions. In addition, interestingly, Israeli courts do not use juries to decide criminal or civil cases; decisions are made by the judge involved in the court case, and the principle of “innocent until proven guilty” applies to the legal system. The lack of the jury system exists because there has been so much conflict and hostility between the Israelis and the Arab population that it has been felt that it would be impossible to accomplish a truly fair and objective decision by a group of citizens who are in a position to decide cases. If it is true that a jury cannot be impartial, then it makes sense that this is not an area that is viable in Israel; however, that leaves a tremendous amount of decision-making in the hands of judges, who are sometimes subject to the same biases and human frailties as any other person, possibly compromising cases in which a judge might have an agenda of his or her own.

Since the state of Israel was formed, there have been significant changes enacted regarding criminal law. Initially, the Mandatory Criminal Code Ordinance was the backbone of the criminal justice system, which was based on English criminal law; actually, one of the provisions of the Code was that when interpreting legal matters, reference to English law would always be acknowledged (Guberman, 2000.) This practice was eliminated in 1972 when numerous amendments were passed that included laws that addressed bribery, state security, deceit, blackmail and extortion, bigamy, prostitution, prohibited games, lottery and betting (Guberman, 2000.) The area of corrections was also reformed drastically when in 1950, the punishment of whipping was eliminated; the death penalty for murder was abolished in 1954 at the same time that The Penal Law Revision, addressing forms of punishment, was passed, for the first time utilizing the imposition of conditional sentences of imprisonment, and completely overhauling the corrections system (Guberman, 2000.) This modernization could only be a positive step for Israeli citizens, and along with the advantage of the “innocent until proven guilty” standard, both the legal and the court system in this tiny country appeared to give people accused of crimes relatively fair chance to either be cleared or, if convicted, to be treated humanely in the prison system.

…