The major legal issues of the last 75 years that altered Israeli society

Israel has changed much in the last 75 years. In the nation-state of the Jewish people – the people of the book, whose religious traditions are ingrained with laws and regulations – the ever-changing legal apparatus has greatly affected society. This can be seen as recently as the judicial reform debate that began in January.

The Jerusalem Post asked three lawyers which legal issues they think have affected Israeli society the most in the past 75 years – some of them lesser known but influencing our lives to this day.

Child support

In 2015, the High Court of Justice heard appeals on a child support case that would alter how such payments are made.

The High Court faced a case in which two divorced parents made roughly equal salaries and childcare was equally divided between them. However, child support payments were not equal.

“Until about five years ago, for child support we looked at just how the father earns, and based on this we would do the alimony,” explained attorney Daniel Friedenberg, founder and managing partner of the Hoffman & Friedenberg law firm. “Payments were on the father until 18 and also during the army.”

The law previously didn’t take into account the expenses on a man when a child stays with him, according to the court’s 2017 verdict on the case. A man’s finances could be reduced and damage his ability to provide for both himself and his child. It had been argued that this situation was unequal.

“Since the law on alimony [and child support] is according to personal law, and personal law for Jews is Jewish law, until that ruling, the ruling was really very one-sided, obligating men to always pay child support,” said Friedenberg.

According to the court, Jewish tradition divides children into small children aged 0-6, minors aged 6-15, and mature children aged 15-18. The court had to address the second category, but explored the other age groups as well.

“Until [the age of] six, they’re small children, and according to Jewish law the father has to provide for them, and the responsibility is completely on the father,” said Friedenberg.

The court found this to be different for minors aged six to 15 according to Jewish tradition, and ruled that there should be child support payments based on the relative situations of the parents. If the child custody, salaries and other financial considerations between the parents are equal, no child support should be paid.

“From the age of six we look at the father and the mother, how long they [the children] are with the father, how long they are with the mother, how much money the father has, how much money the mother has, how much wealth the father has and how much wealth the mother has, and we make a balance between all these parameters, and based on that we decide who pays child support to whom and how much,” said Friedenberg.

He said that there were several lasting effects on Israeli society from this decision.

“First of all, it created a very significant distinction in every child support case between what happens up to the age of six and what happens after the age of six,” he said. “Secondly, if until today we didn’t have to check what was going on, how long the children were with the father and how long with the mother, or what the mother was spending and how much property the mother had, today we take that into account.”

Friedenberg also noted that there were negative results as well, as some men could try to manipulate the system. Some fathers could request custody so that they could pay less alimony, but then neglect the child and force the mother to care for them, when it should have been the father’s time to be the caregiver.

The court acknowledged these concerns in its ruling, saying that it shouldn’t be assumed that fathers didn’t care about the well-being of their children, and also doubted the actual benefit of such a con.

Friedenberg said that, in theory, if the parents love their children, they will divide time and finances, but in practice, as with everything in life, there are people who will take advantage of the system.

Negotiating contracts for a new type of infrastructure tender

In the 1990s, a new type of business tender for infrastructure projects would change the economy.

Normally, infrastructure tenders were issued in which companies would be contracted to build a project, and then it would immediately revert to the government.

For Highway 6, a road that crosses the length of Israel, a new type of tender was won by the business consortium Derech Eretz.

Yehuda Raveh, founder of Yehuda Raveh & Co. law firm and co-founder of the Israel Infrastructure Fund, was a legal adviser for Derech Eretz, and was involved in negotiating for a public-private partnership tender called build-operate-transfer (BOT). Raveh had to flesh out the legal contract for the first tender of its kind.

Israel had to change the laws and legal regulations for these new tenders, which according to Raveh were in large part the brainchild of then-finance minister Avraham Shochat.

Under BOT, a company builds, maintains and operates the project.

“The winner of the tender builds the project; the government makes the land available,” explained Raveh. “During a 30-year period, the winner maintains the road, collects the toll from the drivers, and at the end transfers the project back to the government at no cost.”

The construction for Highway 6 ended in 2004.

“This was the first time [BOT was implemented] in Israel,” said Raveh, noting that it had been rarely used in other countries. “When the government realized that this type of legal tender was more efficient, it continued to use this system in other projects.”

BOT was used for power plants and desalination projects, helping Israel become a world leader in desalination despite being a small country.

“It’s changed the economy,” said Raveh.

With better infrastructure, every other aspect of the economy can benefit.

High Court or Chief Rabbinate: Divorce and division of assets

In some aspects of Israeli law, the High Court and the Chief Rabbinate are in competition.

While the rabbinate has much of the control over marriage and divorce, “the question is what happens with the rest of the things, the distribution of custody, alimony and assets. Here there was a race between the court and the rabbinate to see who gets there first. Once upon a time, a Rabbinical Court or court would divide the assets according to the Halacha,” explained Friedenberg.

In the previous conditions, women would be at a disadvantage. If property was in the name of the husband, women wouldn’t get half.

“Even though we live in a more egalitarian world, men still statistically earn more and still statistically have more property to their name, and women could find themselves begging in the division of assets in the event of divorce,” said Friedenberg.

According to Friedenberg, there was a dramatic change in the domains of the two bodies when the High Court made a decision in 1994 on the matter of division of assets during divorce.

The court said that as a body above the Rabbinical Court, the rabbinate had to operate according to the Financial Relations Between Spouses Law (1973), which requires the division of assets to be balanced equally between the ex-spouses.

“It was dramatic, because until 1994, when someone went to the Rabbinical Court, the Rabbinical Court would judge according to the Halacha. And that would have created a very, very significant property advantage for husbands.”

Rejecting challenges to Netanyahu’s premiership

In 2020, Prime Minister Benjamin Netanyahu had won reelection, but faced petitions to the High Court challenging his fitness for service due to his ongoing corruption trials.

To Raveh, the decision by the court was one of the most important legal cases in the last 75 years because it changed the course of the country.

“If he hadn’t been allowed to establish a government, the scenario would be completely different than today.”

The Movement for Quality Government in Israel and other NGOs had challenged Netanyahu’s forming of a government on multiple grounds. One major aspect was the appointment of judges, and the concern that a Netanyahu government could appoint judicial officials who would later rule in his corruption trials.

While the High Court rejected the petition, saying that judicial intervention is called for only under extreme circumstances, the concern would also motivate the attorney-general to bind Netanyahu with a conflict of interest agreement that would prevent him from involving himself in the appointment of judicial and law enforcement officials.

This conflict of interest agreement is still in effect, and has restricted Netanyahu’s involvement in the judicial reform, which seeks to change the composition and procedures of the Judicial Selection Committee.

Beginning the constitutional revolution

One of the most impactful court cases in Israel’s history was the 1995 United Mizrahi Bank v. Migdal Cooperative Village case.

“There’s no Israeli jurist or judge who isn’t familiar with the decision on the Bank Mizrahi case,” said Oz Cohen Koren, managing partner of the Negbi, Cohen, Eyal & Co. law firm. “By and large, many of the processes we see today in the country, including in the development of the [judicial reform] discussion we are having today, have a basis in the Mizrachi ruling.”

The case is part of the troubled history of Israel’s constitutional process. Nascent Israel never created a constitution, due to political issues, but its founders compromised with a constitutional process in which Basic Laws would be introduced and at some later point assembled into a constitution. However, these Basic Laws were identifiable only by their names, and had no special procedure and power relative to regular legislation. This changed as a result of the Bank Mizrahi case.

In the 1980s, “The agricultural sector was in a very deep economic crisis, to the point of destroying agriculture in the State of Israel, and therefore a debt cancellation law was actually enacted,” said Cohen Koren.

Cohen Koren explained that a rehabilitation body sought to cancel a debt in line with a new amendment to the law, but Bank Mizrahi argued that the cancellation of debt owed to it and change to the law violated its property rights under the Basic Law: Human Dignity and Liberty.

Basic Law: Human Dignity and Liberty was passed in 1992, and had a provision that differed from almost all the other Basic Laws – that new laws could not be in contradiction with the rights established by the Basic Law.

Under High Court president Aharon Barak, it was decided that the Knesset had the right to pass constitutional articles, which had supremacy over other laws.

“It [the High Court] decided that the Knesset has constitutive authority, and because of this power the High court also has the authority to use judicial review against regular legislation,” said Cohen Koren.

Judicial review is the ability of the court to strike laws down if they contradict the constitution – in Israel’s case, using the relevant Basic Laws.

This landmark decision began what is commonly known as the constitutional revolution.

“Over the years the court increased the judicial review, and the Knesset had to consider the court when drafting laws,” noted Cohen Koren.

Critics have long argued that the court grabbed powers not explicitly afforded to it by the Knesset. The expanding power of the court is one of the central issues of the 2023 judicial reforms. Proponents have put forward legislation and proposals to limit judicial review as part of the reform.

Israel’s future and its laws

In 2023, landmark legal issues are set to be debated and established. The government must contend with one of the most controversial issues, universal conscription. The judicial reform debate is also still under way, and may result in a mediated agreement or the coalition passing a unilateral law.

There have been many controversial laws and legal issues in the state’s history. Some are now taken for granted as part of the status quo, others are still tender issues. As Israel continues to develop and grow, so, too, will its laws and regulations. •