The first law the State of Israel passed after its establishment in 1948, was the Law and Administration Ordinance. This Basic Law stipulated that the laws prevailing in the country before its rise to statehood would remain in force as long as they did not contradict the principles of the Declaration of the Establishment of the State of Israel. As a result, the Israeli law system includes remnants of Ottoman law, of the laws that prevailed during the British Mandate of Palestine, and aspects of Jewish religious laws. Furthermore, a process of judicial interpretation of laws has evolved. In that process, civil rights and basic freedoms have been formulated, such as the freedom of speech, assembly, religion and conscience.
Nevertheless, the Association for Civil Rights in Israel (ACRI) notes that ‘to date, all attempts to anchor human rights in Israel in a Basic Law on Human Rights have failed’. The main obstacles have proved to be the opposition of religious political parties, ‘which viewed the legislation as a threat to the status of religion’, and in particular ‘security concerns and the desire of the authorities to maintain legislation (…) that grants wide authority to disregard civil liberties in the name of security’.
Moreover, although the absence of a constitution or bill of rights ‘has not prevented the establishment of legal norms for guaranteeing basic human rights by, in particular, the High Court of Justice, this court is not authorized to rule that a law passed by the Knesset or in effect since the days of the British Mandate is unconstitutional (given the absence of a constitution), even if it believes that the law violates basic human rights’.
According to ACRI, personal status is one of the areas in which the absence of a constitution or comprehensive bill of rights leads to violations of basic human rights. ‘One of the clearest examples is marriage and divorce law. In Israel, marriages and divorces are authorized by religious rather than civil law, meaning that the only individuals permitted to record marriages in Israel are those recognized by the Minister of Religion (and the Chief Rabbinate, for Jews) as qualified to do so, and that laws in the matter of Jewish marriage and divorce in Israel are “the laws of Torah”. This situation, which has existed in Israel since its establishment, prevents many Israeli citizens from exercising their right to marry and divorce freely, according to their own choice and conscience.