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  • Author or Editor: Adam Hofri-Winogradow x
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Abstract

This article offers a novel interpretation of Israel's constitutional discourse. It is well-known that despite its Jewish majority, Israel orders marriage and divorce in a manner similar to that prevalent in most Muslim-majority countries: by granting the traditional religious community courts of the various religious groups which make up its population exclusive jurisdiction over community members' matters of marriage and divorce. What is less well known is that Israel's constitutional discourse, too, fits a pattern common in Muslim-majority jurisdictions, in espousing a double commitment to both a religion—in Israel's case, Judaism—and human rights. The Israeli Supreme Court has for decades emphasized Israeli constitutional law's commitment to liberalism and human rights while de-emphasizing its commitment to religion. Consistently with this approach, the Court has considered Israel's marriage regime an anachronistic blot on the law, and has constructed an alternative, civil marriage regime to serve the needs of Israel's secular liberals, whose views the Court often echos. I argue that the Court should strive to render its liberal policy choices more palatable for Israel's conservatives, by presenting them as the results of a harmonization of the religious and human rights pillars of Israel's constitutional discourse, investing in a close analysis of religious texts directed at legitimating those choices, where possible, in religious terms. A recent Israeli case hints in this direction. I conclude by suggesting that Israel's Muslim-majority type marriage regime, updated to include a civil marriage alternative, could be seen as a reflection of its complex constitutional order.

In: Middle East Law and Governance

The recent Chinese Trust Act has created a stir in trusts scholarship by taking no position on the location of title in the trust assets, not requiring that title to vest in the trustee. The Act thus permits settlors to retain title in the trust assets despite having appointed another as trustee. Leading trust scholars have criticised the Chinese Act’s noncommittal approach, pointing to the difficulties created by settlors continuing to own the trust assets. The present article attempts to evaluate the efficacy of such “shapeless trusts” and “settlor title retention trusts” by examining the career of the Chinese Act’s principal predecessor – the Israeli Trust Act of 1979, which established the world’s first shapeless trust regime. I identify two advantages of such regimes. One is their making trustees’ duties and beneficiaries’ effective remedies applicable in fiduciary situations conventionally analysed as agency, nomineeship or, under civil law systems, mandate. A further advantage is that “settlor title retention trusts” may help introduce the trust mechanism to potential settlors unaccustomed to it, who may be deterred by the prospect of giving away title in their property.

In: European Journal of Comparative Law and Governance