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Law grroup

Head: Prof. Eli Salzberger, University of Haifa

The law group has two main research functions - derivative or second-order and principal or first order. The second order activity will focus on translating the findings and recommendations of the other groups into proposed legal measures. The first order activity will include research about the institutional structure and collective decision-making processes related to emergencies. The legal framework related to emergencies will be divided into three stages: before (preparedness), during (management) and after (recovery).  

Legal framework for preparedness

A prime target of good emergency regimes is to minimize the chances of a disaster occurring and/or minimize the damage that such disaster may inflict.  For example, when we focus on terror threats, preparedness means an efficient apparatus of prevention, which is manifested in counter-terrorism laws and institutions.  But good preparedness might also entail planning norms aimed to minimize the damage from a particular sort of terrorism, norms related to security measures (such as an obligation to conduct security checks at public or large facilities) etc. Likewise, preparedness for a natural disaster such as earthquake or floods, involves setting construction or building standards and land use codes as mitigation measures, and education of officials and the public at-large about how to face such disasters. Both examples demonstrate the two levels in which the law group will contribute to the Center.  The results from the Engineering group as to the optimal building materials and standards, will go through the Policy group, incorporating cost-benefit analysis, and then may be translated into draft norms – legislation and regulations - which will take into account the inner-legal complexities and logic (distinguishing, for example, between private law, criminal law and public law, as potential tools to achieve the substantive recommendations), incorporating additional considerations such as the rule of law and human rights. 

A special emphasis within the law group is given to Cyberspace, in cooperation with the University of Haifa-based National Research Center on Cyber. In regard to preparedness, for example, we plan an assessment and analysis of the need and way to regulate critical infrastructure so as to limit cyber risks at the time of emergencies and disasters.

Legal framework for management

The management of emergencies has dramatic legal aspects. During emergencies authorities might justifiably need more powers at the expense of individual freedoms and sometime at the expense of the regular democratic process of decision-making.  In addition to input by the other research groups as to the required measures to manage various kinds of emergencies, key questions are the procedure of declaring and terminating a state of emergency and the shift in collective decision-making and executive hierarchies during such a declaration. Substantial work on the topic has already been carried out in the framework of the Minerva Center for the Rule of Law Under Extreme Conditions in this regard, on comparative and normative levels of analysis and this work will be further developed with special emphasis on Israel. 

The first piece of Israeli legislation – The Law and Administration Ordinance – established an Israeli “emergency constitution”, which empowers the Knesset to declare a state of emergency, declaration upon which the legislative powers are transferred to the executive (i.e. the power to issue of emergency regulations).  The Knesset declared a state of emergency in 1948 and has extended it annually since. Over the years additional avenues for emergency declarations were created by specific laws (such as declaration of a special home front situation), which has resulted in a very cumbersome and outdated Israeli legal framework for emergency management.  Proposal for its reform are a focus of the legal group work.

Legal framework for recovery

A swift recovery and return to normalcy is a prime task of an emergency regime and the law has an important role here to prescribe ex-ante legal norms, which will enable such recovery.  While most attention has been given to public law in this regard, private law and regulation, for example insurance law, contract law, torts etc., can be of significant importance. With regard to insurance, the group will cooperate with the Avtovitzer Center for Risk, Liability, and Insurance - the head of which is a research group member.

The law group plans to intensify the research and propose reforms in these fields. In cooperation with the Cyber center it also plans to research other specific topics, such as the optimal telecommunications policies, which will facilitate the structuring of sustainable communications infrastructures and networks, supporting post-disaster communications.

The law group will engage in comparative studies on three levels – low, mid and high resolution. While mid resolution will utilize traditional comparative tools of constitutions and legislation in selected countries, low resolution research will use cutting edge tools of examining constitutional and legal norms in a large number of countries against various variables measuring the efficacy of handling emergencies – from natural disasters to economic crises.  In addition, the Israeli legal framework will be examined through a high resolution study which includes the analysis of the 'law in action' (on top of the 'law in the books'). Such an endeavor will encompass law and society and law and economics research methodologies.

The Law group also translates applicable outputs from other groups into proposed legal measures