The Supreme Court In Loco Parentis

By Evelyn Gordon

The court’s outrageous ban on spanking one’s child.

 

III

 

Only after having exhausted the comparative, sociological and scientific arguments do Beinisch and her colleagues attempt to ground their decision more directly in Israeli law. Yet here, too, their conclusion is based on what can only be called a tendentious use of the available materials.

This is evident in the court’s selection of the legal arguments it considered: It ignored or dismissed out of hand any legal source that might have worked to undercut its conclusion. For instance, though the penal code is silent on the question of moderate corporal punishment by parents, Israeli tort law is not. One of the factors explicitly listed in the Torts Law as a valid defense against a lawsuit is if “the defendant is the plaintiff’s parent, guardian or teacher… and he punished the plaintiff with a degree of force that was reasonable in order to get him to mend his ways.” Beinisch acknowledges this fact, but waves it away with the statement that immunity to a civil suit for spanking does not absolve a parent of criminal liability—an assertion which, though technically true, in no way diminishes the statute’s relevance as a guide to legislative intent on the question of spanking.⁴¹

The verdict also ignores the explicit instructions in the 1980 Foundations of Justice Act on how to resolve legal lacunae (instances in which the written law does not provide guidance needed to resolve a case). According to this law, such lacunae are to be filled through the body of texts and traditions constituting “the heritage of Israel.”⁴² Yet the court declined to make any reference, explicit or implicit, to Jewish sources—most of which allow parents to discipline their children using moderate physical punishment.⁴³

Having solved the problem of inconvenient legal sources in this fashion, Beinisch opens her discussion of Israeli law by trotting out what is fast becoming the Supreme Court’s all-purpose justification for judicial lawmaking, the 1992 Basic Law: Human Dignity and Freedom. According to Beinisch, this highly abstract statement of principles—which does not say anything about corporal punishment by parents—”serves as an important source” for an absolute ban on spanking.⁴⁴

Characteristically, the verdict cites no specific articles of the law to demonstrate that it implies such a ban, nor does it quote from the lengthy Knesset debates on the law to show that the legislature had intended such a prohibition. When one consults the basic law, as well as its legislative history, it becomes clear that the link between the law and the court’s verdict is at best fanciful. The provision in the law that comes closest to addressing the issue of corporal punishment is the statement that “there shall be no violation of the life, body or dignity of any person”—hardly a clear suspension of the right of a mother to occasionally discipline her five-year-old with a slap on the hand.⁴⁵ Nor do the hours of parliamentary debate on this basic law reveal any hint that such a ban was intended by the legislators.⁴⁶

Instead of quoting the law itself or the lawmakers who wrote it, Beinisch defends her position by citing an academic article by former Supreme Court Justice Haim Cohen, who suggests that, in light of the passage of this law in 1992,

the legislature would do well to rethink a number of the exemptions that are currently found in the law, lest they be broader than necessary. This is particularly the case with regard to the rights of parents and teachers to hit their children or students….⁴⁷

The assumption that a former Supreme Court justice has more insight into the legislature’s intent than the legislators themselves is highly dubious. Yet even granting this assumption, this article provides very shaky support for the court’s ruling, since Cohen explicitly states in his introduction that he is not attempting to interpret the law in a manner appropriate for a judge. “I have become old,” he writes, “and have withdrawn myself from judicial interpretation, and I do not pretend to determine its boundaries. My interpretation is academic, theoretical, amateurish….”⁴⁸ When one adds that Cohen is suggesting not that the basic law be interpreted by the courts to ban spanking, but only that the legislature should reconsider its position on this issue, it becomes even more difficult to accept the claim that this basic law can “serve as an important source” for a court-imposed ban.

Given the absence of Israeli legal sources on which to base the court’s decision, it is not surprising to find Beinisch turning to international law, which in recent years has increasingly been used by the Supreme Court to import “legislation” unendorsed by any act of the Knesset. In this case, the court sought support for its position in Israel’s ratification of the UN Convention on the Rights of the Child in August 1991, and in particular from Article 19, which obligates all signatories to 

take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation… while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.⁴⁹

On the face of it, Israel’s status as a signatory to a convention banning “physical or mental violence, injury or abuse” does not require it to ban moderate and non-abusive forms of corporal punishment. One has to stretch terms such as “violence” or “abuse” more than a little to include in them a mother who gives her son a slap on the hand.⁵⁰ Nonetheless, there seems to be some basis for the court’s interpretation: Just such a stretch has been proposed by the ten individuals who sit on the UN’s Committee on the Rights of the Child, which is charged with monitoring compliance with the convention. In 1993—two years after the Israeli government ratified the convention—this committee began to interpret Article 19 to mean that spanking must be outlawed in all countries that have ratified the treaty.⁵¹

Nonetheless, the committee’s assertion that the convention prohibits spanking cannot obligate Israel’s Supreme Court to impose such a ban. Empirically, it is clear that most countries do not interpret the convention this way: Only 9 of the 190 countries that ratified this treaty had banned spanking at the time of the Israeli court’s decision.⁵² Moreover, there are sound legal grounds for rejecting the claim that the convention actually obligates signatories to impose a ban on spanking. International law protects parties to such conventions from being bound by subsequent interpretations that expand their responsibilities, on the grounds that allowing such changes would retroactively deprive them of a greater degree of sovereignty than they had agreed to cede. And at the time the cabinet ratified the convention, there is no evidence that the UN had indicated that signatories were obligating themselves to outlaw parental spanking.⁵³ Furthermore, the Convention on the Rights of the Child does not carry the force of law in Israel—a fact that the Supreme Court itself has affirmed in previous rulings.⁵⁴ Indeed, a Justice Ministry panel recently rejected the possibility of incorporating the convention into domestic legislation.⁵⁵

 

 

IV

 

Having dealt with such a wide range of topics—corporal punishment in the democratic world, the changing norms in Israeli society, social-science research, the Basic Law: Human Dignity and Freedom, and the UN Convention on the Rights of the Child—the justices apparently felt they had made a sufficiently strong case to draw their conclusion: That spanking one’s child for educational purposes is “forbidden today in our society.”⁵⁶ Only then did they turn to a consideration of what Israeli criminal law actually says on this subject. “A support for this position…,” they write, “can be found in the non-acceptance of Article 49(5) of the proposed penal code”—a reference to the Knesset’s 1994 decision to reject an amendment explicitly exempting parents who spank their children from criminal prosecution.⁵⁷ But an examination of the Knesset debate demonstrates that the legislators’ motives were precisely the opposite of what Beinisch claimed: In fact, the clear intent of Israel’s lawmakers was that the courts continue to respect parental autonomy in this area.