The Supreme Court In Loco Parentis

By Evelyn Gordon

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

At the time, the Knesset had undertaken a comprehensive overhaul of the penal code, one of whose goals was to codify in statutory law those defenses, or exemptions, that had become accepted based on the precedents set by Israeli courts. Among these defenses was that spanking by parents would not be considered assault so long as it was carried out “for the purpose of educating the child,” and “did not exceed reasonable bounds.” MK Dan Meridor (then of the Likud), who chaired the subcommittee that did most of the work on the codification, was the leading advocate of putting this exemption into statutory law. He argued that it was wrong in principle for the Knesset to rely on the courts for such exemptions, and also warned that in practice, there were grounds for fearing that the courts might not continue to honor the long-established precedent on this issue.⁵⁸ Opposing him in the subcommittee was Yitzhak Levy of the National Religious Party, who agreed that spanking should not be banned, but argued that explicitly inserting this exemption into the penal code was liable to encourage parents to increase their use of corporal punishment.⁵⁹ The Knesset should therefore not amend the statutory law on this point, he argued, but should rather rely on the courts to understand legislative intent properly. A number of government and academic legal experts backed Levy’s position. S.Z. Feller of HebrewUniversity’s law faculty, for instance, said the issue could be safely left “to the wisdom of the prosecution and the wisdom of the courts…. We’ve lived with this situation until now, and it hasn’t been a problem for us.”⁶⁰ Even Yitzhak Kadman, director of the National Council for the Welfare of the Child and Israel’s most outspoken opponent of spanking, told subcommittee members that the reason not to write the exemption into law was to avoid sending the wrong “message” to parents who might interpret it as a green light to go further than before:

We are not requesting it [a prohibition on corporal punishment] because we do not think that Israeli society is ripe for this.… All that we are asking at this stage is that you leave the situation as it was… so that a segment of the public does not err in thinking that there is a new message.⁶¹

This same dispute carried over to the full Constitution, Law and Justice Committee, chaired by MK Dedi Zucker (then of Meretz), which was charged with preparing the bill for presentation to the Knesset. There, Meridor urged his fellow legislators to fulfill their duties by codifying the existing law, warning that otherwise “the court might decide that removing this defense was intentional, and that from today onward there will be no such defense.”⁶² Levy again declared that non-inclusion of the exemption left the previous legal situation intact, emphasizing repeatedly that “we are not changing the law.”63 Indeed, he went further, saying that he would in fact object to an actual ban on spanking for two reasons:

First of all because of the reality—so that we do not turn all parents into criminals. And second, because there could be instances in which a parent needs to take certain actions.⁶⁴

Levy’s position was accepted by the majority of committee members, and the defense clause was removed from the draft legislation.

When the bill reached the Knesset plenum for final approval, Meridor, along with MK Avraham Poraz (then of Meretz) and two other Knesset members, sought to reinstate the clause that would have explicitly permitted parents to use moderate corporal punishment. Yitzhak Levy again represented the majority position—this time officially, as he was deputized to do so by committee chair Zucker.⁶⁵ “We will not be saying that there is a blanket prohibition,” Levy argued. “We will not be saying anything.”⁶⁶ When pressed by Poraz, he repeated emphatically, “We are not making a change.”⁶⁷ Thus when Knesset members voted to reject Meridor’s proposal, they did so on the understanding that they were not removing the legal exemption that permitted parents to spank their children.

Incredibly, this sequence of events—in which neither the supporters of the explicit exemption nor its principal opponents believed the Knesset should ban the parental use of corporal punishment—is cited by Beinisch to claim that the legislature had undermined the legal status of spanking. To justify this interpretation, Beinisch skips over the subcommittee and committee debates and ignores the speeches that Meridor and Levy gave in the plenum. Instead, she quotes a single Knesset member, Yael Dayan of Labor—the only speaker who had argued for a ban on spanking by parents at any stage of the debate.⁶⁸ In explaining her opposition to Meridor’s proposal, Dayan stated:

It is completely forbidden to insert any compromise norms, since this must be unequivocal: Violence must not be employed, nor may any means of compulsion be used on a child or on anyone who is under the authority or jurisdiction or care of anyone else.⁶⁹

And it is this quote, representative not of the committee’s majority nor even its minority opinion but that of a lone legislator, that Beinisch uses to settle the question of the Knesset’s intent.⁷⁰

Taken together, the six arguments advanced by the Supreme Court in this verdict demonstrate the lengths to which the justices are willing to go in order to manufacture a legal facade for their decisions. They assert, without advancing a substantive argument, that Israel’s place is with the tiny minority of democracies whose legislatures have banned spanking; they falsely imply that Israeli society favors their position; and they completely ignore important scientific studies that undercut their conclusion. In the legal sphere, they ignore any sources that might contradict their opinion; read the Basic Law: Human Dignity and Freedom as though it settles an issue that it does not even address; and discover legal obligations in a UN committee’s interpretation of a convention that neither the Justice Ministry nor the Supreme Court has ever recognized as binding. Finally, the court inverts legislative intent, pretending to be carrying out the will of the Knesset while in fact flouting it.

This parade of distortions and misinterpretations speaks volumes about the quality of judicial reasoning that the court today finds acceptable. But the use of such specious reasoning, grave though it is, is a consequence of the problem rather than its cause. The root of the problem is the court’s insistence on acting as a lawmaking body—an insistence that necessitates legal acrobatics if the court also wishes to preserve the myth that it is merely carrying out its role as an interpreter of existing law.

In fact, it is only in the paradigm of a lawmaking body that the court’s actions make sense. As the verdict explained, the justices felt that they had “no right to close [their] eyes” to the public’s “social-moral worldview,” “societal developments” and “the lessons derived from educational and psychological research.” And these are indeed all factors to which lawmakers would have no right to close their eyes.

But according to Israel’s written legal code, the justices are not supposed to be the lawmakers. This privilege is reserved for the Knesset. The court’s job is to interpret the laws the legislature has passed, and to apply them to particular cases. And there is good reason for this division of labor: An elected legislature, comprising 120 members with varying religious, ethnic, socioeconomic, geographical and educational backgrounds, is far better equipped to determine the public’s “social-moral worldview” than a panel of three unelected justices coming from virtually identical backgrounds. As former Supreme Court President Moshe Landau has warned, the court is an “oligarchy,” and does a disservice to democracy when it usurps the role of the legislature.⁷¹ Indeed, the available evidence indicates that the public does not share the court’s social-moral worldview on the issue of parental discipline. But in the court’s eyes, what “is forbidden today in our society” and which “social-educational outlooks” are “obsolete” apparently has little to do with the view of the majority, and everything to do with the views of the justices.