The Supreme Court In Loco Parentis

By Evelyn Gordon

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

Indeed, one of the most worrying aspects of this verdict is that it demonstrates that for Israel’s Supreme Court, there are truly no limits to the law’s reach—a position that Supreme Court President Aharon Barak has long advocated. It was Barak who coined the famous dictum that “the world is filled with law,” which he explained as follows:

Every human behavior is subject to a legal norm. Even when a certain type of activity—such as friendship or subjective thoughts—is ruled by the autonomy of the individual will, this autonomy exists because it is recognized by the law.⁸³ 

Yet this is the first time the court has so fully put this idea into practice. Nor can one assume that this decision was an aberration. President Barak later defended the ruling by declaring explicitly that familial relationships should be justiciable—that is, subject to decisionmaking by the courts—just like other relationships within society:

The moment that a certain realm is not justiciable, the wielder of power does whatever he wants. The meaning of this is that the executive branch, which is the wielder of power, or the police, do what they want. To say that normal family relations are not justiciable means that the one who will be hurt is the child, since the father and mother are the wielders of power.⁸⁴

But if personal autonomy indeed exists only because “it is recognized by the law,” in the person of the Supreme Court, then the ruling on spanking indicates that such autonomy is in grave danger. For through this ruling, the court has indicated that there is virtually no moral principle held by the justices that they would not be willing to translate into a binding legal norm—thereby depriving Israelis of their right to choose for themselves.

 

 

VI

 

The decision on spanking should have demonstrated to the Israeli public that its values are being systematically subjugated to those of the Supreme Court justices. One might have hoped, therefore, that the ruling would goad Israel’s citizens into demanding greater adherence to the norms and practices that preserve democracy—an increased role for elected representatives in appointing the court’s justices, an end to the stigma attached to citizens who criticize the Supreme Court, and a greater deference in Supreme Court decisionmaking to the views of the Knesset.⁸⁵ Yet the public reaction to the ban on spanking indicates that such a response is unlikely in the near future. The ruling did produce a brief debate on the pros and cons of spanking one’s child, but there was virtually no discussion of the court’s right to issue such a verdict.⁸⁶ And though a poll conducted shortly after the ruling found that three-fifths of Jewish Israelis opposed the court’s intervening to prevent parents from spanking their children, this majority chose, for the most part, to remain silent.⁸⁷

There are two reasonable explanations for this silence, either of which is cause for worry. One is that the public has already begun relegating the court to the sidelines: It is perfectly willing for the court to issue any rulings it pleases, because it has no intention of following them. The other is that years of increasing judicial activism have convinced most Israelis that they are powerless to combat the court’s intrusion into their private lives. This, of course, is hardly more comforting: A citizenry that considers itself helpless in the face of the whims of its highest court is liable to find its faith in democratic government severely undermined. But whether the reason is contempt or despair, ignoring the verdict is not a viable long-term response. Ultimately, Israelis will have to decide whether they want their highest court to serve as an arbiter of moral issues great and small.

But on a day-to-day level, the body that bears primary responsibility for restraining the court is the Knesset. And it is up to Israel’s legislature to start fulfilling its duty as a lawmaking body by ceasing to create legal vacuums that the court then seizes the opportunity to fill. It is no longer justified today to rely, as Yitzhak Levy did, on the restraint and common sense of the judiciary. As Dan Meridor told his fellow legislators in the debate over the defense clause for spanking, “We do not want the court to legislate, but rather that the legislature legislate.”⁸⁸ Mordechai Kremnitzer, a former dean of Hebrew University’s law faculty who played a role in drafting the penal code, also urged the Knesset not to sit on the legal sidelines, but to live up to its duties as a legislature:

The fact that the courts can continue… to create categories of legal exceptions is not a reason to invite the legislature to divest itself of its responsibility to impose legal order. If I ask myself which is the body that ought to make the determination on this matter, a determination on a question of values of the first rank—whether it is the courts, regarding which we never know how a case will reach them, and which case will be appropriate or inappropriate for generalizing, or the legislature—it seems to me that it has to be the legislature.⁸⁹

In the wake of the Supreme Court verdict, three MKs did submit private member’s bills to legalize spanking by parents.⁹⁰ But such ad hoc, after-the-fact responses will always be more difficult to make into law, since they are inevitably portrayed by the legal establishment, and consequently by much of the media, as an illegitimate incursion by the legislature into the court’s prerogatives.

Until the Knesset desists from its cowardly habit of enacting vaguely worded laws that leave the truly important decisions to the courts, the balance of power among Israel’s three branches of government can never be restored. The Knesset, and the public from which it receives its mandate, should therefore view the spanking verdict as a wake-up call for a legislature that is becoming more irrelevant with each passing year.

 

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Evelyn Gordon is a journalist, and a Contributing Editor of AZURE. 

 

 

 

Notes

 

1.­ On the activism of Israel’s Supreme Court, see Hillel Neuer, “Aharon Barak’s Revolution,” AZURE 3, Winter 1998, pp. 13-49; and Evelyn Gordon, “Is It Legitimate to Criticize the Supreme Court?” AZURE 3, Winter 1998, pp. 50-89.

2.­ Jane Doe v. State of Israel (CA 4596/98), unpublished, paragraph 29. In Hebrew, the term plonit is used to connote an anonymous woman, so this case was referred to as Plonit v. State of Israel. Throughout this article, the English equivalent, “Jane Doe,” has been used as the translation of plonit. 

3.­ Jane Doe, paragraph 29.

4.­ Jane Doe, paragraph 30.

5.­ In legal jargon, this is called an obiter dictum - an opinion issued by a judge on a matter that is not essential to the case at hand. Obiter dicta are generally frowned on by legal theorists, on the grounds that the court’s job is the resolution of actual disputes, rather than theoretical ones that may or may not ever arise. Many theorists even say that such opinions are not binding. Another reason for theorists’ leeriness of obiter dicta is that they can open up vast, if unintended, cans of worms. One of the best-known obiter dicta in history was the opinion authored by Justice Roger Taney of the United States Supreme Court in the Dred Scott case of 1856—in which, apropos of deciding that Scott, a slave, had no right to sue in federal court, Taney declared that the entire Missouri Compromise, which determined whether slavery would be legal or illegal in new states entering the United States, was unconstitutional. Many historians consider this decision to be one of the main proximate causes of the American Civil War.

6.­ The daughter also charged that her mother had hit her once with a vacuum cleaner, but the court was not able to corroborate this charge.

7.­ Jane Doe, paragraph 3.

8.­ Jane Doe, paragraph 20.

9.­ Indeed, the court itself made such an argument in sustaining the mother’s conviction for the more serious crime of abuse—a crime for which, in the court’s words, there is no “defense based on a justification rooted in an accepted social norm.” Jane Doe, paragraph 17. By convicting her of abuse, the court had already declared that her actions went beyond the bounds of the reasonable, and this determination was sufficient to justify her conviction for assault without addressing the issue of moderate corporal punishment at all.

It should be noted that the district court also failed to exercise restraint on this subject: Judge Rotlevy used her findings as a springboard for a sweeping declaration that all spanking by parents is illegal. The Supreme Court, however, apparently did not consider Rotlevy’s opinion on this subject particularly significant: Though Beinisch’s verdict quoted extensively from Rotlevy’s factual findings and reasoning, it made only the briefest of references to her diatribe against spanking.

10.­ Dalal Rassi v. The Attorney-General (CA 7/53), in Decisions of the Israel Supreme Court, vol. 7, 1953, p. 790. 

11.­ This link to British law was removed by the 1980 Foundations of Justice Act, which stated that such lacunae should be resolved instead by reference to “the heritage of Israel,” i.e., Jewish tradition. This would constitute a strong argument for saying that the Rassi precedent is no longer valid were it not for the fact that in this case, Jewish tradition and English law produce the same results. This may be the reason why the court, though it noted the cancellation of the link to British law, did not actually cite this as one of its reasons for considering the Rassi precedent outmoded.

12.­ The 1994 ruling was in State of Israel v. Marbat Abed Al-Nagi (CA 4405/94), in Decisions, vol. 48, section 5, 1994, p. 191. The 1998 decision was in State of Israel v. S’deh Or (CA 5224/97), in Decisions, vol. 52, section 3, 1998, p. 374. In the latter verdict, the court cited three separate directives from the director-general of the Ministry of Education, which were issued in 1991, 1994 and 1997, banning all corporal punishment in the schools.

13.­ In the 1988 case of Lichtman v. State of Israel (CA 103/88), in Decisions, vol. 43, section 3, 1989, p. 373. Barak wrote that a parent who threatens to hit his child “for educational purposes, and within the framework of reasonable necessity to get him to mend his ways,” would not be guilty of a criminal offense, because the blow the parent was threatening to administer would be “a blow that is in accordance with the law.” Cited in Amnon Straschnov, Children and Youth in the Eyes of the Law (Tel Aviv: Israel Bar Association, 2000), p. 275. [Hebrew] There have been a few lower court rulings declaring parental spanking illegal, with the most notable being the Tel Aviv District Court’s 1997 verdict in the Jane Doe case. However, the legal status of a lower court ruling in Israel does not extend beyond the bounds of the case at hand, so these verdicts constituted little more than public advocacy of the anti-spanking cause. 

14.­ Justice Englard wrote a dissenting opinion in which he argued that the mother’s conviction for abuse should be overturned, while leaving the conviction for assault intact. He did not, however, take issue with anything that Justice Beinisch wrote in the majority opinion regarding the illegality of all corporal punishment by parents.

15.­ Jane Doe, paragraph 21.

16.­ Though there is no federal law permitting spanking in the United States, the American Model Penal Code allows corporal punishment by parents, and the majority of the fifty states have either adopted this provision from the Model Penal Code or have otherwise acted through state legislatures or courts to explicitly legalize corporal punishment by parents.

17.­ Jane Doe, paragraph 22.

18.­ For an overview of how bans on spanking were adopted in these countries, see Peter Newell, Children Are People Too: The Case Against Physical Punishment (London: Bedford Square, 1989), pp. 67-96; and Susan H. Bitensky, “Spare the Rod, Embrace Our Humanity: Toward a New Legal Regime Prohibiting Corporal Punishment of Children,” University of Michigan Journal of Law Reform 31:2, Winter 1998, pp. 362-379.

19.­ The determination as to which countries are democracies is taken from Freedom House data as of January 1, 2000. Adrian Karatnycky, “A Century of Progress,” Journal of Democracy 11:1, January 2000, pp. 192-193. The three additional countries whose statutes or judicial decisions have been interpreted by some commentators to imply a ban on even light spanking by parents are Cyprus, Latvia and Italy. The Italian case is similar to that of Israel, in that it was the High Court rather than the legislature that ruled corporal punishment illegal. However, Italian courts do not formally practice stare decisis, and therefore other courts are not obligated to follow this ruling, and are free to interpret Italy’s law as not imposing a ban on capital punishment. Regarding the situation in Italy, see Bitensky, “Spare the Rod,” pp. 380-386.

20.­ On this point, see in particular Newell, Children Are People Too, pp. 67-96. Bitensky offers a contrary interpretation, arguing that although Sweden and most of the countries that have banned spanking did so in their civil code, the imposition of these bans indirectly rendered spanking a criminal offense as well. Bitensky, “Spare the Rod,” pp. 362-378.

21.­ Kandice K. Johnson, “Crime or Punishment: The Parental Corporal Punishment Defense—Reasonable and Necessary, or Excused Abuse?” University of Illinois Law Review 1998:2, p. 478. By 1981, the proportion of parents supporting corporal punishment had dropped to 26 percent. For additional data on Swedish public opinion, see Dennis Alan Olson, “The Swedish Ban of Corporal Punishment,” Brigham Young University Law Review 1984:4, pp. 454-455.

22.­ Johnson, “Crime or Punishment,” p. 478. In the other countries that imposed a ban, there was a similar pattern. Denmark, for example, passed a law in 1985 substantially restricting spanking by parents, and twelve years later amended that law to make the ban absolute. Bitensky, “Spare the Rod,” pp. 371-373. Similarly, in Finland (1983) and Austria (1989), the legislatures unanimously adopted the prohibition on corporal punishment by parents, which indicates that the idea must have earned broad support by then. On Finland, see Bitensky, “Spare the Rod,” pp. 368-370; on Austria, see Bitensky, “Spare the Rod,” pp. 375-378.

23.­ Jane Doe, paragraph 25.

24. See, in particular, Jane Doe, paragraph 27: “The court cannot, and has no right to, close its eyes to societal developments and to the lessons derived from educational and psychological research, which have completely changed attitudes towards the use of corporal punishment for educational purposes.” See also Jane Doe, paragraph 29: “In light of the above, we may conclude that the corporal punishment of children, their debasement, the violation of their dignity on the part of parents is completely unacceptable—a residue of a social-educational outlook that has become obsolete.”

25.­ Jane Doe, paragraphs 25 and 26.

26.­ The court’s verdicts banning spanking in the schools merely upheld a policy already instituted by the Education Ministry. While this is not proof positive that attitudes among the general public had changed—government agencies do not always reflect the popular will—the fact that the ministry directive banning spanking was reissued under three successive governments, in 1991, 1994 and 1997, by ministers from both the left-wing Meretz party and the right-wing National Religious Party, suggests that it enjoyed a fairly broad consensus.

27.­ Of the fourteen Hebrew-language books that were examined in writing this article, all of which were published in the past decade and a half, seven argue that spanking children is an appropriate punishment under certain circumstances, and seven argue that it is not. However, four of the six written by Israelis favor the use of spanking: Rafi Ya’akobi, Be Friends with Your Children (Tel Aviv: Pecker Literary Agency, 1995); Miriam Levi, Proper Parenting (Jerusalem: Reuven Mass, 1991); Yaffa Barzakai, Parents as Teachers (Jerusalem: Otzar Hasfarim, 1985); Danny Wolf, Being Parents (Tel Aviv: Yedi’ot Aharonot, 1993). The two books that oppose spanking in all circumstances are Michal Rosman and Mira Dital, Parental Intelligence—PQ: Groupwork with Parents (Kiryat Bialik: Ach, 1999); and Rachel Pasternak, The First Circle (Tel Aviv: Eitav, 1994). In contrast, five of the eight translated from English oppose such punishments. Though this data is obviously insufficient for any conclusions about the majority opinion among Israeli experts, it does render the court’s implied assertion of a new Israeli consensus highly questionable.

28.­ This poll was carried out by the Geocartography research firm, which interviewed five hundred adults. Yedi’ot Aharonot, January 2, 2000. Moreover, this poll understated the degree to which Israelis were resistant to the idea of a ban on spanking. It did not include Arab-Israelis at all, and almost certainly under-represented Haredi Jews—which meant that it did not reflect the views of two of the communities in which corporal punishment of children is most widely accepted.

29.­ The poll was conducted for the National Council for the Welfare of the Child and was quoted in Tova Tzimuki, “No Hands,” Yedi’ot Aharonot, October 30, 1996. It almost certainly understated the percentage of parents using corporal punishment, as there is a tendency to underreporting in such surveys by those parents who oppose spanking in principle and do not want to admit that in practice they have hit their children. On this point, see Murray A. Straus, Beating the Devil Out of Them: Corporal Punishment in American Families (New York: Lexington Books, 1994), pp. 52-53.

30.­ Beinisch wrote in her verdict: “One might argue that in this ruling, we are issuing a decree that the public will not be able to abide by, since there are more than a few parents among us who use non-excessive force towards their children (such as a light slap on the rear or on the hand) in order to educate and discipline them.” Yet only a ruling that runs counter to the habits and beliefs of much of the population is in danger of being one that “the public will not be able to abide by.” Jane Doe, paragraph 30.

31.­ Aharon Barak, speech of June 27, 2000, at the Zionists of America House in Tel Aviv, quoted in Dalia Shahori, “Aharon Barak: The View that ‘Everything Is Justiciable’ Must Also Apply to the Family Unit,” Ha’aretz, June 28, 2000.

32.­ Jane Doe, paragraph 27.

33.­ Jane Doe, paragraph 27. 

34.­ The existence of conflicting opinions within the social science research community is one reason that legal theorists have always considered reliance on such research questionable: Not only is social science research generally inconclusive, but the weight of the “evidence” frequently shifts from one side of the argument to the other—often rapidly.

35.­ For a discussion of the research and arguments demonstrating the negative effects of spanking, see Straus, Beating the Devil Out of Them; and Irwin A. Hyman, The Case Against Spanking: How to Discipline Your Child Without Hitting (San Francisco: Jossey-Bass, 1997), pp. 58-62.

36.­ Pediatrics 98:4, October 1996, Supplement.

37.­ Robert E. Larzelere, “Presentation: A Review of the Outcomes of Parental Use of Nonabusive or Customary Physical Punishment,” Pediatrics 98:4, October 1996, pp. 824-828.

38.­ Larzelere, “Presentation,” p. 824. Developmental expert Diana Baumrind concurred with Larzelere’s findings: “Disciplinary spanking in the home, used prudently, can shape socially constructive behavior, thereby protecting children from the natural and more painful consequences of misbehavior occurring outside the nurturing family setting.” Diana Baumrind, “Response: A Blanket Injunction Against Disciplinary Use of Spanking Is Not Warranted by the Data,” Pediatrics 98:4, October 1996, p. 830. She also cited a study showing that children of parents who used moderate physical punishment were the least violent towards other children, and that violence in children was associated either with excessive physical punishment or with its total absence.

39.­ Marjorie L. Gunnoe and Carrie Lea Mariner, “Toward a Developmental-Contextual Model of the Effects of Parental Spanking on Children’s Aggression,” Archives of Pediatrics and Adolescent Medicine 151, August 1997, p. 768.

40.­ Larzelere, “Presentation,” p. 827

41.­ Jane Doe, paragraph 24. What is most surprising about this airy dismissal is that the court could have produced a much stronger argument for considering the tort law irrelevant: On November 3, 1999, a bill to remove this clause had passed its first reading in the Knesset (it passed its final reading in June 2000, five months after the court issued its verdict). The court could therefore have argued that legislative intent appeared to be swinging in the opposite direction. Regarding the possibility of using tort law to clarify legislative intent on whether spanking by parents should be exempted from being a criminal offense, see Straschnov, Children and Youth, pp. 234-236.

42.­ This act replaced the earlier legal reference to British law as the source for resolving such lacunae.

43.­ The court’s verdict on spanking, as District Court Judge Amnon Straschnov noted in a recently published book, included “not a single citation or reference, even an implicit one, to Jewish law.” This “disregard of the rulings of Jewish law,” Straschnov stressed, “does not accord with the instructions of Article 1 of the Foundations of Justice Act.” Straschnov, Children and Youth, p. 273. For a discussion of Jewish sources demonstrating that they allow parental autonomy in spanking children, see the concurring opinion of Justice R. Assaf in the Rassi case of 1953; and Straschnov, Children and Youth, pp. 219-225. For an opposing view, see Yitzhak Levy, “Judaism and Hitting Children,” in The Rights of Children in Israel: A Collection of Articles and Sources, eds. Yitzhak Kadman and Galia Efrat (Jerusalem: National Council for the Welfare of the Child, 1998), pp. 97-100. [Hebrew]

44.­ Jane Doe, paragraph 28.

45.­ The purpose of Basic Law: Human Dignity and Freedom, as set out in its opening clause, “is to protect human dignity and freedom, in order to establish in a basic law the values of the State of Israel as a Jewish and democratic state.” The law details six fundamental freedoms that it was designed to protect, among which are: “There shall be no violation of the life, body, or dignity of any person as such,” “There shall be no violation of the property of a person,” and “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition, or otherwise.” Finally, since these rights cannot be absolute—the police must arrest suspected criminals, the government must levy taxes, and so on—the basic law also includes a balancing clause, which states that these freedoms may be infringed “by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”

46.­ Knesset Proceedings, vol. 10 (1991), pp. 1235-1249; Knesset Proceedings, vol. 12 (1991), pp. 1527-1532; Knesset Proceedings, vol. 24 (1992), pp. 3781-3794.

47.­ Haim Cohen, “The Values of a Jewish and Democratic State: An Inquiry into the Basic Law: Human Dignity and Freedom,” Hapraklit, Jubilee Volume, December 1993, p. 30.

48.­ Cohen, “The Values,” p. 11. Moreover, Cohen noted that he was, as a matter of interpretive policy, ignoring legislative intent—as he did not consider “all the parliamentary and extra-parliamentary discussions that ended with the political compromises that found their expression in the basic law” to be of relevance in interpreting the law. Cohen, “The Values,” p. 18.

49.­ The court quotes this article, in its official Hebrew translation, in Jane Doe, paragraph 28. The English-language version here comes from the official version of the convention, which is available at United Nations Human Rights Website (www.unchr.ch).

50.­ On the ambiguity of the convention’s language regarding this point, see David P. Stewart, “Ratification of the Convention on the Rights of the Child,” Georgetown Journal on Fighting Poverty 5:2, Summer 1998, pp. 161-184.

51.­ Based on the official documents of the Committee on the Rights of the Child, it would appear that the committee came to this position sometime between its second and fifth sessions, which took place between September 1992 and January 1994. Conclusions and Recommendations Adopted by the Committee on the Rights of the Child at its Second to Fifth Sessions, paragraphs 482 and 483, May 19, 1994. United Nations Human Rights Website: Treaty Bodies Database. On a number of occasions, the committee has even suggested that individual countries change their laws. See especially reports on Poland, United Kingdom, Canada, Belgium, Portugal and Germany. United Nations Human Rights Website: Treaty Bodies Database. For an overview of the position adopted by the UN Committee on the Rights of the Child, see Bitensky, “Spare the Rod,” pp. 388-404.

52.­ In addition to the eight democracies noted earlier in this article, one non-democratic nation, Croatia, banned spanking, in January 1999. The 190 ratifying countries comprise all UN member states except the United States and Somalia.

53.­ Indeed, Israeli child-welfare advocates noted at the time that Israeli law “is basically in consonance with the provisions of the convention.” Surie Ackerman, “Israel Ratifies UN Child Rights Convention: Changes Expected in Processing of Minors’ Arrests in Areas,” The Jerusalem Post, November 5, 1991. See also Irwin Cotler and Philip Veerman, “A Tool for Teaching Human Rights,” The Jerusalem Post, October 7, 1991.

54.­ See, for example, Shohrei Gilat v. Minister of Education (HCJ 1554/95 and HCJ 7715/95), paragraph 38, in Decisions, vol. 50, section 3, 1996, p. 2 (these two cases were dealt with by the High Court in a single verdict). Nonetheless, the Supreme Court has adopted a method of interpretation whereby it will, whenever possible, interpret Israeli law so as to make it conform to international law. On this point, see Sufian Abu-Hasan v. State of Israel (CA 3112/94), paragraph 9, in Decisions, vol. 53, section 4, 1994, p. 422. Presumably, Beinisch was applying this same interpretive principle in using the Convention on the Rights of the Child as a source for banning spanking, though she did not address this point in her verdict.

55.­ The Justice Ministry’s position was presented by Deputy Attorney-General Yehudit Karp before the Knesset Committee on the Status of the Child, June 12, 2000. Proceedings of the Knesset Committee on the Status of the Child, June 12, 2000, p. 24. Since 1995, Karp has been a member of the UN’s Committee on the Rights of the Child, and therefore is extremely conversant with the issues relating to whether the Convention is binding on signatories.

56.­ Jane Doe, paragraph 29.

57.­ Jane Doe, paragraph 29. The amendment was proposed in 1992, but the final vote took place only two years later.

58.­ Meridor’s main argument was that all exemptions should be explicitly written into law: “People should not have to look for the law in the rulings of the Supreme Court; they should be able to go to an article [in the legal code] and find things there.” Proceedings of the Subcommittee on the Penal Code, Knesset Constitution, Law and Justice Committee, May 23, 1993, p. 2. However, he also worried that if this exemption were left out, the Supreme Court would later interpret the omission as a statement of the Knesset’s intent to ban spanking—a fear that proved prescient.

59.­ Proceedings of the Subcommittee on the Penal Code, May 23, 1993, pp. 24-25.

60.­ Proceedings of the Subcommittee on the Penal Code, July 20, 1993, p. 39. Deputy Attorney-General Yehudit Karp also stressed that “there is a difference between an explicit criminalizing statement and the abolition of a defense.” Proceedings of the Subcommittee on the Penal Code, May 23, 1993, p. 11. Superintendent E. Mazoz from the legal affairs division of the Israel Police put the underlying assumption bluntly during the subcommittee’s discussion of a different proposed defense in the Penal Code: “Even if we eliminate [the] article, I do not see any concern that any judge will create for himself new doctrines…. Not on every subject does a judge wake up every morning—except, perhaps, for [Supreme Court Justice Aharon] Barak—and create a new doctrine.” Proceedings of the Subcommittee on the Penal Code, February 23, 1993, p. 7.

61.­ Proceedings of the Subcommittee on the Penal Code, May 23, 1993, p. 17.

62.­ Proceedings of the Knesset Constitution, Law and Justice Committee, April 25, 1994, p. 37.

63.­ Proceedings of the Knesset Constitution, Law and Justice Committee, April 25, 1994, p. 40.

64.­ Proceedings of the Knesset Constitution, Law and Justice Committee, April 25, 1994, p. 38.

65.­ Knesset Proceedings, vol. 40 (1994), p. 9823. Levy was also designated as the representative of the majority opinion by Meridor, the subcommittee chairman. Knesset Proceedings, vol. 40 (1994), p. 9832.

66.­ Knesset Proceedings, vol. 40 (1994), p. 9844.

67.­ Knesset Proceedings, vol. 40 (1994), p. 9845. Levy said the explicit exemption was not necessary to protect parents, as one could rely on the prosecutors and judges not to indict or convict in cases where it was unwarranted. Knesset Proceedings, vol. 40 (1994), p. 9833.

68.­ Though Dayan voted with the majority in the committee discussions, she did not state her position then, and indeed, did not do so until the closing moments of the plenum debate.

69.­ Knesset Proceedings, vol. 40 (1994), pp. 9847-9848.

70.­ A few years later, MK Dedi Zucker told the press that the committee had considered it “important to lay down a general principle that forbids the use of force in any framework and under any condition, even in the context of relations of dependency within the family. The Basic Law: Human Dignity and Freedom forbids the violation of a person’s body.” Tzimuki, “No Hands.” However, Zucker never articulated that position during the committee or plenum sessions, and he designated Yitzhak Levy—who opposed a ban on spanking—to represent the committee’s position. Thus Zucker’s retrospective view cannot be weighed heavily in determining legislative intent.

71.­ Moshe Landau, “Giving Israel a Constitution through Judicial Decisionmaking,” Mishpat Umimshal 2:3, 1996, p. 705.

72.­ Jane Doe, paragraph 30.

73.­ Jane Doe, paragraph 30.

74.­ Jane Doe, paragraph 30. 

75. Jane Doe, paragraph 30.

76.­ Proceedings of the Subcommittee on the Penal Code, May 23, 1993, p. 6. Karp, as mentioned in note 55 above, is one of the members of the UN Committee on the Rights of the Child, which decided to interpret the Convention on the Rights of the Child as obligating signatory countries to prohibit parental spanking. In addition, she made it clear throughout the subcommittee discussions that she would favor a ban on spanking. For an elaboration of Karp’s views on the danger of arbitrary enforcement, see Yehudit Karp, “Corporal Punishment: A Legal Perspective,” in Education by Violence—Education for Violence: Corporal Punishment and Hitting Children (Jerusalem: National Council for the Welfare of the Child, 1993), pp. 8-9. [Hebrew] Dan Meridor also raised the issue of arbitrary enforcement: “The attorney-general or the police will decide as they see fit… or in accordance with their worldview of the minute when they will prosecute and when they will not. A person will be a criminal, but the attorney-general will decide as he likes that he will prosecute Reuven, but he won’t prosecute Shimon.” Proceedings of the Subcommittee on the Penal Code, May 23, 1993, p. 2.

77.­ Jane Doe, paragraph 30.

78.­ Proceedings of the Subcommittee on the Penal Code, July 20, 1993, p. 43. Deputy Attorney-General Karp likewise warned the subcommittee that “non-enforcement of the law will lead to contempt for the law.” Proceedings of the Subcommittee on the Penal Code, May 23, 1993, p. 6.

79.­ Interview on Army Radio’s Good Morning, Israel program, January 26, 2000.

80.­ A good example of this is the famous Nahmani decision, in which the court ruled that Ruti Nahmani could implant eggs fertilized by her ex-husband Danny into a surrogate mother, despite Danny’s objections. This is certainly a deeply personal question, but in this case, Ruti and Danny explicitly asked the court to decide the issue. Furthermore, the court could not have avoided a decision by deferring to the appropriate statute, since there was none: The law was completely silent on this issue. Prior to the court’s intervention, a decision had been made by the hospital in which the eggs were stored. But since Danny and Ruti had not appointed the hospital as their arbiter, and no law gave it the authority to assume this role unasked, the hospital’s decision had no legal validity whatsoever.  

81.­ Jane Doe, paragraph 29.

82.­ At times, the court’s deference to personal autonomy has verged on the absurd—as in its ruling that the state must provide special gas masks to bearded men free of charge because “a beard is part of a man’s self-image.” Akiva Nof v. Ministry of Defense (HCJ 205/94), in Decisions, vol. 50, section 5, 1994, p. 449

83.­ Aharon Barak, “Judicial Philosophy and Judicial Activism,” Iyunei Mishpat 17, 1992, quoted in Neuer, “Aharon Barak’s Revolution,” pp. 15-16.

84.­ Barak, speech at the Zionists of America House.

85.­ For a discussion on how Israel’s process of appointing justices compares to those used in other democracies, see Mordechai Haller, “The Court that Packed Itself,” AZURE 8, Autumn 1999, pp. 64-92. On the stigmatization of those who criticize the Israeli Supreme Court, see Gordon, “Is It Legitimate to Criticize the Supreme Court?”; and Evelyn Gordon, “The Creeping Delegitimization of Peaceful Protest,” AZURE 7, Spring 1999, pp. 30-46.

86.­ See, for instance, the responses cited in Yedi’ot Aharonot on January 26, 2000, or the various radio interviews on this subject on January 25 and 26.

87.­ The poll, conducted for the GesherCenter by the Mahshov survey research company, found that 58 percent of respondents said the court should not have acted to ban spanking.

88.­ Proceedings of the Subcommittee on the Penal Code, May 23, 1993, p. 20.

89.­ Proceedings of the Subcommittee on the Penal Code, July 20, 1993, p. 40. The Knesset’s handling of the penal code actually pales before some of the other cartes blanches it has granted to the Supreme Court. The most notable of these is the Basic Law: Human Dignity and Freedom itself, in which the Knesset stated that the rights delineated in the Basic Law may be infringed by a law befitting the values of the State of Israel “as a Jewish and democratic state,” but then left the court to determine what Israel’s Jewish and democratic values are.

90.­ The three were Avraham Ravitz and Moshe Gafni of the United Torah Judaism party and Reuven Rivlin of the Likud. Legislation proposed by Moshe Gafni, P1345, February 20, 2000; legislation proposed by Reuven Rivlin, P1487, March 6, 2000; legislation proposed by Avraham Ravitz, P1468, July 19, 2000.