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Judicial Activism

To the Editors:
In her article “The Supreme Court In Loco Parentis” (Azure 10, Winter 2001), Evelyn Gordon assails the recent ruling forbidding all corporal punishment of children by their parents. Gordon focuses mainly on the ruling itself, in the process raising serious questions about the grounds for the Supreme Court’s decision. From a broader perspective, however, the author clearly means to offer this case as an example of the court’s activism: Ultimately, her aim is to show the dangers inherent in the violation of the separation of powers that takes place when the Supreme Court does not confine itself to its proper role.
I read the article not as a legal expert, but as a student of ethics who is concerned with the question of how authority over education should be divided between parents and the state. Rather than getting into the thorny issues surrounding Gordon’s claims about judicial activism and its repercussions for Israeli democracy, I prefer to focus on the arguments she raises against the ruling, and to address them from the viewpoint of an ethicist. Simply put, I want to maintain that on the issue of corporal punishment by parents, the ruling is proper in terms of its essential content, even if Gordon is correct in arguing that it is not a reasonable way to interpret the existing law, and that this is an issue to be settled by the legislature, and not by three judges.
Of Gordon’s six arguments criticizing the ruling, the first three relate to the question of what is “generally accepted” concerning the corporal punishment of children. Gordon convincingly demonstrates that (i) most of the world’s democracies allow the moderate corporal punishment of children by their parents; (ii) Israeli public opinion does not support the idea that all corporal punishment should be illegal; and (iii) the experts disagree as to whether such punishment is harmful to the child. It is these arguments which I would like to address.
From the viewpoint of ethical theory, the attempt to evaluate the ruling through an empirical examination of data—whether through comparison with other countries, opinion polls, or consulting expert opinions—is problematic. The three arguments which Gordon attacks pertain to what the ethical philosophers call “descriptive ethics.” Rather than concerning itself with whether corporal punishment per se is an ethically valid norm, the discussion turns on questions of what, in practice, is common or accepted—in other countries, in Israeli society, or among the experts.
Since what is common and accepted changes with time and place, the basing of ethical norms on empirical examination necessarily leads to a kind of moral relativism, for it assumes that if a given conduct corresponds to the accepted norms of a society, it is therefore ethical for members of that society. This is a highly perilous position, which blithely gives a stamp of approval to harm inflicted on human beings, and also legitimizes the treading of their rights underfoot. Indeed, there is a problem with similarly simplistic utilitarian positions, which provide moral justification for conduct that leads to “desired results.”
Could it conceivably be argued that the “light and reasonable” beating of a wife by her husband is a matter for which the relevant social norms in practice are to be examined? Is it at all fitting to conduct a comparison between Israeli law and other judicial systems regarding this issue? Is it proper to conduct public opinion polls among violent husbands? Is it legitimate to turn to experts and take into account arguments that moderate wife-beating, under appropriate circumstances, strengthens the family unit, since it encourages the wife to fill her traditional roles? Are we to take into consideration studies that show that the divorce rate is lower in societies in which husbands are permitted to beat their wives in moderation, and conclude that there is a solid basis for the argument that such beatings attain good results for the society?
If the child is a person with rights and is entitled to the defense of his body—a premise which is not questioned in Western democracies—then the empirical arguments miss the essential point. Any corporal punishment of children by parents must be absolutely prohibited, not because it leads to adverse results, not because it is not recommended by experts, not because of the opinions people hold, but because it is invalid moral behavior, as a matter of principle, in every society that accepts the idea of human dignity, together with the assumption that the child is a person.
It seems to me that when the court addresses the empirical questions in its arguments, it does so only after having established an absolute moral position regarding corporal punishment, and only in order to support an argument that does not spring from the “data in the field,” but rather from a fundamental conception. Of particular importance in this context is the quotation that Gordon brings from Barak: “We do not make decisions according to statistics of public opinion.” The justices write in unequivocal fashion in their ruling that corporal punishment harms the child and his dignity, and Gordon quotes the passage in which they do so. Additionally, Justice Dorit Beinisch, who authored the court’s opinion, argues that the Basic Law: Human Dignity and Freedom “serves as an important source” for the ban on spankings, since it declares: “There shall be no violation of the life, body, or dignity of any person.” Defense of human rights is not a matter for public opinion polls; rather, it constitutes an essential democratic principle, and any judicial ruling that advances this principle is deserving of our praise.
Gordon maintains that there are two possible explanations for the silence by the public in the face of a ruling that so blatantly interferes in the personal sphere, that harms parental autonomy and that undermines “the right to educate one’s children according to one’s own understanding.” This silence, she asserts, ensues from a disregard for the Supreme Court, or from despair and a sense of powerlessness in the face of the judicial activism to which the public has become accustomed. It is unfortunate that Gordon does not mention a possible third reason: The public elects to remain silent because it views this ruling as proper, as possessing value, and, as such, as advancing Israeli society. The autonomy of parents in the raising of their children is not absolute, and should be limited in situations in which the good of the child is hampered. The Israeli public is silent because it understands the ruling in the correct light: As a courageous and praiseworthy attempt to inculcate a paramount moral and democratic principle.

Vardit Ravitsky
Mevaseret Tzion
 
To the Editors:
In discussing the activism of Israel’s Supreme Court and its interventionist forays into areas traditionally considered to be outside the judiciary’s discretion, David Hazony, writing on behalf of the editors, touches on the case known as Women of the Wall (“The Year of Ruling Dangerously,” Azure 10, Winter 2001). However, I am nonplused over the frame of reference and the context of criticism he chooses.
Hazony notes that the court has broken new ground on the question of which religious practices may or may not be conducted at Israel’s most sacred sites. For over a decade (the first hearing was in 1989 and the first decision was in 1994), a small group of women have been petitioning the High Court of Justice to instruct the Religious Affairs Ministry’s appointed supervisor of the Western Wall to permit them to pray, once a month, at a location close to and in sight of the Wall. As Hazony records, in the case of Hoffman v. Director-General of the Prime Minister’s Office, three of the most liberal justices sitting on the bench, Eliyahu Matza, Tova Strassberg-Cohen, and Dorit Beinisch, finally did so agree on May 22, 2000.
However, Hazony’s criticism fails to take into account an element which points up the hypocrisy of the court: The ignoring of a parallel demand which has been placed at the court’s attention for the past three decades, ever since a petition of the National Organizations in 1968. Indeed, the demand for a recognized Jewish religious presence within the confines of the walled compound on the Temple Mount, which accords with law and logic, has been systematically rejected in literally dozens of cases by the same court.


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