The decision of the Aharon Barak's High Court to intrude into
the private realm of the family constitutes another stage in
the deterioration of the judicial system into judicial
autocracy.
Under the guise of Basic Laws and under the mantle of an
"ethical conscience," Barak and his colleagues are attempting
to expand the limits of their control to include areas in
which any link between them and the authority vested in them
as a judicial body is purely coincidental.
They are not satisfied with determining positions on issues
of religion and state. They are not satisfied with crude
intervention in the democratic decisions of the Knesset.
Their target is to expand their control to every area,
including the very personal one of educational methods.
This isn't merely a decision against harsh violence, which
requires judicial intervention, but rather a sweeping
determination which seeks to deny parents the basic authority
to educate their children.
Without any connection to the issue itself, which the
gedolei haTorah ve'hamussar as well as educators have
discussed, the fundamental question is: Who gave the court
the authority to interfere in this area? Who transformed it
into a body meant to supervise educational methods and to
determine laws on this issue? What connection is there
between the legal knowledge they acquired during their years
in the university where they studied Ottoman, British and
Knesset laws, and the authority to interfere in an
educational area, in which the authority to decide should be
given to outstanding educational and ethical figures?
We are not speaking only of judicial activism, as Aharon
Barak defines it, but of virtual tyranny. This grim
determination was made by attorney David Yerushalmi, a member
of the board of trustees of the Institute for Advanced
Strategic and Political Studies in Jerusalem, in an article
which he published recently.
"The High Court ruled last month that every form of corporeal
punishment which parents administer to their children is in
effect illegal. The judges based their decision on two ideas.
The first is that every form of corporeal punishment is
harmful to children. (Of course there is no study which
proves this). The second is the Basic Law of Human Dignity
and Freedom. With that, they relied on a regular criminal
appeal, on a "constitution." They did this, even though in
Israel, no founding meeting for the enactment of a
constitution has ever been convened, and no constitution or
document of legal consequence has ever been written or
approved by any sort of electoral body.
"The court explained that even a slight tap of a parent eats
away at our aspiration to be a non-violent society.
Therefore, corporeal punishment by parents is today forbidden
in our society.
"In this manner, the High Court deviated from judicial
activism and donned the mantle of judicial tyranny. In a
daring move, Chief Justice Barak and his colleagues invaded
the most intimate system of human relations, the family.
Humane organizations which defended the right and the freedom
of people from the damage caused by the state, have always
been in existence.
"The concept `family' defines an arena which is outside the
area of government intervention, except under the most
extreme circumstances. Every state which tries to intrude
into this area on the force of its strength as a state is a
totalitarian one by definition.
"The tyrany of the masses, which dons the garb of an elected
government or democratic institutions, is a danger to the
freedom of the individual. Unlike the socialist beginnings of
Israel, which glorified the state at the expense of
individual freedom and the family itself, the United States
established the family as the bedrock of freedom and as the
armor against the threats of the rule of the masses or the
rule of the elite. It is self-evident that in the United
States, parents are still permitted to educate their
children, as long as they don't cause them physical harm or
overt and serious emotional harm.
"The reference to the constitution, in the meaning ascribed
to it by the Founding Fathers of the United States is: a
genuine constitution formulated only after public
deliberations, votes of various sectors of the population,
etc. All of these establishment balances will enable a
controlled and rational decision to be made, which will
remove the thorn of the rule of the masses.
"A constitution which does not act as a brake for the power
of the state is no constitution at all. Most of the Israeli
`democrats' who demand the enactment of a constitution do
this precisely in order to accord the government the
authority to appeal against the only existing brake against
the power of the state: the status quo on matters of State
and religion.
"Their purpose is not to curb the state, but to extricate it
from the foundations of `primitive sects' which still hold on
to the peripheries of the power center.
"In Israel there are Basic Laws which are really no more than
results of the votes of a majority of Knesset. Constitutions
which were written facilely simply because they appeal to the
masses, are far from providing defense against the
undermining of freedom."
Yerushalmi's remarks are penetrating and clear. The purpose
of the demand to enact a constitution by a coincidental
majority in the Knesset, is to uproot the only brake which
until now has stood between the dictatorship of the state,
and the need to compromise between various groups in Israeli
society, in other words the status quo on matters of religion
and state.
Chief Justice Barak, who is behind the promoters of the
constitution does not actually need them, and he already
today uses various Basic Laws and accords them legal
interpretations which far exceed the intentions of the
legislators.
His intrusion into private areas is yet another stage in the
steadfast process of eroding the fundamentals of democracy,
when an un-elected body, made up mostly of members of a small
sector, and even of those in the periphery of the fabric of
Israeli society, interferes in areas in which it has no
jurisdiction.
