|Israeli jurist Dorit Beinisch tells students of differences between U.S. and Israeli legal systems.|
Trial by jury.
It’s a bedrock of the American legal system. It’s the subject of two of the amendments of the Bill of Rights.
Last week, the seventh and eighth graders of Solomon Schechter Day School of Bergen County in New Milford got to hear an argument against it – from one of Israel’s leading jurists.
Dorit Beinisch served as president of Israel’s High Court of Justice until 2012, when she hit 70 and Israel’s mandated retirement age. Now a fellow at NYU Law School, she came to New Milford last Thursday to answer questions from Schechter’s middle school students.
The students had been well briefed. The Constitution and the American legal system are part of the seventh grade curriculum; the corresponding Israeli institutions are part of the eighth grade curriculum, but the seventh graders received an advanced peek in preparation for the visit. The middle school’s Israel educator and the chairs of its social studies and Hebrew departments worked together to prepare the students for their visitor.
The students took turns asking questions they had written out beforehand. They asked each question in both Hebrew and English, and Beinisch answered them in English.
And a question about Israel’s lack of juries was raised by both the seventh and eighth graders.
“The jury system is part of the American democracy,” Beinisch acknowledged. “In Israel, we have a professional system.”
She explained that Israel inherited its legal system from the British, who ruled before the State of Israel was declared in 1948. While England guarantees a jury trial for those accused of serious crimes, “they didn’t trust the people they ruled to have juries,” so verdicts are decided by judges instead.
“I find it a better system for us,” she said. “Juries are often swayed by emotions. Judges are very professional.”
Beinisch was the ninth person to serve as president of Israel’s High Court of Justice, and the first woman. She told the students that she didn’t feel her status as a pioneer – there were already women among the court’s 15 members when she was first appointed to the court in 1995, after serving as the state prosecutor. But afterward, women came up to her and told how she was an inspiration.
What was her most difficult case?
It was not a question involving overturning legislation or judging the conflict between security and human rights, she told the students.
Instead, it was cases involving adoption and custody – cases that meant nothing to the state, but meant all the world to those involved.
Wait. Adoption cases?
Yes, the High Court of Justice serves as Israel’s court of appeal, and hears cases that are not necessarily of constitutional significance. That makes for a very different workload than its American counterpart. The U.S. Supreme Court hears fewer than a hundred cases each year; Beinisch said the Israeli court hears 5,000. (Like American appeals courts, most cases are heard by a small subset of the court’s members.)
In fact, it was anger over a family court cast that led a man named Pinchas Cohen to throw his shoes at Beinisch in the courtroom in 2010, breaking her glasses.
Unlike the United States, Israel has no written constitution by which laws can be overturned. But, as she told the students, the High Court looks to abstract principals to define the boundaries of acceptable legislation.
“The Israeli Supreme Court took the same principal as the American First Amendment,” she said, in a landmark case barring an Israeli prime minister from closing down a newspaper.
“The court decided that the prime minister had the authority in the law to close the newspaper, but that he couldn’t do it because of the important value of freedom of the press. He could only do it if there was a near certainty that the paper would endanger the public through incitement to terrorism,” she said.
Beinisch enjoyed answering the questions; she said she speaks before children in Israel regularly.
“Education is the most important thing we have. It brings a better future for everyone,” she said.
Beinisch did not brandish her pro-child credentials, but in 2000 she wrote the Israeli court decision banning corporal punishment, overturning a 1944 statute. She relied on the international Convention on the Rights of the Child and the 1992 Israeli Basic Law: Human Dignity and Liberty.
“Corporal punishment of children, or humiliation and derogation from their dignity as a method of education by their parents, is entirely impermissible, and is a remnant of a societal-educational outlook that has lost its validity,” she wrote for the court. “The child is not the parent’s property and cannot be used as a punching bag the parents can beat at their leisure, even when the parents honestly believe that they are fulfilling their duty and right to educate their child….”
“Accordingly, let it be known that in our society, parents are now forbidden to make use of corporal punishments or methods that demean and humiliate the child as an educational system,” she wrote.
In recent years, right-wing legislators have introduced bills in the Knesset that would curtail the High Court’s reach.
“I hope it won’t happen,” Beinisch said. “I believe we have a strong democracy and it will not happen. I’m optimistic.”