A Change following a Revolution: The Influence of Basic Law: Human Dignity and Freedom on the Ban of Corporal Punishment in Israel

Kiryat Hamishpat - Kiryat Ono Law Review, Vol. 8, pp. 289-332, 2009 (Hebrew)

44 Pages Posted: 30 Nov 2009 Last revised: 29 Dec 2014

See all articles by Benjamin Shmueli

Benjamin Shmueli

Bar-Ilan University - Faculty of Law

Date Written: November 27, 2009

Abstract

The legitimacy of corporal punishment as a means of education by parents and teachers has been locked in an ancient debate, both in the legal literature and in the behavioral science literature. In most countries, corporal punishment is permissible, so long as it meets various qualifications, the connecting thread between them being that the punishment is light, reasonable, moderate, and solely for the purposes of education. A few countries in the world, mostly in Europe, have to date forbidden corporal punishment in the family unit (the number is slightly higher regarding the educational system). Only two have forbidden this via criminal law - Israel and Cyprus. All the rest have pursued a gentler path and set relatively declarative clauses in their civil legislation (Family and Family Competency Laws) intended not specifically to put the parents on criminal trial but to inculcate the public with norms of education by non-violent means. Only one country - again Israel - prohibited this in a court decision and not by legislation. In Italy, a criminal decision was also given by the Supreme Court, but no system of binding precedent exists there as it does in Israel. Since in any case, there is an extensive dispute on this matter, the path of the Israeli - like in the common countries - seems problematic and unusual out of all the legal systems that have forbidden corporal punishment, and the public and academic debate on this subject after the prohibition was adopted proves this fact. But the prohibition adopted in the Supreme Court decision was reasoned in a singularly determined manner, based principally on the Basic Law: Human Dignity and Liberty.

This Article will demonstrate that this process, with all its stages, whether in the criminal field, the tort field, or the disciplinary field, would apparently never have gotten underway without the influence of the Basic Law: Human Dignity and Liberty legislated in Israel in 1992.

Note: Downloadable document is in Hebrew.

Suggested Citation

Shmueli, Benjamin, A Change following a Revolution: The Influence of Basic Law: Human Dignity and Freedom on the Ban of Corporal Punishment in Israel (November 27, 2009). Kiryat Hamishpat - Kiryat Ono Law Review, Vol. 8, pp. 289-332, 2009 (Hebrew), Available at SSRN: https://ssrn.com/abstract=1514392

Benjamin Shmueli (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 5290002
Israel

HOME PAGE: http://www.law.biu.ac.il/en/node/455#tabs-tabset-5

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