Supreme Court President (Ret.) Dorit Beinisch Joins the Faculty of Law

Leading figures from all sections of the Israeli legal community attended a conference honoring Supreme Court President Dorit Beinisch on the occasion of her retirement * The numerous speakers at the conference represented the full legal spectrum in Israel, including senior academics, former and present judges, and veteran and young attorneys * We offer some impressions of the conference, as well as a special interview with President Beinisch as she joins the Faculty of Law at the Hebrew University   

“Dorit Beinisch is not only a trailblazer: as the first woman jurist to fill the key positions in our legal system, she is also a role model.” Professor Yuval Shany, dean of the Faculty of Law, chose these words to open his comments on the second day of the conference. The conference was hosted jointly by the Faculties of Law of the Hebrew University and Bar Ilan University. Professor Shany was followed by a series of distinguished speakers – former and present Supreme Court justices and other judges, deans of the various faculties and schools of law around Israel, academics, attorneys and prosecutors. The conference was divided into two parts. The first day focused on an analysis of Justice and President Beinisch, while the second was devoted to her public involvement – from her time as a prosecutor and director of the HCJ Petitions Department through the key issues she handled as state attorney and on to her managerial function as president of the Supreme Court. Public service, sensitivity to social concerns, and a practical approach formed a leitmotiv in the lectures on the second day.

Public Service, Social Sensitivity and Quiet Revolutions

The conference day at the Hebrew University included three sessions, all of which were devoted to practical and theoretical studies by academics and legal practitioners in various fields relating to public service and the attorney in the civil service. Space prevents us from providing a summary of all the remarks, so we shall mention just a selected few.

In the first session, Professor Yoav Dotan (previous Dean of the Faculty of Law), Attorney Shai Nitzan and Professor Ariel Bendor discussed the character of the public service attorney. Attorney Shai Nitzan, the deputy attorney general, began his career as the assistant to then State Attorney Dorit Beinisch, and noted the dilemmas that face attorneys in the public service in their contacts with the authorities they represent. “On the internal level,” Attorney Nitzan explained, “their function is first and foremost not to object or raise difficulties, but to provide proper advice for the staff of the authorities.

Supreme Court President (Ret.) Dorit Beinisch

The activity should be examined within the framework of the law, and if necessary the attorney should try to help and to be creative. Even if a particular issue has not been addressed in court, the fact that there is currently no precedent does not mean that there should not be a precedent. Creativity is a tool that defines the capability of the public sector attorney. But when an attorney or jurist forms the conclusion that a member of the authority seeks to do something that is illegal, he must warn him; and if the act crosses a red line, then it cannot be represented in court.”

The moderator of the first session, district court Judge Nava Ben Or, commented in her conclusion: “We can state that the point of departure is that the public service jurist must have a world view. The lack of a world view creates a dangerous individual and a valueless public service.”

The second session was entitled “A Judge among Her People.” The speakers in this session discussed Justice Beinisch’s known social sensitivity in the courtroom and in her rulings. One of the speakers was Supreme Court Justice (Retired) Eliezer Rivlin, who also recently joined the Faculty of Law of the Hebrew University. In his remarks, Justice Rivlin mentioned several of President Beinisch’s rulings on social issues. “You can find among Beinisch’s work public rulings that implement the protection of human rights, rulings relating to the right to equality, and rulings concerning all sectors of society and fields of life,” Justice Rivlin explained. “For example, although Beinisch refrained from establishing that the right to education is a constitutional right, she raised the status and importance of this right. Beinisch determined that the decision not to provide full protection for schools suffering missiles attack from Gaza violates the right to education. Parents should not bear the responsibility, she established, for choosing between their children’s safety and their education.”

This session was moderated by Supreme Court Justice (Retired) Yitzhak Zamir (another former Dean of the Faculty of Law). In his introductory comments, Justice Zamir discussed the different streams common in the legal field, between a position that seeks to restrict its function and one that argues that the court should play as active a role as the other branches of government. “There can be no doubt which school Dorit Beinisch belongs to, even when she was still an attorney,” Justice Zamir declared. “She led the Supreme Court toward a positive role in advancing society, and particularly in filling in gaps in the actions of the other branches of government. This requires confrontation and discomfort and demands adhesion to firm values – struggles she withstood successfully. Dorit Beinisch deserves thanks and admiration for this stance.”

Supreme Court President Asher Grunis and the Dean, Professor Yuval Shany

In the third session of the conference, the speakers focused mainly on President Beinisch’s defense of the judicial branch during periods of considerable tension with the other branches of government. One of the speakers was Judge Moshe Gal, who served as the director of the court during Justice Beinisch’s presidency. Judge Gal mentioned the quiet revolution that was introduced in the management of the judicial system during Beinisch’s period of office.

“The system was unmanageable and exceptional leadership was needed in order to introduce the changes that were made during President Beinisch’s period,” Judge Gal explained. “Even within the judiciary it is sometimes difficult to understand who heads the system – there is no hierarchical structure. How can we manage such a system? In the face of these difficulties, we seek to introduce a managerial doctrine. After discussions with organizational consultants, we reached the conclusion that something had to be done. The proper management of the judiciary demands the conclusion that the presidents of the various courts will be responsible for managing their courts, and will be accountable to the president of the Supreme Court. We created a model of responsibility: The president of the Supreme Court is responsible for the presidents, but also bears responsibility toward the justice minister in the administrative sphere.

These moves demanded a change in the organizational culture during a period of instability in the court’s relations with the Knesset and the government. Without President Beinisch’s leadership, we could not have embarked on this revolutionary course of action and inculcated it throughout the judicial system.”

The concluding speakers at the conference were Professor Yuval Shany; Judge Einav Golomb, as the representative of President Beinisch’s interns and assistants over her long career; and Supreme Court President Justice Asher Grunis. Last of all, President Beinisch herself went up to the podium. “I don’t think I’m a "warrior," but I do think that jurists recognize the law is not detached from life, and this is how it should be regarded. The ability to combine theory and practice is critical and essential for anyone who wants to be involved in law.”

 
**

Dean of Faculty, Professor Yuval Shany

From Judge to Lecturer

Just a few days after the conference, President Beinisch agreed to let us interview her as she joins our Faculty. President Beinisch is due to teach a joint course next year with Professor Barak Medina on the subject of national security and human rights.

In his opening comments at the conference, Faculty Dean Professor Shany commented on the new addition to the Faculty: “We are delighted that following her retirement President Beinisch has agreed to continue to make a contribution as a lecturer in law, and has chosen to return to the Hebrew University. By so doing, she is closing a circle – making a contribution to academia, in the faculty where she began her career, and addressing the subject of human rights, to which she has been committed in all her public positions.”

In the interview, however, President Beinisch was reluctant to see her decision as a “transition to academia.” She explained: “That’s a bit of an exaggeration. This isn’t a stage in my life when I’ve decided to launch an academic career. I strongly believe that academic analysis in law also has practical purpose and application. This apparent ‘transition’ is simply part of the overall mission.”

So you don’t see these as two separate worlds?
“I don’t see academia as an opposing pole to the court, but as an integral part of the desire to ‘make law.’ Academic research and judicial work are both directly involved in implementing our values as a society so that we can protect it. Academia should not be disconnected from judicial work, and judicial work – and I refer here not only to judges, but also to attorneys in the private and public sectors – is not disconnected from the academic contribution.”

Does that mean that as someone who brings that practical experience you can make a particular contribution to academic teaching?

“On the basis of my personal experience, I think that when people begin to study law they know very little about legal work. People are attracted to the profession for all kinds of reasons, both ideological and practical, but they are often unaware of the daily and long-term ramifications of legal work. Accordingly, I think that a good legal education, one that will enable the students to choose the right way for themselves in our complex and diverse profession, requires a synthesis of experience and legal knowledge, of theory and practice. 

Supreme Court Justice (Ret.) Yitzhak Zamir

I certainly believe that the period of studies offers students a golden opportunity to use the legal knowledge they acquire – and this contribution naturally helps them and moves them forward, too. I don’t think this is a matter of lip service at all.”

When was the idea for the course born?

“You could say that this course was born following a conversation between the Dean, Professor Yuval Shany, and myself. I told him about a similar course I taught for a semester in the Faculty of Law at New York University, and he rightly asked why we won't have something similar here.”

What is your goal in the course?

“My goal is to encourage substantive discussion relating to the subject of national security and human rights. This is why we chose not to end the course with an examination, but to base it on project work and oral discussion focusing on court rulings here in Israel and elsewhere.”

Is such discussion also an important tool in later stages?

“Dialogue between the court and the parties who come before it – both the State Attorney’s Office and the petitioners – and the dialogue the court can encourage between the parties form an important component of judicial work. One of the most important steps we can take in this direction, I believe, is to encourage the State Attorney’s Office to adopt a more flexible attitude. I think this is one of the reasons why so many petitions submitted to the High Court of Justice are rejected or end without the need for a ruling. When the appellant raises a substantive and just argument, the State Attorney’s Office should solve the case even before it reaches the point of a court hearing. If the case does come before the court, then dialogue between the court and both sides can produce an awareness that the petitioner’s argument is well-grounded and should be examined – even by the representative of the State Attorney’s Office. In this case, the public attorney is not a litigant before the court, but rather – together with the court – represents the public interest.”

Do you expect the students who take the course to choose a career as judges?
“As I mentioned, when most students begin their legal education they don’t necessarily know which avenue is best for them. Indeed, many of them have still not made this decision by the time they complete their internship, and have to examine several different directions before they choose their career. So I want to be careful about this. I certainly don’t think that the purpose of the course is to push students toward a career as judges or anything like that, but I will be very happy if it encourages them to have a sense of public mission and clarifies the importance of this side of the legal profession. For me, of course, this implies working for the State, but attorneys in the third sector or private attorneys who find ways to advance the public interest are also realizing the same mission. 

Attorney Shai Nitzan

I believe that law can and must make a contribution to society; after all, this is a profession that belongs to the social sciences. It draws from society and maintains a constant process of feedback with it: law is influenced by and influences society.”

What is your impression of the young generation in the legal profession?
“Over the years I have always worked with young people. I like to do so because it provides an opportunity to convey my social message and to encourage recognition of reality. We always build positive dialogue. There is a truly outstanding young generation of inquisitive individuals with amazing intellectual capabilities. Sometimes it seems to me that today’s generation is more mature when it begins law studies than our own generation. This reflects the development of legal education and education in general and is one of the hallmarks of our times. Rather than the traditional saying “I have learned from all my teachers,” it often feels that we cooperate: we senior jurists give our knowledge and experience to the new arrivals, and they give us fresh ways of looking at things. This, too, is another form of dialogue.”

Supreme Court President (Ret.) Dorit Beinisch Joins the Faculty of Law

Leading figures from all sections of the Israeli legal community attended a conference honoring Supreme Court President Dorit Beinisch on the occasion of her retirement * The numerous speakers at the conference represented the full legal spectrum in Israel, including senior academics, former and present judges, and veteran and young attorneys * We offer some impressions of the conference, as well as a special interview with President Beinisch as she joins the Faculty of Law at the Hebrew University   

“Dorit Beinisch is not only a trailblazer: as the first woman jurist to fill the key positions in our legal system, she is also a role model.” Professor Yuval Shany, dean of the Faculty of Law, chose these words to open his comments on the second day of the conference. The conference was hosted jointly by the Faculties of Law of the Hebrew University and Bar Ilan University. Professor Shany was followed by a series of distinguished speakers – former and present Supreme Court justices and other judges, deans of the various faculties and schools of law around Israel, academics, attorneys and prosecutors. The conference was divided into two parts. The first day focused on an analysis of Justice and President Beinisch, while the second was devoted to her public involvement – from her time as a prosecutor and director of the HCJ Petitions Department through the key issues she handled as state attorney and on to her managerial function as president of the Supreme Court. Public service, sensitivity to social concerns, and a practical approach formed a leitmotiv in the lectures on the second day.

Public Service, Social Sensitivity and Quiet Revolutions

The conference day at the Hebrew University included three sessions, all of which were devoted to practical and theoretical studies by academics and legal practitioners in various fields relating to public service and the attorney in the civil service. Space prevents us from providing a summary of all the remarks, so we shall mention just a selected few.

In the first session, Professor Yoav Dotan (previous Dean of the Faculty of Law), Attorney Shai Nitzan and Professor Ariel Bendor discussed the character of the public service attorney. Attorney Shai Nitzan, the deputy attorney general, began his career as the assistant to then State Attorney Dorit Beinisch, and noted the dilemmas that face attorneys in the public service in their contacts with the authorities they represent. “On the internal level,” Attorney Nitzan explained, “their function is first and foremost not to object or raise difficulties, but to provide proper advice for the staff of the authorities.

Supreme Court President (Ret.) Dorit Beinisch

The activity should be examined within the framework of the law, and if necessary the attorney should try to help and to be creative. Even if a particular issue has not been addressed in court, the fact that there is currently no precedent does not mean that there should not be a precedent. Creativity is a tool that defines the capability of the public sector attorney. But when an attorney or jurist forms the conclusion that a member of the authority seeks to do something that is illegal, he must warn him; and if the act crosses a red line, then it cannot be represented in court.”

The moderator of the first session, district court Judge Nava Ben Or, commented in her conclusion: “We can state that the point of departure is that the public service jurist must have a world view. The lack of a world view creates a dangerous individual and a valueless public service.”

The second session was entitled “A Judge among Her People.” The speakers in this session discussed Justice Beinisch’s known social sensitivity in the courtroom and in her rulings. One of the speakers was Supreme Court Justice (Retired) Eliezer Rivlin, who also recently joined the Faculty of Law of the Hebrew University. In his remarks, Justice Rivlin mentioned several of President Beinisch’s rulings on social issues. “You can find among Beinisch’s work public rulings that implement the protection of human rights, rulings relating to the right to equality, and rulings concerning all sectors of society and fields of life,” Justice Rivlin explained. “For example, although Beinisch refrained from establishing that the right to education is a constitutional right, she raised the status and importance of this right. Beinisch determined that the decision not to provide full protection for schools suffering missiles attack from Gaza violates the right to education. Parents should not bear the responsibility, she established, for choosing between their children’s safety and their education.”

This session was moderated by Supreme Court Justice (Retired) Yitzhak Zamir (another former Dean of the Faculty of Law). In his introductory comments, Justice Zamir discussed the different streams common in the legal field, between a position that seeks to restrict its function and one that argues that the court should play as active a role as the other branches of government. “There can be no doubt which school Dorit Beinisch belongs to, even when she was still an attorney,” Justice Zamir declared. “She led the Supreme Court toward a positive role in advancing society, and particularly in filling in gaps in the actions of the other branches of government. This requires confrontation and discomfort and demands adhesion to firm values – struggles she withstood successfully. Dorit Beinisch deserves thanks and admiration for this stance.”

Supreme Court President Asher Grunis and the Dean, Professor Yuval Shany

In the third session of the conference, the speakers focused mainly on President Beinisch’s defense of the judicial branch during periods of considerable tension with the other branches of government. One of the speakers was Judge Moshe Gal, who served as the director of the court during Justice Beinisch’s presidency. Judge Gal mentioned the quiet revolution that was introduced in the management of the judicial system during Beinisch’s period of office.

“The system was unmanageable and exceptional leadership was needed in order to introduce the changes that were made during President Beinisch’s period,” Judge Gal explained. “Even within the judiciary it is sometimes difficult to understand who heads the system – there is no hierarchical structure. How can we manage such a system? In the face of these difficulties, we seek to introduce a managerial doctrine. After discussions with organizational consultants, we reached the conclusion that something had to be done. The proper management of the judiciary demands the conclusion that the presidents of the various courts will be responsible for managing their courts, and will be accountable to the president of the Supreme Court. We created a model of responsibility: The president of the Supreme Court is responsible for the presidents, but also bears responsibility toward the justice minister in the administrative sphere.

These moves demanded a change in the organizational culture during a period of instability in the court’s relations with the Knesset and the government. Without President Beinisch’s leadership, we could not have embarked on this revolutionary course of action and inculcated it throughout the judicial system.”

The concluding speakers at the conference were Professor Yuval Shany; Judge Einav Golomb, as the representative of President Beinisch’s interns and assistants over her long career; and Supreme Court President Justice Asher Grunis. Last of all, President Beinisch herself went up to the podium. “I don’t think I’m a "warrior," but I do think that jurists recognize the law is not detached from life, and this is how it should be regarded. The ability to combine theory and practice is critical and essential for anyone who wants to be involved in law.”

 
**

Dean of Faculty, Professor Yuval Shany

From Judge to Lecturer

Just a few days after the conference, President Beinisch agreed to let us interview her as she joins our Faculty. President Beinisch is due to teach a joint course next year with Professor Barak Medina on the subject of national security and human rights.

In his opening comments at the conference, Faculty Dean Professor Shany commented on the new addition to the Faculty: “We are delighted that following her retirement President Beinisch has agreed to continue to make a contribution as a lecturer in law, and has chosen to return to the Hebrew University. By so doing, she is closing a circle – making a contribution to academia, in the faculty where she began her career, and addressing the subject of human rights, to which she has been committed in all her public positions.”

In the interview, however, President Beinisch was reluctant to see her decision as a “transition to academia.” She explained: “That’s a bit of an exaggeration. This isn’t a stage in my life when I’ve decided to launch an academic career. I strongly believe that academic analysis in law also has practical purpose and application. This apparent ‘transition’ is simply part of the overall mission.”

So you don’t see these as two separate worlds?
“I don’t see academia as an opposing pole to the court, but as an integral part of the desire to ‘make law.’ Academic research and judicial work are both directly involved in implementing our values as a society so that we can protect it. Academia should not be disconnected from judicial work, and judicial work – and I refer here not only to judges, but also to attorneys in the private and public sectors – is not disconnected from the academic contribution.”

Does that mean that as someone who brings that practical experience you can make a particular contribution to academic teaching?

“On the basis of my personal experience, I think that when people begin to study law they know very little about legal work. People are attracted to the profession for all kinds of reasons, both ideological and practical, but they are often unaware of the daily and long-term ramifications of legal work. Accordingly, I think that a good legal education, one that will enable the students to choose the right way for themselves in our complex and diverse profession, requires a synthesis of experience and legal knowledge, of theory and practice. 

Supreme Court Justice (Ret.) Yitzhak Zamir

I certainly believe that the period of studies offers students a golden opportunity to use the legal knowledge they acquire – and this contribution naturally helps them and moves them forward, too. I don’t think this is a matter of lip service at all.”

When was the idea for the course born?

“You could say that this course was born following a conversation between the Dean, Professor Yuval Shany, and myself. I told him about a similar course I taught for a semester in the Faculty of Law at New York University, and he rightly asked why we won't have something similar here.”

What is your goal in the course?

“My goal is to encourage substantive discussion relating to the subject of national security and human rights. This is why we chose not to end the course with an examination, but to base it on project work and oral discussion focusing on court rulings here in Israel and elsewhere.”

Is such discussion also an important tool in later stages?

“Dialogue between the court and the parties who come before it – both the State Attorney’s Office and the petitioners – and the dialogue the court can encourage between the parties form an important component of judicial work. One of the most important steps we can take in this direction, I believe, is to encourage the State Attorney’s Office to adopt a more flexible attitude. I think this is one of the reasons why so many petitions submitted to the High Court of Justice are rejected or end without the need for a ruling. When the appellant raises a substantive and just argument, the State Attorney’s Office should solve the case even before it reaches the point of a court hearing. If the case does come before the court, then dialogue between the court and both sides can produce an awareness that the petitioner’s argument is well-grounded and should be examined – even by the representative of the State Attorney’s Office. In this case, the public attorney is not a litigant before the court, but rather – together with the court – represents the public interest.”

Do you expect the students who take the course to choose a career as judges?
“As I mentioned, when most students begin their legal education they don’t necessarily know which avenue is best for them. Indeed, many of them have still not made this decision by the time they complete their internship, and have to examine several different directions before they choose their career. So I want to be careful about this. I certainly don’t think that the purpose of the course is to push students toward a career as judges or anything like that, but I will be very happy if it encourages them to have a sense of public mission and clarifies the importance of this side of the legal profession. For me, of course, this implies working for the State, but attorneys in the third sector or private attorneys who find ways to advance the public interest are also realizing the same mission. 

Attorney Shai Nitzan

I believe that law can and must make a contribution to society; after all, this is a profession that belongs to the social sciences. It draws from society and maintains a constant process of feedback with it: law is influenced by and influences society.”

What is your impression of the young generation in the legal profession?
“Over the years I have always worked with young people. I like to do so because it provides an opportunity to convey my social message and to encourage recognition of reality. We always build positive dialogue. There is a truly outstanding young generation of inquisitive individuals with amazing intellectual capabilities. Sometimes it seems to me that today’s generation is more mature when it begins law studies than our own generation. This reflects the development of legal education and education in general and is one of the hallmarks of our times. Rather than the traditional saying “I have learned from all my teachers,” it often feels that we cooperate: we senior jurists give our knowledge and experience to the new arrivals, and they give us fresh ways of looking at things. This, too, is another form of dialogue.”