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Published online by Cambridge University Press: 04 July 2014
In this era of increasingly extensive legal regulation of human behavior, there is one type of human conduct which seems almost unpermeable to legal regulation: the education of children. The problematics of exercising educational or disciplinary powers against children concern a variety of situations, including the prima facie infringements of many personal rights of children. The most typical limitation of the rights of children by disciplinary measures is, of course, corporal punishment, that is, by actual chastisement conducted by a parent, a guardian, a schoolteacher or any other adult responsible for the training or education of children. However, children are also liable to the infringement of other rights. To a great extent, a child does not fully enjoy many personal physical rights considered to be indisputable for an older person. Thus, for example, a child's detention against his will may not constitute false imprisonment, and the seizure of a child's most intimate personal property may not be considered trespass. It is only for the sake of simplicity, therefore, that I prefer to focus our short discussion on the most conspicuous instance of this general phenomenon, namely, the deliberate physical assault of children.
Ph.D., Lecturer, Tel Aviv University.
1 Professor George Fletcher responded in his verbal comment to this paper at the conference: “I am puzzled, and always have been puzzled, by the fact that this topic is generally not addressed in legislation, and that legal theorists never write about it … It is almost not discussed at all in the English-language literature. There is something about this entire area that strikes me as slightly shadowy … There is something mysterious here, as though the family is outside the jurisdiction of the State”.
2 See Prof. Amelung's similar remark in his article in this issue on p. 154.
3 Q.v.: Section 1(7) of the English Children and Young Persons Act, 1933.
4 Fitzgerald v. Northcote (1865) 4 F.F. 656; Ryan v. Fildes [1938] 3 All E.R. 517.
5 Section 47 of the Education (No. 2) Act, 1987.
6 Street on Torts, (8th ed., by Brazier, M., London, 1988) 87 Google Scholar, relying on the somewhat analogous case of powers of a ship's captain to place a seaman under arrest in the interest of the discipline in the ship: Hook v. Cunard S.S. Co. Ltd. [1953] 1 All E.R. 1021.
7 Tyrer v. U.K. (1980) 2 E.H.R.R. 1.
8 App. No. 9471/81 v. U.K. (1985) 7 E.H.R.R. 450. Due to the absence of an effective remedy under the English law, applicants cannot be said to have failed to exhaust domestic remedies, as required by Article 26 of the convention. See also App. No. 9119/80 v. U.K. 8 E.H.R.R. 45.
9 Supra n. 8. See also Campbell and Cosans v. U.K. (1982) 4 E.H.R.R. 293, paras. 25-31.
10 Proverbs XIIV 24.
11 Q.v. the Homiletic legend in Midrash Rabbah, Exodus, ch. A, ascribing personality flaws of Ishmael, Esau and Absalom to the failure of their parents to use physical disciplinary measures when bringing them up.
12 Babylonian Talmud, Tractate Baba Batra (“last section”) page 22, side a.
13 Maimonides, Mishne Torah, Rules of Torah Study, ch. B, rule iii.
14 Q.v. Shulhan Arukh, Yoreh De'ah, Rules of Torah Study, par. 245, sec. 10 (16th century AD).
15 Babylonian Talmud, Tractate Mo'ed Katan (“minor festival”) page 17, side a.
16 The Talmud provides that a parent either spank a child immediately after the child's wrongful action or waive the performance of the punishment altogether, because a threat of a physical sanction might create fear and anxiety. As support for this recommendation, the Talmud reports two cases in which children had committed suicide out of fear of an expected punishment (e.g., a punishment for breaking a flask which was delayed until the termination of the Sabbath) [Babylonian Talmud, Tractate Smachot (mourning), page 2, side a]. Cf. App. No. 9119/80 v. U.K., supra n. 8.
17 Cf. Madsen, C., Stephens, J. “Behavioral Discipline” in: Dorr, D., Zax, M., Bonner, J.W. III (eds.) The Psychology of Discipline (New York, 1983) 185, at 192–193 Google Scholar.
18 Ras v. A.G. (1953) 7 P.D. 790; State of Israel v. Asoulin 1992 (Vol. I) Psakim 431.
19 The Penal Law, 1977 (special volume, L.S.I.).
20 16 L.S.I. 106.
21 The Jerusalem Talmud praises the conduct of Dama Ben Netinah, whose mother, who became mentally infirm, used to beat him with her sandal when he was already a grown up man. When the sandal fell down from her hand, so we are told, he used to hand it back to her, in order not to upset her. [Jerusalem Talmud, Tractate Pe'ah (field's corner), chapter A, rule A].
22 (1992) S.H. no. 1391, p. 150.
23 H.H. No. 2098, p. 115.
24 The opinions expressed by the participants of the conference largely diverged on this issue. Ms. Susanne Walters argued that the legislator should address the problem of educational measures explicitly, and Prof. George Fletcher's comment, quoted in supra n. 1, probably alludes to a similar stance. On the other hand, Prof. Heike Jung maintained, relying on his judicial experience, that “it might be a wise decision that your law would be silent” regarding this question, because “leaving it open will, in my respect, mean that you have no justification (for corporal punishment)”. Similarly, Prof. Albin Eser argued that “there are certain political stages where it might be politically wrong to have a clear-cut legal rule, because it might be too restrictive, or it might prevent a wider solution of the whole thing”. However, Prof. Eser supported a regulation of this topic within the realm of family law, as well as an application of this regulation in criminal law, in accordance with the German jurisprudential doctrine of “unity of the law”. Mrs. Judith Karp commented that the answer to this question hinges on “how much the criminal law should serve as a leader in preventing total wrong, and whether it should reflect what is considered normal nowadays”. As to Prof. Knut Amelung's position — see his paper in this issue, at p. 154.
25 Most notable in the United Kingdom is the activity of STOPP - Society of Teachers Opposed to Physical Punishment.
26 Welsh, R.S., “Delinquency, Corporal Punishment and the School” (1978) 24 Crime and Delinquency 336 CrossRefGoogle Scholar; Gottfredson, G.D., Gottfredson, D.C., Victimization in Schools (New York, 1985) 94–105 CrossRefGoogle Scholar.
27 Gill, D.S., “Child Abuse Prevention Act” (1973) 11 J. of Clinical Child Psychology 7, at 9 Google Scholar.
28 Supra n. 16. Rabbi Abahu exemplified this point by reference to the legend, according to which Rabbi Hanina Ben Gamliel's family served him flesh torn from a living body (considered to be a most severe religious offence) because they had been too frightened to admit the loss of a kasher piece of meat: Babylonian Talmud, Tractate Gittin (divorce), page 7, side a.
29 Bandura, A., Walters, R., Social Learning and Personality Development (New York, 1963)Google Scholar.
30 V. Walters, “The Rational-Emotive Point of View of Discipline” in The Psychology of Discipline, supra n. 17, at 65, 87-88.
31 Ellis, A., How to live with a Neurotic at Home and Work (New York, 1975) ch. 2Google Scholar.
32 For a description of this historical development in the UK see: Fletcher, C., “Democratization on Trial — Democratization in English Secondary Schools” in Jensen, K., Walker, S. (eds.) Towards Democratic Schooling (Philadelphia, 1989) 139, at 144–145 Google Scholar.
33 Q.v.: Walzer, M., “The Problem of Dirty Hands” (1973) 3 Phil. & Public Affairs 160, 166–171 Google Scholar; Howard, K.W., “Must Public Hands be Dirty?” (1977) 11 J. of Value Inquiry 29 CrossRefGoogle Scholar.
34 (1991) S.H. no. 1352, p. 138.
35 Penal Law, 1977, par. 6(1).
36 State of Israel v. Asoulin, supra n. 18, at 437-438 (per Judge A. Straschnov).
