Corporal Punishment in the Educational System versus Corporate Punishment by Parents: A Comparative View

Abstract

Corporal punishment occurs when a parent or educator hits a child with the purpose of educating him. It usually consists of a light blow with the open hand on the buttocks or hand because the child has misbehaved, deviated from the right path, or failed to comply with the wishes and instructions, or accept the authority of the parents or educator.

In most countries of the world, light corporal punishment is permitted as a way of disciplining and correcting a child. In schools it is less acceptable as a means of discipline, and in many countries teachers are not allowed to corporally punish their students, and should they do so, it would be considered a criminal offense of assault or battery. This prohibition breaches the traditional delegation of authority from parents to teachers and whoever else stands in their place and fulfills the role of educating and correcting the child, i.e. the common law doctrine of in loco parentis.

Even though light parental corporal punishment has been banned in one way or another in only about two dozen countries around the world, and corporal punishment by teachers has been banned in about 90 countries, there is a worldwide legal and extra-legal controversy over the legitimacy of using this method as a means of education. Nonetheless, no controversy exists over harsher modes of conduct, such as child beating or maltreatment. In many ways mild corporal punishment is a good test case for the issue of legal intervention in intrafamilial relations, in the privacy of the family, and in its autonomy and affairs. As to the educational system, it seems that many states have shown a readiness to ban corporal punishment although they have not taken the same attitude towards parental corporal punishment. If one looks at the situation from the perspective of human rights and children’s rights, this outcome seems rather strange since if it is the right of the child to enjoy dignity and not be harmed bodily or emotionally, this should be a general right, irrespective of whether the person inflicting the punishment is a parent, a kindergarten teacher, a pre-school teacher or a school teacher. If the arguments in favor of mild corporal punishment as an efficient and not-so-harmful way of educating are true, it is also open to question why it should be prohibited in the educational system, and given license in the family sphere. However, there may be good reasons for the distinction that is made in many countries.

This Article reviews the prevailing law from a comparative perspective. First it looks at states that permit the use of mild corporal punishment meted out by parents and teachers. In this context, consideration will be given to Canada as well as Jewish law, which is a religious extraterritorial system of law. Then it turns to states that prohibit any kind of corporal punishment, among them Israel and Cyprus, which have made it a criminal offense, the former mostly by virtue of case law and the latter in legislation, and all the Scandinavian countries, Germany and Austria, which focus on granting children a civil right to freedom from corporal punishment, as opposed to criminalization of parental conduct. Finally, the Article turns to the U.K. and the U.S., countries that permit the use of parental corporal punishment but partially prohibit the use of it by teachers. Then three common perceptions regarding the question as to whether there should be a distinction between corporal punishment by parents and teachers are being examined. The Article then presents an integrated model, which suggests a division between parental corporal punishment, which should be banned through civil law in a unique and delicate way, and corporal punishment by teachers, that should be totally and criminally banned.