Who’s Afraid of Banning Corporal Punishment? A Comparative View on Current and Desirable Models
81 Pages Posted: 30 Nov 2009
Date Written: 2007
Who's afraid of banning corporal punishment of children? The use of corporal punishment for the education of a child is one of the most loaded and disputed questions among jurists, psychologists, sociologists, educators, and the general public. Modern approaches hold that the use of corporal punishment should be prohibited because of the physical and emotional damage it causes and its inefficiency. According to other approaches, if corporal punishment is administered moderately and with due composure, it is not harmful and could even be useful in setting boundaries for children. How does the law in different countries treat corporal punishment? In most countries of the world, corporal punishment is permitted so long as it is moderate and reasonable. Sixteen countries, mostly in Europe, have in one form or another, prohibited the use of corporal punishment by law. In most countries, the prohibition was enacted into legislation, while a few prohibited corporal punishment through a court ruling. In a small number of countries, the prohibition was enacted into criminal law. Most countries, however, enacted the prohibition as a human right of children not to be exposed to physical punishment as a matter of civil law (family acts and human rights statutes). Has the time not come in common law countries, too, to introduce a ban on corporal punishment, deriving from principles of human rights, the children's dignity, and their rights over their body? Maybe corporal punishment is a fundamental part of a child's right to get a proper education and of the parents' duty to educate and correct the children, as long as the spanking is not harsh. This Article discusses four existing models of legal regulation of corporal punishment drawn from Roman law and the law in England, the United States, Canada, Israel, Cyprus, Sweden, Finland, Denmark, Norway, Austria, and Germany. The models differ in the level of legal intervention in the parent/child relationship as expressed with the issue of corporal punishment. The Article concludes by proposing a desirable model that reflects the most appropriate way to ban corporal punishment. The desirable model moves cautiously between two poles. One rejecting intervention and proposing leaving the family dynamic as is. The second pole supports massive intervention because of the damage to the rights of the child. It does not take an exaggerated view of the rights of the individual on account of the rights of the family and vice versa. The proposal relies, inter alia, on educative measures, not only legal measures, and emphasizes the fact that a dispute in the family cannot be treated as a dispute between strangers. The importance will be particularly for countries, mostly in North America, Africa, Asia, and some European countries, which have not yet by law prohibited corporal punishment in the family unit. However, this article has ramifications also for those legal systems which have already taken such a step and prohibited the use of corporal punishment one way or another. The desirable model to be proposed at the end of the essay will be adaptable, mutatis mutandis (among others), for further parental behaviors and not only corporal punishment. In addition to family and comparative law, the Article will draw on and contribute to the literature in a number of fields, including law and social change, multiculturalism and the law, the intersection between domestic relations and criminal law, and international human rights.
Suggested Citation: Suggested Citation