S 59 Debate: The Principled Argument

One of the most common arguments against S 59 is the argument that somehow it's illegitimate to allow parents to use force with respect to their children that one doesn't allow them to use against adults. Here's Deborah Coddington's version of the point:

My argument is simply this: when cases of assault come before a judge, children should be entitled to the same protection as adults. If an adult hits another adult, he/she can't use "reasonable force" to justify the action. Allowing adults to use this defence when they hit children reduces the status of children - they're lesser beings.

Here's Russell Brown's version put as a question:

Is there in fact a good justification that we should sanction - in whatever detail - an act against a child that we would not sanction against an adult?

And here's one of No Right Turn's many, completely feral versions:

We should not be enshrining violence against children in law, any more than we should be allowing husbands to use "minor and inconsequential" violence against their wives, or Pakeha to use "minor and inconsequential" violence against Maori.

This is an important, but, we'll show, utterly mistaken argument.

We begin, however, by noting that this argument is a point of alleged principle and is completely different from any arguments about the balance of social costs and benefits, or about, say, weighing possible additional security from and discouragement of crazy parents against the certain invasiveness inflicted on and insults delivered to normal parents. If this argument works then it does so regardless of whether any child is ever injured or suffers under the current regime. And if strong empirical evidence were developed tomorrow that smacking had substantial benefits for kids then the principled argument would be there to tell us that that would just be their and our tough luck. We would no more be permitted to benefit our children by smacking them in that case than we are currently allowed to benefit arbitrary adults by slapping them (i.e., assuming that that would in fact benefit them, e.g., perhaps generally by waking them up or getting them to appreciate their lives, etc.. Or perhaps more specifically, e.g., someone walks down the street picking their nose. The underlying slovenliness this behavior betrays threatens to hurt the person in all manner of social and career ways, possibly even ruining his life. It might be true that a slap would be a uniquely vigorous and effective, behavior-changing expression of the social stigma and disapproval that will otherwise operate very diffusely and damagingly.)

Now let's start discussing the argument itself. We initially follow Coddington's formulation: If an adult hits another adult, he/she can't use "reasonable force" to justify the action? Why? Well, contra Coddington, in the parent-child case it wasn't the "reasonableness" of the force itself that constituted the justification, it was that the force was used by a parent, and by the fact that parenting is a very specific role that includes responsibility for the child's welfare and also the power to correct/discipline the child.
The parent-child relation is a very special relation of authority, one that has no serious counterpart in the adult-adult world. Indeed the core of Enlightment politics holds that it's constitutive of adulthood that only the law – to which each adult both gives consent and of which she is a co-author through her (in principle) political participation – has authority over you, not any individual. There's no comparable "reasonable force" clause with respect to other adults because adults aren't (and can't be) authorities over other adults. You aren't responsible for other adults, and it's not your place/role to correct/discipline them.... If, per impossibile, it were your place, then they'd be like children compared to you, a point that a modern liberal democracy can never accept. In particular, husbands aren't authorities over their wives – women aren't child-like either in general or in comparison to any married partner they may have in particular. This latter point took a while to get through the law's and society's thick head. And traces of the discredited "women are just rather-large-children" view still linger on in the law albeit probably harmlessly. So in the Crimes Act 1961 there's:

• 196 Common assault. Every one is liable to imprisonment for a term not exceeding one year who assaults any other person.

but there's also, what we might call a "women and other children" (!) clause:

• 194 Assault on a child, or by a male on a female. Every one is liable to imprisonment for a term not exceeding 2 years who— (a)Assaults any child under the age of 14 years; or (b)Being a male, assaults any female.

Consider again Russell Brown's version of the point:

• Is there in fact a good justification that we should sanction - in whatever detail - an act against a child that we would not sanction against an adult?

[Note that Brown distorts matters by focusing on "an act" in abstraction from the act's specific type of author just as Coddington distorts matters by focusing on "reasonable force" in abstraction from the role of the person who employs the force. Both are versions of one of Sue Bradford's filthier lies.]
The correct reply is two-fold. First, there'd better a good justification since evidently parents do get to get to decide what their children eat, what they wear, what they read or watch, with whom they associate, where they are physically located on a more or less minute-to-minute basis, and so on. A concrete example: parents get to carry their children screaming out of restaurants against their will. No counterparts of these actions are permitted against other adults: all would constitute assault, kidnapping, stalking, and so on.
Second, we know what the form of that justification is: it's the specific authority of the parent over the child that is the transforming feature across all these cases. No offences are occurring, it's just parenting: nothing to see here, move along.

It's useful to compare S 59 with the justification defence with which it is grouped in the Crimes Act 1961 under the heading "Powers of Discipline":

• 60 Discipline on ship or aircraft. The master or officer in command of a ship on a voyage or the pilot in command of an aircraft on a flight is justified in using and ordering the use of force for the purpose of maintaining good order and discipline on board his ship or aircraft if he believes on reasonable grounds that the use of force is necessary, and if the force used is reasonable in the circumstances.

Why isn't Russell Brown inclined to ask:

• Is there in fact a good justification that we should sanction - in whatever detail - an act against a passenger that we would not sanction against a non-passenger?

Why isn't Coddington inclined to say:

My argument is simply this: when cases of assault come before a judge, passengers should be entitled to the same protection as non-passengers. If a Captain hits a non-passenger, he/she can't use "reasonable force" to justify the action. Allowing Captains to use this defence when they hit passengers reduces the status of passengers - they're lesser beings.

Brown and Coddington don't say such things because in the passenger case the structure of (implicitly consented to) authority is clear, and it's obvious

• why such authority is important
• how it's grounded in a specific role
• why any "rights-being-infringed" outrage let alone "lesser being" outrage is simply obtuse.

No offences are occurring when the Captain of a ship (say) exercises her authority, it's just being a Captain (being the law in a micro-environment where normal legitimate authority can't reach): nothing to see here, move along. Abuse can happen or be suspected of course, which police could decide to investigate, and an impartial body such as a jury might then be called upon to adjudicate. But that's not the normal case.

So far we've just argued in very general terms that the structure of authority that permeates parent-child relationships changes everything and that it makes most actions of parents vis-a-vis their children strictly incomparable to any normal adult-adult actions or indeed to actions of adults with respect to other people's children. Children of course currently have either the same or greater legal protections against the actions of arbitrary adults that adults do. Only the children's parents as the authorities over them are a special case where something very different is going on: special responsibilities are undertaken in that case, and corresponding special powers acknowledged.
My own view is that that's enough – that we've met the challenge of a completely abstract (disconnected-from-social-costs etc.) point of alleged principle that would require us to think about parent-child relations in exactly the same terms as adult-adult relations and accuse us of treating children as "second-class citizens" to the extent that we don't. That line of thought has simply nothing to recommend it.
Having established that there's no possibility of thinking through a parent-child relationship in terms drawn from the adult-adult world where notions of:

• autonomy
• absolute individual sovereignty
• rights = a structure of minimum standards of treatment

are paramount, the most natural thing to do is characterize the basic social desire/value as the holistic one: "We want parents to be good parents to their kids" and, perhaps, "Children deserve to be well-raised" and to reserve serious condemnation and certainly criminality only for fairly catastrophic overall failures.
Note that we could, if we wanted to, announce that children have

• a right to be raised by both a mum and a dad

or perhaps it should be

• a right to be raised by their actual biological mother and father
  

And any such announcement could be buttressed with a wealth of data contrasting the fortunes of children in sole-parent vs. children in two-parent situations. Let's then explore various forms of zero-tolerance policies against sole-parents: enough of treating children of sole-parents as second-class children.....
Well, let's not! Similarly then

• a right not to be smacked (even if it would be good for them to be smacked - "You aren't allowed to smack adults or your wife just because it would in fact do them some good....")
  

or perhaps it should be

• a right not to be corrected period (i.e., even non-physically)

looks like it clutters up the landscape of parenting to no obviously good end. Even granted (as we shouldn't grant - see here and here) the availability of appropriately negative data, nobody believes that either single-parenting or smacking portends anything like catastrophic parenting failure. Rather at worst there's evidence of a kind of run-of-the-mill, local sub-optimality. The significance of that is indeterminate without knowing much more about how the overall project of being good parents and of raising their children well, is going for the parents in question. The piecemeal alleged "rights" adduced here are spurious markers of local, non-negotiable interest that make no sense independently of wider interests. It's hard to avoid the conclusion that "rights"-discourse is inherently the wrong moral key in which to give voice to parent-child norms and goals.

In our view what remains are questions about what it is to be a good parent and what responsible exercise of one's parental authority consists in. In our view too, there's every reason to believe that parenting involves ineliminable tradeoffs and hence that a wide range of answers to these questions are possible. (See here for further useful discussion of this point.)

But not everyone is going to agree with our assessments either of the fate of the principled argument or of answers to "what is good parenting?"-type questions. Rather, at least some people will continue to pursue a mixed strategy of (i) trying to reformulate the principled objection more tightly and (ii) also insisting that there are highly determinate answers to parenting matters that it makes sense to code into the criminal law.

For this reason, even though in our view it's not required, it does make sense to continue the dialectic a few steps further, hence to try to defend in some more specific terms why parental authority over a child allows for smacking, the use of force to correct/discipline etc.. Here goes.

Our basic answer to the question of the grounds for parents being allowed to act against their children in ways they can't against adults (or other people's children) is that parents are authorities over their children and not over anyone else. One way to try to resist this as a complete solution to the problem that smacking poses is to raise cases in which adults are under the authority of other adults but in which we don't permit corporal punishment. Pressing in this direction leads to the following reformulation:

• Is there a good reason to allow an act against a child (over whom one has authority), that we would not allow against an adult (over whom one has authority)?

Or, even more simply:

• We smack kids but we don't smack, say, prisoners. Why?

There are at least three, closely connected reasons.

• Necessary vs. Contingent Authority. Children aren't autonomous individuals. Someone else necessarily has responsibility for and power over them. Prisoners, however, remain adults and authorities in their own right (hence they can be and have been held fully responsible for their actions, etc.). They're still autonomous, they've just forfeited the benefits of that autonomy. They're only contingently someone else's responsibility or in anyone else's power. We can put the point by saying that parents are necessary authorities over their children whereas prison guards are only contingently authorities over prisoners, where, of course, the contingency in question is the prisoner's own actions, i.e., exercises of their autonomy. For reasons that remain a little obscure, western countries have decided that terms of incarceration should not violate the prisoners autonomy (bodily or otherwise) beyond what's required to enforce the basic forfeit/exclusion from free society. How far this is a principled decision as opposed to a broadly technological achievement is unclear. It seems likely, for example, that if fifty people crash land on a desert island that fining and imprisoning people might be impossible, but that correction and discipline would still have to occur. Flogging people might then make a comeback. For another example, fairly traditional isolated human communities are about 150 people (the community size for which the human neo-cortex appears to be scaled/optimized), do not have the resources to imprison, etc.. Persistent trouble-makers are punished with exile or worse, e.g., the traditional Eskimo solution: miscreants are pushed off the ice. (Compare: most of us think that it's important, as a matter of principle, to always treat people as individuals etc.. Hence anti-discrimination provisions of various sorts. But that alleged principle, and especially its legal expressions only make sense because we live in a world where other people can in fact reliably draw conclusions about ones individual ability/character. Your CV is as good as the next person's, your money or credit is as good as the next person's, and so on. If none of the broadly technological infrastructure of credentialing authorities, easily checkable references, a common currency, credit reports, etc. existed, then that wouldn't be so. If most of the ways we have to establish individual ability and merit were gone, then all of the statistical information about various groups in society together with facts about your membership in those groups would become very relevant to someone's decision to hire you, offer you a place in a course, sell you something, etc.. In such a situation current prohibitions on public reasoning about people stereotypically, on the basis of their membership in various groups, would not and probably should not long survive.)
  The point that the contingency of the authority over prisoners is an expression of the prisoners' own autonomy – hence completely different from the child case – runs deep. Consider that there are distinct ways in which it makes perfectly good sense to think of the prisoners as the authors of their own fates. First, by their own actions the prisoners have excluded themselves from the benefits of a liberal democracy – a political system which is dedicated to the proposition that human beings get to be the authors of their own lives. The prisoners fate conforms to that: the prisoners are themselves the authors of their own exclusion. Second, the very possibility of a liberal democracy and all its benefits depends upon enforcing the exclusion of those people who by their actions exclude themselves. Every second of every day as a free person depends upon those who violate that freedom being locked away. Before the incarcerated were prisoners, they were free and they implicitly or explicitly endorsed all the necessary conditions of that freedom including the locking up of people who are as they themselves have turned out to be. There's a sense, then, in which prisons themselves are one of the great benefits and enabling features of liberal democracy, and we honor the prisoners' autonomy by restricting their freedoms now in the name of principles they themselves endorsed.

• Personal vs. Impersonal Authority. Parents love their children (that's the default assumption that guides letting people raise their own children rather than, say, requiring everybody to re-apply for the job of raising their child shortly after birth). It's therefore a personal authority not an impersonal one. Parents are in it for the long haul. They in fact have every incentive not to brutalize their children. They want their children to love them back, eventually look after them as they age etc.. In the impersonal case there's none of that structure and constraint and scale, hence in principle one might want to regulate much more closely what impersonal authorities may do, etc.. Moreover, the core of Enlightenment politics holds that it's constitutive of adulthood that only the law – to which each adult both gives consent and which each adult through her in principle political participation co-writes/-makes/-authors – has authority over you, not any individual. (Note too that the personal-ness which gives us confidence that there's a kind of natural scale and sensitivity to the physical discipline that's administered by parents doesn't obviously transfer to teachers, babysitters, etc.. They can never know as much as the parents about what's going on with the child, nor are they themselves disciplined by the continuity of interest projecting out over the next 20-30 years. Historically the in loco parentis = "in the place of the parents" concept has been fairly loosely applied to cover these cases and many others. That's risky and, depending upon a society's attitude towards risk, possibly a mistake. Note too that proliferation of various sorts of blended families, step-families, and de facto situations of various sorts have argubly blurred what counts as a "parent" and, even more so, who can be or is at any given moment in loco parentis. One nightmare possibility is that breakdown of de jure family structure makes perfectly well-defined legal ideas such as S 59 unworkable in the world that's been fairly recently created. I'll post on this point on another occasion.)

• Training/installing/growing autonomy. Children aren't yet the acculturated and rational agents they'll become. Hence parents are constantly manipulating their children, rather than addressing their reason or proto-reason. They do some of the latter too, of course, and increasingly so as the children grow, but it's never the whole story and possibly not even the majority of the story. A parent is not endeavoring to respect her child's autonomy (it doesn't exist yet), she's trying to raise it to be autonomous: installing autonomy, growing it. In principle, a range of different tools might be needed within that training and installation period that might have no counterparts later on, and in fact that does seem to be the case. Note that there at least two separate, important aspects to the training/installation period idea. First, there's the idea of children as being emotionally and rationally embryonic, hence as being less amenable to rational instruction and more manipulatable by both minor pleasure and pain. Second there's the idea that this is a transitional period, one whose end any manipulative techniques including any physical punishment actually hasten. If you knew that your child was never going to grow up and become autonomous then much of the impetus for manipulative techniques of any sort, especially corrective techniques that involve inflicting physical or psychological pain (e.g., they don't get the ice cream everyone else gets), seems to dissolve. What's the point in that case (which is similar to the case of elderly relatives who may have regressed back into a child-like state)?
  

What's left for our opponent? Final move: she can perhaps try to insist that although we've undoubtedly developed a number of differences between guards and prisoners on the one hand and parents and children on the other hand, we've still left something unexplained. Why do any of these differences make a difference? Why some smacking rather than no smacking? (cf. Why something rather than nothing?) Why is it OK to smack a creature that you're very personally training up? Why should even authority that's both necessary and personal have any special latitude with respect to physical force?

At this point I say that all pretense of there being an actual principled argument that anyone should feel compelled to answer has broken down. We were supposed to be confronting an argument built around a substantive comparison of some sort, one that would convince us independently of all matters of social cost and benefits that the status quo had some problem of broadly moral consistency. That argument was supposed to be of the sort that, in principle, could govern us against children's interests ("Yes recent research suggests smacking would strongly benefit children, too bad that we aren't allowed to be inhumane to and degrade people for their benefit. Our hands are tied!"). That has now reduced to asking the status quo to justify itself in some more intrinsic, noncomparative way (and beyond just citing the basic sense that having special responsibilities and special powers go together makes). The status quo is under no obligation to answer that sort of bare challenging question. If the status quo does answer, however, it may point to benefits and tradeoffs of various sorts, but the status quo doesn't have to imagine that everyone will agree that those are significant benefits or that everyone will find those particular tradeoffs are best ("Vive la difference. Maybe neither smacking nor correction more generally is for you"). You can never convince some people that being a single parent or ending a marriage might make sense either. "I'd never raise a kid by myself, kids have a right to both a mum and a dad", "I'd never....", "I'd always find some way to..." Perhaps that's right. Maybe you wouldn't, wouldn't, and would respectively. Good for you.

Many people find some value in having smacking in their parental tool-kit. And a few parents are true disciplinarians and run their families like boot-camp (You suggest to your kids that they might want to think about picking up after themselves a bit more, they tell their kids to "drop and give me 20".). In broadest terms, all of those people are and should be open to new ideas. If smacking kids can be shown to be like not rotating your crops, they'd like to be told. But they know shabby research when they see it, and they insist on waiting for social scientists to get their house in order before drawing any conclusions. And they can spot flat illiberal assertion and intolerance of diversity dressed up as principled argument a mile off.