Monday, April 23, 2007

S 59 Debate: A Borrows Mistake

This note follows up this post from last week. Make sure you've read it first.

Some opponents of Bradford's S 59 initiatives take a highly disputable and unnecessarily deflationary view of justification defences generally and of S 59 in particular. Here's Chester Borrows speaking on the matter:
"The reason for section 59 is that the law recognises, and has for generations, that parenting is a hard job-it is a damned hard job. So the law cuts parents some slack. It says that parents under stress may use force, but they can use force only if it is reasonable in the circumstances. We are not saying it is good or bad, we are not saying good parents smack and bad parents do not, we are just saying that parents do. We will allow them to use reasonable force, which is reasonable in the circumstances. The law cuts parents that much slack, it makes that accommodation for parents, because parenting is a real hard job and parents are under pressure."
All the emphasis here on slack/stress/pressure sounds very excuse-like to me – S 59 as a parental temporary insanity clause! – and, as far as I can see, it's completely Borrows's invention.
Compare with provocation defences which allow intentional homicides committed under certain sorts of "heat of passion" to qualify as voluntary manslaughter rather than as murder. Such partial defences are normally understood as partial excuses. A famous US decision (Maher v. People, 10 Mich. 212, 219 (1862)) described provocation as an "indulgence to the frailty of human nature." That sounds like Borrows.

But S 59 invokes parental disciplinary authority as a justification not an excuse. Like justification defences pre-approving actions taken in self-defence or in defence of others or to prevent people committing suicide, etc., in the S 59 case there's a kind of conduct – the use of reasonable force to correct/discipline one's children – that's at least permitted, and maybe even encouraged. In brutally simple terms: whereas Borrows thinks S 59 is about forgiving or not-punishing parental weakness/error, S 59 is actually about child error/naughtiness/needing-to-be-corrected-ness, and about the granting of authority to parents to do something about it! The parent gets both to assess the dimensions of needed corrections and is empowered to use reasonable force, if she sees fit, to actually make those corrections.

How could Borrows get all of this so wrong? [Note added May 1 2007: John Key also gets all of this wrong.] I think the following remark from the middle of the passage above gives us a clue:
"We are not saying it [smacking] is good or bad, we are not saying good parents smack and bad parents do not"
Borrows here seems to want to avoid and to be seen to avoid conflating two questions
(1) Is smacking (generally) bad parenting?
(2) Should smacking be illegal?
See discussion of these two questions here.) Borrows wants to be sure that he's defending a "no" answer to (2) while either taking no position about (1) or even answering it with a "yes". Fair enough.
But being careful about that distinction is not the same thing as taking the position that S 59 functions as an excuse rather than as a justification. Moreover, the latter point's simply not something that it's up to Borrows to decide, any more than it's up to him to decide that the justification defence for use of force against intruders in one's home (S 55) is really just an excuse, i.e., a matter of forgiving home-dwellers who use force or lash out while under the stress and pressure of having an intruder in their home ("The reason for section 55 is that the law recognises, and has for generations, that owning and even just living in a home is hard....").
Since S 59 is a justification, it just does grant permission for certain sorts of conduct that would otherwise be prohibited. No parent's compelled to conduct herself in that way, but S 59 guards and conditionally endorses any parent's choice to smack if that's what she decides to do. S 59 doesn't say that smacking is good or that it's bad, or that good parents smack and bad parents don't, or that smacking's for everyone. And unlike the powers of captaincy to use force to discipline passengers (S 60) with which S59 is grouped under the heading "Powers of discipline", S 59 does not require that the force used in the circumstances is necessary as well as reasonable in the circumstances. Rather, the use of parental authority to correct with reasonable force is always at bottom the parent's autonomous, free decision, rather than in any sense dictated by circumstances. But S 59 does allow that smacking is a legitimate choice for any parent.
In general, even though a "no" answer to (1) is logically compatible with a "yes" answer to (2), S 59 would in fact make little sense if there were a complete consensus of that sort. (Compare: self-defence, defence of others etc. justifications would make little sense if everyone in society was Ghandi-like in thinking that all uses of force are bad.) The natural ecosystem for S 59 is one of parenting pluralism, where reasonable people can and do disagree about how to run their families, where there's some awareness that different parenting styles will have different strengths and different weaknesses, and involve importantly different tradeoffs. A few people will be hard-core disciplinarians – family as boot camp – and others will be positivity-freaks – family as college dorm/hippy commune. Many families will be somewhere in between or be doing something else entirely. Sadly, however, Borrows is no friend of such diversity. He's right that parenting is a hard and often very stressful job, but he's wrong to see S 59 as principally about building in a "margin of error" to cover mistakes made in parenting. That view is as eccentric and as anachronistic as it is legally unfounded.

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