Punishing Children
Philosophers have found it hard enough to justify punishing adults for wrongdoing; how could we justify punishing children?
One starting point is to make it clearer what punishment involves. There’s a bit of dispute about this, but let’s just say that punishment involves intentionally inflicting hard treatment on a person against their will in response to wrongdoing. This definition says nothing about the aims of punishment, and for good reason. There is disagreement about why we should punish people, and it seems that people can punish each other with a wide range of aims in mind.
Here is one aim of punishment – we might punish for the person’s own sake. Hard treatment is, of course, normally unwelcome. But perhaps it might sometimes benefit a person to be treated harshly – it might be good for his moral education, for example. One reason might be that treating a person harshly is a powerful way of conveying the seriousness of what she has done in our eyes. Another is that harsh treatment might help to focus her attention on her wrongdoing. Suppose that punishing children helps to ensure that they don’t act wrongly as adults. As people have an interest in not acting wrongly, they also have an interest in being punished as children.
Of course, it’s a difficult empirical question whether punishing children does actually benefit them, but we can set that question aside – obviously if it turns out that punishing is not beneficial to children, punishing them won’t be justified in this way. But it’s plausible enough that punishment sometimes benefits the person punished, at least if the punishment is done in the right way. For example, punishing a child simply by excluding him might be ineffective as a means of communication. But doing so by requiring him to talk through his conduct when otherwise he would be doing something enjoyable might be.
We can now see one way in which it’s easier to justify punishing children than adults. Inflicting hard treatment on an adult against her will for her own sake is hard to justify – doing so seems problematically paternalistic. Respect for adults as autonomous agents normally requires that we don’t restrict their liberty, or otherwise harm them, without their consent simply for their own sake. Punishing adults on paternalistic grounds is then open to a challenge – that doing so is wrongly paternalistic. I don’t say this challenge can’t be met; only that it is a hard challenge to meet.
But it is much easier, quite generally, to justify restricting the liberty of children, or harming them, for their own sake. For example, operating on a child against her will may harm her, in that it causes her pain and discomfort. But if the operation benefits her in the long term, doing so is not wrong. Her own views need not be decisive, as she lacks the full autonomous capacities of adults. Adults, in contrast, normally have the decisive say over whether we operate on them for their sake. The same thing seems true of punishment. So punishment for paternalistic grounds is easier to defend in the case of children than adults. As there is no general problem of restricting the liberty of children for their own sake, there is no hurdle to overcome in the case of punishing children for their own sake.
In contrast, I think that punishing children for the sake of others is harder to justify than punishing adults for the sake of others. Here is why. I think that punishing adult wrongdoers for the sake of others is often permitted because by acting wrongly adults acquire special and stringent duties to each other. I call this the ‘duty view’ of punishment. For example, an adult who wrongly assaults another might incur a duty to provide others with security, and because of that it is not wrong to inflict costs on her for the sake of security. This is a controversial view of punishment, because it is controversial what duties adult wrongdoers acquire, and to whom they are owed. But details aside, it is at least plausible that serious wrongdoers acquire some stringent duties to others, and that this makes a difference to how they can be treated.
Things are otherwise in the case of children, though. Does a child, who acts wrongly in the classroom, acquire duties to her classmates to prevent wrongdoing of that kind? And if she does, are these the kinds of duties that can affect how she may be treated for the sake of others?
Suppose, for example, that one person, Xavier, assaults another Yoshi. Can Xavier now be harmed for the sake of protecting others, including Yoshi, from further assaults? In the case of adults, I think that Xavier has a duty to protect Yoshi, and perhaps others, from further assaults, and that makes it easier to justify harming Xavier for that reason.
In the case of young children, though, I have some doubts that Xavier acquires an especially strong duty to protect Yoshi. This is not because I think that small children lack duties. I think they are required not to assault other people, just as adults are. But if Xavier is a child, the duty that he has to respond to his own wrongdoing seems limited to the duty to offer an apology, and the duty to make Yoshi feel better. I doubt that he has a much stronger duty to protect Yoshi than any other child in the class. One reason for this might be that we find it appropriate that children are to some extent free of the burdens of their mistakes in order to give them a proper opportunity to develop without living in fear of the consequences of their poor decisions, especially whilst their capacities for judgement are immature. As a child gets older, her duties to respond to her own wrongdoing increase in stringency, so on this view there is a reason in favour of increasing punishment of children for the sake of others as they mature.
So I tend to think that punishing child wrongdoers for their own sake is easier to justify than punishing adult wrongdoers for their own sake, where punishing adult wrongdoers for the sake of others is easier to justify than punishing adult wrongdoers for their own sake.
Victor Tadros is Professor of Criminal Law and Legal Theory at the University of Warwick. He works in the philosophy of criminal law, just war theory, and on a range of issues in moral, legal and political philosophy. His books include Criminal Responsibility (OUP, 2005), The Ends of Harm: The Moral Foundations of Criminal Law (OUP, 2011), and Wrongs and Crimes (OUP, 2016).