A CASE STUDY ON CORPORAL

PUNISHMENT OF CHILDREN
IN FRANCE
: THE 2015 DEBATE :
- LAW AS A MODE OF COMMUNICATION -
JRGEN HABERMAS (1996), BETWEEN FACTS AND NORMS. CONTRIBUTIONS TO A DISCOURSE
THEORY OF LAW AND DEMOCRACY, MIT PRESS, CAMBRIDGE, MASSACHUSSETS

LAURA FERNANDES MADEIRA | NOVEMBER 2016 | LAW AND SOCIETY 2016/2017 | NOVA LAW SCHOOL
 DUALITY OF
MODERN LAW NORMS VS. FACTS

ACCORDING TO HABERMAS, LAW CAN ONLY BE UNDERSTOOD IF WE ASSUME THE TENSION

BETWEEN FACTICITY AND VALIDITY.

Validity: idealistic
Facticity: facts
dimension, based on
LAW
dimension, free from
norms that justify
any worng/right
actions or values that
valorations
justify conducts
 DUALITY OF
MODERN LAW NORMS VS. FACTS

Law is perceived Legal norms should

address ideal values
as a fact, but and, at the same time,
also as a norm meet the real facts

Law should be
Law also represents the
perceived as an
mediator between
integration structure of
the Lifeworld and the
conflicting interests of
System (The Theory of
individuals and groups
Communicative Action)
in a society
THE THEORY OF COMMUNICATIVE ACTION

FOR HABERMAS, THE THEORY OF COMMUNICATIVE ACTION IS DEEPLY CONNECTED WITH THE DELIBERATIVE
DEMOCRACY AND THE LEGITIMACY OF DEMOCRATIC STATES.

THE THEORY OF COMMUNICATIVE ACTION INTENDS TO ACHIEVE A CONSENSUS, USING A COMMUNICATION

METHOD THE LANGUAGE/DISCOURSE. FOR HABERMAS, THE DISCOURSE, TO BE LEGITIMATE, OUGHT TO
FOLLOW FOUR CRITERIA/PRETENSIONS (INTELLIGIBILITY, TRUTH, SINCERITY AND NORMATIVE CORRECTION)

EG.: IF A LEGISLATIVE PROCEDURE FOLLOWS A DETERMINED CRITERIA, IT WILL GUARANTEE ITS LEGITIMATY A
LEGITIMACY THAT IS NOT ONLY COERCIBLE, BUT ALSO, VOLUNTARILY OBEYED BECAUSE IT GATHERED AND
INVOLVED DIFFERENT PERSPECTIVES AND OPINIONS IN A CERTAIN SOCIETY/COMMUNITY AND (IDEALLY)
CONVINCED ITS ADRESSIES.

ACCORDING TO HABERMAS, THE NORMS CAN ONLY BE LEGITIMATE IF EMANATED BY A DISCURSIVE PROCESS IN
WHICH THE PUBLIC SPHERE WAS INCLUDED.
FRANCE: A CASE STUDY
FRANCE IS ONE OF THE EUROPEAN COUNTRIES
WHICH STILL DO NOT HAVE A FULL PROHIBITION
IN THE LAW REGARDING THE USE OF CORPORAL
PUNISHMENT IN CHILDRENS EDUCATION
IN 2003, 2005, 2011 AND 2014, THE
EUROPEAN COMMITTEE OF SOCIAL RIGHTS (OF
COUNCIL OF EUROPE) CONCLUDED THAT
FRANCE WAS IN VIOLATION OF THE ARTICLE 17
OF THE EUROPEAN SOCIAL CHARTER, SINCE IT
HAS NOT AN EXPLICIT AND CLEAR PROHIBITION
OF THE USE OF CORPORAL PUNISHMENT IN
CHILDRENS EDUCATION.

Article 17 The right of children and young persons to social, legal and economic protection

With a view to ensuring the effective exercise os the right of the children and young persons to
grow up in na environment which encourages the full development of their physical and mental
capacities, the Parties undertake, () to take all appropriate and necessary measures
designed:
1.a. (...)
1.b. to protect children and young persons against nrgligence, violence or exploitation.
FRANCE: A CASE STUDY

IN MAY 2013, FRANCE STARTED A LEGISLATIVE PROCEDURE TO ADD AN

AMENDMENT TO A NEW FAMILY LAW WHICH WOULD PROHIBIT ALL CORPORAL
PUNISHMENT BY PERSONS WITH PARENTAL AUTHORITY. HOWEVER, THOUGH
REACHING PARLIAMENT DISCUSSION, IT DID NOT PROGRESS FURTHER.

IN NOVEMBER 2014, THE FRENCH MINISTER FOR FAMILIES CALLED FOR RENEWED
DEBATE ON CORPORAL PUNISHMENT OF CHILDREN IN THE HOME AND SCHOOLS
AND A DRAFT LAW ON CHILD PROTECTION WHICH INCLUDED THE PROHIBITION
OF THE USE OF CORPORAL PUNISHMENT IN CHILDRENS EDUCATION - A NEW
LEGISLATIVE PROCEDURE STARTED AND PROVOKED A WIDE POLITICAL AND PUBLIC
DEBATE AMONG THE FRENCH SOCIETY. DESPITE ALL THAT, A FULL PROHIBITION
WAS NOT ACHIEVED.
FRANCE: A CASE STUDY
Traditional
perception of
WHY DID THE FULL PROHIBITION NOT
PROCEED IN THE FRENCH LEGAL
parental
FRAMEWORK? authority
ACCORDING TO THE OFFICE OF THE
DEFENDER OF RIGHTS (INDEPENDENT
CONSTITUTIONAL AUTHORITY), MANY
PARENTS CONSIDER SMACKING AND
SLAPPING CHILDREN HARMLESS AND
A MEANS OF EDUCATING THEM, AND Children as
THAT SUCH ACTS ARE ONLY
holders of Rights
PUNISHABLE IF THEIR NATURE AND
CONSEQUENCES GO BEYOND THE LIMITS
(the right to a
OF THE RIGHT TO CORRECT.
life free from
any form of
violence)
A CASE STUDY ON CORPORAL PUNISHMENT OF
CHILDREN IN FRANCE & HABERMAS THEORY(IES)

THE TENSION BETWEEN THE NORM (PROHIBITION OF THE USE OF CORPORAL PUNISHMENT IN
CHILDRENS EDUCATION) AND THE FACT (COMMUNITY BELIEF THAT SOME VIOLENT DISCIPLINE IS
NECESSARY TO CORRECT CHILDRENS ACTIONS) HOW CAN LAW WORK AS A MEDIATOR,
ACCORDING TO HABERMAS THEORY?

FOLLOWING HABERMAS THEORY OF COMMUNICATIVE ACTION AND HIS CONCEPTION OF PUBLIC

SPHERE, HOW CAN WE JUSTIFY AND/OR UNDERSTAND THE NO OF THE FRENCH
SOCIET/GOVERNMENT TO THE PROHIBITION TO USE VIOLENT FORMS OF DISCIPLINE IN CHILDRENS
EDUCATION?

GO THROUGH THE LEGISLATIVE PROCESS INITIATED BY THE FRENCH GOVERNMENT AND ANALYSE
HOW FAR IT FOLLOWED A DISCURSIVE PROCESS, AS HABERMAS SUSTAINS.