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“What is this adventitious strange power?”: Sources for Teacher Privilege and Schoolchildren’s Rights in 20th-Century Ireland

« Quel est cet étrange pouvoir adventice ? » : sources sur le privilège des enseignants et les droits des écoliers dans l’Irlande du XXe siècle
Mathew Staunton
p. 43-57

Résumés

Dans cet article, Mathew Staunton tente d’exposer les racines du privilège légal qu’ont les enseignants irlandais de corriger physiquement les écoliers dont ils ont la charge. Ce privilège qui, dans d’autres contextes, constituerait une agression, est de plus en plus controversé. Sous-analysées et expliquées seulement de manière très superficielle en Irlande, les sources juridiques de cet « étrange » pouvoir ne semblent pas être figées, disséminées entre la Rome antique, l’Italie du XIIIe siècle, l’Angleterre du XVIIIe siècle et l’Irlande des années 1930. Cela ne peut être présenté de manière convaincante (sous la forme d’une fiction juridique) que si l’on parvient à empêcher le grand public de regarder de trop près l’envers du décor. En se concentrant sur l’interaction entre la loi naturelle, la common law anglaise et Bunreacht na hÉireann, Staunton mettra en lumière le flou du cadre juridique régissant le comportement des enseignants en Irlande au XXe siècle.

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Introduction

  • 1 Thomas J. Clarke, Seán Mac Diarmada et al., Proclamation of the Irish Republic, Dublin, Michael Mol (...)
  • 2 This full cabinet position was created in March 2011. The position of Junior Minister of State for (...)
  • 3 Better Outcomes, Brighter Futures: The National Policy Framework for Children and Young People, 201 (...)

1In 1916, the drafters of the Proclamation of the Irish Republic made a promise to cherish “all the children of the nation equally”.1 Intended to promote a sense of unity among all Irish people (the nation’s figurative “children”), this promise has resonated through the Irish imaginary ever since. Regrettably, however, it failed to translate into tangible actions that could have greatly improved the lives of real, flesh-and-blood children. So complete was this failure that almost a century after the initial promise, Frances Fitzgerald, the first ever Minister for Children and Youth Affairs,2 would once again formulate “cherishing” the children of Ireland as a goal (rather than an achievement or even a work in progress) of the government.3

  • 4 With hindsight, of course, we know that children were not the only group to be let down by these co (...)

2Looking back at 1916, we know that schoolchildren in particular would not be afforded the improved protections and rights one would expect to follow such an egalitarian promise.4 On the contrary, the socio-legal framework of 20th-century Irish childhoods would be cobbled together from the flotsam and jetsam of Ireland’s long connection with Britain and regulated by a clock frozen solid in 1937 by a child-proof Constitution.

3Rather than considering the evolution of (school)children’s rights in Ireland in the 20th century, then, this article will tease out the legal sources of the limits placed on children’s rights. As these sources (and limits) are all much older than the Irish state, it will be necessary to look at early English legal common law doctrines and natural law theory dating back to the 13th century (and sometimes even to Ancient Rome), and identify the moment these concepts entered the territory and legal system of Ireland. My goal is to understand to what extent the cherishing of the (real) children of Ireland could be made to rhyme with physical chastisement.

Bunreacht na hÉireann

  • 5 This act was passed by both Houses of the Oireachtas on 10 October 2012, and approved by referendum (...)

4The average person (the one who is called upon to sit on juries and vote in referenda) might expect the Irish Constitution (the codified aggregate of fundamental principles that constitute the legal basis of the Irish Republic) to contain references to children’s rights. If so, they will be disappointed. Bunreacht na hÉireann guarantees the personal rights of citizens (art. 40.3.1°) and protects them from unjust attack (art. 40.3.2°) or unlawful deprivation of liberty (art. 40.4.1°). Although these provisions are applicable to children and adults alike, children were virtually absent from the Constitution until the Thirty-First Amendment of the Constitution (Children) Act 2012 inserted clauses explicitly relating to children’s rights.5

5What the drafters did include in the Constitution from day one (though not in such a way that this would be obvious to the average citizen) were limits to children’s rights. Articles 41 on “The Family” and 42 on “Education” appear at first reading to offer robust human rights to the entire family. This should be excellent news for those children who happen to be family members but this is not the case. There are two reasons for this, one short and one long.

6Consider the following subsections to article 41:

41.1.1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
41.1.2° The State, therefore, guarantees to protect the Family in its Constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.6

  • 7 For a thorough explanation of indefensible space, see Oscar Newman, Defensible Space: People and De (...)
  • 8 Louise Crowley, Family Law, Dublin, Thomson Round Hall, 2008, p. 85.
  • 9 Ibid.
  • 10 On 7 February 1978, seizing on the anniversary of the Geneva Declaration, Poland presented the idea (...)
  • 11 The United Nations Convention on the Rights of the Child sets out the civil, political, economic, s (...)

The first (short) reason why these provisions are less conducive to children’s rights than might be assumed is that article 41 attaches rights to the family as a collective unit only. The rights of individual family members (and especially children) are not provided for. For half a century, this vision of the family created an indefensible ideological and legal space into which any sense of external responsibility for individual children could not penetrate.7 Judges were reluctant to recognise individual children’s rights for fear of disturbing the constitutionally-protected integrity of the family unit.8 It was not until the 1980s that the Supreme Court began to read between the lines of the Constitution to identify the rights of individual family members and became increasingly willing to establish and vindicate children’s rights.9 This development reflected the greater international acknowledgement of the need to promote children’s rights which picked up momentum after the International Year of the Child in 197910 and culminated in the United Nations Convention on the Rights of the Child ten years later.11

  • 12 This determination is explored in Donal K. Coffey, Drafting the Irish Constitution, 1935-1937: Tran (...)
  • 13 Ibid., p. 20.
  • 14 The preamble is unambiguous on this score: “In the Name of the Most Holy Trinity, from Whom is all (...)
  • 15 Macdara Ó Drisceoil, “Catholicism and the Judiciary in Ireland, 1922-1960”, Irish Judicial Studies (...)

7The second (long) reason necessitates a survey of the historical and religious contexts from which the Irish state and its most recent Constitution emerged. No constitution spontaneously materialises on a tabula rasa. Consequently, Bunreacht na hÉireann can only be properly appreciated in the light of the large corpus of inherited English laws in which it is embedded and the Roman Catholic Church’s determination to impose its social teaching on the political institutions of the nascent state.12 The Church’s efforts were particularly energetic during the drafting process and the government received regular submissions from Archbishop McQuaid and the Jesuit Order.13 This influence is revealed in the description of the family as a “natural” group with rights that are “antecedent and superior to all positive law”. This is clearly the language of the natural law. The explicitly Roman Catholic framework in which the Constitution is set14 unambiguously signals that it is to the Catholic conception of the natural law that we should look for sources.15

  • 16 John Finnis, Natural Law and Natural Rights [1980], 2nd ed., Oxford, Oxford University Press, 2011, (...)

8John Finnis defines the natural law as both a set of practical principles which indicate the basic forms of human flourishing as goods (life, friendship, truth, etc.), and a set of basic methodological requirements of practical reasonableness which provide the criteria for distinguishing between ways of acting that are morally right and morally wrong. In other words, the natural law is a standard of morally reasonable behaviour which guides the actions of all human beings as they pursue integral human fulfilment.16

  • 17 Ibid., p. 87.
  • 18 C. Fred Alford, Narrative, Nature, and the Natural Law: From Aquinas to International Human Rights, (...)
  • 19 Ibid., p. 9.
  • 20 Ibid., p. 14.
  • 21 Ibid., p. 75.

9Most parents do not analyse goods and behaviours using philosophical or legal frames of reference. They tend to experience their roles as an “indistinguishable cluster of moral responsibilities”17 and intuitively know that certain ways of treating their children are right or wrong simply by being brought up in a decent human society. They have this knowledge because the natural law reflects the “cultivated judgement of the community”18 which inculcates in each individual an intuitive understanding that their own good is “naturally part of the common good”.19 C. Fred Alford describes this community-generated knowledge in terms of narrative: the natural law is accessed via a social group’s story about itself and depends upon its place in the socially and culturally negotiated narratives we weave as communities over time.20 Ultimately, these narratives give meaning and direction to our lives, benchmark good behaviour and provide cautionary examples of what happens when humans lose their way.21

  • 22 James Williams Harris, Legal Philosophies [1980], 2nd ed., London, Butterworths, 1997, p. 9.
  • 23 After Vatican II, Thomism was seen as a hindrance to the Church in its engagement with contemporary (...)

10The extensive writings of 13th-century theologian Saint Thomas Aquinas are a fundamental source for the Roman Catholic Church’s claims to speak authoritatively on ethical questions to all human beings22 and are abundantly cited in papal encyclicals up to Vatican II (1962-1965).23 It is Aquinas’s vision of the natural law (filtered through the publications of the Holy See) which is enshrined in Bunreacht na hÉireann.

  • 24 Thomas D. D’Andrea, “The Natural Law Theory of Thomas Aquinas”, The Witherspoon Institute’s online (...)
  • 25 Thomas Aquinas, Summa Theologiae, Supplement to the Third Part, question 43, article 2.
  • 26 Archbishop McQuaid relied heavily on Rerum Novarum in his submissions. See Donal K. Coffey, Draftin (...)

11In his Summa Theologiae, Aquinas argues that human beings are rational creatures with a natural inclination towards good and truth instilled in them by their Creator. When they deliberately pursue the goods of human flourishing, they “enact observance to the Eternal Law”,24 discovering (rather than making) the law and ratifying the divine design-plan for their nature through their actions. Understanding the operation of the natural law inside the family was of great importance to Aquinas and has remained a priority for the Church ever since. For Aquinas, children are governed solely by parental authority up to the age of reason (seven years old), because they are by nature an extension of their parents25 and fully under their jurisdiction. Pope Leo XIII develops this idea in his 1891 encyclical Rerum Novarum which is a direct source for article 41 of Bunreacht na hÉireann:26

Paternal authority can be neither abolished nor absorbed by the State; for it has the same source as human life itself. “The child belongs to the father,” and is, as it were, the continuation of the father’s personality; and speaking strictly, the child takes its place in civil society, not of its own right, but in its quality as member of the family in which it is born. And for the very reason that “the child belongs to the father” it is, as St. Thomas Aquinas says, “before it attains the use of free will, under the power and the charge of its parents”.27

Parents have a paternalistic and fiduciary responsibility to act in the best interests of their children. Their authority is progressively qualified as the child’s cognitive ability evolves, but they remain the principal agents in the child’s moral education until they reach adulthood. In his Commentary on the Nicomachean Ethics, Aquinas shows how this should work (under ideal conditions):

  • 28 Thomas Aquinas, Commentary on the Nicomachean Ethics, book X, lecture 15, § 2159, C. I. Litzinger ( (...)

[…] a father’s precept [i.e. authority to regulate behaviour] does not have full coercive power like the royal decree […]. Consequently he shows that to some extent this (supervision) is more suitable to a private than a public person by reason of relationship and benefits because of which children love their parents and are readily obedient out of natural affection. So then, although the royal decree is more powerful by way of fear, nevertheless the paternal precept is more powerful by way of love – a way that is more efficacious with people not totally depraved.28

  • 29 For a very thorough analysis of this issue see Pauline Kleingeld, Joel Anderson, “Justice as a Fami (...)
  • 30 “Hence we have the family, the ‘society’ of a man’s house – a society very small, one must admit, b (...)
  • 31 John J. Goyette, “Aquinas on the Family and the Political Common Good”, informal lecture at the Tho (...)

For the drafters of Bunreacht na hÉireann, natural, familial love (which does not come with enumerated rights and duties attached)29 is absolutely crucial. From its position outside the family, the state relies on the spontaneous and natural benevolence of family members bound together by mutual affection, and does not attempt to impose rules on how they should act. According to Pope Leo XIII, the family is an independent society nested inside the larger society of the state with rights and duties peculiar to itself.30 All choices concerning the health, education and upbringing of children are left to their parents, unless the family is in serious distress, or evidence of extreme neglect, or abuse spills out into the street in spectacular fashion. The state can still enter into the household to provide guidance, moral instruction and aid, if necessary, but this interaction is mediated by the parents.31

12What of the physical correction of children? Article 42.1 of Bunreacht na hÉireann, which specifically concerns the education of children, makes no explicit mention of correction or discipline:

  • 32 Bunreacht na hÉireann, 1937, art. 42.1.

The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.32

  • 33 Donal K. Coffey, Drafting of the Irish Constitution, 1935-1937…, p. 228.

In natural law theory, however, physical correction is a natural part of education and a natural educator would have a natural duty to use it. An early draft of article 42 states that: “[the right to educate their children] imports a corresponding duty on parents to maintain discipline in the home [and] to exercise due control over their children”.33 By raising this natural duty to the lofty level of constitutional law, its inherent civic nature is pushed into the foreground. Children must be controlled for their own good and for the good of society as a whole, of which the family is a nested microcosm.

13Nowhere in Bunreacht na hÉireann are there any details about how parents should maintain discipline. This would be a strange inclusion in any constitution and an unwarranted interference in private family affairs. Again, we must look to Aquinas in whose account of fatherly authority (above) we have already glimpsed a scenario in which physical correction would be warranted (in his opinion). Generally speaking, mutual affection can be relied upon to manage the behaviour of children, but what happens when parents are faced with “depraved” children lacking due respect for parents and so not open to the influence of affection? Aquinas asks and answers this question in the Summa, providing us with a basic blueprint for morally and legally acceptable physical punishment:

  • 34 Thomas Aquinas, Summa Theologiae, Second Part of the Second Part, question 65, article 2, Fathers o (...)

Harm is done a body by striking it, yet not so as when it is maimed: since maiming destroys the body’s integrity, while a blow merely affects the sense with pain […]. Now it is unlawful to do a person a harm, except by way of punishment in the cause of justice. Again, no man justly punishes another, except one who is subject to his jurisdiction. Therefore it is not lawful for a man to strike another, unless he have some power over the one whom he strikes. And since the child is subject to the power of the parent […], a parent can lawfully strike his child […]. […] [Parents] are not prohibited from striking their children for the purpose of correction, but from inflicting blows on them without moderation.34

In other words, physical chastisement should be an integral part of the child’s education for the “purpose of correction” and not an angry, knee-jerk reaction. Maiming the child is wrong. Harm which causes pain without permanent damage is acceptable. The notion of moderation is, therefore, crucial: at all times, parents must be in full control of their actions and able to make reasonable decisions about the punishment inflicted. Children have the right not to be harmed at all unless it is part of their education and not to be permanently harmed (by excessive or immoderate correction) while being corrected.

14There are no detailed rules about how to correct children (where to strike the child, with what instrument and for how long, etc.) anywhere in natural law theory, because the authority to make decisions about how best to carry out this task is derived from the parental duty to educate. Parents are supposed to intuitively know which methods are preferable and respect the child’s rights thanks to their own education and the influence of the collective narrative.

15I have dwelt on the conception of parent-child relations which emerges from the natural law because, without this hefty genealogy, we cannot properly understand a) the Constitution and b) the considerable qualification of the child’s constitutional right to protection from unjust attack (as a citizen) which the Constitution’s validation of the natural law imposes. I will now consider how children’s rights were restricted in school and shed some light on the common law sources of a teacher’s privilege to use physical correction.

Teacher privilege

Legal definitions

  • 35 Kenneth M. Stroud, “The Teacher Privilege to Use Corporal Punishment”, Indiana Law Review, vol. 11, (...)

The intentional striking of another person without his consent for the purpose of punishing him clearly renders the actor liable to criminal and civil remedies for battery unless the action was privileged.35

  • 36 Irish Law Reform Commission, Report on Non-Fatal Offences against the Person, Dublin, Irish Law Ref (...)

[…] the source of the teacher’s authority to use reasonable force by way of correction is unclear: whereas in early English authority and more recent Canadian decisions it is said to originate in a delegation of parental authority, it may now, since the advent of compulsory education, be more accurately based, as in Scotland and the United States, on the teacher’s quasi-public authority qua teacher to enforce discipline and maintain order in the school. In the latter case, such authority cannot be withdrawn by the parent, and in some cases may be broader than the authority of the parent.36

The first extract (above) is from a 1978 analysis by Indiana jurist Kenneth M. Stroud of the teacher’s privilege to use physical correction. The second is from the Irish Law Reform Commission’s (LRC) 1994 Report on Non-Fatal Offences against the Person. Paving the way for the 1997 Act of the same name, the report simultaneously looks backwards to trace the genealogy of existing legislation and forwards to propose a comprehensive new law to clarify and consolidate a plethora of existing statutes and common law doctrines. What interests me here is that the commissioners acknowledge that they cannot identify a clear source for a teacher’s privilege.

  • 37 These provisions are article 73 of the Constitution of Saorstát Éireann and article 50 of Bunreacht (...)
  • 38 The School-Children’s Protection Organisation (SCPO) was a loose collective of concerned parents wh (...)
  • 39 The common law jurisdictions of Canada and the United States are particularly helpful in this conte (...)

16One cause of this uncertainty is the lack of relevant legal commentary in 20th-century Ireland. The LRC’s question should have been asked and answered in 1922 (or in 1937) when the existing common law framework for the classroom behaviour of teachers passed unchallenged into the Irish legal system thanks to transitory provisions in both constitutions.37 Another opportune moment would have been when concerned parents lobbied the government for clarity in 1955.38 This did not happen, so in 1994 the LRC was forced to look to early English texts and legal commentary produced in other jurisdictions for answers.39

17A second cause for the uncertainty of the commissioners is that, during the 20th century, the issue of the physical correction of children was located at the fuzzy nexus of natural, constitutional, common and statute law. This made its contours difficult to map. Answers to fundamental questions were often assumed to be elsewhere in time, place or other forms of law and, in this vacuum, customary practices were perpetuated for want of a clear alternative. As with the natural law, these practices were retroactively justified by identifying (or, perhaps, inventing) legal sources in the distant past.

Two sides of the same coin

18The Commission report identifies two potential sources for a teacher’s authority to inflict physical correction. The first is a form of civic authority to maintain discipline and control the peace which is delegated to school officials by the state. The second is the common law doctrine of in loco parentis which is described as a delegation of parental authority to teachers. Neither option is explored in any depth in the report and we are implicitly invited to look elsewhere for details and consult the commissioners’ own sources via their footnotes. I will demonstrate below that the suggestion that the source of a teacher’s authority might have shifted over time (from in loco parentis to a form of “quasi-public” civic authority) is not entirely accurate. Both possibilities are in fact different interpretations of a single early source and have always co-existed.

Quasi-public?

  • 40 Richard A. Posner, The Problems of Jurisprudence, Cambridge, Harvard University Press, 1990, p. 247
  • 41 M. Stuart Madden, “The Vital Common Law: Its Role in a Statutory Age”, University of Arkansas at Li (...)
  • 42 Jones v. Barlow, 2007 UT 20, 61.

19The common law is judge-made law, “created primarily by judges through their decisions rather than by the framers of statutes or constitutions”.40 Generally concerned with the protection of pre-political rights, such as those involving property, autonomy and personal injury, it is the “engine of corrective justice” where constitutional remedies and statutory legislation fall short.41 Not limited to published judicial precedent alone, it is inspired by the same collective narrative of inherent moral principles which animates the natural law, depending on “judicial inventiveness” to keep pace with the new conditions and progress of society.42

  • 43 M. Stuart Madden, “The Vital Common Law…”, p. 573.
  • 44 Philip S. James, Introduction to English Law, London, Butterworths, 1976, p. 21-22.
  • 45 Paul Brand, The Making of the Common Law, London, The Hambledon Press, 1992, p. 445.
  • 46 James Lydon, “The Expansion and Consolidation of the Colony, 1215-54”, in A New History of Ireland, (...)

20Historically, the common law consists of a body of principles built up from the precedents of the different courts operating in 12th-century England and centralised into a uniform system of law “common” to the whole country. The ever-expanding Register of Original Writs came to represent both the common law, “developed by accretion like a coral reef”43 and the people’s rights.44 The English common law system was introduced into Ireland at the end of the 12th century. When King John visited Ireland in the summer of 1210, he issued a charter relating to the observance of the common law of England, secured consent under oath from the magnates of Ireland to abide by its terms45 and subsequently had a copy of the Register of Original Writs sent to Dublin.46

  • 47 Anne McGillivray, “Children’s Rights, Paternal Power and Fiduciary Duty: From Roman Law to the Supr (...)

21As Anne McGillivray has demonstrated, the legal source of a parent’s right to inflict punishment on their children is the doctrine of Patria potestas, the central pillar of Roman family law which established the power of the male head of a family. This doctrine entered English common law through the Roman-based canon law of the ecclesiastical courts, the influence of legal scholars trained on the continent and the rediscovery of Justinian’s Corpus Iuris Civilis circa 1100.47 As English common law became anchored in the socio-legal landscape of Ireland, so too did the common law power of parents to physically punish their children. During the process of Irish independence, transitory provisions in the Constitution of Saorstát Éireann (art. 73) and Bunreacht na hÉireann (art. 50), allowed this doctrine to survive unaltered into the legal system of the new state. This is not surprising, as it had the same natural law pedigree as articles 41 and 42 and was thus both legally and ideologically compatible.

  • 48 William Blackstone, Commentaries on the Laws of England, Book the First, Oxford, Clarendon Press, 1 (...)

22No legal theorist has influenced the popular understanding of the physical correction of children more than English jurist, judge and Tory politician William Blackstone (1723-1780). His Commentaries on the Laws of England,48 was a bestseller and his opinions became authoritative in all common law jurisdictions all over the world.

  • 49 William Blackstone, Commentaries on the Laws of England, Book the First, p. 437-440.
  • 50 Ibid., p. 440.
  • 51 Ibid.

23Citing natural law theorists Montesquieu, Puffendorf and Grotius, Blackstone argues that parents have a natural duty to provide for their children.49 From the perspective of the children, this translates into a legal right to maintenance, protection and education. Also derived from parental duty is a legally protected parental power “partly to enable the parent more effectually to perform his duty, and partly as a recompense for his care and trouble in the faithful discharge of it”.50 Blackstone rejects any continuity with the extreme content of Patria potestas, arguing that the “power of a parent by our English laws is much more moderate; but still sufficient to keep the child in order and obedience. He may lawfully correct his child, being under age, in a reasonable manner; for this is for the benefit of his education”.51 He offers no clues to what he himself understands as reasonable as this is for a court to decide.

  • 52 Ibid., footnote d, p. 440.
  • 53 William Hawkins, A Treatise of the Pleas of the Crown, or, A System of the Principal Matters Relati (...)
  • 54 Ibid., vol. 1, p. 73-74. We find similar equivalences in the modern constitutions of African common (...)
  • 55 William Hawkins, A Treatise of the Pleas of the Crown…, vol. 1, p. 73-74.
  • 56 Matthew Hale, Historia Placitorum Coronæ, London, E. & R. Nutt, and R. Gosling, 1736, vol. 1, p. 47 (...)

24In a footnote52 he sends us to William Hawkins’s (1682-1750) Treatise of the Pleas of the Crown53 published in 1716. Hawkins establishes an equivalence between parents, the masters of servants, schoolmasters, gaolers and the kinsmen of mad people, all of whom are legally entitled to use moderate chastisement to control unruly behaviour.54 The power to physically chastise children is not only part of a natural duty to educate and correct the behaviour of those under our jurisdiction, but also a civic duty to protect the public peace. Like Blackstone, Hawkins is not specific about what parents can and cannot do to their children, but states that masters are entitled to strike their servants with a hand, fist, small staff or stick as long as they do not draw blood, and schoolmasters may use a rod.55 It is the perceived suitability of the instrument and the level of outrageousness (excessiveness) which determine the reasonableness of a beating. Another of Blackstone’s sources, Matthew Hale (1609-1676), clarifies in his Historia Placitorum Coronæ that an iron bar, a sword and a great cudgel would be unfit instruments.56

  • 57 Henry de Bracton, On the Laws and Customs of England, Samuel E. Thorne (trans.), Cambridge, The Bel (...)

25An important source for Blackstone, Hawkins and Hale was Henry de Bracton’s (c.1210-c.1268) De legibus et consuetudinibus Angliæ (On the Laws and Customs of England). Composed in the 1220s and 1230s in the same juridico-philosophical context as the work of Aquinas, it offers a nuanced vision of crime and punishment in which offences must be considered from seven points of view: motive, person, place, time, quality, quantity and fortuity. The exemplar for motive is a brief comment on the correction of children: “[…] whippings, which are not punishable if imposed by a master or parent (unless they are immoderate) since they are taken to be inflicted to correct not injure, but are punished when one is struck in anger by a stranger”.57 Hale, Hawkins and Bracton are, thus, less concerned than Blackstone with demonstrating their knowledge of contemporary philosophy and focus on the direct source of the power to punish. This is evident in their grouping together of occupational roles which embody jurisdiction over others. This suggests that this power is derived from a duty to control the behaviour of those in our jurisdiction for their own good and the common good rather than the sophisticated economy of parental duties, rights and powers we find in Blackstone. In the case of parents, jurisdiction is the source of the power and it is parenthood which guarantees this jurisdiction. The same, however, is true of masters, schoolmasters, gaolers and the kinsmen of mad people, so it is the jurisdiction rather than the parenthood that counts. The power to control behaviour is the means to the end of effectively educating the young, managing subordinates and securing criminals and mentally ill people. The utilitarian societal benefits of maintaining order and preventing self-harm, harm to others, crime and chaos are clear.

In loco parentis

26As we have just seen, Hale and Hawkins make no distinction between parents, masters (of servants) and schoolmasters. All are legally (at common law) entitled to use moderate chastisement as a means of correction. Blackstone, however, has a more sophisticated vision and because of the enormous success of his Commentaries, this is the one which has had the most lasting impact in common law jurisdictions, including Ireland.

  • 58 Lex Forcia, Being a Sensible Address to the Parliament, for an Act to Remedy the Foul Abuse of Chil (...)
  • 59 Ibid., p. 22.

27Blackstone successfully promoted a distinction between the primary, natural power of parents and a secondary, derivative power temporarily transferred to teachers by parents. This analysis was not an innovation on his part. It had already been the principal argument of campaigners against physical maltreatment in English schools in the 17th century who argued that the teacher’s “right of ruling” is not a natural but a subordinate power given to him by the father for no “other purpose than what the Parents do allow him”.58 The anonymous author(s) suggest(s) that if the parent’s wishes are not respected, then the father can either sue the teacher for usurping his power or “fall upon him with a cudgel”.59

28For Blackstone, this transfer of power is framed by the common law doctrine of in loco parentis and has determined court decisions and teaching practice for more than two centuries. The parent, says Blackstone,

  • 60 William Blackstone, Commentaries on the Laws of England, Book the First, p. 441.

[…] may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed.60

This is clearly a negotiated, conditional and temporary transfer.

  • 61 William Woodlock, “Re William Connor, Court of Queen’s Bench, June 4”, The Irish Jurist, vol. 15, 1 (...)

29Blackstone’s vision of in loco parentis entered the Irish legal system via the common law precedents of England and Wales and was embraced with gusto. In the course of Re William Connor at the (Irish) Court of Queen’s Bench in 1863, for example, the judge cited the entirety of the in loco parentis section from the Commentaries word for word.61 It was allowed to continue into post-independence law by the transitory provisions of the constitutions of 1922 and 1937.

30At this point, however, the Irish common law diverges from that of the United Kingdom. Article 12 of the 1922 Constitution states that: “The sole and exclusive power of making laws for the peace, order and good government of the Irish Free State […] is vested in the Oireachtas” and article 15.2.1° of Bunreacht na hÉireann that: “The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State”. This means that from the moment the 1922 Constitution was enacted, Irish judges lost their power to adapt the law, judgement by judgement, to new conditions, to create precedents and to add new rules to meet evolving social circumstances. They also lost their prerogative to discard outdated rules whose former utility could no longer be demonstrated. The common law continued to be a vital part of the uncodified Constitution of the United Kingdom, but in Ireland dropped down to the third tier of the legal system underneath constitutional and statutory law.

31In practice, this meant that the common law remained frozen in its 1922 state and in loco parentis with it. As a consequence, during the 20th century, we do not find the same level of research, analysis and interpretation of this doctrine in Ireland as we find in the United Kingdom, United States, Australia and New Zealand, for example, where perceived wrinkles in its application have been ironed out under the intense scrutiny of judges and legal scholars. There was no evolution possible and the increasing incompatibility of Blackstone’s vision with the evolving education system in Ireland remained unchallenged. Perhaps the most incongruous element of in loco parentis was the notion that the delegation of parental authority was voluntary and could in some way be rescinded. But in a compulsory education system run and policed by the state, at what moment do parents delegate authority? And, more importantly, how do they take it back? It might seem that this delegation is implied when the child is sent to school but, if education is compulsory, and there are legal sanctions for not attending school, then surely this delegation also becomes compulsory and ceases to be a delegation. In 1978, Kenneth M. Stroud was already in no doubt that in loco parentis was an inadequate explanation for the teacher’s privilege to use physical correction:

  • 62 Kenneth M. Stroud, “The Teacher Privilege to Use Corporal Punishment”, p. 353.

This doctrine is appropriate for cases where an actual delegation of authority from the parent can be found – for example, in the case of students in private schools or those over the age of compulsory attendance. However, where parents cannot withdraw their children from school or prevent their being subject to corporal punishment, the doctrine of in loco parentis is a fiction, and it is sounder to recognize that such public school pupils are subject to corporal punishment under the police power of the states that is delegated to the school officials.62

  • 63 Clarence Thomas in Morse et al. v. Frederick, 551 U.S. 393 (2007), p. 420.
  • 64 See School-Children’s Protection Organisation, Punishment in Our Schools, Dublin, SCPO, 1955.

32Conservative US Supreme Court Justice Clarence Thomas has very cynically argued that “If parents do not like the rules imposed by those schools, […] they can send their children to private schools or homeschool them; or they can simply move”.63 Half a century earlier in Ireland, the SCPO were well aware that such a remedy was not available to families living in rural areas where there was only one school. Without a car or access to public transport, alternative schools were simply out of reach. In Ireland in the 1950s, it was the schools which authorised transfers and not the families who decided to change schools. Sometimes, as the SCPO documented in their 1955 publication Punishment in Our Schools, such transfers were denied to punish parents for daring to try to protect their children from unreasonable, excessive and immoderate correction.64 In loco parentis in its 1922 state (which was identical to its 18th-century state) was therefore wholly inadequate to explain and justify the privilege of Irish teachers in 1955 or 1994.

Conclusion

  • 65 Lex Forcia…, p. 21.
  • 66 Dáil Éireann Debates, vol. 152, no. 4, 8 July 1955, col. 4.

33In 1698, the anonymous author(s) of the pamphlet Lex Forcia challenged the privilege of teachers and demanded to know the source of their power to beat schoolchildren. It could not be a natural power, they argued: “What hath one Man of himself to do with the Child of another?” so “What then is this Adventitious Strange Power?”.65 They received no answer from their government but their question may have influenced William Blackstone and, through him, the whole common law world. In 1955, the concerned parents of Ireland who came together in the SCPO to protect their children from the same strange power asked their own government a similar question. For their troubles they were denigrated by the Minister for Education, former IRA Chief of Staff and Army General Richard Mulcahy, who described the work of the SCPO as “an attack by people reared in an alien and in a completely un-Irish atmosphere […] an attack on the whole spirit of our educational system and it is an endeavour to attack our educational roots”.66 Their questions remained otherwise unanswered and, like their children, they were excluded from the collective narrative which was openly and shamelessly monopolised by the church-state partnership. In 1994, the Law Reform commissioners admitted that they simply did not know the answer to these same questions. They recognised that in loco parentis had been the standard answer for hundreds of years, but, by the end of the 20th century, it had lost its shine and they too were at a loss.

34Whereas the notion of a temporary delegation of authority collapsed as soon as parents discovered that they were unable to take it back, there was something very important (as far as children’s rights are concerned) which was transferred from the home to the school environment: the notion of a nested or parallel society operating with its own internal rules and without interference from the state. The indefensible nature of the school mimicked the constitutional indefensibility of the family unit and justified itself by means of the fiction that the school teacher was acting as any reasonable parent would. The glaring problem with this argument is that the crucial bonds of mutual affection, without which the constitutional, natural and common law vision of family life simply could not function, did not transfer over to the school. Beyond the use of an ambiguous old Latin expression, no commentator (who was not a teacher) has attempted to claim that there was much genuine affection displayed inside schools in 20th-century Ireland. School teaching is, after all, a profession with rules, obligations, duties and objectives, and ultimately bears little or no resemblance to what happens inside a real family.

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Notes

1 Thomas J. Clarke, Seán Mac Diarmada et al., Proclamation of the Irish Republic, Dublin, Michael Molloy, Liam Ó Briain and Christopher Brady [printers], 1916, p. 4. The decidedly socialist tone of this part of the Proclamation has been attributed to James Connolly (Liam de Paor, On the Easter Proclamation and Other Declarations, Dublin, Four Courts Press, 1997, p. 74).

2 This full cabinet position was created in March 2011. The position of Junior Minister of State for Children had already existed from December 1994.

3 Better Outcomes, Brighter Futures: The National Policy Framework for Children and Young People, 2014-2020, Dublin, Government Publications Office, 2014, p. viii, online: https://www.cypsc.ie/about-us/five-national-outcomes-.444.html.

4 With hindsight, of course, we know that children were not the only group to be let down by these conservative and utterly Victorian men and their political descendants: women, people with disabilities, queer people and (except, perhaps, for the followers of James Connolly) poor and working-class people would long be lesser “children”.

5 This act was passed by both Houses of the Oireachtas on 10 October 2012, and approved by referendum on 10 November 2012. It was signed into law on 28 April 2015 after a High Court challenge delayed its enactment.

6 Bunreacht na hÉireann (Constitution of Ireland), 1937, art. 41.

7 For a thorough explanation of indefensible space, see Oscar Newman, Defensible Space: People and Design in the Violent City, London, Architectural Press, 1972, p. 1-21.

8 Louise Crowley, Family Law, Dublin, Thomson Round Hall, 2008, p. 85.

9 Ibid.

10 On 7 February 1978, seizing on the anniversary of the Geneva Declaration, Poland presented the idea of a United Nations Convention on the Rights of the Child which would be binding for states. It took ten years for a bill to gain the unanimous support of the international community.

11 The United Nations Convention on the Rights of the Child sets out the civil, political, economic, social, health and cultural rights of children. Nations that have ratified the convention or have acceded to it are bound by international law.

12 This determination is explored in Donal K. Coffey, Drafting the Irish Constitution, 1935-1937: Transnational Influences in Interwar Europe, London, Palgrave Macmillan, 2018, p. xi-39.

13 Ibid., p. 20.

14 The preamble is unambiguous on this score: “In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of Éire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial […]” (Bunreacht na hÉireann, 1937, preamble).

15 Macdara Ó Drisceoil, “Catholicism and the Judiciary in Ireland, 1922-1960”, Irish Judicial Studies Journal, vol. 4, no. 1, 2020, p. 13.

16 John Finnis, Natural Law and Natural Rights [1980], 2nd ed., Oxford, Oxford University Press, 2011, p. 23.

17 Ibid., p. 87.

18 C. Fred Alford, Narrative, Nature, and the Natural Law: From Aquinas to International Human Rights, New York, Palgrave Macmillan, 2010, p. 8.

19 Ibid., p. 9.

20 Ibid., p. 14.

21 Ibid., p. 75.

22 James Williams Harris, Legal Philosophies [1980], 2nd ed., London, Butterworths, 1997, p. 9.

23 After Vatican II, Thomism was seen as a hindrance to the Church in its engagement with contemporary society. See Fr Thomas Joseph White’s lecture, “Thomism after Vatican II: Why Aquinas Matters for Contemporary Theology”, in the “Thomism after Vatican II” conference held at the Pontifical University of St Thomas Aquinas, 27 October 2018, online: https://angelicum.it/thomistic-institute/2018/10/27/thomism-after-vatican-ii-thomas-joseph-white-op-video.

24 Thomas D. D’Andrea, “The Natural Law Theory of Thomas Aquinas”, The Witherspoon Institute’s online center for Natural Law, Natural Rights, and American Constitutionalism, 22 August 2021, https://www.thepublicdiscourse.com/2021/08/77294.

25 Thomas Aquinas, Summa Theologiae, Supplement to the Third Part, question 43, article 2.

26 Archbishop McQuaid relied heavily on Rerum Novarum in his submissions. See Donal K. Coffey, Drafting the Irish Constitution, 1935-1937…, p. 218.

27 Leo XIII, Rerum Novarum, English translation, The Holy See, 15 May 1891, online: https://www.vatican.va/content/leo-xiii/en/encyclicals/documents/hf_l-xiii_enc_15051891_rerum-novarum.html.

28 Thomas Aquinas, Commentary on the Nicomachean Ethics, book X, lecture 15, § 2159, C. I. Litzinger (trans.), Chicago, Regnery, 1964, p. 935-936.

29 For a very thorough analysis of this issue see Pauline Kleingeld, Joel Anderson, “Justice as a Family Value: How a Commitment to Fairness Is Compatible with Love”, Hypatia, vol. 29, no. 2, 2014, p. 320-336.

30 “Hence we have the family, the ‘society’ of a man’s house – a society very small, one must admit, but none the less a true society, and one older than any State” (Leo XIII, Rerum Novarum).

31 John J. Goyette, “Aquinas on the Family and the Political Common Good”, informal lecture at the Thomas Aquinas College teaching faculty, 19 March 2014, online: https://www.thomasaquinas.edu/news/aquinas-family-and-political-common-good.

32 Bunreacht na hÉireann, 1937, art. 42.1.

33 Donal K. Coffey, Drafting of the Irish Constitution, 1935-1937…, p. 228.

34 Thomas Aquinas, Summa Theologiae, Second Part of the Second Part, question 65, article 2, Fathers of the English Dominican Province (trans.), New York, Benziger Brothers, Inc., 1947, p. 1473-1474.

35 Kenneth M. Stroud, “The Teacher Privilege to Use Corporal Punishment”, Indiana Law Review, vol. 11, no. 2, 1978, p. 350.

36 Irish Law Reform Commission, Report on Non-Fatal Offences against the Person, Dublin, Irish Law Reform Commission, 1994, p. 23, online: https://www.lawreform.ie/_fileupload/Reports/rNonfatalOffences.pdf.

37 These provisions are article 73 of the Constitution of Saorstát Éireann and article 50 of Bunreacht na hÉireann.

38 The School-Children’s Protection Organisation (SCPO) was a loose collective of concerned parents who lobbied the Minister for Education via a letter-writing campaign and self-published pamphlet in 1955 to clarify the use of physical correction in Irish schools.

39 The common law jurisdictions of Canada and the United States are particularly helpful in this context because judges and jurists in both countries have studied the issue of physical correction in schools in great detail.

40 Richard A. Posner, The Problems of Jurisprudence, Cambridge, Harvard University Press, 1990, p. 247.

41 M. Stuart Madden, “The Vital Common Law: Its Role in a Statutory Age”, University of Arkansas at Little Rock Law Review, vol. 18, no. 4, 1996, p. 599.

42 Jones v. Barlow, 2007 UT 20, 61.

43 M. Stuart Madden, “The Vital Common Law…”, p. 573.

44 Philip S. James, Introduction to English Law, London, Butterworths, 1976, p. 21-22.

45 Paul Brand, The Making of the Common Law, London, The Hambledon Press, 1992, p. 445.

46 James Lydon, “The Expansion and Consolidation of the Colony, 1215-54”, in A New History of Ireland, vol. 2, Medieval Ireland, 1169-1534, Art Cosgrove (ed.), Oxford, Oxford University Press, 2008, p. 173.

47 Anne McGillivray, “Children’s Rights, Paternal Power and Fiduciary Duty: From Roman Law to the Supreme Court of Canada”, International Journal of Children’s Rights, vol. 19, 2011, p. 26.

48 William Blackstone, Commentaries on the Laws of England, Book the First, Oxford, Clarendon Press, 1765. Professor William Searle Holdsworth argues that “If the Commentaries had not been written when they were written, I think it very doubtful that the United States, and other English-speaking countries would have so universally adopted the common law” (William Searle Holdsworth, Sources and Literature of English Law, Oxford, Clarendon Press, 1928, p. 157).

49 William Blackstone, Commentaries on the Laws of England, Book the First, p. 437-440.

50 Ibid., p. 440.

51 Ibid.

52 Ibid., footnote d, p. 440.

53 William Hawkins, A Treatise of the Pleas of the Crown, or, A System of the Principal Matters Relating to That Subject: Digested under Their Proper Heads, London, E. Nutt, 1716-1721, 2 vols.

54 Ibid., vol. 1, p. 73-74. We find similar equivalences in the modern constitutions of African common law jurisdictions in which schoolchildren’s rights are explicitly restricted to the same degree as convicted criminals, people with contagious diseases, drug addicts, vagrants and other menaces to society. The Constitution of the Federal Republic of Nigeria, 1999, chap. 4, section 35(1) is an excellent example.

55 William Hawkins, A Treatise of the Pleas of the Crown…, vol. 1, p. 73-74.

56 Matthew Hale, Historia Placitorum Coronæ, London, E. & R. Nutt, and R. Gosling, 1736, vol. 1, p. 474.

57 Henry de Bracton, On the Laws and Customs of England, Samuel E. Thorne (trans.), Cambridge, The Belknap Press, 1968, vol. 2, p. 299.

58 Lex Forcia, Being a Sensible Address to the Parliament, for an Act to Remedy the Foul Abuse of Children at Schools, Especially, in the Great Schools of this Nation, London, Elizabeth Whitlock, 1698, p. 21-22.

59 Ibid., p. 22.

60 William Blackstone, Commentaries on the Laws of England, Book the First, p. 441.

61 William Woodlock, “Re William Connor, Court of Queen’s Bench, June 4”, The Irish Jurist, vol. 15, 1862-1863, p. 328.

62 Kenneth M. Stroud, “The Teacher Privilege to Use Corporal Punishment”, p. 353.

63 Clarence Thomas in Morse et al. v. Frederick, 551 U.S. 393 (2007), p. 420.

64 See School-Children’s Protection Organisation, Punishment in Our Schools, Dublin, SCPO, 1955.

65 Lex Forcia…, p. 21.

66 Dáil Éireann Debates, vol. 152, no. 4, 8 July 1955, col. 4.

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Mathew Staunton, « “What is this adventitious strange power?”: Sources for Teacher Privilege and Schoolchildren’s Rights in 20th-Century Ireland »Études irlandaises, 50-1 | 2025, 43-57.

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Mathew Staunton, « “What is this adventitious strange power?”: Sources for Teacher Privilege and Schoolchildren’s Rights in 20th-Century Ireland »Études irlandaises [En ligne], 50-1 | 2025, mis en ligne le 22 mai 2025, consulté le 19 juillet 2025. URL : http://journals.openedition.org/etudesirlandaises/19614 ; DOI : https://doi.org/10.4000/144cq

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Mathew Staunton

École nationale supérieure des arts décoratifs – ENSAD

Originaire de Coolock dans le nord de Dublin, Mathew Staunton est historien, éditeur (Onslaught Press) et graveur. Il enseigne et dirige de la recherche au sein du secteur Image imprimée de l’École nationale supérieure des arts décoratifs (ENSAD) à Paris. Ses principaux intérêts de recherche sont l’esthétique du discours nationaliste irlandais et l’historiographie de la maltraitance des enfants sur l’île d’Irlande. Depuis plusieurs années, il travaille avec des artistes, musiciens et universitaires pour développer une pratique historiographique et artistique expérimentale qui favorise une discussion publique saine sur la maltraitance.

Originally from Coolock in north Dublin, Mathew Staunton is a historian, publisher (Onslaught Press) and printmaker currently teaching and supervising research in the Printed Image department of the École nationale supérieure des arts décoratifs (ENSAD) in Paris. His main research interests are the aesthetics of Irish nationalist discourse and the historiography of child maltreatment on the island of Ireland. For several years, he has worked with artists, musicians and academics to develop an experimental historiographical and art research practice that promotes a healthier public discussion about maltreatment.

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