In 1903, Elisabeth von Oertzen, a widely read author and one of the founders of the Society for the Protection of Children from Mistreatment and Exploitation, exhorted her fellow protectionists in the pages of her organization's newsletter to push for greater legal protections for children from abusive adults. The occasion for her admonition was the infamous Bavarian child abuse case in which a young male tutor, Andreas Dippold, had beaten his young charges so badly that one had succumbed to his mistreatment.Footnote 1 The case demonstrated, von Oertzen wrote, that while torture had been abolished for adults, it was still widely practiced on children. One of the chief causes of child abuse, according to von Oertzen, was the claim to the so-called Züchtigungsrecht, the right to use corporal punishment. “Because of [the] defenselessness of children it has become customary to exercise on them the right to use corporal punishment, even where it does not exist,”Footnote 2 she wrote. A host of people, including tutors, governesses, and babysitters claim the right, but “how far the right to corporal punishment is transferrable is entirely an open question!”Footnote 3 Curiously, von Oertzen asserted both that there was an objectively existing “right” to use corporal punishment and that there was no consensus on where that right lay.
Von Oertzen's exclamatory comment was not mere progressive rhetoric. Despite the fact that corporal punishment was an idée fixe in nineteenth- and early twentieth-century German society, there was, surprisingly, considerable disagreement over who possessed the right to exercise corporal punishment and what the source of that right was. Indeed, after the turn of the twentieth century, Germany's legal professionals were engaged in a lively debate about the nature of Züchtigungsrecht and who possessed it. The authority to discipline a child determined whether a violation of a child's bodily integrity was a legal act of correction or a physical assault punishable under the Criminal Code (Reichsstrafgesetzbuch, RStGB). Penal law intersected with the unified Civil Code of 1900 Bürgerliches Gesetzbuch (BGB), which introduced new legal questions about jurisdiction, the source of law, and the legal interests at stake in the use of corporal punishment. Raising the stakes of these questions was the campaign to criminalize the physical abuse of children, spearheaded by von Oertzen's own organization. This organized movement culminated in 1912 with a revision of the grievous physical assault paragraph (§223a, Abs. 2) of the RStGB. At the same time, reform pedagogues advocated the abandonment of corporal punishment altogether, and while their efforts remained unsuccessful, they changed the terms of the discussion about corporal punishment by placing its proponents in a defensive position.
This article examines the “right to corporal punishment” in German legal cultures, by which I mean not just the law, but the normative assumptions, beliefs, and practices regarding justice and the law.Footnote 4 Corporal punishment was fundamentally a legal issue. As Dirk Schumann has recently noted regarding corporal punishment in German schools after 1945, such practices are “driven by legal processes and ways of thinking.”Footnote 5 Civil law prescribed who could exercise physical discipline; criminal law excused acts performed as legitimate corporal punishment; laws, decrees, and regulations stipulated the limits of legitimate corporal punishment. And legal cultures interpreted these laws according to their normative ideas about the goals of corporal punishment, commonly accepted practices, and legitimate authority over children. Increasingly in the Wilhelmine period, popular notions of justice influenced the professional legal culture. Thanks to the dramatic expansion of the popular press in the fin de siècle and the attention it paid to criminal cases, the urban public was more qualitatively and quantitatively involved in the justice system than in previous decades. Justice ministries and the state attorneys that worked for them considered public opinion when determining their prosecutions, and by the outbreak of the war, even judges were attuned to public opinion.Footnote 6 This public represented a popular legal culture with notions about the appropriate administration of justice that conflicted, intersected, and negotiated with the professional legal culture of the judicial and academic experts.Footnote 7 Von Oertzen, unknowingly perhaps, gestured to these legal cultures when she referred to the “open question” (presumably among legal professionals) and the “habit” of assuming the right (presumably among laypersons.)
This article will demonstrate that debates over Züchtigungsrecht raised fundamental and ultimately irreconcilable conflicts within the law that reflected broader developments within Wilhelmine society. As a legal concept, Züchtigungsrecht exposed tensions between the private interest of parents in raising their young, the child's interest in his or her bodily integrity, and the collective social interest in well-behaved and orderly children. The idea that children constituted a social interest challenged the parents' private right to determine their children's upbringing, but as this article will show, it also challenged the control of the state by opening the possibility of populist claims to authority over children. These legal debates were ultimately about the state's monopoly over the legitimate use of violence. This new vision of the child as a social good thus drew into question the source of Züchtigungsrecht itself, positing that the right derived from the corrective goal of punishment, and not from law or from the explicit recognition of the state. These legal debates took place amidst concerns about rates of juvenile delinquency as a social problem. They were also produced by conflicts between legal codes and caesura in the law that legal reform and unification had produced. Yet despite its contested and indeterminate nature, Züchtigungsrecht remained an indispensable means by which Germany's legal cultures legitimated adult authority over children's bodies.
The tensions between individual and collective interests were of course typical of progressive-era legal and reform discourse. As Edward Ross Dickinson had demonstrated, two themes in child welfare emerged in the period between 1900 and 1914: the question of the relationship of the individual to society and the particular needs of children in society.Footnote 8 Dickinson has persuasively argued that the social-liberal and organic-statist arguments for child welfare reform were not always in conflict with each other, and in fact often could be reconciled in terms of the needs of the child.Footnote 9 Yet the debates over the right to use corporal punishment identified the point at which reconciliation was no longer possible. The emerging construction of social rights regarding children began to shape popular and professional legal assumptions about corporal punishment and its application to children. Arguments that prioritized collective interests of the public moved in two directions: toward a progressive, organic view of society in which the state determined who could exercise authority over the child's body; and the more völkisch view in which the source of that authority to discipline the child's body came directly from the “public” or the “Allgemeinheit” rather than the state. Drawing these two impulses into conflict were concerns over juvenile delinquency according to which unruly young people threatened social order and stability. At bottom, the debate over corporal punishment was ultimately about whether the state controlled a monopoly over the use of violence.
Closely tied to these tensions between interests was the “privatization” of violence in the law. Nineteenth-century German civil law rather narrowly granted the right to exercise corporal punishment only to parents and those who had a state-recognized relationship with the child.Footnote 10 Reinhard Koselleck has observed that over the course of the nineteenth century, physical discipline had been marginalized into increasingly narrowed zones apart from the public sphere of equal citizens, which could no longer tolerate early modern practices of Herrschaft that were premised on differential power relations.Footnote 11 Richard Evans, taking Koselleck's argument further, has suggested turn-of-the-century demands on the part of conservatives to reinstate flogging into the penal code that the turn of the century threatened to remove violence from the “zones of exclusion,” and with potentially disastrous effects.Footnote 12 This article will demonstrate that this deprivatization of violence was even broader and more fundamental than Evans suggests. In the early twentieth century, legal scholars and jurists sought to bring the law into line with the interests of the “general public” by recognizing a right of members of the public to physically discipline children with whom they had no legally recognized relationship (fremde Kinder).
Finally, the right to corporal punishment also exposed fundamental questions about the law itself. Jurists and legal scholars of the period worried over sources of the law in their efforts to fill the inevitable gaps in the law, made all the more apparent as urbanizing society and its attendant social changes offered new legal problems to adjudicate. The unification of Germany's civil law under the Bürgerliches Gesetzbuch, which came into force in 1900, raised questions about the relationship between federal and state law, local ordinances, and what constituted “law,” not to mention the relationship between civil, criminal, and administrative law. The legal positivist belief in certainty of substantive law faced the challenges from a free law movement that argued gaps in the law could be filled by the will of the judge. More influentially, Franz von Liszt's sociological school of criminal justice challenged the classical school of criminal-legal thought and applied social-scientific knowledge to understanding the offender rather than the offense.Footnote 13 As we will see, when legal experts contemplated the source of the “right” to physically punish children, their ruminations brought them up against these fundamental questions regarding the source of law, and whether Züchtigungsrecht was an extension of state authority, the expression of popular will, or the manifestation of natural law.
Careful attention to these legal debates over Züchtigungsrecht challenges the well-worn notion that German childrearing was particularly harsh in the Wilhelmine period. Many popular, and some scholarly, depictions of German child rearing in the Wilhelmine period assume that methods were particularly harsh and brutal.Footnote 14 Yet there is ample reason to doubt the stereotype of the harsh, brutal parent more ready to strike a child than embrace it.Footnote 15 School discipline in other national contexts raises doubts about the extent to which German practices were exceptionally violent.Footnote 16 Moreover, investigations of parenting advice literature have suggested that while there were concerns about the inadequacy of “soft” mothers to adequately raise strong, manly sons, the model of the “controlled child” associated with the authoritarian personality and the rise of Nazism emerged in the advice literature only during World War I. Advice literature remained rather heterogeneous in its prescriptions for the training, correction, and care of children.Footnote 17 As Caroline Kay notes, prominent reformers such as Ellen Key, Adele Schreiber, and Friedrich Wilhelm Foerster argued strenuously against corporal punishment as detrimental to the development of the self-restrained, self-determined individual.Footnote 18 This diversity of views, and especially the influence of the pedagogical reform movement, suggest that normative ideas about the purpose of corporal punishment, the interests it served, and the source of the legal right to use it were highly contested in Wilhelmine society and German legal cultures.
In what follows, I examine these conflicts regarding the status of the “right” to corporal punishment in German law and the dominant jurisprudence and outline the contours of the debate over that right. I then turn to how these general conflicts manifested themselves in a particularly interesting dispute within and between Germany's professional and popular legal cultures over whether adults had the right to punish strangers' children in the name of the public interest. Of particular importance in this analysis are the decisions of the criminal division of the Reichsgericht, Germany's highest appellate Imperial Court whose rulings reconciled state and federal law and established dominant jurisprudence. Although that court heard only a relatively small number of appeals,Footnote 19 its rulings indicate the kinds of assumptions lower courts, defense attorneys, and prosecutors held regarding the right to corporal punishment. I conclude the article by considering the implications of this debate over the legality of punishing other people's children and suggest it reflects a deprivatization of violence in Wilhelmine society.
Züchtigungsrecht and the Law
The law is largely about terms, and the very term used to denote the legal authority to discipline children, Züchtigungsrecht, had no fixed signifier within German legal cultures. The word derived from the word Zucht, meaning breeding or rearing. In a widely cited essay on the subject, Eduard Hubrich wrote in 1892 that the word referred to a social “order” that is achieved and enforced by Züchtigung. The verb züchtigen, Hubrich continued, meant “in the linguistic usage of common life” “to act on someone physically” (auf jemanden körperlich einwirken.)”Footnote 20 In lay circles the term referred almost exclusively to the use of physical compulsion to enforce appropriate conduct necessary to maintain social order.Footnote 21 But many legal experts insisted the term referred not merely to social order or physical discipline, but to the education of the child, Erziehung. In this sense, its purpose and its methods included the training of the entire person.Footnote 22 Rather than retribution or compulsion, the purpose of Züchtigung in this view was moral instruction. This expansive definition of the term, of course, had its roots in the Christian tradition, as the word appears in the New Testament, 2 Timothy 3:16; “All Scripture is given by inspiration of God, and is profitable for doctrine, for reproof, for correction, for instruction [Züchtigung] in righteousness.”Footnote 23 The term Züchtigung thus conveyed multiple meanings in everyday life and in the law.
The moral-therapeutic definition of Züchtigung was reflected in the development of codified law. In the early nineteenth century, law had emphasized the coercive nature of physical force. The Prussian General Law Code (Allgemeines Landrecht, ALR) of 1794 had empowered parents to use “Zwangsmittel” (means of compulsion) that did not damage the health of the child in his or her education (Bildung).Footnote 24 Similarly, the 1863 Civil Code of Saxony (§1805) stipulated that parents could demand obedience from their children and enforce that obedience with “reasonable means of domestic discipline” (angemessene Mittel haeuslicher Zucht); if these methods did not work, the parents could turn to the authorities. By contrast, §1631 of the BGBS in 1900, provided that fathers had the “right and the duty (das Recht und die Pflicht)” to educate the child with “appropriate means of correction (geeigneter Zuchtmittel).”Footnote 25 The BGB thus emphasized education over compulsion and further implied that the father not only could but also should use disciplinary methods. In his influential 1908 study of the civil code, Wilhelm Polligkeit, one of the leading figures in the German child welfare movement, used this language of §1631 to argue that children, not parents, had a right to education (Erziehung). By education he meant training to become good citizens, to be economically self-sufficient, to develop character, as well as to be morally and physically healthy. He did not include corporal punishment in his consideration of §1631.Footnote 26
Furthermore, under the BGB, the right to use disciplinary measures derived from the legal obligation to care for a child rather than parental authority. As was the case throughout Europe, the law as well as dominant jurisprudence framed this parental authority in accordance with the patriarchal family.Footnote 27 The BGB recognized the parental authority (elterliche Gewalt) of both parents rather than the paternal authority (väterliche Gewalt) in the codes it superseded, but the father exercised this authority as long as he was present (§§ 1626, 1627, 1684 BGB).Footnote 28 However, mothers of illegitimate children enjoyed no parental rights. Instead, their Züchtigungsrecht derived from their “right and responsibility” to care for their children (§1707), by which the Reichsgericht in its jurisprudence understood an authority to educate.Footnote 29 Unwed mothers would share this responsibility with state-appointed guardians, to whom §1800 of the BGB granted the same authority to educate as that granted the father under §1631.Footnote 30
Despite the expansive, educative interpretations of §1631, this key paragraph most often served as the basis for claims to the right to use corporal punishment. Legal disputes regarding Züchtigungsrecht arose most commonly in cases involving breaches of the criminal provisions against physical assault (§223 of the RStGB), or abuse of official office (§340). Thus, although the law itself implied a capacious definition of the term, and although the language of the law invited interpretations involving instruction rather than force, legal scholars and jurists usually used it rather narrowly to refer to physical discipline.Footnote 31 This essay concerns itself with this more specific meaning of Züchtigung—that is, corporal punishment. It is worth bearing in mind, however, that these multiple meanings of the term suggest that when legal scholars and lay persons spoke of Züchtigung and the right to exercise discipline, they were referring to a set of social practices justified by changing and in some ways contradictory cultural meanings.
Despite the unification of civil law under the BGB, there was no consensus within the professional legal culture over the question of who possessed the “right” to exercise “Züchtigung” and for what reasons. Indeed, it was entirely unclear within German legal circles whether Züchtigungsrecht constituted a “right,” an “authority,” an “authorization,” or indeed whether the term referred to a legal fiction and should be abandoned altogether.Footnote 32 The BGB did little to clarify this uncertainty; according to §1627, the child stood under the parental authority (elterliche Gewalt) of the father, who could discipline a child by virtue of his “right to educate” (Erziehungsrecht, §1631). While few people in the early twentieth century questioned the right of parents to punish their children, there was little agreement on the source of that authority. In the wider legal culture, one might invoke the father's “natural right” to his child, as did one Reichstag delegate in 1911 in the debates over child abuse legislation.Footnote 33 In the German legal tradition, on the other hand, scholars debated whether parental rights stemmed from property law or from the nature of the relationship between father and child.Footnote 34
The parents' legal right to use corporal punishment remained unquestioned; however, German law offered no unified or consistent guidelines when it came to the Züchtigungsrecht of others. For instance, whether stepparents gained the right to use physical discipline on their spouse's biological children was a matter of some disagreement.Footnote 35 The Reichsgericht itself did not express an unequivocal position on this question. According to one March 1901 decision, a stepfather did not possess the right to physically discipline his stepson, and therefore any assault on the child's body violated criminal law. A stepfather's right, insofar as it could be claimed, derived from the right of the biological mother.Footnote 36 Yet in 1907, when a Berlin woman was accused of brutally mistreating her young stepdaughter, neither the Landgericht nor the Reichsgericht upon appeal called into question whether Züchtigungsrecht absolved her of criminal responsibility.Footnote 37 Surprisingly, despite its ubiquitous application in German schools, the legal basis for teachers' use of corporal punishment proved especially unstable. The Prussian ALR, for example, did not specifically state that teachers had the right use corporal punishment, although the specification that school discipline could not exceed paternal discipline (a common standard) was widely interpreted to implicitly recognize the right.Footnote 38 The BGB was entirely silent on the subject, as schools were a state rather than a federal concern.
For its part, the Reichsgericht defined the right to use corporal punishment very narrowly, a principle the court established not long after its founding in 1879. In an 1881 ruling, the Criminal Division of the Reichsgericht overturned the Leipzig Landgericht's (state court's) acquittal of a man accused of criminal assault on a thirteen-year-old boy who had stolen from the defendant.Footnote 39 The man and his codefendant had held the lad over a table and applied a carpet beater to the boy's bottom so mightily as to produce bloody marks that were still visible days later. In the Landgericht trial, the defendant argued that he had sincerely believed that as an adult and as the offended party, he had had the right to punish an “undisciplined (zuchtlose) and dishonest lad” both for this offense “and for the future,” meaning he believed he was teaching the boy a lesson.Footnote 40 The defense presented in this case reflected popular notions of justice, in which concerned members of the public could legitimately correct children when parents failed or were unavailable to do so. This popular sense of justice was rather like customary law, under which any responsible adult could correct the behavior of a young person, regardless of the legal status of their relationship.Footnote 41 Significantly, in finding the defendant not guilty, the Leipzig court did not question the illegality of the beating; rather, it held as exculpatory the defendant's assumption that he had acted within the law.Footnote 42 The Reichsgericht, however, rejected this notion that the authority to punish children came from anything other than written law. Saxon civil law (still in force until 1900) did not specifically grant the Leipzig man the right to discipline this boy, and therefore he had acted illegally. Thus, according to the Reichsgericht, only those to whom the state explicitly assigned the right to corporal punishment possessed it.Footnote 43
The Reichsgericht later established that even for teachers, this right constituted no subjective right inhering in the person, nor was it an objective private right created by law. It was rather an authorization the state conferred on the teacher for the purposes of carrying out official duties.Footnote 44 A teacher's “right” was therefore subject to the conditions, regulations, and limitations imposed by the state and moreover could also be revoked by that authority.Footnote 45 Although the Reichsgericht recognized that under certain circumstances parents might temporarily grant permission to others, as with family relatives or nannies, only the state could legally transfer (übertragen) the right.Footnote 46
One 1890 ruling illustrates how the Reichsgericht applied this principle that the right to use corporal punishment must be either granted by law (gesetzlich) or recognized by the state (staatlich anerkannt).Footnote 47 In Zabern, a priest was convicted of physical assault after he had beaten two seventeen-year-old girls for leaving their catechism classes early. The priest argued that because he delivered religious instruction and because his bishop had given him permission to enforce the instruction with physical discipline, he was innocent of transgressing criminal law. The defendant thus argued that his right to use physical punishment derived from the educative nature of his activity; the religious instruction of young people implied all forms of instruction, including corporal punishment.Footnote 48 Yet even before Alsace had been incorporated into the Reich, French law had secularized religious instruction, so that teachers delivered religious instruction and priests delivered catechism instruction outside of normal school hours. Confessional instruction, in other words, was a matter for the church.Footnote 49 Therefore, in its decision the Reichsgericht upheld the lower court conviction, distinguishing between instruction by church officials that was a “voluntary choice” of the believers, on the one hand; and, on the other, the right of teachers who derived their authority from the state. Interestingly, the criminal division also pointed out in its ruling that the law of Alsace-Lorraine offered no explicit provision of Züchtigungsrecht, but that the right “must count as a self-evident attribute of parents and all of those persons who according to law have the right to educate the child alongside or in place of the parents.”Footnote 50 Since priests enjoyed no such recognition from the law in their religious instruction, they enjoyed no right to use corporal punishment.Footnote 51 Thus, the church had no authority in matters of corporal punishment, according to the Reichsgericht, unless the right to use it was explicitly recognized in the law or it was the “self-evident outflow of the legally regulated office of the teacher.”Footnote 52 The Reichsgericht's ruling in this case coincided with the secularization of schools and the subordination of school administration to the state in certain regions of Prussia and the Reich.Footnote 53 But it also was consistent with the court's reasoning that insisted on the state's control of the legal monopoly of violence.
The Reichsgericht, then, argued that Züchtigungsrecht derived from positive law reflecting the authority of the state. On this point the Reichsgericht had outspoken critics who imputed to the court inconsistent legal reasoning that, they claimed, obfuscated the true nature of the “right” to use corporal punishment. For some legal experts, corporal punishment should be treated as a subjective right or authority that derived not from the state or substantive law, but from the educative nature of the act.Footnote 54 In an 1889 article published in Der Gerichtssaal, Hamburg state attorney B. von Keßler observed that while the high court protested that Züchtigungsrecht was no subjective right, the Criminal Division's decisions treated it as such—not, to be sure, as a subjective right in the sense of private law, but rather as “an attribute of the person of the teacher, as bearer of an office, an official authorization [Amtsbefugniß].”Footnote 55 Von Keßler noted that the main point of the court's disquisitions in criminal cases against teachers was “the existence or non-existence of a subjective authority [Berechtigung], or if that is stated too strongly, a subjective authorization [Befugnis]” to use corporal punishment.Footnote 56 This, he concluded, was a confusing and dangerous failing in the court's legal logic, as it led to inconsistencies in adjudication and only exacerbated the lack of legal unification in Germany.
Berlin Kammergerichtsrat Paul Havenstein agreed, arguing that the Reichsgericht's legal standard produced jurisdictional conflicts and inconsistent judgments, since the laws and regulations varied greatly across Prussia and Germany. Why, Havenstein asked, referring to the 1890 Zabern case involving the Catholic priest, should a public elementary school teacher be allowed to exercise corporal punishment but not a parish priest delivering religious instruction? And why should the Reichsgericht have been forced to labor painstakingly over French and German law to determine whether an Alsatian priest had a legal right to use corporal punishment? Havenstein seemed to be suggesting that it was absurd to fill gaps in the law by searching for more law, when what was needed was a principle derived from the purpose of the practice. Even the Reichsgericht had recognized that, absent specific regulations, the educative goals of the school determined the terms and limits of corporal punishment.Footnote 57 This reasoning from the purpose of Züchtigung, Havenstein argued, was superior to the “cockeyed” (“schief”) theory that produces contradictory judgments by the highest court in the land.Footnote 58 Havenstein concluded by arguing that his interpretation would obviate need for the “ugly phrase ‘Züchtigungsrecht’” in favor of “educative acts of fathers, guardians, and teachers,” and then there would be no more criminal cases of physical assault and the like involving teachers.Footnote 59
Corporal punishment of children thus got to the very heart of what constituted a “right,” and whether it derived from the state, from the relationship of the adult to the child, or from the social utility of the act itself. Furthermore, debates over Züchtigungsrecht highlighted another problem among legal scholars, and that was the question of what constituted law. Predictably, the Reichsgericht resisted appeals to “community standards” and popular justice in the adjudication of transgressions of corporal punishment, but offered as an alternative “moral law” (Sittengesetz), which applied to all social classes equally as a way of filling gaps in the law where it was silent on the question of methods and degree of corporal punishment.Footnote 60 The Reichsgericht's appeal to moral law was meant to provide some semblance of a universal standard for adjudging child-rearing practices that were otherwise left up to the discretion of parents and guardians. The court also clearly intended to vitiate the arguments for differential justice, which had become increasingly common in Wilhelmine courts (especially those in Berlin, where the case in question was first heard).Footnote 61
The argument that Züchtigungsrecht derived from the state thus raised the problem of what constituted law, a problem made clear in Prussia when federal and state regulations collided. There the Oberlandesverwaltungsgericht (superior administrative court) of Prussia (OVG) ruled in 1888 that teachers in violation of local and state ordinances regarding the amount and methods of corporal punishment transgressed criminal law. The ruling ended a five-year conflict of jurisdiction between that court and the Reichsgericht.Footnote 62 Remarking on the situation, von Keßler observed that the Reichsgericht's rulings on teachers' right to use corporal punishment undermined the very definition of law itself, since by the Court's logic local school guidelines rose to the status of law that otherwise derived from “lawgivers.”Footnote 63 Von Keßler's comments draw attention to the irony that the Reichsgericht's insistence on a positive reading of law dramatically expanded the notion of law itself.
Collective Parenting or Lynch Justice?
An important context for Wilhelmine discussions about corporal punishment and the interests of individuals and the state was, of course, juvenile delinquency. As a social phenomenon, youth crime captured public anxieties about the attendant effects of rapid urbanization: the erosion of the patriarchal family and deference to authority, social anonymity, moral degeneration, and base materialism.Footnote 64 Just as disturbing for bourgeois observers was the apparent attraction of Social Democracy among urban youth. Middle-class reformers responded to these problems with progressive solutions, including settlement houses, youth welfare agencies, and the development of juvenile courts.Footnote 65 Many of these solutions also included the liberal use of corporal punishment, such as in the reformatory system.Footnote 66 Juvenile delinquency was a social problem affecting the public interest and overriding the private interest of the parent.
One response to this putative social problem was to expand the right of corporal punishment beyond the confines of the school, home, and reformatory. In the later Imperial period, legal experts became increasingly interested in the question of whether third parties—those not legally related to a misbehaving child or its parent—could correct the child's behavior without suffering legal consequences, criminal or civil. (The common formulation was “the right to discipline strangers' children” [fremde Kinder].) Already in the late nineteenth century, Karl Binding, a prominent legal scholar now best known for his later infamous views on eugenics and euthanasia,Footnote 67 argued that persons punishing the misbehavior of ill-bred child on the street had the right to act as negotiorum gestor, or agent without authorization.Footnote 68 Such an argument may not appear surprising coming from Binding, who adhered to the retributive school of criminal justice. Yet this legitimation of corporal punishment by third parties enjoyed support from widely disparate quarters. For example, Franz von Liszt, founder of the sociological school of criminal law, like Binding, maintained that the right to corporal punishment could be temporarily transferred from the father to a third party. In many cases, Liszt argued, this temporary transfer could be merely assumed, as in the case of an “unruly lad [mutwillige knabe] accosting the third party.”Footnote 69 Importantly, both Binding and Liszt assumed the father retained ultimate authority over their children. These expert interpretations, although contrary to the Reichsgericht's rendering of the law, could also be found in juridical practice. In 1882 and again in 1884, the Dresden Oberlandesgericht (supreme state court, OLG) extended the right to a third party if that adult could assume with certainty that the parent would approve of the correction. Thus, according to the court's logic, persons not specifically designated by the state could legitimately correct a child.Footnote 70
These legal arguments retained the principle that the right to correct a child derived from the father's rights. After the turn of the century, however, some courts and legal experts took the more radical step of disaggregating Züchtigungsrecht from paternal rights. In 1903, the OLG of Braunschweig ruled that persons could fulfill a parents’ “right” and “responsibility” assigned by the new BGB by acting as the undesignated agent of the parent if doing so were in the public interest.Footnote 71 This so-called right of third parties privileged the interests of society over the exclusive right of parents to determine the appropriate means of educating their own children. It furthermore replaced strictly positivist notions of the law with a popular sense of justice. In 1909, Ernst Eckstein, a law student in Wittstock, advanced such an argument in the prestigious Goltdammer's Archiv für Strafrecht und Strafprozeß. Invoking the tribulations of the urban condition, Eckstein wrote, “It is often the case in daily life that some impudent rascal holds all the inhabitants of a house in great excitement because of some harassment of another child or adult, or because of some other naughtiness, until he is finally taken away and gets his well-deserved beating [Tracht Prügel].”Footnote 72 Frequently in these cases, he continued, because of “estrangement of neighbors and previous threats and warnings,” the beating results in criminal complaint for physical bodily harm. “The judge uses all kinds of juridical loopholes to arrive at an acquittal, but these all hardly stand up to review.”Footnote 73 Eckstein argued that Binding's negotiorum gestio (which had been specified in §679 of the BGB) provided just such a defensible legal loophole and furthermore that this form of legal agency applied regardless of the parents' approval, actual or presumed. A neighbor would be fully within his or her rights to correct a child if that child's guardian refused to do it themselves. Significantly, Eckstein grounded his justification for the disciplining of unruly neighbor children in a popular sense of justice—the demands of the community for an orderly, peaceful, quiet environment legitimated the violation of a child's bodily integrity. His legal justification—business conducted in absentia of the parent—was merely a formal way of bringing the criminal justice system in line with popular legal culture.
Arguments in favor of the Züchtigungsrecht of third parties gained ground in German courtrooms in the last years of the Kaiserreich. Two cases serve as particularly illustrative examples. The first involved a seemingly mundane physical assault case heard by the OLG Jena in December 1912. The court decided that a man accused of beating a child with whom he had no legal relationship—a stranger's child (fremdes Kind)—was not guilty of unlawful bodily harm because he had acted to correct the child's unruly behavior. The court reasoned that an adult who observes a child's transgressive behavior would have the legal right to intervene, with physical force if necessary, if the parent or legal guardian failed to do so. Significantly, this was no case of emergency or self-defense, which would have indisputably voided criminal charges.Footnote 74 Instead, the court cited §679 BGB (negotiorum gestio), ruling that an act such as this correction of an unruly youth was done in the interest of common good and was not, therefore, a violation of criminal law.Footnote 75 Similarly, in 1916, the OLG Hamburg ruled in a case involving a defendant who had beaten a six-year-old boy on the buttocks with an umbrella after witnessing the boy accost another child in the street. Importantly, the defendant admitted that his actions were meant to teach the boy a lesson, not merely to prevent him from committing a potentially dangerous act.Footnote 76 In the initial trial, the Landgericht had convicted the defendant of physical bodily harm because the man's actions had left the boy with red welts on his body. In keeping with the dominant jurisprudence, the court had asked, “What punishment would a father have used?” Yet the OLG Hamburg, following the same standard used by the Jena court, asked instead, “What paternal punishment would have been appropriate for the public interest?” Deciding that the discipline had been appropriate, the higher court acquitted the defendant of criminal assault.Footnote 77
Even leaving aside the Hamburg court's assertion that raised red welts were not sufficient evidence of physical assault, these decisions are striking in that they legitimated what one might call vigilante parenting. The decisions undermined the privatization of violence that had taken place in the previous century, both in the sense that they condoned the use of physical correction by members of the public and because they withdrew Züchtigungsrecht from the private sphere. Such was the observation of jurist Peter Klein, who issued a dire warning to his fellow legal experts in the wake of the 1912 Jena decision. Klein argued that the Jena court had incorrectly assumed that a right to discipline others' children derived from public law (“öffentliches Recht”), when in fact the right to corporal punishment resided in private law.Footnote 78 Even more disconcerting, Klein wrote, was that the court wrongly inferred this expansive right not from any existing legal norm, but from the “needs of the general public.” Such reasoning was tantamount to “justifying lynch justice for Germany.”Footnote 79 In other words, such decisions removed corporal punishment from the control of the state and subjected children to the unregulated violence of adult citizens.
Oberlandesgerichtsrat Hahne in Hamm shared Klein's concern that the application of public law (“Volksgemeinschaftsrechte und –pflichten”)Footnote 80 was misplaced. The right to use corporal punishment did not derive from the communal rights of “fellow Germans” (“Volksgenossen”) but from the private rights of the individual regarding property, possession, and personality. The law permitted the individual the right to protect these legal interests in cases of self-defense. Since the intent of corporal punishment was to educate the child, this protection of personal interest in the case of third parties or, as was more often the case in these instances, vengeance for the act of an unruly child, was not consistent with Züchtigungsrecht. Moving beyond the legal argument to public policy, Hahne further argued that the extension of the right to use corporal punishment could endanger the well-being of the child, since someone unfamiliar with the child in question would not know the child's condition and could therefore inadvertently cause damage to the child.Footnote 81 For Hahne, the child's welfare could only be determined by parental authority within the private sphere or where the state had seen fit to transfer that authority.
These debates over the Züchtigungsrecht of third parties cast into sharp relief the role of the state in balancing the interests of the public and those of the individual child or parent. Welfare advocates wrestled with this question as well. In 1903, Frieda Duensing, who would later become the director of the Deutsche Zentrale für Jugendwohlfahrt and who would thus play a key role in the development of Germany's youth welfare system, published an influential work in which she argued that the state's interest in a healthy offspring trumped the rights of parents to their children.Footnote 82 According to Duensing, the abuse of parental authority should not be seen as a matter of private family law but rather should be seen as a crime against the state. The new civil code, she argued, had already changed the principle of parental authority to one of “custodial protective authority” under which the state could limit parental rights if the parent did not promote the interest of the child.Footnote 83 Duensing thus shared the view that well-educated children were a public concern of society. In contrast to Eckstein and others, however, she was interested in the welfare of the child and not merely the enforcement of normative behavior. In emphasizing the protection of children from abusive adults as a social good, Duensing argued against the exclusive rights of parents in order to protect children from abuse of parental authority.
Duensing's emphasis on the state as the arbiter of the public's interests in the welfare of the child contrasted markedly with the reform philosophy of Wilhelm Polligkeit. Polligkeit believed state intervention could assure that the family functioned in the best interest of children.Footnote 84 Yet he criticized Duensing for not sharing his optimism that German civil law adequately protected the interests of children. He therefore advocated a far more laissez-faire family policy than did Duensing.Footnote 85 The state, in other words, played only a limited role in the protection of the child's interests.
The debates on the right of third parties to punish children bore directly on these welfare debates. Like Polligkeit and Duensing, legal scholars such as Eckstein addressed the public's interest in well-behaved children. But where Polligkeit protected the private rights of parents, the arguments for corporal punishment by third parties undermined those rights by privileging the rights of the “Allgemeinheit.” And although this privileging of the social above the private interest had much in common with Duensing, the punishment of strangers' children specifically undermined the authority of Duensing's activist state. It is important to note that these decisions in Dresden, Hamburg, and Jena were not isolated, nor were they negated on appeal. Weimar courts, despite the Constitution's recognition of parents' “natural rights” to determine the child's education,Footnote 86 would go on to adjudicate similar cases and reach similar conclusions as those in Jena, Hamburg, and Braunschweig.Footnote 87 After 1933, legal scholars continued to exculpate citizens for beating children unrelated to them; even Nazi scholars' conflation of “state” and “public” did not resolve the tensions between legally protected interests.Footnote 88
Of course, another progressive response to the issue of corporal punishment was to reject it altogether. The German reform pedagogue Friedrich Wilhelm Foerster (who also taught at the University of Zürich) argued that modern society called for the development of fully self-determined and free individuals, a goal incompatible with the pejoratively labeled “pedagogy of the stick.” (“Prügelpädagoge.”) Foerster, likening corporal punishment to the beating of animals, argued that corporal punishment damaged children psychically and physically, undermined a child's sense of honor, and inhibited the learning of self-discipline.Footnote 89 Such indictments of physical discipline were not exclusive to Germany, of course. The United States was the chief basis of comparison, in terms of both child protection and modern pedagogy. Swedish child welfare advocate Ellen Key argued in her influential Century of the Child that corporal punishment not only harmed the child psychologically, as a pedagogical tool produced only “lack of self-discipline, of patience, of personal effort.”Footnote 90 These calls for abolition made no legislative headway in the Wilhelmine period. They nonetheless occupied one end of a broad spectrum of notions within professional and popular German legal cultures regarding the rights of adults over the bodies of children.
Deprivatization of Violence
Corporal punishment must be seen in terms of the history of violence. In his critique of Elias's civilizing thesis, Gerd Schwerhoff has argued that violence cannot be understood merely as an internal drive. Instead, Schwerhoff sees violence is a “culturally encoded form of social action” controlled by the bureaucratic state as well as a form of social control used by the state and other institutions of power.Footnote 91 In the late Kaiserreich, this dual nature of violence—something that controls and something that must be controlled—was a matter of considerable public debate. Police brutality fell under scrutiny not only from Social Democrats identifying “class justice” but also from bourgeois observers fearful that “respectable” citizens were mistreated by the armed agents of state authority.Footnote 92 At the turn of the century, after several decades of abolition, concerns about the putative increase in violent crimes prompted conservative legislators to propose reintroducing corporal punishment into the penal code.Footnote 93 Thus, while some on the Left and Center believed the state abused its authority over violence, politicians on the Right sought to grant the state even more. Similar struggles were taking place in the colonies, where controversy over the brutal, sexualized violence committed by white German men in the colonies prompted colonialists, particularly colonialist women, to attempt a gendered reconstruction of the colonial space precisely to control the passions of men.Footnote 94 Legitimate male violence persisted in dueling, the ritualized form of violence that played a vital role in the honor culture of aristocratic and bourgeois Germany. The efforts of the Anti-Dueling League to eliminate honor-based combat, which was technically illegal under the Criminal Code, remained unsuccessful until after World War I.Footnote 95 The appropriate role of violence thus represented a considerable preoccupation in German society.
As a legal precept that regulated the use of violence in the most intimate of social relationships, Züchtigungsrecht had to perform tremendous labor. It guarded children's legal interest to bodily integrity from arbitrary violation; it protected the rights of parents and others from criminal prosecution for violation of children's interests; it permitted the state to regulate the use of violence; and it protected society's interest in well-ordered and disciplined youth. It is not surprising, then, that Züchtigungsrecht would also be a highly contested concept at precisely the moment when concerns about juvenile delinquency and child welfare seemed to place these interests at odds with each other. The private and substantive right of parents over their children, the authority of the state to regulate the delegation of that right, and the seclusion of that right in the home and the school were principles under considerable stress in the early twentieth century.
The putative right of third parties to physically discipline children threatened to bring corporal punishment out of the secluded and private areas to which it seemingly had been relegated earlier in nineteenth century, to be pushed back into the public sphere. Richard Evans's brief examination of corporal punishment and penal practice in Imperial Germany offers a compelling interpretation regarding the implications of such a “de-privatization” of violence. He has argued that the seclusion of corporal punishment from public life in the nineteenth century had been the result of bourgeois prudery relating to the body. Fears regarding the brutalization of witnesses to corporal punishment prompted lawmakers to remove corporal punishment from criminal law.Footnote 96 But by removing violence from public view, the bourgeois reforms of the nineteenth century had transformed corporal punishment into a sexualized taboo. Thus, when conservatives at the turn of the century sought to reintroduce flogging into the RStGB, their efforts amounted to a de-privatization of violence that implicitly “demanded the release of violent impulses which by now had strong sexual overtones.”Footnote 97 While Evans's argument overestimates the extent to which debates about corporal punishment invoked the psychosexual effects of corporal punishment, his observation that violence was becoming deprivatized at the turn of the century provides a useful way of viewing the implications of those debates.
Evans's argument recalls Peter Klein's warning against the “lynch justice” that the putative right to punish a stranger's child would legitimate. Arguments in favor of this right and the court decisions based on them promised the deprivatized corporal punishment in a very legal sense: removing authority over and interest in the child from the parents to society as a whole. At the very least, it implied a collective supervision of parental child rearing that authorized the exercise of violence in some form on the body of the child. Züchtingungsrecht of third parties assumed that there was a need for such interventions on behalf of the public interest, the general welfare, or the “Volksgemeinschaft.” Young people's misbehavior was now a social concern, as the rates of juvenile delinquency suggested. By expanding the authority to correct misbehavior to members of the public, courts in Jena, Hamburg, Braunschweig, and elsewhere in a sense elevated Züchtigungsrecht to the status of a true right, not as a return to old customary law, but as a right of the social that any adult citizen could claim. The decisions implied the removal of state regulation or authorization in the way that terms like Erziehungsgewalt [authority to educate] or Zuchtgewalt [disciplinary authority] suggested. Correcting others' children, the Jena court indicated, was a duty and right of citizenship, but not one that flowed from the citizenship under the state, but rather from membership in the community.
Of course, part of the problem with establishing a consensus around the Züchtigungsrecht as a right “recognized by law” or “granted by the state” derived from the question of law itself. The introduction of the BGB raised important and contentious jurisdictional disputes between state and national law, between civil, criminal, and administrative law, and between juridical authorities. Furthermore, as Havenstein and others pointed out, substantive law simply proved inadequate to address the social practices it was meant to regulate. Within popular legal culture these conflicts exposed the indeterminate legal source of the “right.” Yet another motivation to recognize the rights of citizens to correct others' children came from popular notions of justice that undermined the normative legal notions of parental and state authority.
The competing understandings of Züchtigungsrecht, of the right to beat a child, revealed the indeterminate position corporal punishment occupied within German society and its legal cultures. While corporal punishment continued to form the basis of “Erziehung” or education in German society, despite the emerging reform movement, the controversial concept of Züchtigungsrecht suggested a society deeply at odds with itself over the effects of corporal punishment and its inherent dangers.
