On the Law of the Household: The Principles Used by Parents in Disciplining Their Children, by Steven Shavell
Abstract: In this article I first describe the basic principles that parents employ in disciplining their children. The description is based on a survey of parents, the major results of which are that parental sanctions are premised on wrongdoing—not on the mere causation of harm; that parental sanctions tend to be greater when wrongdoing results in harm than when it does not; that parental sanctions for intentionally harmful conduct exceed those for negligence; and that parental sanctions are not raised when the probability that wrongdoing would be discovered is low. I then develop a theory to explain the principles of discipline as functional for parents. The kernel of the theory is that the rules of discipline maximize the expected utility of parents—assuming that the utility of parents is reduced by the occurrence of harm and also reflects the well–being of their children. After elaborating the theory, I comment on several related issues, including the possible influence of childhood experience on our preferences as adults over legal rules; and I remark on the interpretation of the similarity between the principles of criminal law and those applied by parents in disciplining their children.
Steven Shavell
Harvard Law School
III. CONCLUDING REMARKS
Although the main objective of this article has been to identify the general principles that parents employ in disciplining their children and to advance the theory that these principles may be seen as promoting parental welfare, it seems worthwhile to comment critically on the explanatory theory and also on several other issues relating to our subject.
A. The Limited Sense in Which the Functional Virtues of the Principles of Discipline Explain Their Use
It was suggested in the beginning of Part II that the theory demonstrating the functional attributes of the rules that parents employ in disciplining their children would account for the presence of these rules. The logic was that because parents are largely able to choose the rules of discipline in the household, they would be expected to adopt a regime of rules that fosters their utility. From this it was said to follow that if we study a measure of parental utility that reflects parental desires, and if the rules that parents utilize maximize that rendering of parental utility, we will have rationalized the rules.
This reasoning presumes that parents actively consider the functional virtues of the disciplinary rules that they could employ and choose the best ones. Yet in reality one may be skeptical about the degree to which parents consciously evaluate the effects of the use of different possible disciplinary rules.
First, I can say that I have never heard a person discuss the notion that it might be desirable for parents to penalize children for doing harm whether or not it was accidental—the idea of disciplining children on a basis other than their wrongdoing seems beyond our contemplation. The survey responses reflect this view; there is no evidence from the responses that parents consider the relative merits of harm–based versus wrong–based discipline. Second, parents in the survey tended to justify their use of wrong–based discipline in mainly conclusory ways and by reference to the dangers flowing from misconduct. Third, parents seem disinclined to directly discuss deterrence. Indeed, in their responses to a set of survey questions on intention to do harm, I found that only 13.5% of respondents made statements relating to deterrence and none made a truly explicit statement about the concept. Against this background, the hypothesis that parents engage in mindful, deliberate decision making to fashion their rules of discipline on the basis of their functional virtues is not appealing.
At the same time, I suspect that parents would not disagree with the articulation of the functional virtues of the rules found in this article. And closely related, my conjecture is that the functional attributes of the principles discussed here provide an explanation for their use in the following implicit sense: If parents were, improbably, to rely on different principles instead, outcomes would become undesirable for them, they would soon recognize that, and they would then be inclined to shift to the desirable principles.
Notably, if parents were generally to employ the harm–based principle rather than the wrong–based principle, they would find themselves punishing their children for harms sometimes caused by reasonable behavior. Parents would then want to end harm–based punishment because it would be obvious to them that sanctioning proper conduct cannot deter bad conduct and that the disutility that they and their children experience from such sanctioning would be for no salutary reason. Similarly, if parents were to penalize wrongful behavior only if it resulted in harm, they would see that they were wasting useful opportunities to discipline their children when the children were discovered to be engaging in bad conduct that by luck did not result in harm. And so forth for the other rules of punishment that were identified here as desirable.
B. The Possibility That Childhood Experience Leads Individuals To Place Intrinsic Importance on the Principle of Wrong–Based Sanctioning
A consequence of the use of wrong–based punishment of children in the household could be that children will come to regard that principle as having a measure of importance in itself— an importance that might be viewed as moral and is independent of any functional value the principle might possess. The plausibility of this conjecture lies in the significance of childhood experience in molding a person’s attitudes and in the primacy of parents to children.
To the extent that the principle of punishment based on wrongdoing thus acquires weight in its own right during childhood, the adult population will have effectively inherited a weight favoring the wrong–based rule of sanctioning. Two implications follow from this view.
First, when adults in their role as parents confront the issue of the disciplining of their children, they will be attracted to the wrong–based rule because of its own valence as well as because of their appreciation of its functional virtues as adduced in Section II.B.
Second, when adults in their role as citizens consider wrong–based legal rules as opposed to harm–based legal rules, they will display an intrinsic preference for the former. Thus, the predominance of the negligence rule over strict liability in tort law, despite strong economic arguments favoring the latter rule in many domains, may in part be a product of a taste for wrong–based rules; and so too may be the prevalence of regulation relative to corrective taxation and other harm–based payments even though the case for the latter policy instruments on functional grounds is intellectually compelling in broad contexts. This surmised influence of a preference for wrong–based rules per se should be viewed as problematic if we as adults do not weigh our intrinsic preferences properly against functional considerations.
C. The Close Relationship Between the Rules of the Disciplining of Children and Those of Criminal Law
The principles under which parents discipline their children resemble those of criminal law. In particular, under criminal law the major requirement for liability is wrongful conduct: a person must have acted in an intentionally harmful or unduly dangerous manner to be held criminally liable. Furthermore, a person may be sanctioned for wrongful conduct even if he did not cause harm—namely, he can be punished for an attempt; moreover, bad acts that do result in harm are punished more stringently than attempts; and the greater the degree of intent, the higher tends to be the punishment.88 Thus, the prerequisites for criminal liability and its important supplementary rules are qualitatively identical to those used by parents in governing their children in the household.
The reasons for the similarity between the rules of criminal law and the parental principles for the disciplining of children may be ascribed to the parallel nature of the problems faced by society and by parents in controlling unwanted behavior. For both society and parents, deterrence of bad conduct through the threat of sanctions is a chief instrument for its regulation. And for both, the actual imposition of sanctions is attended by significant cost: the operation of the prison system is extremely expensive for the state and imprisonment of criminals generates great disutility for them; and the punishment of children involves substantial disutility for parents. That the imposition of sanctions is costly for society and also for parents means that they both should wish to fashion regimes of deterrence so as to conserve on the actual use of sanctions—and that is also what wrong-based systems accomplish. This fundamental implication of the costliness of the application of sanctions may be said to account for the likeness between the rules of criminal law and those of parental discipline in the household.
By contrast, in domains where sanctions are not very costly to impose—the view often taken about monetary sanctions like fines, taxes, and damage payments under civil law—harm-based sanctions may become desirable.
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The Source:
Steven Shavell, On the Law of the Household: The Principles Used by Parents in Disciplining Their Children, NBER Working Paper No. 31090, March 2023
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