Honour bound.

• Author: Kasirer, Nicholas
• Position: Quebec Civil Code article 597's requirement for children to respect parents

Echoing the language of commandment round in the Decalogue, article 597 of the Civil Code of Quebec provides that every child owes respect to his or her mother and father. Notwithstanding its expression in legislative form, most experts think that this duty to honour one's parents is not legally binding. After sketching what attitudes to article 597 say about the constraints on legislative rules of conduct, the author considers whether article 597 might alternatively be imagined as a source of learning. By seeking to teach through the law of interpretation and the formal deployment of a symbol for parental authority, the legislature has enacted article 597 hot as precept but as preceptor. Article 597 is thus an invitation to use legislative enactment, on occasion, to shape behaviour through counsel rather than by force.

Faisant echo au langage de commandement du decalogue, l'article 597 du Code civil du Quebec stipule que chaque enfant doit respect a sa mere et son pere. Nonobstant son expression dans la forme legislative, le devoir d'honorer ses parents, selon la plupart des experts, n'a force de loi. L'auteur esquisse d'abord la pertinence des approches a l'egard de l'article 597 qui decrivent les contraintes des regles legislatives de comportements, puis se penche sur l'alternative selon laquelle cet article pourrait etre une source d'apprentissage. En voulant enseigner par la loi d'interpretation et l'emploi officiel d'un symbole d'autorite parentale, le legislateur adopta l'article 597 en tant que precepteur et non pas en tant que precepte. Ainsi, l'article 597 convie a une utilisation de la legislation afin de modeler les comportements par des recommandations plutot que la force.

1. Legislation As Precept (and the constraints on this view) A. Duty and Sanction B. Duty and Intimate Family Life II. Legislation As Preceptor (and the learning in this view) A. Teaching and Interpretation B. Teaching and Symbol PARENT : Clean your room.

   CHILD : [No response]

   PARENT : [Voice raised ever so slightly in a cunning effort to suggest at once injunction and request] Clean your room.

   CHILD : [Innocently, of course] You didn't say please.

   PARENT : Please, [the tone suggests that the word has been cut free from its etymological connections (placidus: gentle; placare: to soothe) and the pronunciation (pleeeeez) puts the listener in mind of antonym rather than primary meaning] please, clean your room.

   CHILD : [Wielding the big and proven stick of indifference] Huh?

   PARENT : [No longer in a dialogue with Child but engaged in unpleasant encounter with Self (the Child within)] Clean your room ... or else.

   CHILD : [Testing the obligatory character of the proposed rule of conduct, as a matter of legal theory and domestic governance, by suggesting a necessary relationship between the existence of the rule and a formal sanction] Or else what?

   PARENT : [Now actually cleaning the room as he speaks (in a sovereign mumble)] Or else nothing.

   I am a parent of three small children. I like to think of our home as a happy one--a place which my partner and I have sought to organize around an ideal of the hidden order in chaos rather than the chaos that often hides (we console ourselves) in more ordered households. In our lighter moments, we smile at the gentle disarray of our daily rives, with the thought in mind that it reflects not a domestic rulelessness but a sensible approach to our children's obvious creative flair, their right-sided braininess and the ascendancy of the spiritual over the material in their little catalogues of values. In a moment less light some weeks ago, Jane said to me, "You know, I'm not sure if the kids listen to us when we tell them what to do. At times, they don't seem to behave very respectfully?'

   In our despair, we reach for those miserable books that outsell Piaget for me-generation parenting--the titles tend to be their only differentiating feature--Helping Your Child Learn Right from Wrong: A Guide to Values Clarification or The Answer Is No: Saying It and Sticking to It or Discipline without Shouting or Spanking. The advice uniformly offered is tidy, tiresome, and no doubt true: respect cannot be imposed by force; respect can be taught, but only by example. "What we need is a law" says my non-lawyer partner, with a hint of friendly sarcasm that dismisses both jurists and their discipline as a means for dealing with this kind of problem.

   Can a legislative enactment impose a duty upon a child to honour and respect his or her parents? The question, which would rightly be treated as ludicrous by any parent or child spared the awful dignity of a legal education, finds an answer sillier still in law. For in those legal traditions, be they overtly religious (1) or self-consciously secular, (2) in which a child's duty to honour his or her mother and father bas been the object of formal enactment, the conventional lawyers' response is: yes, the duty has been legislatively imposed, but no, it is not law. Children are (to turn an old expression against itself for present purposes) only honour bound. Beyond the plain interest this matter holds for parents, children, and family lawyers, an examination of article 597 of the Civil Code of Quebec (3) provides a useful if unusual opportunity for scholars to test the proper aspect and temper of legislative enactment.

   For if respect cannot be imposed by force, as the parental guidebooks remind us, article 597 nevertheless takes shape legislatively, like the Old Testament commandment, as a precept, even if it is rarely treated as a legal one (Part I). Moreover if respect is better taught than imposed, article 597 signals that legislation bas a role as preceptor whereby teaching, rather than force, is used to shape behaviour (Part II). Article 597 failed precept, hopeful preceptor--stands as a reminder that legislation might usefully be thought of without reference to its conventional uses, and not just as a means to an end but also as an end in itself.

1. Legislation As Precept (and the constraints on this view)

   Whether as a matter of convenience or in service of ideas of fairness, law often allows matters of form to dictate issues of substance. In this tradition, the legislative form is often the end point in an inquiry into the obligatory character of a given rule of conduct. (4) Article 597's shape should indeed be expected to stave off questions as to its binding effect. Enacted by a constitutionally competent legislature, the provision conforms to ordinary legislative style for a rule that seeks to impose a given course of action. It unquestionably bears what French jurilinguist Gerard Cornu has aptly called the marks of sovereignty (5) that are the usual signs of law as a normative discourse: the verb (to owe/devoir) suggests a legally binding constraint, and the fact that it is conjugated in the present indicative tense is characteristic of legislation where the verb seeks to express, in effective and "diplomatic" terres, a commandment. (6) The choice of subject, while not identical in the French and English texts of article 597, (7) indicates a norm of general application that seeks out the status of universally binding principle. Indeed the stylistic (8) and substantive (9) differences between the idea as expressed in the Old Testament and that expressed in the Civil Code of Quebec would suggest a conscious effort on the part of earthly lawmakers to cast the duty in more conventional legislative form. Article 597 looks and sounds like enactment in its classical mode which, at least for lawyers, should ordinarily stop the inquiry as to whether it is law. (10)

   Notwithstanding these unequivocal formal indicia, most legal scholars are of the view that the "duty" spoken to in article 597 is non-binding as a matter of positive law. It is described variously as a "principe purement moral", (11) a "devoir moral", (12) or as the expression of a "relation plus sociale que juridique" (13) such that it is banished to the realm of non-law notwithstanding its source and mode of expression. Seemingly out of place in the Civil Code of Quebec, article 597 is taken to separate family law from family morality, and family law from family lire; accordingly, it is seen to fall outside lawyers' ordinary field of study. One measure of the extent to which the duty to respect is considered to be non-law is the slender attention it receives from judges and legal commentators despite its prominence in the Civil Code. (14)

   Behind this semblance of unanimity among family law scholars are two distinct reasons for placing the precept beyond the law. Some experts fix on the apparent absence of formal sanction for violation of the duty to respect one's parents as a sign that this duty is not a legal one (Section A). Others argue that article 597 is only a moral precept on the theory that law cannot reach into the intimate or sentimental lives of parents and children in the way the text purports to do. In other words, the legislative enactment is seen as incapable of entering into a family's private world of personal relations (Section B). Whether from the perspective of its absence of sanction or its failure to regulate an inherently private matter, article 597 is said not to bind children, as a matter of law, to respect their parents. Both perspectives are important generally in the theory of legislative enactment. By imagining legislative rules of conduct as necessarily and exclusively connected to the formulation of binding duties, lawyers not only limit the ambitions of family law, but also frustrate the ambitions of the legislative form.

   1. Duty and Sanction

      Would an action in damages brought by a parent against a child for lack of respect be treated seriously by a court? Would a parent fare better seeking injunctive relief against insolent behaviour, or perhaps a mandamus forcing a child to bring honour to Iris or her parents and the family name through a course of action he or...