Reconciling normative dissonance in Canada and New Zealand: comparing the judicial and political paths to children's rights implementation.

Author:Moore, Dan
 
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Abstract

Domestic legal systems must frequently address conflicts between global human rights norms and local values. The ratification of the Convention on the Rights of the Child created just such a normative dissonance for both Canada and New Zealand: between international norms of children's rights and deeply embedded societal values of parental autonomy. The criminal law in each state at the time of ratification included statutory defences for parents' use of "reasonable corrective force" on their children. But these laws gradually came into conflict with a developing prohibition at international human rights law of the physical punishment of children.

Canada and New Zealand responded to this dissonance in divergent ways. In Canada, a Charter challenge culminated in a Supreme Court decision that narrowed but upheld the reasonable corrective force defence, effectively putting a halt to public debate or legislative reform.

In New Zealand, the absence of a constitutionalized bill of rights forced activists into the political sphere. After years of public dialogue and pragmatic compromise, New Zealand legislatively repealed its defence in June 2007. This article argues that the divergence between Canada and New Zealand illustrates the differential capacities of the judicial and political processes to navigate the interface between the global and the local, and facilitate the reconciliation of deep normative dissonance.

Resume

Il arrive frequemment que les regimes de droit interne doivent adresser des tensions entre les normes internationales des droits de la personne et les valeurs locales. La ratification de la Convention relative aux droits de l'enfant a cree une telle dissonance normative au Canada et en Nouvelle-Zelande : une tension a surgi entre les normes internationales qui sous-tendent les droits de l'enfant et les valeurs societales profondement integrees entourant l'autonomie parentale. Lors de la ratification, le droit penal de chaque etat prevoyait une defense statutaire permettant au parent d'employer raisonnablement la force pour corriger son enfant. Ces lois ont cependant souleve des conflits avec les interdictions se developpant en droit international en matiere de droits de la personne autour de la discipline physique de l'enfant

Le Canada et la Nouvelle-Zelande ont reagi differemment a cette dissonance. Au Canada, une contestation fondee sur la Charte culminait en une decision de la Cour supreme, confirmant mais restreignant la defense de force raisonnable visant a corriger. Ce jugement mettait ainsi fin a tout debat public ou perspective de reforme legislative.

En Nouvelle-Zelande, ou il n'existe pas de declaration des droits constitutionnalisee, les activistes se sont vus obliges de s'exprimer dans la sphere publique. Apres plusieurs annees de dialogues publics et de compromis pratiques, la Nouvelle-Zelande, en juin 2007, abrogeait sa defense. Cet article soutient que les divergences entre le Canada et la Nouvelle-Zelande mettent bien en evidence les capacites differentes des processus judiciaires et politiques de pouvoir naviguer l'espace entre les echelles mondiales et locales et y reconcilier des dissonances normatives profondement ancrees.

I INTRODUCTION II DIVERGENT REFORMS IN THE LAW GOVERNING THE PHYSICAL PUNISHMENT OF CHILDREN Canada: A Judicially Narrowed Defence for "Reasonable Corrective Force New Zealand: A Qualified Legislative Repeal of the Reasonable Corrective Force Defence III THE EMERGENCE OF A NORMATIVE DISSONANCE Traditional Societal Norms Encouraging Physical Punishment and Respect for Family Autonomy Developing Norms of International Children's Rights The Rise of Children's Rights: A Challenge to Parental Autonomy The Development of the Prohibition of Physical Punishment IV DIFFERENT MECHANISMS OF RECONCILING THE NORMATIVE DISSONANCE Canada: A Patchwork Compromise Between Dissonant Norms New Zealand: Gradual Political Progress Towards Substantive Reconciliation The New Laws in Practice: Significantly Contrasting Public Debate, Largely Aesthetic Legal Differences Comparison: The Differential Capacities of Political and Judicial Processes V CONCLUSION INTRODUCTION

International human rights norms are generally framed in universal terms. Their basic premise, as originally stated in the Universal Declaration of Human Rights, (1) is that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world." But perhaps the only truly universal notion in the international human rights community is the acknowledgment that these global norms can and often do conflict with traditional local values.

The conflicts that arise between so-called 'global' human rights and 'local' values are regularly depicted as the result of the hegemonic imposition of Western ideas onto the cultural traditions of the various unique communities of the Global South. (2) In the case of the Convention on the Rights of the Child, (3) "[i]t is sometimes said ... that it merely codifies a Western, urban, middle-class ideal of childhood", one which may not be shared by "[s]ome non-Western cultures". (4) The narrative is typically one of individualism versus communitarianism; progress versus tradition; cultural imperialism versus self-determination; liberal democracy versus everything else.

The manifestations of the global-local conflict are not, however, limited to the North-South axis. Human rights conventions are the product of political contestation and consensus-building within a distinct transnational community of diplomats, lawyers, and activists: "a transnational social space where actors come together simultaneously as locally embedded people and as participants in a transnational setting that has its own norms, values, and cultural practices." (5) These individuals are generally accountable to domestic constitutencies-electorally, professionally, and/or financially. But their interactions within the transnational human rights community can result in differences between the values of the norm-creating transnational community in which they participate, and those of the local communities from which they originate (and which are obligated to implement the transnational community's norms). When such "normative dissonance" develops, conflicts between human rights and domestic values will not necessarily map onto the North-South axis.

This article will discuss one example of this normative dissonance. When Canada and New Zealand ratified the CRC, the criminal law in each state included almost identical statutory defences to assault, open to parents who had used "corrective" force on their child that was "reasonable under the circumstances". (6) These defences--variously referred to as defences for "reasonable corrective force", or "reasonable chastisement"--were rooted in the states' common British colonial history, as a result of which they share many of the same social values, political norms, and legal concepts regarding families, parents, and children. In both Canada and New Zealand, there is a deeply-embedded societal norm that the state should avoid interfering with 'parental autonomy': "a right possessed by caretakers and enabling them to make significant choices on behalf of the children under their care." (7) There is also a long history of social norms in both states encouraging the physical punishment of children by their parents. (8) These local traditions were challenged by the ideas and obligations of the regime developed by the transnational children's rights community, as crystallized in the CRC. These ideas emphasized the moral and juridical autonomy of children; they gave rise to obligations to prohibit the physical punishment of children by their parents.

Both states, then, were faced with a highly similar normative dissonance between their local values and the supposedly global norms entrenched in the CRC. Nevertheless, since their respective ratifications of the CRC, there bas been a significant divergence between Canada and New Zealand, in both their legal approach to the physical punishment of children and in the extent to which the issue is a topic of domestic political debate.

In Canada, the initiation of a Charter challenge to the reasonable corrective force defence allowed the federal government to shift its responsibility for the difficult issue to the judiciary. When the case culminated in the Supreme Court's 2004 decision in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), (9) which upheld the defence while simultaneously restricting its application, the decision was publicly perceived as a judicial endorsement of physical punishment and the reasonable corrective force defence. This effectively put a halt to national debate on the issue and to any efforts at legislative reform, while providing Canada with a useful rhetorical tool to deflect pressure from the international human rights community. In contrast, New Zealand's legislature passed a private member's bill that repealed its reasonable corrective force defence in June 2007. The new law remains a highly controversial and divisive subject in New Zealand--it was the subject of a citizen initiated referendum in August 2009--but political leaders have expressed their continued support.

Observers have pointed to a number of differences between the two states that likely contributed to this divergence in outcome. The sustained and involved public debate that characterized the activists' campaign in New Zealand is less likely to occur in Canada, which is much larger in area and population, and features a more decentralized political process due to its federal structure. Advocates in New Zealand relied on their relatively easy access to politicians to make their case; such access is more restricted in Canada. They received important support from New Zealand's...

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