An incident at my son’s preschool yesterday serves as a good example of a problem I have sometimes pondered relating to IP–that is the extent to which substantive rules are adapted and sometimes distorted in response to difficulties or limitations on the enforcement end. An example, the tendency to boost the penalties for IP related offenses in an effort to compensate for low enforcement rates.
There is substantial room for disagreement on whether and when this kind of substantive adaptation is legitimate. One might think, at first, that one should never do that… consider the following example, though: Under the law of the Icelandic Commonwealth, the penalties for killing someone were much greater if one did not report the killing to one of the next three households one passed. A nice way to solve an evidentiary problem, and what is wrong with it, really, if otherwise disputes about killings would go on forever in the face of endless doubts about who was responsible?
Now, to preschool. The preschool classroom is well populated and while the little horrors are closely supervised they aren’t watched every minute. So any altercation that is not witnessed in full by a teacher can be resolved “correctly” only on the assumption that three and four-year-olds can be persuaded to talk about something other than princesses, guns, tadpoles, or dinosaurs. This is next to impossible. Yesterday the Grub was one of three small boys called to a conference at the “Peace Table” to settle down and talk over their differences. What happened? No one knows. The Grub told me gravely that he hit E, and when asked why, said it was because E. hit him. E. is a sensible chap a full year older and unlikely to hit absent provocation (unlike budding sociopath K.), provocation that The Grub is capable of supplying, but no testimony on this point was forthcoming. This morning The Grub told his father, in response to skilled cross-examination, that he had pushed E., still with the same grave honest face. What actually happened? How was the third little boy A. involved? A. is a scamp, so probably he was involved somehow, but this cannot be admissible. Pushing further only lead to bubbles being blown into milk. So the substantive rules we are left with as a result of such situations are mere pretty phrases, such as “play nicely with your friends.” This won’t do, and how The Grub is to learn that it is okay to defend himself but not attack in this context I do not know. So far, therefore, the main things he seems to have learned in preschool are 1) how to make a fist 2) how to use his sharp little elbows to keep his place in a crowd 3) what a transformer is. Luckily we have a few years left. If I were having another child, I would just let them scuffle away and trust that he would learn not to hit because it leads to being hit back, with some adaptations to avoid a doves/hawks problem. Just an experiment, to see how that one would turn out.
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