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ABSTRACT
The article depicts manifestations of the law in the educational work of renowned Polish-Jewish educator Janusz Korczak, and re-evaluates Korczak’s work in terms of children’s legal education. It does so in relation to the theoretical insights of Polish-Russian legal sociologist Leon Petrażycki – and particularly the notion of “Intuitive Law”, a term that describes the nature of the law as separate from formal state laws and as based on psychological and emotional experiences, when it comes to expressions of progressive justice. To illustrate Korczak’s legal work and to fully understand its intuitive nature, the article closely follows the legal “institutions” in Korczak’s main, Jewish, orphanage, which usually involved the children themselves. Among other things, it offers descriptions of the children’s parliament as it was enacted at the orphanage, the orphans’ court, their self-published newspaper – which promoted progressive democratic views, etc. The article also analyses a sampling of Korczak’s literary works in relation to the field of law. The various testimonies indicate that Korczak viewed the legal practice as a means of education and as a potentially educational aim in itself, and the legal field as a platform for fairness in day-to-day life as part of living law, similarly to Petrażycki’s views.
KEYWORDS:
Acknowledgement
I thank Yuval Dror, Moshe Shner, Batia Gilad, Basia Vucic and Efrat Davidov for their help and support.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 For a review of the growing interest in him in research, see: Roger Cotterrell, “Leon Petrazycki and Contemporary Socio-Legal Studies”, International Journal of Law in Context 11, no. 1 (21 May 2015): 1–16, SSRN: https://ssrn.com/abstract=2609155; Krzysztof Motyka, Leon Petrażycki: Challenge to Legal Orthodoxy (Lublin: Towarzystwo Naukowe Katolickiego Uniwersytetu Lubelskiego Jana Pawła II, 2007), 5–55.
2 For further discussion, see: Stanislaw Leszek Stadńiczenko, “The Pedagogy of Law – Fundamentals and Issues, The Rights of the Child Yesterday, Today and Tomorrow: The Korczak Perspective”, Part I, ed. Marek Michalak (Warsaw: The Office of Ombudsman for Children, 2018), 142–172; Talia Diskin, “Janusz Korczak as a Legal Educator: Practical and Literary Aspects”, Gilui Daat 17 (2020): 117–142 (in Hebrew).
3 Leon Petrażycki, Law and Morality, trans. H. W. Babb (Cambridge, MA: Harvard University Press, 1955), 241.
4 Ganie B. Dehart, L. Alan Sroufe, and Robert G. Cooper, Child Development: Its Nature and Course, vol. 2, trans. Hadar Jacobson and Nili Landsberg (Tel Aviv: The Open University of Israel, 1998) (in Hebrew). About the term, see also J. Fagan and T.R. Tyler, “Legal Socialization of Children and Adolescents”, Social Justice Research 18, no. 3 (2005): 217–241; J.L. Tapp and L. Kohlberg, “Developing Senses of Law and Legal Justice”, Journal of Social Issues 27, no. 2 (1971): 65–91; and S.O. White and E.S. Cohn, Legal Socialisation: A Study of Norms and Rules (New York: Springer, 1990).
5 Menachem Mautner, Law and Culture (Ramat Gan: Bar-Ilan University Press, 2008) (in Hebrew).
6 Alongside the Jewish orphanage, Korczak also implemented his innovative education thought and methods in a second orphanage in whose management he was involved, called “Nasz Dom” (“Our House”, or “Our Home”, in Polish) in Pruszków, near Warsaw, for Polish children (non-Jewish). This orphanage worked between the years 1919 and 1936, and was conducted by the pedagogue and activist Maria Rogowska-Falska, also known as Maryna Falska (1877–1944). The current article, however, focuses on the first orphanage. Regarding Falska’s work, see: Tali Shner, “Maryna Falska, the Nasz Dom Orphanage, And the Connection with Korczak’s Orphanage On Krochmalna Street”, Dor LeDor 33 (2008): 101–116 (in Hebrew). For more information about Falska, see: Israel Gutman and Sara Bender, “Falska Marina (Maryna)”, in The Encyclopaedia of the Righteous Among the Nations, Rescuers of Jews During the Holocaust (Yad Vashem, 2007), 212.
7 Adir Cohen, Janusz Korczak: The Man, His Doctrine and Educational Project (Tel Aviv: Gama and Tcherikover, 1974), 100 (in Hebrew).
8 About Stefania Wilczyńska see: Martin Sean, “How to House a Child: Providing Homes For Jewish Children In InterWar Poland”, East European Jewish Affairs 45, no. 1 (2015): 26–41. About her and on her memory exclusion regardless of her central role, see: Tamy Coifman, “Commemorating Women – Stefania Wilczyńska”, Dor LeDor 33 (2008): 205–220 (in Hebrew).
9 Janusz Korczak, How to Love a Child, trans. Yaakov Tzuk (Tel Aviv: Sifriat Poalim and Hakibbutz Hameuchad, 1960), 7 (in Hebrew).
10 See, Gabriel Eichsteller, “Janusz Korczak – His Legacy and Its Relevance for Children’s Rights Today”, The International Journal of Children’s Rights 17, no. 3 (2009): 377–391.
11 Albeit not in the foreseeable future. See Philippe Ariès, Centuries of Childhood: A Social History of Family Life (London: Jonathan Cape, 1962 [1960]). This book is considered, to this day, both controversial and ground-breaking, and in it Ariès claimed that before the seventeenth century there was no discernible perception of childhood, and that, until then, children were considered “small adults” who matured early, following a brief period of childhood whose length in years remains vague in the book. Although his conclusions were the target of arrows of criticism and raised a widespread debate, their fundamental importance is vast, by the very understanding that childhood is not just a biological-essentialist phenomenon, but also a cultural one, and forms the basis of this article as well, as it treats the child – as did Korczak – as an object of regard and even protection. On Ariès’s thesis and the debate on it within the research, see Rima Shikhmanter, New Approaches to Children’s Literature (Raanana: The Open University, 2016), 21–33 (in Hebrew).
12 For a discussion on the term legal consciousness and its connection to matters of fairness and morality, see: David M. Engel, “How Does Law Matter in the Constitution of Legal Consciousness?”, in How Does Law Matter?, ed. B.G. Garth and A. Sarat Evanston (Evanston IL: Northwestern University Press, 1998), 109–144; and Susan S. Silbey, “After Legal Consciousness”, Annual Review of Law and Social Science 1 (2005): 323–368.
13 Krzysztof Motyka, Leon Petrażycki: Challenge to Legal Orthodoxy.
14 For a different look at Polish constitutional law between the two world wars of the twentieth century, see Assaf Likhovski’s article on the legal legacy of Jewish-Polish attorneys who came to Israel during that period: Assaf Likhovski, “Peripheral Vision: Polish–Jewish Lawyers and Early Israeli Law”, Law and History 36, no. 2 (2018): 235–266 (see especially pages 255–257).
15 Research papers have examined the boundaries of people’s willingness to follow orders in expressly immoral extreme situations, such as the studies of social psychologist Stanley Milgram, of obedience to authority, following which he developed a general theory on people’s willingness to cooperate with morally questionable acts. Milgram’s theory is considered to have shed light on the behaviour of Adolf Eichmann during the Third Reich and explained the actions of American soldiers who obeyed the horrific orders they were given during the Vietnam War, in the affair known as the Mỹ Lai Massacre. See: Stanley Milgram, “Behavioral Study of Obedience”, The Journal of Abnormal and Social Psychology 67, no. 4 (1963): 371–378. Correlatively, many studies and philosophies have even seen a violent and illegal side, in the broader sense, to the law itself, and considered disobedience a matter of morality, such as: Leon Sheleff, Civil Disobedience and Civic Loyalty (Tel Aviv: Ramot, Tel Aviv University, 1989) (in Hebrew); Chaim Gans, Philosophical Anarchism and Political Disobedience (Cambridge: Cambridge University Press, 1992); Adiel Parush, Obedience, Responsibility and Criminal Justice: Legal Issues from a Philosophical Viewpoint (Tel Aviv: Tel Aviv University, 1996) (in Hebrew); Chemi Ben-Noon, Civil Disobedience (Tel Aviv: Resling, 2014) (in Hebrew); Idith Zertal, Refusal: Conscientious Objection in Israel (Bnei Brak: Hakibbutz Hameuchad, 2018) (in Hebrew); as well as the following collections: Ishai Menuchin and Dina Menuchin, eds., The Limits of Obedience (Tel Aviv: Yesh Gvul, 1985) (in Hebrew); and Yehoshua Weinstein, Disobedience and Democracy (Shalem College, 1998) (in Hebrew); Leora Bilsky, “Death and the Maiden: Transitional Justice and the Rule of Law”, Israeli Sociology 3, no. 2 (2001): 343–370 (in Hebrew), among others.
16 Yosef Arnon, Janusz Korczak’s Educational Method (Tel Aviv: Otzar Hamore, 1971), 97–100 (in Hebrew).
17 Janusz Korczak, Ghetto Diary, trans. Zvi Arad (Tel Aviv: Hakibbutz Hameuchad, 1982), 166–167 (in Hebrew).
18 Arnon, Janusz Korczak’s Educational Method, 39.
19 Janusz Korczak, Volumes on Pedagogy, trans. Dov Sadan and Shimshon Meltzer (Tel Aviv: Hakibbutz Hameuchad, 1954), 69 (in Hebrew).
20 Korczak, How to Love, 264–265.
21 Moshe Zertal, In the Company of Janusz Korczak (Merhavia: Sfiriat Poalim, 1962), 15 (in Hebrew).
22 Orna Alyagon Darr, “Criminal Proceedings as Therapy: The Feasibility of Applying Therapeutic Jurisprudence”, Bar-Ilan Law Studies 26, no. 2 (2010): 491–516 (in Hebrew); and Tali Gal and Hadar Dancig-Rosenberg, “Restorative Justice and Punitive Justice: The Double Faces of Criminal Law”, Mishpatim 43, no. 2 (2013): 779–830 (in Hebrew).
23 Itzchak Belfer, Janusz Korczak: The Man Who Knew How to Love Children (Israel: Yanuka, 2015), 13–15 (in Hebrew).
24 Ibid., 14.
25 Yuval Dror, “The Innovations of Janusz Korczak – An Educator Whose Practice Anteceded the Contemporary Educational Theories”, Dor LeDor 33 (2008): 135–160 (in Hebrew).
26 It is worth mentioning that there were several experiences of children’s self-government since the early twentieth century, at least in the US and in Latin America, and that other child-societies have implemented elements from the world of law into the organisation of their lives. Thus, the significance of cooperative life among children and the aspiration to create institutions of self-governance, including a court, were prominent during the 1930s and 40s at youth villages Ben Shemen, Shfeya, and Gvat in pre-state Israel. See Tammy Razi, “‘Rebuilding the Family’: Perceptions of the Urban Jewish Family in the Mandate Period”, in One Law for Man and Woman: Women, Rights and Law in Mandatory Palestine, ed. Eyal Katvan, Marglit Shilo, and Ruth Halperin-Kaddari (Ramat-Gan: Bar-Ilan University Press, 2010), 21–56 (in Hebrew). Additionally, reports of trials conducted by children can also be found also later on in children’s periodicals in Israel, and see: Talia Diskin, A Law of Our Own: Legal and Moral Values in Children and Youth Periodicals in Israel, 1948–1958 (PhD. Dissertation, Tel Aviv University, 2016, in Hebrew).
27 Belfer, Janusz Korczak, 15.
28 Adina Bar-El, “’Maly Przeglad’: A Polish Juvenile Newspaper Published by Janusz Korczak”, Kesher 32 (2002): 107–113 (in Hebrew).
29 Uriel Ofek, “Kingdom of the Children”, in From Snow White to Emil (Givatayim: Masada, 1973), 153 (in Hebrew).
30 Janusz Korczak, The Newspaper at School, trans. Arie Buchner (Tel Aviv: Niv, 1958).
31 Binyamin Zvieli, “Ten Years”, Ha-Tzofe Li-Yeladim 10, no. 23 (15 February 1956): 10–11 (in Hebrew).
32 Law and literature – both adult as well as children’s literature – are closely linked; authors, as artists of legal imagination, often deal with the law. For cases in the field, see: Shulamit Almog, Law and Literature (Jerusalem: Nevo, 2000) (in Hebrew); Ofer Grosskopf and Shai Lavi, eds., Law, Culture, and Literature: Nili Cohen’s Book (Ramat Aviv: Tel Aviv University Press, 2017) (in Hebrew). The study of children’s literature and the law is also overflowing with analyses of writing for children. For example, see: Gerhard O. Mueller, “The Criminological Significance of the Grimms’ Fairy Tales”, in Fairy Tales and Society: Illusion, Allusion and Paradigm, ed. Ruth B. Bottigheimer (Philadelphia: University of Pennsylvania Press, 1986), 217–228; Katherine J. Roberts, “Once Upon a Bench: Rule Under the Fairy Tale”, Yale Journal of Law and the Humanities 13, no. 2 (2001): 497–529; William P. Macneil, “’Kidlit’ as ‘Law-And-Lit’: Harry Potter and the Scales of Justice”, Law & Literature 14, no. 3 (2002): 545–564; Paul R. Joseph, and Lynn E. Wolf, “The Law in Harry Potter: A System Not Even a Muggle Could Love”, The University of Toledo Law Review 34 (2003): 193–202; Sarah Hamilton, “Over the Rainbow and Down the Rabbit Hole: Law and Order in Children’s Literature”, North Dakota Law Review 81 (2005): 75–114; James Landman, “Using Literature to Teach the Rule of Law”, Social Education 72, no. 4 (2008): 165–170. These and other studies, including the current study, suggest that children’s literature is experienced during a formative period in life, and that its potential influence over the child’s legal socialisation may be significant.
33 Janusz Korczak, King Matt the First, trans. Itzchak Belfer (Tel Aviv: Yanuka, 2016) (in Hebrew).
34 Janusz Korczak, King Matt on the Desert Island, trans. Uri Orlev (Jerusalem: Keter, 1979) (in Hebrew).
35 See: Introduction by Bruno Bettelheim to King Matt the First, translated into English by Richard Lurie (New York: Farrar, Straus and Giroux, 1986), v–xiv. Also see: Basia Vucic, Summary of a presentation at the International Korczak Association-UNCRC Seminar at the Polish Mission to the United Nations in Geneva, 2018. I thank Basia Vucic for this source.
36 To elaborate see also: Moshe Shner, “Why Children Have Rights: Children’s Rights in Janusz Korczak’s Education Philosophy”, The International Journal of Children’s Rights, 26, no. 4 (2018): 740–760.
37 Gedaliah Elkoshi, Janusz Korczak in Hebrew (Kibbutz Lohamei HaGetaot: Beit Lohamei Haghetaot-Ghetto Fighters’ House, 1972), 25 (in Hebrew).
38 Janusz Korczak, At Camp, trans. Arieh Buchner (Tel Aviv: Niv), 1964 (in Hebrew).
39 Ibid., 30–41.
40 See Menachem Regev, “So I Narrate – Korczak’s Short Fiction”, in Studies in the Legacy of Janusz Korczak, vol. 2, ed. Adir Cohen, Aden Shevach, and Yatsiv Reuven (Haifa: University of Haifa, the Janusz Korczak Association in Israel, and Beit Lochamei Hagetatot, 1989), 101–114 (in Hebrew).
41 Janusz Korczak, “So I Ponder”, trans. Berl Pomerantz, Davar Li-Yeladim 6, no. 19 (23 February 1939): 1–4. About Davar Li-Yeladim as a culture agent, also see Diskin, A Law of Our Own (2016).
42 Yitshak Yatsiv, “Without Partition”, in The Life of Janusz Korczak, ed. Hanna Mortkowicz-Olczakowa (Tel Aviv: The Histadrut and Hakibbutz Hameuchad, 1961), 177–182 (in Hebrew).
43 Eli Eshed, “Kaitush the Wizard as an Anti-Nietzschean Figure”, Iyun VeMechkar BeHachsharat Morim 13 (2012), 338–371 (in Hebrew).
44 Elkoshi, Janusz Korczak in Hebrew.
45 Janusz Korczak, Kaytek the Wizard, trans. Joseph Lichtenbaum (Tel Aviv: Am Oved, 1944) (in Hebrew).
46 Eshed, “Kaitush the Wizard” (in Hebrew); Elkoshi, Janusz Korczak (in Hebrew), 82.
47 On the treatment of immigration to pre-state Israel in Jewish children’s periodical in 1930s Germany, see Hanna Livnat, Jews and Proud: Shaping Identity for Jewish Children in Germany, 1933–1938 (Jerusalem: Yad Vashem, 2009) (in Hebrew); as a rule, this was not common nor involved a rejection of life in Germany. However, during WWII, writing that promoted saving the children of the Diaspora abounded in pre-state Israel among children’s authors, after what was happening in Europe was revealed; see Yael Darr, Called Away from Our School-Desks: The Yishuv in the Shadow of the Holocaust and in Anticipation of Statehood in Children’s Literature of Eretz Yisrael, 1939–1948 (Jerusalem: Magnes Press, 2005) (in Hebrew). In both these regards, Korczak’s writing foresaw the future.
48 Korczak, “So How I Ponder”, 1–4.
49 Adir Cohen noted that the Arab question was one that greatly preoccupied Korczak, who worried that the Jewish immigration (“Aliyah”) would injure Arab settlements. Cohen, Janusz Korczak: The Man, 186.
50 Korczak, How to Love, 67.
51 Cotterrell, “Leon Petrazycki”, 12.
52 Arnon, Janusz Korczak’s Educational Method, 90.
53 This was an innovative perception. For comparison, in American legal culture, the law was not expected to be a guide to society until the 1960s, when discourse on US law itself began reflecting the growing need to incorporate into it consideration of morals and values. Morton Horwitz, “American Legal Thought Post-World War II – 1945–1960”, Iyuney Mishpat 16, no. 3 (1991): 445–474 (in Hebrew).
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Talia Diskin
Talia Diskin is a Post-Doctoral Fellow at the Minerva Center for the Rule of Law Under Extreme Conditions in Haifa University, Israel, and a Visiting Scholar at the Schusterman Center for Israel Studies, the Department of Near Eastern and Judaic Studies, Brandeis University, Massachusetts, USA. Her studies seek to understand the intersection of law, history, morality and childhood education. In 2018 she received the Ben Halpern award from AIS (Association for Israel Studies) for best Ph.D. dissertation, titled: “A Law of Our Own: Legal and Moral Values in Children and Youth Periodicals in the State of Israel, 1948–1958”, supervised by Prof. Assaf Likhovski, the Buchmann Faculty of Law, Tel Aviv University, Israel.