CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE COURT OF PEERS LOST IN TIME The Court Council linked two primary competences. The first competence was prescriptive. The council drafted and approved the Code and other social norms necessary for the organization of the community life in the dormitory. The second competence was of an application nature. This competence consisted in determining all kinds of consequences of children’s misconduct. The Court of Peers also exercised this competence, but it was left with easier causes. When the matter required the adoption of a prescriptive measure in addition to a judgment, the Court of Peers was always excluded from the decision-making. 5. A sinister ending? Korczak often resorts to use the settled legal term “Code”. Many times, in his book “Jak kochać dziecko” he invokes the word “rights”. Both words give an incorrect impression that the norms described are an intrinsic part of the legal system. The Code is a distinct formal order that is institutionalized, but otherwise a non-legal truth. The Code is a small normative set of social nature, valid in the dormitory’s realm. However, from the perspective of minors, the origin and content of the Code is a heteronomous and not at all autonomous order. Pertaining to the Code, the children could not participate in its creation. Their position was neither decision-making nor consultative. The Code is similar to school norms that are formed without the participation of pupils. In this sense, they are exclusively internally binding standards. Joining of the collection of social norms with both the Court of Peers and the Court Council is a unique project that was not entirely left in the mind of its creator. The project was put into practice more than a hundred years ago. The court brought the children into the formal position of decision-makers. Children organized in the dormitory’s court could autonomously make decisions on all the consequences of their wrongdoings. Unfortunately, they did not mature to the participatory or decision-making status. Many of them hated the Court of Peers and therefore welcomed its end. The court surprised them as an unexpected and most threatening foe-observer, foe-openness, foe-light. 47 To others, the social norms and both institutions were totally indifferent entities. The problems of coexistence and their judicial solutions were not of any interest to them. Counter to these children stood its supporters. Neither they nor Korczak were able to save the court. Korczak saw the court as a necessary and irreplaceable educational instrument. He expected the court to fulfil his educational and upbringing ideal, which would become part of everyday life. 48 That has not yet happened. Despite this fact, the experiment remained the original prototype of the participatory rights of the child and the right to be heard as governed by the most universal instrument on human rights. 49

47 Ibidem , p. 219: “Takich było kilkoro. Sąd zaskoczył je jako nieoczekiwany i najgroźniejszy wróg-rejestrator, wróg-jawność, wróg-światło.” 48 Ibidem , p. 222: “Sąd jest potrzebny, konieczny, niczym zastąpić się nie da. Sąd musi mieć olbrzymie wychowawcze znaczenie. Niestety nie dorośliśmy jeszcze do sądu. Jeszcze nie lub: jeszcze nie u nas.” 49 UN Committee on the Rights of the Child (CRC), General comment No. 12 (2009): The right of the child to be heard, 20 July 2009, CRC/C/GC/12, pp. 22-25.

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