Monday, May 13, 2002
Rhetorical question of the day:
Is there anything inherently unjust about the government taking your children away?
I'm probably only writing about this because I woke up this morning with a fever of 102, but be that as it may, that's the rhetorical question of the day and we're going to talk about it.
Some decades ago, groups of left-wing, idealistic Jews in Israel set out to found a new form of society, based on cooperation rather than competition. They called their society the kibbutz, and the principles of cooperative endeavor and strict egalitarianism ruled in virtually every aspect of life. Meals were taken together, decisions were made collectively, jobs were rotated, minimal property was held privately. And, most dramatically, children were raised communally, being removed from their parents' homes at a very young age to live in the children's house.
Now, this social experiment didn't ultimately work. The children's house in particular lasted only one generation, and most of the rest - communal ownership of property, common meals, etc. - has been whittled away until, at this point, those kibbutzim that survive are really villages with a strong tradition of direct democracy and the economic structure of a tony Manhattan co-op. But what if it had worked? What if, two generations on, a plausible case could be made that, for example, communal child-rearing was better for children than leaving kids with their parents? Would we have seen the government of Sweden, for instance, prohibit private family-formation in the name of child-welfare? And would there have been anything inherently unjust about such a decision, had the Swedes undertaken it?
I think our instincts - mine, anyway - would say that yes, there is something unjust here, that it is, in fact, the most profound form of tyranny to alienate someone from their offspring. It is, for example, the unique degredation of a slave to know that her child may be sold out from under her without her consent. But I don't think it's so easy to explain why this is unjust, at least not in classical liberal terms.
The justification for the institution of parenthood in classical liberal terms is that a minor is, to one extent or another, incompetant to look out for his own interests, and requires of necessity a guardian and tutor. Locke, in the course of disposing of Filmer's patriarchal argument for absolute monarchy, of necessity delineates his own theory of the limits of paternal rule within the family itself (or, rather, parental; Locke makes a particular point of the fact that this power is shared jointly by both father and mother). He argues, briefly, that children are born to equality but not in it, because they do not have reason; that therefore they are subject to the authority of their guardians, to whit their parents; that this authority only extends so far as these guardians discharge their duty and only until the children have grown into full use of their reason.
This all seems fair enough. But it offers no explanation for why parents should be the presumptive guardians. Certainly, that is the natural arrangement, but if some other arrangement were to prove more efficacious or beneficial, why should not it be introduced? What would be unjust about removing children from their parents if it could be demostrated with reasonable probability that such a measure was for the childrens' own good?
Moreover, just to be clear, we need not posit that collectivist parenting be deemed superior to families to raise this question. Richard Posner has suggested that one way to improve the adoption process in the country would be to auction off parental rights - letting the market distribute the children in need of permanent homes in the most efficient manner possible. Why could not such a scheme be extended more generally? Why should not all children similarly be put up for auction? Would not the usual arguments for the efficiency of markets seem to assure that the overall quality of the parenting received by most children be improved by such a scheme? And if so, why should it not be adopted? What would be unjust about it?
It seems to me that it is very hard to articulate what is manifestly unjust about this without either (a) arguing that children are to some extent a species of property, or (b) leaving the realm of classical liberal discourse. In divorce and adoption law, we skirt close to the first of these, without, I think, meaning to. We talk about "visitation rights" - is this really a right? Does the father have a right to his child, or is it more accurate to say that a child has a right to his father? In giving up a child for adoption, a mother signs away her rights. What has she signed away? Was there something she had that she no longer possesses - a right to the child? Or has she, rather, declared her unwillingness or inability to discharge her natural obligations to the child, and invited the state to take custody on that basis? Posner talks about actioning off "parental rights" but, as Locke was aware, these are not rights at all; they are duties. As such, they may indeed be privileges, and so worth bidding for. But in no sense are they rights. What would they be rights to? A child is not property; a parent has no ownership interest in a child.
But if there is no legitimate property interest in children, then where is the injustice in tearing the family apart in the name of the best interests of the child? If the child is truly equal to all other citizens in the eyes of the state, should not the state have some say in what kind of guardianship the child receives? What justification is there, in the liberal account of childhood, for leaving children subject to the unchecked tyranny of parents? Even if these rhetorical fantasies of collective parenting or baby auctions could never come to pass, if there is no objection to them in theory, then what are the bounds on the state's interference in parenting?
I'm still thinking about this, but my current thinking is that the answer lies in recognizing that the family is prior to the liberal state. The liberal state is premised on reasoning individuals contracting for mutual interest. But individuals do not appear from nowhere. The liberal state, in fact, pre-supposes the natural family. Because of this, it is in no position to deconstruct the family on the basis of its individualism. It is not necessary, then, to have a liberal account of the family, to explain it in terms of natural rights. The family is itself natural, and prior to the state, and it is on this basis that its legitimacy depends.
I'm not arguing that children have no rights; far from it. Indeed, the biggest threat to the rights of children, it seems to me, is the suggestion that children are a species of property. Children, like parents, are rights-bearing individuals, even if they have fewer rights in their minority, and are therefore subject to parental government. What I'm saying is that this is an insufficient account of their status to defend the family from potential assaults by the liberal state. Children are not only rights-bearing individuals; they are part of an organic whole - the family - that has a kind of limited sovereignty in its own sphere, within which it has a substantial - though certainly not total - immunity from the intrusion of the liberal state.
I guess what I'm saying is: Locke's account of the liberal state may be persuasive, but his account of the family - rooted in the same premises - is far less so, while Filmer's account of the state is highly unpersuasive - no divine right of kings for me, thanks - but there is an essential kernel of truth to his account of the family - its naturalness, its organic nature - that needs to be preserved.