Locke And The Rights Of Children Essay

, Research Paper

Locke firmly denies Filmer’s theory that it is morally

permissible for parents to treat their children however they please:

“They who allege the Practice of Mankind, for exposing or selling

their Children, as a Proof of their Power over them, are with Sir Rob.

happy Arguers, and cannot but recommend their Opinion by founding it

on the most shameful Action, and most unnatural Murder, humane Nature

is capable of.” (First Treatise, sec.56) Rather, Locke argues that

children have the same moral rights as any other person, though the

child’s inadequate mental faculties make it permissible for his

parents to rule over him to a limited degree. “Thus we are born Free,

as we are born Rational; not that we have actually the Exercise of

either: Age that brings one, brings with it the other too.” (Second

Treatise, sec.61) On top of this, he affirms a postive,

non-contractual duty of parents to provide for their offspring: “But

to supply the Defects of this imperfect State, till the Improvement of

Growth and Age hath removed them, Adam and Eve, and after them all

Parents were, by the Law of Nature, under an obligation to preserve,

nourish, and educate the Children, they had begotten.” (Second

Treatise, sec.56) Apparently, then, Locke believes that parents may

overrule bad choices that their children might make, including

self-regarding actions. Leaving aside Locke’s duty of self-

preservation, his theory permits adults to do as they wish with their

own bodies. But this is not the case for children, because their lack

of reason prevents them from making sensible choices. To permit a

willful child from taking serious risks to his health or safety even

if he wants to is permissible on this theory. Parents (and other

adults as well) also seem to have a duty to refrain from taking

advantage of the child’s weak rational faculties to exploit or abuse

him. On top of this, Locke affirms that parents have enforceable

obligation to preserve, nourish, and educate their children; not

because they consented to do so, but because they have a natural duty

to do so. 2. The Problem of Positive Parental Duties The first

difficulty with Locke’s theory of childrens’ rights is that the

positive duty of parents to raise their children seems inconsistent

with his overall approach. If, as Locke tells us, “Reason teaches all

mankind, who will but consult it, that being all equal and

independent, no one ought to harm another in his Life, Health,

Liberty, or Possessions.” (Second Treatise, sec.6), it is difficult to

see why it is permissible to coerce parents to provide for their

offspring. In general, in Locke’s scheme one acquires additional

obligations only by consent. Even marriage he assimilates into a

contract model: “Conjugal Society is made by a voluntary Compact

between Man and Woman ” (Second Treatise, sec.78) We should note that

in section 42 of the First Treatise, Locke affirms that the radically

destitute have a positive right to charity. “As Justice gives every

Man a Title to the product of his honest industry so Charity gives

every Man a Title to so much out of another’s Plenty, as will keep him

from extream want, where he has no means to subsist otherwise.” But

this hardly rules out relying on voluntary charity if it is sufficient

to care for all those in “extream want.” Quite possibly, this right

would never have a chance to be exercised in a reasonably prosperous

society, since need would be minimal and voluntary help abundant.

Moreover, it is hardly clear that the duty to provide for the

extremely needy rests only on some sub- group of the population. This

passage seems to make it a universal duty of all of society’s

better-off members. For these two reasons, then, it would seem hard to

ground positive parental duties on the child’s right to charity. For

if the number of children with unwilling parents is sufficiently tiny,

and the society in which they are born sufficiently rich, the

preconditions for exercising the right do not exist. Moreover, there

is no reason for parents, much less the parents of a particular child,

to have a duty to that child; more plausibly, all able-bodied members

of society are equally obliged to fulfill this duty. Nor would it work

to say that parental obligation is derived from the right of

restitution for harm, which Locke explains a criminal owes to his

victim: “he who hath received any damage, has besides the right of

punishment common to him with other Men, a particular Right to seek

Reparation from him that has done it.” (Second Treatise, sec.10) How

has a child “recieved any damage” from his parents? At the time of

birth, his mother has already endured a painful burden in order to

give the child life. Far from having in any way harmed her newborn

baby, a mother could easily claim to have long since dispatched her

share of the social obligation to care for the radically destitute

after nine months of carrying him. The father may or may not have

assisted the mother in this process; but surely he can’t be said to

have harmed the child in any way that would give the child a right to

restitution from him. 3. The Question of Consent The second difficulty

with Locke’s theory of childrens’ rights is that he doesn’t integrate

the theory with his overall contractualist approach. If Locke could

find some sort of a contractual understanding between parents and

their children (as he does for marriage and other social interaction),

then the theory of childrens’ rights would better cohere with his

overall theory. A contractualist approach might also better illuminate

the nature and extent of parental duties.

—

Reconstructing the Theory of Childrens’ Rights The best thing

about Locke’s theory of childrens’ rights is that it explains why

children must be treated differently in order to respect the human

rights that they share equally with adults. Some thinkers in the

Lockean tradition have been willing to defend the “rights” of children

to be molested by adults, to buy drugs, to sell their legs, and so on.

I think that there is a grotesque confusion here (as well as a lack of

common sense), since it assumes that childrens’ serious lack of

intelligence and information in no way taints the voluntariness of

their consent.

While I am in agreement with Locke up to here, I think his

theory needs to be reformulated. First of all, we should deny that

parents have a non-consensual obligation to support their children. As

explained earlier, even if we endorse Locke’s right to charity, no

involuntary duties to one’s offspring follow. Second and more

basically, we should integrate the theory of children’s rights with

Locke’s theories of contract and consent. The main obstacle to such an

approach is that a child can’t consent in the normal sense; indeed, if

he could, why would the child need a guardian in the first place?

Tacit consent works no better than explicit consent, since lack of

rational ability undermines tacit consent too. The difference between

explicit and tacit is merely in the manner of expressing consent; and

if a child is rationally unable to say “I consent” then he is no more

rationally able to indirectly imply that he consents.

So neither explicit nor tacit consent work. But despair not;

for there is a third concept of consent, namely hypothetical consent.

While this notion is ordinarily suspect, in the case of children it is

uniquely useful. Adults must treat children only in ways to which they

would consent, if their faculties were sufficiently developed.

Everyone has the duty to treat children only in ways to which they

would consent: there is a general obligation to refrain from using

violence against children, molesting them, giving them poison or

drugs, and so on. And a child’s would-be guardians can only become his

guardians on terms to which the child would consent if his mind were

mature. The precise content of the consent, being hypothetical, is of

course quite vague (which, happily, implies that there is no need to

sacrifice the pluralism inherent in wide parential discretion). But at

minimum, the hypothetical contract would assure the needs of

nourishment, preservation, and education. Though the child’s consent

need merely be hypothetical, the consent of his guardian(s) much be

actual (probably tacit rather than explicit). Since it is the mother

of the child who automatically suffers a large cost to bring the child

to term, there should be a strong presumption in favor of her

exclusive guardianship. Naturally, she may share guardian duties with

the father if they both consent through an agreement such as marriage;

or she may give up her guardianship of the child through adoption.

Some may object that hypothetical consent is infinitely variable.

(Robert Pollock told me that he heard a NAMBLA member recall how glad

he was that he was molested as a youth.) But I think that every theory

of childrens’ rights eventually appeals to hypothetical consent: for

you could also deny that a child would refuse to be killed, or

crippled, or castrated. On most modern Lockean rights theories (though

not in Locke himself), such things are only a rights violation if the

victim refuses to consent; so such things violate a child’s rights

only if in some sense his consent is absent.

You might argue that all that is necessary to know is that it

is extremely unlikely that the adult into whom the child will grow

would consent to poisoning, castration, or molestation. That is one

possible reply to the NAMBLA objection. Alternately, perhaps this

suggests that it is futile to try to develop an exclusively political

theory of morality. While the law should not try to instill a

particular view of the good life in adults, children may be another

matter. Maybe we should treat children as they would consent to be

treated if they were not only rational, but also virtuous. If this

view turns out to be right – and I am not sure that it is – our whole

understanding of classical liberalism may change. In particular,

classical liberal theories that try to address only political

philosophy, remaining silent on all other questions, will turn out to

be wrong. As might be expected, the anamolous case of childrens’

rights raises new and serious questions about the ultimate

justification of a liberal order.