Abstract
Because moral and social philosophy have concentrated almost exclusively on abstract relationships between people, emphasizing either individual autonomy or general social well-being, certain key aspects of our moral experience—those aspects which deal with intimate relation- ships--have been virtually ignored. It is with this relatively untilled terrain of intimate relationships that the following analysis is concerned. Specifically, I try to show (1) why traditional categories employed by philosophers misrepresent moral features of intimate relationships; (2) that the significance of intimate relationships is such as to morally insulate persons in such relationships from state obtrusions; and (3) that it is the significance of intimacy, and not just a concern for the best interest of the child, that is essential to understanding the basis of the parents’ moral claim to raise their biological offspring in a context of privacy, autonomy, and responsibility.
He lets it (the state) dictate to him what is possible or permissible, instead of stipulating, as an unruffled partner, what is to be stipulated to the state of every time, namely, what space and what form it is bound to concede to creaturely existence. Martin Buber
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Footnotes
It is perhaps worth mentioning two related conceptual proposals for thinking about rights of children in response to the worries just indicated. First of all, Professor Bruce Hafen (1976) has suggested that we distinguish between two kinds of legal rights: (1) legal rights which protect one from undue interference by the state and from the harmful acts of others; and (2) legal rights that permit persons to make choices which have significant long term consequences--choices which seem to require mature capacities. These latter rights, called ‘choice rights’, are not, Hafen argues, appropriately ascribed to children. Consequently children’s rights include the right to be protected from their own immaturity. Arguing to a similar effect, Professor Jeffrey Murphy (1977) has distinguished between ‘autonomy rights’ and ‘social contract rights’. While the role of autonomy rights is to mark out the special kind of treatment which is appropriate toward autonomous rational persons whose choices are to be respected, the role of social contract rights is to guarantee legally the satisfaction of certain moral claims--ones rational agents under a veil of ignorance would find morally reasonable to insure. The child’s right to paternalistic treatment, argues Murphy, loses its sense of paradox when understood as a social contract right.
See Hegel. But note that for Hegel, once civil society makes its appearance, the abstract relations which aim at social well-being come to predominate over rights of intimacy and privacy. Aristotle, though generally subordinating family relationships to the goals of the polis, does describe children as “another self” of the parents (Nichomachean Ethics, 8.12), and also says that justice is irrelevant between friends (Nicho-machean Ethics, 8. 1 ).
Amy Gutmann has argued that the only legitimate account for the family in the liberal state is the best-interest-of-the-child account in an unpublished manuscript, “Children, Paternalism, and Education: A Liberal Argument.”
Notable exceptions include Francis Schrag (1976), Melden (1977) and Fried (1978).
Hafen (1976, 651), Wald (1974-5), Goldstein, Freud, and Solnit (1973, 7 and 25 ). 213
Aristotle adopts the view that the child is the parent’s possession, actually comparing the child to a tooth and a piece of hair (Nichomachean Ethics). But since Aristotle also thinks that slaves are possessions toward which the master owes nothing, and since vis a vis their children Aristotle’s view is that parents ought to make their benefit primary (Politics 3:6.7), it is not the best of analogies that Aristotle picked to represent his own views of parent-child relationships. For a critical discussion of Locke’s treatment of this view, see Robert Nozick (1974, pp. 287–291). It may be worth noting that we often use the possessive idiom to indicate a special relationship to something and not legal or moral proprietorship. An architect might say of a building, “That’s mine!” or a child might say of a teacher, “That’s my teacher,” without suggesting ownership.
Though Aristotle observed that the aims of friendship and political association differed, the former aiming at common social life and the latter at the good life, he regarded friendship as on a lower moral plain than political association and as a means to the good life. See Politics 3:9.9–15 and 1:1.1.
Aires (1962) argues that our modern notion of the intimate family emerged as sociability (neighborly relations, friendships, and traditional contacts) diminished and presupposed a sense of the importance of privacy.
Charles Fried (1974) represents a critical discussion of such proposals.
In the Boston University Law Review, 1977, 57, see: Synopsis: Standards relating to abuse and neglect, pp. 663–668; Bourne and New-berger, pp. 670–706; and McCathren, pp. 707–731. Also, in M. K. Rosenheim (1976), see: Burt, R., pp. 225–245.
See Fritz Kern and Otto Gierke. Also, John Garvey has argued that this policy toward the family is consistent with Supreme Court decisions, in “Child, parent, state and the due process clause: An essay on the Supreme Court’s recent work” (1978).
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Schoeman, F. (1982). Rights of Children, Rights of Parents, and the Moral Basis of the Family. In: Cafagna, A.C., Peterson, R.T., Staudenbaur, C.A. (eds) Philosophy, Children, and the Family. Child Nurturance, vol 1. Springer, Boston, MA. https://doi.org/10.1007/978-1-4613-3473-6_21
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