Abstract
Questions about the moral limits of state intervention have usually been asked about intervention in the actions of individuals, and only rarely asked about intervention in the behavior of families. In this chapter we will discuss these questions as they pertain to families by using the same normative principles employed in familiar discussions about the limits of state intervention in the conduct of individuals: harm-to-others, legal paternalism, and moralism. In this discussion we will introduce and critically examine the doctrine of family privacy which says that the state has no business intervening in internal family conduct which does not harm the interests of anyone outside the family. Using the language of J.S. Mill (quoted in the epigraph), we will ask whether it is true to say “Over itself, over its own members, the family is sovereign.” Before we attempt to answer this question we need to respond to the objection that questions about the limits of state intervention wrongly assume that there is a concept of the family that is pre-political or pre-legal. It has been argued that this assumption is false because the family, like the personal, is essentially political. Is the assumption false? Or is there a concept of family that allows us to refer meaningfully to unjust or wrongful legal interventions in family life?
“The only part of conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.” John Stuart Mill, On Liberty (1860)
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- 1.
“[The legislative] power, in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects.... Thus, the law of nature stands as an eternal rule to all men, legislators as well as others” (Locke , XI, 135).
- 2.
“Beginning in the 1800s, laws in the United States prohibited birth control, when temperance and anti-vice groups advocated outlawing birth control devices and information about birth control devices. These groups considered birth control information to be obscene, a belief that was popular enough that in 1873 Congress passed the Comstock Act outlawing the dissemination of birth control devices or information through the mail. Most states followed suit by passing their own laws outlawing the advertising, sale, and distribution, of contraception.” (Anon., Find Law, 2016b).
- 3.
Until 1967 abortion was classified as a felony in 49 states (Anon., Chicago Tribune, 2016a).
- 4.
“Under the law of many states, a single act of adultery constitutes a crime, whereas in others, there must be an ongoing and notorious relationship. The punishment set by statute may be greater for an individual who engages in repeated acts of adultery than for one who commits an isolated act” (West’s Encyclopedia of American Law, 2nd edition. 2008).
- 5.
Some of those whose writings imply some version of the traditionalist position include Jean-Jacques Rousseau On the Social Contract, 1769; John Locke , Second Treatise of Government, 1690, Ch. VI and VII; and William James, A Review of Women’s Suffrage, 1869, 362. More recently, traditionalist views have been espoused by Blustein, Parents and Children, 1982; Schoeman, Rights of Children, 1980; and Mohr, The Case for Gay Marriage, 1995.
- 6.
The public/private distinction has been variously used to distinguish (1) the unknown and unobserved from that which is known or observed; (2) the sphere of the “free” in which others do not or ought not interfere from the sphere in which others do or ought to interfere; and (3) individuals and perhaps small, voluntary groups from larger, more anonymous and non-voluntary groups. (See Gavison 1992).
- 7.
A contemporary example of the traditionalist position is in Ferdinand Schoeman’s influential essay. He defines the family as “an intense continuing and intimate organization of at least one adult and child, wherein the child is extensively and profoundly dependent on the adult, in which the adult supplies the child with its emotional and material needs, and in which the parent is dependent on the child for a certain kind of intimacy.” (1980, pp. 9–10). Schoeman concludes this passage with the remark that “this relationship is to be understood as moral, not biological.” He then argues that because the family is an intimate organization, it must be accorded privacy and autonomy, that is, legislators have an obligation to enact legislation that guarantees that others (including the state itself) will be excluded “from scrutinizing obtrusions into family occurrences.” (p. 10).
- 8.
- 9.
See, for example Hobbes Chap. 13.
- 10.
Hart refers to this feature as the “internal aspect” of rules. If a social rule is to exist, then some persons must look upon the behavior in question as a general standard to be followed by the group as a whole. (Hart 1961, p. 55).
- 11.
Of course the system of religious laws might be identical with the customary rules of the society, for example Islamic law on the family appears to be identical with custom in many mid-Eastern countries.
- 12.
Okin advocates the “just” family in which social roles are distributed between husband and wife without regard to gender as the ideal that should be promoted by a legal system (Okin 1989).
- 13.
This is extracted from the following quote in Ch. IV: “When, by conduct of this sort [for example, drug addiction], a person is led to violate a distinct and assignable obligation to any other person or persons, the case is taken out of the self-regarding class, and becomes amenable to moral disapprobation in the proper sense of the term. If, for example, a man, through intemperance or extravagance, becomes unable to pay his debts, or, having undertaken the moral responsibility of a family, becomes from the same cause incapable of supporting or educating them, he is deservedly reprobated, and might be justly punished; but it is for the breach of duty to his family or creditors, not for the extravagance [nor for the intemperance].” The words in brackets are by this author.
- 14.
The statistics for child abuse are staggering. During the year 2013, a nationally estimated 3.2 million children received either an investigation or alternative response at a national disposition rate of 42.9 children per 1000 in the population (U.S. Department of Health and Human Services 2015). The statistics on spousal or intimate partner violence in the U.S. is just as alarming. In 2013 there were 10,512,000 victims of physical violence by a spouse or intimate partner in the United States. That works out to 20 people each minute. (Centers for Disease Control and Prevention 2014).
- 15.
Mill implicitly accepts paternalism for children when he writes that his “doctrine is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children, or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury” (Ch. 1).
- 16.
Mill would later expand on this argument in his book The Subjection of Women (1869).
- 17.
Keller, Reliance of the Traveler http://wikiislam.net/wiki/%27an,_Hadith_and_Scholars: Female_Genital_Mutilation
- 18.
Performing female genital circumcision on anyone under the age of 18 became illegal in the U.S. in 1997 with the Federal Prohibition of Female Genital Mutilation Act. As of 2015, 23 US states have specific laws against FGM. States that do not have such laws may use other general statutes, such as assault, battery or child abuse. The Transport for Female Genital Mutilation Act was passed in January 2013, and prohibits knowingly transporting a girl out of the U.S. for the purpose of undergoing FGM. https://en.wikipedia.org/wiki/Female_Genital_Mutilation_in_the_United_States.
- 19.
Another example of this type of deprivation was the ancient Chinese custom of foot binding in which the feet of young girls was tightly and painfully bound to prevent further growth. Although believed to be a mark of beauty, it resulted in lifelong disabilities for most of its subjects.
- 20.
Shell-Duncan et al. 2000, 143–145.
- 21.
Devlin 1959, 129–151.
- 22.
If Devlin was writing his essay today, he would undoubtedly also stress the fact that most Christians believe that marriage is between one man and one woman. (The prospect of gay marriage was not anticipated by anyone in 1959.)
- 23.
Simmons 1999, p. 54.
- 24.
Hart 1963. 50–51. Although it is commonly thought that the “seamless web” metaphor was invented by Devlin, it was first used by Hart in his criticism of Devlin.
References
Anon. 2016a. Timeline of Abortion Law and Events. http://www.chicagotribune.com/sns-abortion-timeline-story.html. Accessed 27 Mar 2016.
———. 2016b. Birth Control and the Law: Basics. Find Law.com . http://family.findlaw.com/reproductive-rights/birth-control-and-the-law-basics.html. Accessed 27 Mar 2016.
Blustein, Jeffrey. 1982. Parents and Children: The Ethics of the Family. New York: Oxford University Press.
Centers for Disease Control and Prevention. 2014. Prevalence and Characteristics of Sexual Violence, Stalking, and Intimate Partner Violence Victimization – National Intimate Partner and Sexual Violence Survey, United States, 2011. http://www.cdc.gov/mmwr/prview/mmwrhtml/ss6308a1.htm?s_cid=ss6308a1_e
Devlin, Patrick. 1959. The Enforcement of Morals. In Proceedings of the British Academy, XIV, 129–151. London: The British Academy.
Dworkin, Andrea. 1987. Intercourse. New York: Free Press.
Find-Law. 2015. Birth Control and the Law: Basics. http://family.findlaw.com/reproductive-rights/birth-control-and-the-law-basics.html#sthash.WWV6eVcb.dpuf
Gavison, Ruth. 1992. Feminism and the Public/Private Distinction. Stanford Law Review 45: 1–45.
Hart, H.L.A. 1961. The Concept of Law. Oxford: Clarendon Press.
———. 1963. Law, Liberty and Morality. Stanford: Stanford University Press.
———. 1983. Positivism and the Separation of Law and Morals. In Essays in Jurisprudence and Philosophy. Oxford: Clarendon Press.
Hobbes, Thomas. 1651. All editions.
James, William. 1983. A Review of Women’s Suffrage, the Reform against Nature by Harold Bushnell and Subjection of Women by John Stuart Mill. In Visions of Women, ed. Linda A. Bell. Clifton: Humana Press.
Keller, Nuh Ha Mim, (ed. and trans). 1987. Reliance of the Traveler, The Classic Manual of Islamic Sacred Law ‘Umdat al-Salik by Ahmad ibn Naqib al-Misri (d. 769/1368) in Arabic with Facing English Text, Commentary, and Appendices. Beltsville: Amana Publications. http://wikiislam.net/wiki/%27an,_Hadith_and_Scholars:Female_Genital_Mutilation
Locke, John. 1980. Second Treatise of Government, ed. C.B. Macpherson. Indianapolis: Hackett. First published in 1690.
MacKinnon, Catherine. 1987. Feminism Unmodified: Discourses on Life and Law. Cambridge: Harvard University Press.
Macklin, Ruth. 1988. Changing Conceptions of Motherhood. Law, Medicine and Health Care 16: 35.
Mill, John Stuart. 1979. On Liberty. Indianapolis: Hackett. First published in 1860.
Minow, Martha. 1985. Forming Underneath Everything That Grows: Toward a History of Family Law. Wisconsin Law Review 4: 819.
Mohr, Richard. 1995. The Case for Gay Marriage. Notre Dame Journal of Law, Ethics and Public Policy 9: 216–229.
Morris, Herbert. 1976. On Guilt and Innocence: Essays in Legal Philosophy and Moral Psychology. Berkeley: University of California Press.
Norton, Caroline S. 2010. A Letter to the Queen on Lord Chancellor Cranworth’s Marriage and Divorce Bill. Cambridge University Press.
Okin, Susan Moller. 1989. Justice, Gender and the Family. New York: Basic Books.
Olsen, Frances E. 1984. The Family and the Market: The Politics of Family Law. Law and Inequality 2(1).
———. 1985. The Myth of State Intervention in the Family. University of Michigan Journal of Law Reform 18(4).
Rousseau, Jean-Jacques. 1983. On the Social Contract. Indianapolis: Hackett. First published in 1762.
Schoeman, Ferdinand. 1980. Rights of Children, Rights of Parents, and the Moral Basis of the Family. Ethics 91: 6–19.
Shell-Duncan, Bettina, and Ylva Hernlund. 2000. Female “circumcision” in Africa: Culture, Controversy, and Change. Boulder: Rienner.
Simmons, A. John. 1999. Fault, Objectivity, and Classical Islamic Justice. In Perspectives on Islamic Law, Justice and Society, ed. Ravindra S. Khare. Lanham: Rowman and Littlefield.
U.S. Department of Health and Human Services. 2015. Administration for Children and Families, Administration on Children, Youth and Families, Children’s Bureau. Child maltreatment 2013. http://www.acf.hhs.gov/programs/cb/research-data-technology/statistics-research/child-maltreatment. Accessed 26 March 2016.
Von der Osten-Sacken, Thomas and Thomas Uwer. 2007. Is Female Genital Mutilation an Islamic Problem? Middle East Quarterly, Winter: 29–36. http://www.meforum.org/1629/is-female-genital-mutilation-an-islamic-problem
West’s Encyclopedia of American Law, Second Edition. 2008. The Gale Group, Inc.
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Houlgate, L.D. (2017). The Moral Limits of Family Law. In: Philosophy, Law and the Family. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-51121-4_5
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