Our esteemed ringleader Mr. Cleveland has prodded me to do a post on “children’s rights,” following last week’s discussion of abortion. My musings here are largely based on a paper (PDF) I did a number of years ago.
What do parents owe their children? And may these obligations be legally enforced? Most of us rightly think that children are unlike adults in two ways. First, children have a right to positive provision that adults may not enjoy. Parents have a duty (that ought to be legally enforced) to provide for their children’s basic welfare. Allowing your child to starve or expelling it into the street like a trespasser is both morally wrong and punishable. Second, parents (and perhaps the state) enjoy the right and indeed obligation to treat their children paternalistically in order to guide their development to full rationality. They have the duty and therefore right (“ought” implies “may”) to prevent their children from, e.g., taking harmful drugs or having sex before the age of maturity. Libertarians would certainly say that no one has the right to prevent sane adults from doing these things. So how do we justify this moral distinction between children and adults?
Rights are correlative with obligations. So if children have a right to provision, parents have a duty to provide it. But to whom? Are parents’ duties actually to their children as such? Ordinarily, we think of rights as alienable, i.e., you can waive them if you want. But children don’t have the ability to consent to waiving their rights. So there’s still something a bit weird here. And what about parents’ duty/right to treat children paternalistically? Do children have a duty to obey their parents?
My answer is no, children do not have a duty to obey their parents. First, many children are too young to understand moral duties, so clearly they can have no moral duties. Second, children did not consent to being born or to living in the family in which they find themselves. So how can you acquire a positive obligation to obey someone else if you never did anything positive to assume such an obligation? And how could such an obligation, if it exists, suddenly disappear at maturity?
I would argue that children have rights in virtue of the rationality they will eventually enjoy. If raised tolerably well, children will grow into fully rational, capable adults with the regular panoply of natural rights.(*) Children as children may not know what their best interests are, but as adults they will. If those interests are compromised, it is ultimately the mature, self-aware adult who suffers. (The transition from childhood to maturity is gradual and continuous, but I’m using binary categories here for clarity.)
Parents have a duty to promote the development of their children into rational, capable adults. Depriving them of the necessities of life and of intellectual development violates their children’s rights. Moreover, parents have a duty to try to protect their children from their own harmful behaviors, and any positive action that anyone else may undertake to harm a child’s basic interests is wrong. On this basis, it is appropriate for a government to enforce “age of consent” laws for sex, drugs, etc. to prevent harms accruing to children who don’t know any better, and to buttress the parents’ right to safeguard their children’s development. The children may not realize any harm now, but the self-aware adults who they will become will.(**)
That selfsame respect for the rationality of a person that requires us to treat children paternalistically requires us to treat adults nonpaternalistically. Libertarianism, as a distinctive moral philosophy of natural rights, only makes sense if we draw clear distinctions among rational persons, not-yet-rational persons, and nonrational nonpersons. Treating adults paternalistically is wrong precisely because it is like treating them like children, the not-yet-rational. It disrespects them as persons. Utilitarianism, by contrast, makes no distinctions on the basis of rationality: both children and adults may be treated paternalistically. As a matter of practice, children probably require more paternalistic treatment than adults, but whenever adults tend to make systematic errors about their own interests, it’s appropriate on utilitarian grounds for others (the government) to “nudge” them in the right direction – libertarians reject this view. In the end, then, what seemed like a paradox for libertarianism – different rights for adults and children – turns out to be essential to the core of the philosophy.
(*)It may be argued that normal adults aren’t rational all the time. But what I mean by “rational” here is that a person has the capability for logical reflection and comprehension of moral rights and duties. This doesn’t mean that the capability is always exercised.
(**)Ages of consent are admittedly arbitrary, and there may be some children below the age of consent who are mature enough to make rational decisions about the prohibited behaviors. Ideally, I would favor a high age of consent to protect the rights of even “late bloomers,” along with a judicial emancipation procedure that would allow people below the age of consent to acquire some or all of the rights of maturity.