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Locke, Consent, and the Rights of Children


1. Locke's Theory of Childrens' Rights 
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.
4. 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. 


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