Previous essays in this series have examined what individual rights are and how they apply to parents. (For my understanding of what rights are, see “The Role of Rights in a Free Society,” and for my views on how the principle individual rights applies to parents, see “The Redneck Guide to Parents’ Rights” and “Parental Rights Defined and Defended.”)
The purpose of this essay and those to follow is to explore how the principle of individual rights applies to children, particularly with regard to education. Ultimately, we want to know if children have a right to an education?
The question of children’s rights is a complicated and specialized issue in the philosophy of law that is difficult to grasp for several reasons: first, because the rights of children are intimately intertwined with the equally complicated question of parental rights; second, because children change (physically, emotionally, mentally, and morally) in a relatively short period of time; third, because children do not have the qualities necessary to know and therewith to exercise the full rights of adults; and fourth, because children typically don’t have the cognitive or the physical means by which to protect their rights.
The difficulty in sorting out what the rights of children are and then determining how those rights are to be protected is compounded by the fact that the raising of children is, and must be, an inherently private act. What goes on within the four walls of a home should never be the business of government, unless of course crimes are being committed against children.
But if the life of the family is and must be inherently private and sacrosanct, how can the rights of children be protected if crimes against them are unseen and unknown?
This much we know: the government should have no role in the raising of children, but it certainly does have a necessary and legitimate role in protecting children and ensuring they have guardians if they are orphaned or if the parents fail to protect their rights or worse.
The problem of children’s rights is, as you can see, complicated.
How, then, should we think about the question of children’s rights, and how shall we go about sorting out these thorny problems and a myriad of others that are related to the rights of children?
The Redneck Approach to Children’s Rights
I will again—as I did with the issue of parents’ rights—be applying the “Redneck” method to developing a theory of children’s rights.
The “Redneck” method is an experiential, observation- and fact-based, inductive approach to developing moral and legal principles for living in a free society. I have, of course, done some reading on the subject of children’s rights (including what some philosophers have written on the subject), but at a certain point I put down the books (and you should, too) and I just started to observe, induce, integrate, and think about what I was seeing in the world.
A true philosophic approach—the “Redneck” approach—begins not with books and ideas but with the facts on the ground.
As with “The Redneck Guide to Parents’ Rights,” I recommend that you think about the question of children’s rights based on your own experiences and observations. Start with what you’ve seen and heard.
You might also consider how children have been treated throughout history, which also provides a laboratory for determining whether children have rights and the sorts of rights they might have.
Historically speaking, children have been viewed traditionally as either appurtenances of their parents or as the property of the State. In both cases, fear and force defined the relationship between guardian and child.
Throughout history children have sometimes been treated with ferocious brutality. Ancient and medieval law around the world often gave fathers the power of life and death over their children. Ancient law permitted infanticide (e.g., in ancient Persian, Egyptian, Roman, and Aztec cultures), the selling of children into slavery, the killing of illegitimate children, and various physical punishments such as beatings, floggings, castrations, and clitoridectomies. Even up through the end of the seventeenth century, children were often seen as falling under the absolute and arbitrary rule of their father.
The Spartan-Platonic view of child rearing and the relationship between children and the State, though rarely ever put into actual practice, certainly captured the imaginations of philosophers over the centuries, and it was to one degree or another put into effect in the twentieth century by the various regimes associated with international and national socialism. Plato’s discussion of children and education in The Laws is illustrative of this way of thinking: "Children must not be allowed to attend or not attend school at the whim of their father; as far as possible, education must be compulsory for 'one and all' . . . because they belong to the state first and their parents second." The subordination of children to the State has received renewed life in the United States in recent years as seen in the views of certain academics and politicians who think it takes a village to raise a child.
The plight of children throughout history has not, in other words, been particularly wholesome. Traditionally, certainly before the eighteenth century, children were often viewed as something akin to indentured servants, who had few recognized rights and liberties. Childhood was often viewed as a condition to be endured until one was liberated into adulthood.
The status and welfare of children did begin to change rather dramatically beginning in the middle of the eighteenth century and increasingly so with every passing century. Indeed, the nature of the family and the relations between parents and children underwent a revolution at this time. The revolt against Filmerian patriarchal authority launched by the natural-rights philosophy of John Locke and others at the end of the seventeenth century eventually percolated down and through Anglo-American culture, such that, by 1750, the nature of the family and relations between parents and children was changing rather dramatically.
Parents in particular and society more broadly began to recognize that each and every individual child and not the village or nation was the primary unit of moral, cultural and political value. This meant that parents and society began to view children as rights-bearing beings with much greater freedom than ever before known to previous generations of children to choose their own paths in life (e.g., the right to choose whom one will marry). This trend continued through the nineteenth century, and today children have freedoms unimaginable to those of previous centuries.
Applying the “Redneck” Approach to Children
Using the “Redneck” method of inquiry and the view of rights that I explicated in my essay on “The Role of Rights in a Free Society,” we can begin to apply that definition to the question of children’s rights.
Remember that rights are moral-legal principles guiding social interaction. The principle of rights applies most clearly and obviously to adults, but rights can be refracted and applied to different kinds of social types and social interactions.
Rights do not apply to groups qua race or sex; they apply to individuals. The principle of rights does apply, though, to naturally occurring social relationships. The principle of rights, for instance, can be applied to individuals who are parents (in relation to their children) or to individuals who are children (in relation to their parents). These relationships and the rights associated with them also involve third parties and the government.
In thinking about how the principle of rights applies to children, we might begin with a few questions based on our observations. We want to poke and prod the object of our inquiry from several directions, which is what our questions do. We want to breakdown the question of whether children have rights into its various component parts and then break down the component parts even further until we get to the core elements.
Our goal is to drill down to the bedrock, i.e., to the metaphysical base of the human experience. (I’m not suggesting that I have hit the inner core of our subject; I’m only suggesting that there is a method to help us get there.) Then and only then, can we begin the process of integrating or re-integrating—i.e., putting back together and building back up—the component parts of our knowledge about children and their rights.
These questions—and some of them are incredibly simple—will help us to see beneath the surface and they will help to reveal truths that are sometimes buried in the substrata of the human experience. To change the metaphor, our questions help us to reveal what’s behind the veil. They help us to discover that which is, that which is true, that which is right, and that which is good.
Our ultimate goal here is to establish a moral-legal principle that can be validated philosophically as true and which can be put into practice socially and legally in order to guide social interaction in a free society.
In other words, we want to be able to demonstrate and prove our principles as true and efficacious. This inquisitorial method of questioning and answering is our gateway to integrating our knowledge into demonstrably true moral and legal principles.
Let’s start with three remarkably simple but rarely ever-asked questions:
What are children?
How do families organize themselves?
What is the natural relationship between parents and children?
Let’s go deeper now and ask some questions about the rights of children:
How does the principle of rights apply to children?
Do children have rights, and if so why?
What rights, if any, should children have?
Do children have the same rights as adults?
Do the rights of children change over time?
Do children have rights to material goods (e.g., food, clothing, shelter) provided for them by their parents or other individuals?
Do children have a right to an education? If so, to what kind of education do they have a right?
To complicate matters, we must also ask a series of questions about how the rights of children are to be seen in the context of their parents and the government.
Do most parents recognize their children as having rights that they must respect?
Do parents typically recognize their child’s right to life, to liberty, to property, and to the pursuit of happiness?
Should parents recognize their four-year-old’s right to liberty or to the pursuit of happiness as absolute and unalienable?
Can parents deny or restrict the rights of their children in any way?
Do children typically recognize the rights of their parents or those of their playmates?
Do children have rights-claims against their parents?
Should children be able to sue their parents?
What is the role of the government in protecting the rights of children?
What role should government play in protecting a child’s right to liberty or property?
Now, you might think with Mrs. Redneck that this laundry list of questions is tedious overkill, but I think that asking such questions (and this is only a partial list) is absolutely critical to thinking philosophically and to thinking through the particular problem at hand. These sorts of questions demonstrate, I think, just how difficult is the issue of children’s rights.
The Special and Complex Nature of Children’s Rights
Before we begin probing our subject matter with questions, we must begin with a few general observations and relevant metaphysical facts about children and their rights.
What do we see and know about children? Here are six observable facts about children:
Children are created by one man and one woman;
Children are born helpless and dependent on their parents or other adults for their sustenance and survival;
Reason is man’s primary means of living and living well and each child is born with the undeveloped and unused cognitive hardware but not with the software of cognition;
A child’s mind at birth is tabula rasa;
Each and every child that is born is a unique and irreplaceable individual;
A child’s metaphysical status (physical, cognitive, and moral) changes quite dramatically over the course of approximately 16 years or so.
Before we do a deep dive into the nature and source of children’s rights (which will be presented in the next essay in this series), I’d like to do a quick flyover of our subject to see the lay of the land and to indicate where we’re headed.
The above facts about children indicate that the rights of children, to the extent that they have rights, will be somewhat different from those of their parents and other adults. The rights of children must be in accord with their natures, but the challenge of course is that children and their identities change rather quickly over time. In fact, the rights-status of a 10-month-old child may very well be different from that of a ten-year-old child.
The rights of children are a special instance of, and in many ways an exception to, the principle of rights as it applies to adults. We can see the difficult nature of this issue by simply asserting (based on observation but without yet proving) what rights children have and do not have.
Consider, for instance, the two fundamental rights of nature—the right to life and the right to liberty. Let’s assume for a moment that children have some kind of right to life and to liberty. How are these two “rights” typically experienced by children in twenty-first century America? How do the twin rights to life and liberty apply to children? When we look out into the world and observe how parents treat their children, what do we see?
Let’s start with man’s most basic right, the right to life. How is a child’s right to life similar to and different from that of an adult?
Given their unique metaphysical condition, a child’s right to life is both similar to and different from an adult’s right to life.
As with adults, children have a right to life, which means that their lives may not be destroyed or maimed by another human being (including their parents) or by government. Every day we can observe parents protecting their child’s right to life.
Unlike adults, however, minor-aged children do have a rights-claim to be fed, clothed, and sheltered, but this claim is only valid against their parents. This rights-claim to be fed, clothed, and sheltered is virtually never exercised because its obverse principle (i.e., the moral-legal responsibilities of parents to fulfill those tasks) is almost always satisfied by the parents. A child’s rights-claim to be fed, clothed, and sheltered is only invoked in those remarkably rare cases when a child is not provided with the necessities of existence by his or her parents.
And what of the right to liberty? How is a child’s right to liberty similar to and different from an adult’s right to liberty?
Like adults, children have an absolute and unalienable right to life, but unlike adults they do not have the corollary rights to liberty, property, or even to the pursuit of happiness, at least not as infants, toddlers, and young children and at least not in the way that adults have these rights. The corollary rights apply only, for the most part, to fully rational beings. Again, this is complicated and can be seen in shades or degrees.
A child’s liberty can and almost certainly must be restricted, for instance, by a limited or soft form of physical coercion. In fact, as any parent or guardian knows, a good deal of one’s time is spent monitoring, controlling, restricting, and guiding how infants, toddlers, and young children use their liberty.
Parents and guardians initiate what we might call benevolent coercion on their children virtually every day, all day. Just go to a playground or a grocery store to observe this phenomenon.
In this way, parents are actually educating their children for the rights-based liberty that comes with adulthood. Until that time, however, children exercise and enjoy these corollary rights vicariously with and through their parents.
I must note, however, that it is possible to violate a child’s limited right to liberty. Consider, for instance, a child who is bound and gagged four hours a day, seven days a week, but who otherwise receives a top-shelf education and is raised as a free-range child during his hours of non-captivity. It would be entirely appropriate to say that such a child’s liberty right has been violated.
In sum, given their unique metaphysical status, a child’s right to life is more expansive than that of adults. For example, children have some rights that adults do not have (e.g., the right to be fed, clothed, sheltered, and minimally educated by those who are responsible for them), but they do not have some rights that adults do have (e.g., the right to liberty or property).
In the next essay in this series, I will do a much deeper dive into the question of children’s rights.