Parents, Children, and the State

[James G. Dwyer]

        -----Original Message-----
        From:   Michael McConnell [SMTP:Mcconnellm at LAW.UTAH.EDU]

        [James Dwyer has written a great deal and probably deserves more of
a
        point-by-point response. But the basic tenor of his position seems
to
        be that there is a single right answer to some/many/most/all
        questions of childrearing,]




        I assume you would agree with me if I said there are many questions
relating to childrearing as to which there is a single right answer.  For
example, a comment you made previously suggests to me that you would agree
there is a single right answer to the question "Is it in a child's interests
to watch ten hours of commercial television every day?"  And we would also
agree that the state should not intervene in every instance where parents
are doing something that is not in their child's interests.




        [ and that it is "discrimination against"
        children of parents who disagree with this single right answer to
        allow those parents to act otherwise. I cannot quite tell, however,
        whether Dwyer is a majoritarian (who would require all families to
        conform to the majority norm) or a soi-disant philosopher king (who
        would require all families to conform to the "rational" answer
        according to "empirical" evidence).  Neither way much appeals to me.

        I begin with the presupposition that there exist a wide range of
        legitimate answers to most questions of childrearing.]




        Implicit in the last sentence above is a standard for legal
restrictions on parental child-rearing freedom - namely, that parents should
not be permitted to act on the basis of illegitimate answers to childrearing
questions.  When I propose a standard I am a self-appointed philosopher
king.  When others propose a standard they are in pursuit of truth and
justice.

        The difference between what I have done and what Gilles, Duncan,
McConnell, et al. are doing is that in my writings I have stuck my neck out
and explained the standard that I propose at considerable length and in
considerable detail.  The terms "legitimate reasons" and "reasonable
disagreement" (the clear favorite on this list) are so abstract that I can
readily agree with them as standards of parental freedom.  I can promise you
that if Gilles, Duncan, McConnell, et al. were to explain what their
standards mean, with sufficient specificity to give adequate guidance to
legislatures and to courts that must decide disputes between parents and the
state (which will not magically disappear under their standards), some
people would believe they had appointed themselves rulers of the world.

        So I call on those of you who think parents should be free of state
interference so long as their child-rearing choices are within the range of
"legitimate answers" or "reasonable disagreement" to define "legitimate" or
"reasonable."  I don't mean provide a list of examples; it is not
illuminating to be told that it is unreasonable for a parent to think it ok
to kill a child.  I mean a general statement of the *meaning* of these
terms, but with sufficient content that a judge could actually apply it to a
concrete situation.

        And after you have articulated a definition of these terms, could
you please explain:
1)      Who do you think should give content to the standards if they were
to be written into the law?
2)      *On what basis* should whomever you identify in answer to #1 give
content to your legal standard? (If you would rule out both empirical
evidence + rationality and majority decision-making, what is the
alternative?)





        [ I further believe it is in the interest of children, parents, and
the society
        as a whole to place primary reliance on parents to choose among
them.
        It is in the best interest of children because in the general run of
        cases their parents are the ones who love them most and are most
        likely to put their interests ahead of all others, as well as to
know
        them best and to tailor the answers to the individual qualities and
        needs of the child.]




        I agree completely.  I would just point that 1) no parents always
act out of love and many parents rarely or never act out of love; 2) it
takes much more than love for me to do what is best for my children; 3) much
of the knowledge my wife and I need to make good decisions for our girls is
not knowledge about their unique characteristics; most of it is knowledge
about generic needs of children, and my wife and I would be far less capable
of making good decisions if we were not constantly digging into the
literature on child development, children's health, nutrition, behavior
management, etc; and 4) in religious child-rearing contexts disagreements
are typically not about empirical facts relating to children's temporal
interests, but rather about whether parents are entitled to act on the basis
of what they regard as children's spiritual interests (which they themselves
may see as in conflict with children's temporal interests).





        [Of course, there is a point at which parental decisions are so far
        outside the norm that the society should, and can, and will
        intervene. . . .  But I see no reason to suspect that children would
be
        better off if all of them were raised according the opinions of the
        majority, and can identify no political or legal mechanism that
would
        ensure that they are raised according to the best "rational"
        judgments based on "empirical' evidence (even if that were the right
        standard, which it is not). Equal protection of the laws does not
        require that all children be raised in the same way.]



        How would you define "the norm" if not by "the opinions of the
majority"?  And how would you determine what is "far outside" it, if not by
"`rational' judgments based on `empirical' evidence"?


Jim Dwyer