Children’s Rights Defined and Defended
The ninth in a series . . .
The fundamental question of our time is: who is responsible for educating children, parents or the government?
And only after we answer this question can we address two related questions: what should children learn and how should they learn it? The “who” determines the “what” and the “how.”
But the “who” question is partly dependent on how we answer an even more basic question: do children have a right to an education, which is in turn dependent on the most fundamental question of all: do children have rights and if they do what kind of rights do they hold? This last question is the subject of this essay. In the next and last essay in this series, I will address directly the question of whether children have a right to an education.
In my seventh essay in the series on “Who Shall Educate the Children?” I demonstrated philosophically that parents—and only parents—have the sole right, authority, and responsibility to determine how and in what their children will educated. I have made it clear in this series that government should have no role in the education of children. The very idea is grotesque and immoral.
And in the eighth essay on “The Redneck Guide to Children’s Rights,” I established, in a general way, the metaphysical conditions of childhood and how the concept of rights applies to children given their natures.
But now we need to drill down much further than we have thus far to determine what sort of claim, if any, children have on their parents to be fed, clothed, sheltered, and educated?
Children and the Right to Life
With the birth of a child a complex amalgam of interconnected and interdependent rights is created. Let’s begin with the foundational right—the right to life.
As with adults, each and every child is a metaphysically distinct and unique being that is born with rights that merit protection. When I say that every child is “born” with rights, I do not mean to say that said rights are “inherent” or “endowed” but that their identification and recognition is a necessary moral attribute for living and living well. The “rights of man” (which includes those of children) are natural only in the sense that they derive from man’s nature and the requirements for his well-being. Children, like adults, therefore have a moral and a legal right to life—that is, the right to live and develop into an adult—that must not be violated by the initiation of physical force either by other individuals or the government.
But a child’s right to life is somewhat different from that of an adult. An adult’s right to life is both more and less expansive than a child’s (and vice versa). An adult’s right to life includes, for instance, the right to liberty, which means the freedom to take those actions necessary to live and to govern oneself, both of which are metaphysically inaccessible to children (e.g., as relative to infants and toddlers) who are incapable of taking the actions necessary to live independently. In other words, a child’s right to life does not include the adult’s right to liberty.
A child’s right to life simply means the right to exist and to grow into a rational and independent adult. For anyone—including a parent—to kill a child is to commit a homicide in the very same way that to murder an adult is a homicide legally punishable by the government. To murder a child is a crime because the child has a legally-recognized right to his or her own life. Full stop.
Given the manner in which the child was created and brought into the world (i.e., by a volitional act of two adults) and given the child’s unique metaphysical status (i.e., his complete dependence on adults for survival), how can a child’s right to life (and all other rights) be recognized? How can children have rights they know nothing about? And how are children’s rights protected and adjudicated?
Anglo-American law recognizes a child’s legal right to life through the legal mechanism known as a trusteeship, which is held by parents or guardians. By choosing to create and bring a child into the world, parents assume certain fiduciary obligations that are analogous to a particular kind of contract recognized in law: third-party beneficiary contracts. This is an implicit contract between parents and the government and is recorded via a parent’s application for a birth certificate. As third-party beneficiaries, children are not a party to the contract, but they are the intended beneficiary of the contract.
The terms of the contract are grounded in three natural facts: first, the child is the parents’ creation in whom they hold an absolute and inalienable right (relative to third parties) but a right that is a limited and temporary claim of possession (relative to the child); second, the child cannot exist without the support of the parents (or surrogate parents); and third, the parents have a moral and a legal responsibility to support the child’s life. If the parents refuse to support the child or if they are unable to do it, they have either violated or they are unable to fulfill their contract and must consequently lose either temporarily or permanently their right to their child.
But when we say that a child has a right to life, what exactly does this mean in moral and legal terms? How does a moral right translate into a legal right that requires protection by the government?
Let’s consider, for instance, how the law does and should respect a child’s right to life vis-à-vis their parents.
The following three scenarios provide concrete instances of how the law should take into account a child’s right to life in the context of the child’s relationship to his or her parents or guardians.
Parents or guardians who intentionally starve a child or who don’t provide him with the proper clothing or shelter necessary for survival despite having the means to do so are guilty not only of a moral crime but of having violated the child’s right to life.
Parents or guardians who, through negligence do not provide sufficient food, clothing, or shelter to sustain the child’s physical well-being, are guilty of a moral crime as well as some form of criminal negligence.
Parents who are incapable of providing for the physical well-being of their child through no fault of their own (e.g., a plague or famine, or the long-term or catastrophic illness or injury of one or both parents) have committed no moral or legal crime. Such a situation is tragic and a proper, rights-respecting government may legitimately intervene if the child’s life is threatened.
In all three instances, however, the government (under the appropriate conditions and with the proper resources) must have the legal authority to protect the child’s right to life, rescue him from an impending death or physical harm and place him with welcoming relatives, in a foster home, or with some charitable organization.
The same principle would also apply to parents who refuse to allow their children proper medical care that would save their lives. In those cases where parents have intentionally or through negligence abused a child, they should be punished via the criminal justice system and required to pay for the upkeep of their child. Where that is not possible or desirable, the child’s upkeep must be provided by charitable organizations, such as Boys Town, Catholic foster care, or various private charitable organizations.
Otherwise, the government’s relationship to families—to parents and their children—should be entirely laissez-faire. The government’s role is to serve as a protection agency for safeguarding the rights of individuals, including children.
A Child’s Right to Life Includes the Right to Think
The moral principle of a “right to life” is, as it applies to children, a much broader and more complex concept than it is for adults.
A child’s right to life must, for instance, be “other” generated, while an adults right to life must “self” generated.
A child’s right to life also extends beyond not only his physical existence, but it includes the development of his rational faculty. An adult’s right to life means, in part, the right to self-governance, which requires the exercise of one’s fully developed cognitive faculties. Those faculties are, and must be, developed in childhood.
There is no life for adults without the use of the mind. Because man’s cognitive faculties are his basic tools for living, children do have a moral claim and, implicitly, a contractual right as a third-party beneficiary, to be provided by their parents or guardians with the necessary physiological and cognitive means required for the normal development of their rational faculty.
In the same way that parents have a moral and legal obligation to provide for the physical sustenance of their children, so they must provide their children with the cognitive sustenance (e.g., the basic neuronal development required for language acquisition) necessary to eventually become rational, self-governing, and self-reliant individuals.
But what exactly does this mean? To what kind of cognitive development or “education” do children have a right? How would a child’s right to life be violated as it relates to his cognitive development? Put the other way ‘round, what constitutes cognitive child abuse?
This is an extraordinarily difficult issue that involves the interstices of neurocognitive science and family law, which goes well beyond the purposes and purview of this essay. I shall therefore only indicate in broad strokes my incomplete thoughts on the subject. (Reminder: I am also saving for the next essay in the series the whole question of the kind of “education” to which children may or may not have rights.)
Just in the same way that it would be a violation of a child’s rights to be abused physically, so too would it be a violation of the child’s rights to be subjected to cognitive or mental abuse. It would, for instance, be a violation of a child’s rights to be locked in a dark room for extended periods of time deprived of sunlight and sensory and mental stimulation. (Think of the allegory of Plato’s cave, where prisoners are tied up at the bottom of a cave facing the end wall and only able to see the shadows of the people illuminated behind them.)
To deny a child the ability to communicate via some form of oral, written, or expressive language would also be a form of abuse as it would do permanent and irreparable damage to the child’s potential cognitive development and therewith their ability to acquire any language as an adult. Such actions are a breach of the child’s third-party contractual rights vis-à-vis their parents.
Consider, for instance, the case of those feral children whose cognitive development has been dwarfed intentionally and permanently by their parents. Some such cases involved children who have been denied the sensory experiences necessary for language acquisition or fine and gross motor control.
By contrast, it would not be a violation of a child’s right to not receive a certain kind of education. A child does not have a right to learn Latin, calculus, geology, or Critical Race Theory. Indeed, children do not have a right to an education per se, but more on this anon.
The Evolving Nature of Children’s Rights
The subject of children’s rights is made complicated by virtue of the fact that a child’s metaphysical state of being (i.e., their bodies and minds) changes quite profoundly over the course of a few years.
Newborn children come into the world devoid not only of any knowledge but even of a neurologically developed conceptual faculty. Although the infant has the potential to develop the power of reason (the power distinguishing man from all other animals), he does not yet have it. A child’s faculties are undeveloped and only a potential. But unlike the newborn of all other animal species, human babies are born without the knowledge or instincts required for survival on their own.
Children must therefore be cared for both physically and cognitively or they will die. In particular, their long-term survival and wellbeing require that their conceptual faculty be developed and exercised under some kind of deliberate and supervised guidance.
To become fully human—to become independent and self-governing—is to develop the rational faculty, which means that the process required for developing the child’s mental faculties is a critically important element in the process of maturation from infant to child to adult.
At first, the child is utterly helpless and completely dependent. Not until the child has begun to develop his conceptual faculty can he act responsibly and in his self-interest. This process takes many years.
The natural condition of children is to evolve from a state of total dependence to a state of partial dependence, from partial dependence to partial independence, and from partial independence to a state of self-governing independence. Until that time, though, until the child grows physically and cognitively and can assume “actual” self-governance, he is under the “virtual” proprietorship of his parents or guardians, who have a kind of fiduciary power over and responsibility to the child.
It is only through the development of the conceptual faculty over the course of a 10- or a 12-year period that the child becomes a full rights-bearing, rights-respecting individual. And as a child’s metaphysical condition changes, so does the status of his rights.
The principle of rights cannot apply to a six-month-old infant in the same way that it applies to a six-year-old child or a 16-year-old teenager. Rights, in the full sense of the term, are and must be connected primarily to rationality, to one’s volitional capacity, and to one’s ability for self-government.
Thus the sphere of children’s rights and responsibilities (i.e., their freedom of action) expands gradually over time. As they mature, as their cognitive faculty develops, and as they gain control and authority over their own thoughts and actions, the sphere of liberty and responsibility granted to children expands. A four-year-old will not understand the nature and meaning of liberty, property, contracts or the pursuit of happiness, but a 14-year-old could begin to do so.
Children do, therefore, have individual rights above and beyond the existential right to life, which they have from the moment of birth, but those corollary rights—that is, the rights of individuals such as liberty, property, and the pursuit of happiness—are held and manifested in a way somewhat different from those of adults.
Children are, we might say, proto-rights bearers. Their rights are in effect held in trust temporarily by their parents or guardians. This is why society also applies criminal, contract, and tort law differently to children than it does to adults. Young children cannot make legally binding contracts, for instance, without the consent of their parents.
Eventually, however, as their rational faculties develop and as they become more capable of governing themselves over time, children begin to assume and exercise the rights that have been held in trust for them by their parents and society. Those rights—the right to liberty, for instance—are slowly released to the child over time as they mature and become increasingly responsible for their actions. And at the same time as the child’s sphere of rights is expanding, the moral and legal obligations owed to them by their parents is contracting.
Government, Third-Party Beneficiaries, and a Child’s Right to Life
Given the distinctive metaphysical condition of children, the principle of rights—and especially the right to life—applies differently to them than it does to adults. From the time that children are born and for several years thereafter, they are in a state of total dependence on their parents. Newborns and infants require, therefore, the constant and proactive action of their parents or some adult in order for them to survive and to develop physically and mentally.
During this state of helplessness and dependence, children do have a right to life—indeed, a rather expansive right to life—that must be ensured by their biological or adoptive parents, and with that right comes certain contractual rights or entitlements that apply only to children relative to their parents.
Children do have, both morally and legally speaking, a contractual rights-claim against their parents to be fed, clothed, protected, and educated (in some minimal way). They do not have a right to be fed caviar, to wear Gucci shoes, or to be educated at Choate, but they do have a right to be fed, clothed, and protected in order to ensure their right to life, and they do have a right to a minimal education (e.g., to learn how to communicate) that will allow them one day to be rights-bearing and rights-respecting adults.
For adults, rights represent a moral and a legal fence that prevents other individuals from invading their freedom of thought and action and vice versa. Children, in a slightly more limited context, do have the same right to noninterference held by adults. It would, as we have already seen, be a rights violation for anyone, including a child’s parents, to murder, maim, or abuse a child physically.
But children do, given their metaphysical status as dependents and given that they did not ask to be created in order to be abused, have certain limited contractual rights-claims as third-party beneficiaries to things that must be provided for them by those who created them or by their legal guardians. They are and must be the constant beneficiaries of care from their parents or guardians. To this they have a moral right and to this they should have a legal right in a free society.
A child’s right to life means, therefore, in a limited sense, that it has a contractual right to be fed, to be clothed, and to be protected by its parents. Adults, by contrast, do not have a right to that which has been produced by someone else.
But these rights-claims, however, should only be morally and legally specific to, and valid against, the child’s parents or legal guardians. The obligation and the right are entirely personal and limited in the same way that a contract between two individuals is limited to the contracting parties.
A parent who abuses or intentionally does not satisfy his fiduciary obligations to his children may be said, under certain circumstances, to have forfeited his right to his children (either temporarily or permanently, depending on the severity of the rights violation). Such a parent has committed either some direct form of assault and battery or some indirect form of criminal fraud. There is a sense in which we can say that a parent has indirectly initiated force against their child if they do not provide the child with the necessities of life in the same way that fraud and extortion involve the indirect use of force.
Thus, the government in a free society does have the authority to protect children and to prosecute parents for parental malfeasance.
It is important to note therefore that these rights are meaningful only in the context of the child’s relationship to his parents; such rights are specifically connected to the obligations of the child’s parent as defined by the terms of their explicit or implicit third-party beneficiary contract.
A child does not and should not have a legally-enforceable right (i.e., a rights-claim) to be fed, clothed, protected, and educated by individuals other than his parents or legal guardians until or unless the parents fail to perform their responsibility. A child’s right to physical and intellectual sustenance is not a universal rights-claim against “society,” but is rather a right connected to particular individuals in the same way that an individual owed a debt from a particular individual has no claim on society as a whole to satisfy the debt.
There is and can be no right, including those of children, to violate the rights of others. The “right” to infringe the rights of others is a contradiction in terms.
I will conclude this series next week with an essay taking up our last question: Do children have a right to an education? See you then!