A few days ago, I posted this, about a new-ish book by Michael T. McFall called "Licensing Families":
In Licensing Parents, Michael McFall argues that political structures, economics, education, racism, and sexism are secondary in importance to the inequality caused by families, and that the family plays the primary role in a child's acquisition of a sense of justice. He demonstrates that examination of the family is necessary in political philosophy and that informal structures (families) and considerations (character formation) must be taken seriously. McFall advocates a threshold that should be accepted by all political philosophers: children should not be severely abused or neglected because child maltreatment often causes deep and irreparable individual and societal harm. The implications of this threshold are revolutionary, but this is not recognized fully because no philosophical book has systematically considered the ethical or political ramifications of child maltreatment. By exposing a tension between the rights of children and adults, McFall reveals pervasive ageism; parental rights usually trump children's rights, and this is often justified because children are not fully autonomous. Yet parental rights should not always trump children's rights. Ethics and political philosophy are not only about rights, but also about duties - especially when considering potential parents who are unable or unwilling to provide minimally decent nurturance. While contemporary political philosophy focuses on adult rights, McFall examines systems whereby the interests and rights of children and parents are better balanced. This entails exploring when parental rights are defeasible and defending the ethics of licensing parents, whereby some people are precluded from rearing children. He argues that, if a sense of justice is largely developed in childhood, parents directly influence the character of future generations of adults in political society. A completely stable and well-ordered society needs stable and psychologically healthy citizens in addition to just laws, and McFall demonstrates how parental love and healthy families can help achieve this.
This sounds like a book that moves from some premises that are clearly correct -- e.g., "parents influence the character of future generations of adults" -- and moves to some conclusions and proposals that might be less attractive. But, of course, I have not read it. Others?
For my own thoughts on some of the matters that (apparently) this book covers, check out this paper.
The book's author wrote to me, and gave me permission to post what he wrote:
Thank you for posting this, Rick. If I may, as the author of the text in question, I would like to address a few things. First, you are correct. Most people accept the premises. And most also accept the reasoning. Yet many reject the conclusions and proposals (some of which are indeed not attractive). I enjoy problems where people accept the premises and logic but not the conclusions that follow, and this is one of those messy problems. Several of the posts touch nicely upon major moorings of the argument. Dave nicely sets up the argument by analogy to adoption, an analogy I believe is given insufficient attention by society. There is something enticing about ensuring that children will likely be raised in a minimally decent environment. And I think Andrew is appropriately concerned about categorical rights to rear children *simply* from sexual intercourse. Here I follow Locke, “So little power does the bare act of begetting give a Man over his Issue, if all his Care ends there, and this be all the Title he hath to the Name and Authority if a Father.” Likewise, I agree and put forth, like Locke, a theory of conditional or defeasible parental rights. I suppose this isn’t too radical, as most people accept the conditionality of parenting insofar as they accept that children may be removed from parents when severely maltreated. This links with Dave’s first point, which seeks, I believe, something more robust than rights unattached to anything else. I agree. The thing that rights should be attached to is something that our society has largely lost track of – duties. Again, Locke stresses this link nicely, and James Kent perhaps says it best: “The rights of parents result from their duties.” I’m enjoying the debate between Rick and Andrew about the role of the state in this matter, and it is tricky how to balance family/state in this issue. Perhaps one way to approach the matter, which you might both agree to, is that so long as basic duties to children are met by parents, then parents can fulfill their duties in a multitude of different ways, especially in a pluralistic society. However, if parents do not meet their basic duties, then the state can ensure that such duties are met and direct things accordingly. It’s refreshing to see the rights and welfare of (1) children, (2) adults, and (3) the state [and society] addressed in this conversation. Far too often only one or two of these is seriously considered. I might add, though not discussed in the book for several reasons, it is also important to consider a fourth party – God. I note this because Locke, for example, believes that the duty that parents have to ensure children are raised well is a duty to God, not a direct duty to children. While I believe that parents do have a duty to God in this matter, it seems that parents also have direct duties to children themselves. Lastly, I understand Joel’s concern about the book not taking sin seriously. But, for what it’s worth, I believe that the book does; it doesn’t pretend to remove sin – it doesn’t even pretend that it is possible to entirely eliminate child maltreatment, even if all the policies proposed are adopted. To address this concern, I dedicated the last chapter to worries as such, especially concerns that the proposed licensing parents proposal is utopian/dystopian. Thank you.
A few quick thoughts: First, Mr. McCall and I would disagree, I suspect, about whether certain conclusions (including some that, I gather, he proposes) in fact "follow" from the premises we both embrace. Next, if McCall's argument is that parents have not only (non-absolute) rights (against the state) to direct the formation of their children, but also duties to exercise well, in the best interests (richly understood) of their children, those rights, then I suspect we don't really disagree. But, it seems to me, that a book called "licensing families" (and, again, I have not yet read the book) is probably making a stronger, more state-centered claim.
From the First Things blog, I learned that an appellate court in Belgium has ruled that damages may be recovered from physicians who fail to act in accord with (what the court determined was) the legislature's intent, in authorizing "therapeutic abortion", to "help avoid giving birth to children with serious abnormalities." In my view, the law should not recognize the "wrongful life" cause of action, notwithstanding the fact that, certainly, there have been and will be cases where parents who would have procured abortions had they been provided with certain information. Still, it strikes me -- and it is unsettling -- that the refusal of most American jurisdictions to recognize the "wrongful life" tort sits uneasily alongside the rest of our abortion-related legal regime.
Legal scholars often talk about law's "expressive" and "pedagogical" functions. What does the law say, and what does it teach us to think, about the disabled, when it recognizes a wrongful life tort? (The wrong things, I think.)
Brad Wilcox and Chuck Donovan report that marriage's decline is expanding from the lower socioeconomic classes into the middle class. An excerpt:
The breakdown of marriage and family has afflicted the poorest Americans for more than a generation. What is happening today is a widening gulf between the middle class, where a sharp decline in marriage is at work, and the most educated and affluent Americans, where marriage indicators are either stable or improving. . . .
Among moderately educated Americans, the out-of-wedlock birth rate hit 44 percent, up from 13 percent as recently as 1982. Again, Middle America moved closer in behavioral norms to the poorest Americans, even as more educated and wealthier Americans are embracing a marriage mindset.
Monday, December 6, 2010
I missed this opinion from a couple of weeks ago (but thankfully John Breen didn't!): the Second Circuit has ruled, not surprisingly, that the Church Amendment does not create a private right of action by which a nurse who was forced to participate in a late-term abortion may sue to vindicate her right of conscience. As Robin Wilson has argued, if the Dep't of Health and Human Services declines to enforce the Church Amendment, a private right of action may be needed.
Saturday, December 4, 2010
Congratulations to Rob in publishing his thoughtful essay entitled Political, Not Partisan—The Church in the Public Square in the December 3 issue of Commonweal magazine! I am not able to upload here his article for interested readers of the Mirror of Justice, but if anyone could help with this task, I would be most grateful.
Rob’s commentary investigates generally the capacity of the Church through the efforts of her bishops to engage the public regarding policies, election year issues, and elections themselves. He focuses his analysis on the distribution of the DVD produced and distributed by Archbishop John Nienstedt. Knowing that the archbishop and the Church have received criticism in recent years for the Church’s participation in the public square on issues before the public, Rob crafts four understandings of the meaning of the word “political.” Moreover, Rob’s definitions demonstrate that there is or should be no prohibition of the Church engaging public policy matters that may be considered “political” under U.S. law with the exception of participating or intervening “in... any political campaign on behalf of (or in opposition to) any candidate for public office.” In addition, Rob acknowledges that this prohibition should not stop the Church or the bishops from speaking on matters of public interest knowing that one candidate may be in favor of one side of the matter and another opposed. I largely agree with him on his well developed points.
But, I would like to add a few further thoughts on this important subject raised and ably discussed by Rob.
The first is this: should discussion about political issues by the Church and her members be a legitimate objective or enterprise for them to pursue or to engage? Generally, I would say yes, and firstly because the term political is quite broad and has multiple meanings, and we must be clear about which meaning do we have in mind. The term can mean, for example, belonging to or concerned with the form, organization, and administration of the state and with the regulation of other states. [All definitions upon which I rely here in this posting are derived from the Oxford English Dictionary.] It can also mean relating to or forming a part of the civil administration of society. It can also mean having an organized form or structure of the government or society. Further, it can apply to those who are concerned with public life and the authority of the state. In all these contexts, all members of society and all its institutions, including the Church and her members, have legitimate interests that can be and should be properly exercised in the political realm as these definitions apply.
However, if the meaning in mind refers to the taking sides with or promoting or following (or the opposite of these) a party line in a political/public debate rather than focusing on the issues and proposing a position on the issues themselves or the general debate itself, then the Church or its bishops could be deemed “political” in a problematic manner. I think that Rob and I agree on this as his, Rob’s, discussion of Archbishop Nienstedt’s recent activity in making and distributing the DVD on the marriage question was developed by Rob. Of course, could there not be exceptions to this kind of activity in certain kinds of political environments? I think so, but those exceptions could be in very dangerous circumstances such as those surrounding another bishop, i.e., Clemens August von Galen of Germany in the 1930s and ’40s. In this regard, one might also take stock of the careful words of Bishop John Fisher in Rochester, England in the early 16th century. But recognizing that there could be legitimate exceptions to the Church being political in the context of taking or not taking sides with particular party lines, I think that is why our Federal tax law states what it does. Should the Church be partisan with a party? I think this is ill-advised. Should or can the Church be partisan on the issues themselves which political parties and candidates take sides? I think this is not only permissible but often necessary if the voice of the natural moral law is to be heard on important matters dealing with the res publicae.
Thus, the Church and her bishops and her members have as much right to participate in the political life of society, as I have outlined the term’s various definitions, as much as any other member of society.
The second topic I address today is to comment briefly on Rob’s judicious and important discussion of three positive qualities for which the Church “should strive whenever it works to influence the voting decisions of citizens.” (Italics in Rob’s original text) These positive qualities are: coherence, compassion, and commitment to dialogue. I agree with these principles and the basic manner in which Rob skillfully presents them, but the comment I would add is to his suggestion that comes from previous discussions here at the Mirror of Justice concerning the suicides of gay and lesbian teenagers. It appears that in the minds of some, Archbishop Nienstedt’s DVD, or at least the timing of its release and distribution, displayed little compassion or disregarded compassion entirely. I think we all have to keep in mind that the archbishop’s words did not address the suicides of any group including gay and lesbian teens. I thus wonder if some folks would think that the archbishop should have refrained from sending the DVD because of the proximity of these teen suicides? If so, how could he have addressed the marriage issue in a timely fashion? He was not speaking of gay and lesbian teens or their lifestyles; rather, he was speaking about what is constitutive of marriage and how this important matter was a pressing issue on the Minnesota ballot. This important fact must be in the forefront of our discussion about compassion. If Archbishop Nienstedt is to be criticized for making the remarks on this issue, could we not also claim that the people of Minnesota and their public institutions should also be criticized for insensitivity for having this important matter on the ballot this fall?
RJA sj
Friday, December 3, 2010
I've been reading around the new book of my old teacher, Kent Greenawalt, entitled "Legal Interpretation: Perspectives from Other Disciplines and Private Texts." The book is the first in a series of planned volumes dealing, respectively, with statutory, common law, and constitutional interpretation. Many points in the chapters remind me of arguments and insights Kent offered to students like me in his "Legal Interpretation" seminar. Many are new.
Perhaps of special interest to some readers is Kent's chapter on religious interpretation. As with the relationship of the idea of doctrine to both law and theology, there are special (perhaps even unique) connections with respect to interpretation's purposes when it comes to legal and religious texts (e.g., the role of interpretation not only in offering practical guidance, but in establishing the acceptability of various actions, the status assigned to the interpreted text, and so on) -- ones which do not apply to the interpretation of literary or artistic work, for example. Something to enjoy over the Christmas period.
There has been, during the last few days, an interesting exchange going on at Public Discourse regarding Prof. Hadley Arkes's account of natural-law ethics (set out in, inter alia, his new book, "Constitutional Illusions"). Here is Matthew O'Brien's review of the book; here is Arkes's response; here is O'Brien's reply.
I'm not competent to say much about whether, for instance, Arkes's view is, or is excessively "Kantian". (Here's hoping our own Robby George will weigh in!). I do have questions, for what it's worth, that the role Arkes envisions for federal judges in identifying and applying natural-law principles in the context of constitutional adjudication. For more on this question, see (again) Patrick Brennan's recent review, and my response.
