I am thankful that Jim Dwyer is graciously participating in our discussion on poverty, children, education, and anthropology. Here is Jim's response to Rick, Rob, and I:
"Thanks, Michael and Rick, for your comments. Michael is correct that I have not directly answered his question as to what my views are of the nature of the human person. I have never presented such views in my past writing because I believed my views on the subject were irrelevant to my analysis. What I’ve written about children’s education and children’s family relationships has been political theory, and the relevant question for that sort of analysis is what is the state’s view of the beings it governs. As Rob V. suggested, I think the state’s view of what a person is must be relatively thin. The view currently reflected in the law of western societies is not much more than that a person is a living, post-birth human being. And the state has conferred certain basic rights on all persons, at the most basic level a right to have one’s interests taken equally into account in state policy decision making and a right not to be treated instrumentally to serve the aims of other people. From those two basic rights, I have developed arguments about more specific rights of children in the contexts of education, parentage, termination of parental rights, non-parental claims for visitation with a child, etc..
Michael might believe that even the state (and not just individuals in their private moral lives) should adopt a thicker conception of persons, and I would be interested to read an argument for that view. It might be that giving some additional content to the state’s notion of what a person is would be consistent with the personal moral, religious, or metaphysical beliefs of most citizens and would be innocuous. For example, I’m not sure anything would follow as a legal or policy matter from state actors’ assuming that people have souls. But if state actors adopted any more specific assumptions about souls – in particular, what is in people’s spiritual interests, that would be a problem for a liberal society. (And note, the state cannot sensibly say even that conferring rights to self-determination in religious matters or rights to control children’s lives furthers spiritual interests, without its assuming an awful lot about what people’s spiritual interests are.)
There is, however, a substantial body of literature in the field of moral philosophy on what a person is and, more fundamentally, on what gives rise to moral status for any beings – that is, what makes any being “entitled to life, autonomy, respect, etc.”. No one in the field, though, has focused just on children and developed a full account of what their moral status is, whether they should be regarded as “persons,” and what follows from their moral status. I am now finishing a book manuscript on this topic, tentatively entitled “The Superiority of Youth: Moral Status and How We Treat Children.” As the title suggests, I present a case for concluding that children have a moral status not inferior to adults, as some philosophers (e.g., Kant) have contended and as many social policies seem to assume, and not even equal to that of adults (as most legal scholars and philosophers assume today), but in fact higher than that of adults. Even in this work, though, I am not operating from some personal view of the nature of the human person or of the child, and I am not developing a foundationalist account of children’s nature and status, but rather I am teasing out the implications of widely shared views of what gives rise as a general matter to moral status for any beings.
There is no disputing Rick’s point that humans are social beings. In all my writing, I have directly addressed the fact that at some point children become deeply immersed psychologically and emotionally with particular caregivers (typically, their legal parents). In writing about education, I noted that this, coupled with the need for parents to have some space/freedom/privacy in order to operate effectively as parents, counseled against state efforts to regulate parental teaching/speech in the home beyond what it already does (e.g., in making emotional and psychological abuse and neglect bases for child protective agency action). In writing about child abuse and neglect, I have noted that once children form a bond with certain adult caregivers, that bond, assuming there is something positive to it for a particular child, provides a reason for attempting parental rehabilitation rather than rushing to terminate the relationship (nothing novel about that point). Significantly, though, attachment to particular adults does not develop until a few months after birth, and so I contend, in the book that just came out, that it is preferable to terminate parental rights (or not bestow them in the first place) to a much greater degree with respect to newborns than currently occurs – that is, try to identify the biological parents who are almost certain to end up losing their children ultimately anyway, and terminate immediately after birth so that the child never does bond with them but instead forms an attachment to adoptive parents who (hopefully) will never abuse or neglect the child and therefore never require state agency workers to come into the child’s home.
I don’t agree, though, with Rick’s contention that “when we are talking about children, we are *always* talking about the relative moral weight of the claims of parents and the state, respectively, to make decisions about children's education, welfare, and upbringing,” if by that he means competing moral rights of parents and the state to make decisions. I have presented lengthy arguments against the idea that any adults are entitled to control children’s lives and for the idea that allocation of a decision making privilege between private adults and the state should be based on rights of the children themselves, as is done with incompetent adults. That said, Rick and I agree at a basic level about vouchers – in fact, my second book argued that voucher programs are constitutionally and morally mandatory, not merely permissible, though also that substantial regulatory strings must be attached. I guess the point of our disagreement is that I don’t think there is a sound argument for concluding that “the character, identity, and private-ness of the school” trumps what the state concludes is necessary for the secular educational interests of children, though certainly the state should have good, research-supported reasons for the educational aims it imposes. And so, we might disagree about some specific regulatory strings. But we might not.
Like Michael S., I am grateful to Jim Dwyer for participating in our MOJ discussion about children, education, freedom, poverty, and the state. A few thoughts:
First, I am confident that Jim is right to remind us that "a child is a human being ontologically separate from his or her parents and other family and community members." At the same time, just as there is a danger in "elid[ing] the distinction between child and parent," dangers also attend neglecting the extent to which children -- like all human beings -- are necessarily, inescapably, ontologically social. It seems to me that to be human -- and, to be a human child -- is to be rooted, connected, situated, dependent, and shaped by others, parents in particular. And, there is the fact that, when we are talking about children, we are *always* talking about the relative moral weight of the claims of parents and the state, respectively, to make decisions about children's education, welfare, and upbringing. To say that children are ontologically distinct from their parents -- as they surely are -- is not, it seems to me, to show that parents' moral claims are inferior to those of the state.
Second, I agree with Jim that "liberals" and "conservatives" alike need to take care -- and do not always take care -- that children not "drop out" of our discussions and arguments about social-welfare policy, and that we not permit concerns and claims about the treatment and rights of adults to serve as complete proxy for concerns and claims about the welfare and dignity of children. That said, I (continue to) disagree with Jim's view that conservatives' position in the voucher context (i.e., the pro-parental-choice position) is an example of this mistake. Yes, Jim is right that it is not children, but parents, who are choosing. But it is not, in my view, "oxymoronic" to think that, as between parents and the state, parents have a right to decide where their children should go to school. Someone -- parents or the state -- is going to decide. Jim's view, I know, is that even the parents' presumptive authorization to decide is not -- as I believe -- meaningfully prior to the state's decision to so authorize them. I suppose, this side of Heaven, we are not likely to convince each other on this point.
But, it seems to me that it is entirely consistent with the child-focused approach that Jim supports to conclude that children are better served by an education-policy regime that permits parents to select (and funds low-income parents' decision to select) of private, religious schools. (I have no objection to the regulation of such schools, in the interest of children's welfare, health, and educational success, so long as that regulation is consistent with an appropriate respect for the character, identity, and private-ness of the school.)
Finally, with respect to poverty programs, I think Jim raises an important and -- to me -- compelling point, namely, that our debates about the good and bad effects of poverty programs, and the incentives they create, cannot be limited to the effects on and incentives of adults. Now, this point does not necessarily undermine the "conservative" arguments about, say, the bad social effects of some social-welfare programs, e.g., that they create a culture of dependency, or create disincentives for marriage, and so on. After all, a culture of dependency and the creation of disincentives for marriage are -- conservatives believe -- bad for children, and not just adults. In any event, Jim is right that we all -- liberals and conservatives alike -- need to "apply ourselves to the task of doing everything" -- at least, everything that is plausible and actually helpful, and that does not wrong people who are affected -- "that can be done to help children in poverty have something approximately an equal opportunity in life."
But again, this strong point of Jim's seems to weigh heavily in favor of the "conservative" position regarding the state's effective monopoly on publicly funded education. As Jim knows, in the real world, the anti-voucher argument gets its political heft primarily from (a) the interests of (adult) unionized teachers and (b) (adults') objections to the possibility that public funds might support the educational mission of religious institutions and communities. A child-centered approach to education, it seems to me, would quickly lead us to school-choice and would thereby make progress in helping the vulnerable escape what Jim rightly calls the "hell of urban poverty."
Jim Dwyer's work has been discussed recently on MOJ here, here, here, here, and here.
Jim, thank you for weighing in on poverty, and I am still hoping that you will favor us with your views about the nature of the human person – its origins, purpose, and destination.In other words, I would like you to make your anthropological assumptions explicit. Who or what is the human person that she is entitled to life, autonomy, respect, etc.? It seems to me that we cannot begin a discussion of rights of human children until we have a clearly articulated hypothesis of what a human being is.
William and Mary law professor, Jim Dwyer, has commented on our recent discussion on liberals, conservatives, and poverty with some provocative questions of his own. For those familiar with his work, he focuses on the liberal and conservative response to poverty as it effects children. Any thoughts in response to his questions?
"Hi Mike,
I am sorry I was away [during] the brief discussion of the “anthropological” account of children. As an indirect way of responding to questions posed then, I thought I’d say a few words about the current topic of poverty.
My perception is that liberals and conservatives are insufficiently attentive to the ontological distinctness of children – that is, to (what I regard as) the fact that a child is a human being ontologically separate from his or her parents and other family and community members, a distinct and unique site of experience, perception, thought, feeling, etc. (all of which is consistent with a child’s sharing a life with parents, being dependent on parents, identifying him/herself as a member of a dyad or larger grouping with parents and others, emotionally identifying with parents, and having other sorts of experiences that individuals have in intimate relationships with others). Both liberals and conservatives, in my view, tend to elide the distinction between child and parent in some contexts.
I see liberals do this, for example, in the child abuse context; they complain about the disparate impact of child protection laws on poor and minority adults, *without contending that the interventions are generally unwarranted from a child welfare standpoint*, and they contend that the disparate impact amounts to a harm against the poor and minority communities. Their focus is on how adults are impacted and they overlook that fact that the disparate impact amounts to a special benefit for children in poor and minority communities (again, assuming the interventions actually help them), a benefit denied to children who are abused but happen to be in wealthy, white families (overlooked because state actors are, it is said, more deferential to wealthy white adults). The liberal response to the perceived discrimination is to restrain child protection efforts in poor and minority communities, rather than to compel greater intervention in wealthy white families, because children tend to disappear from their minds and they see only adults suffering (from removal of their children, on top of their otherwise difficult lives). From a child-centered perspective, I think they’ve got it backwards.
I see conservatives do this in the education context, where they oppose regulation of private schools on grounds (inter alia) of supposed self-determination and autonomy and support vouchers on grounds of private choice, as if oblivious to the fact that as a general matter private schooling is not a matter of individuals' directing their own lives and choosing what school they themselves will attend, but rather a matter of parents dictating the lives of children and parents choosing where children will go to school. It is remarkable to me how often conservatives will invoke the oxymoronic term “parental autonomy” to defend an anti-statist position.
I bring this up in the context of the discussion of poverty because I think the tendency to conflate parents and children and to take an adult-centered focus to policies impacting families is an obstacle to long-term amelioration of poverty. And the problem seems to me mostly on the conservative side. Conservatives might plausibly believe that the best approach to helping adults who are living in poverty is to give them the opportunity to raise themselves up, rather than giving them handouts in perpetuity, and to let them succeed or fail based on their own choices. This belief might reflect some plausible moral assumptions about what makes for a worthy life. But inevitably many poor adults will fail, despite their best efforts or because they choose not to give their best efforts, and the consequence of that (in today's society) is a denial of equal opportunity for their children, a likely impoverished and dangerous upbringing for their children, and so another generation of adults mired in the dysfunction of poverty. To a degree much greater than seems inevitable, in
America
today children's prospects turn on the fortunes of their parents.
Conservatives seem generally disinclined to view children of poor people as distinct persons who are in a moral situation different from that of their parents, and as a result seem generally unwilling to devote state-collected resources to programs aimed at improving the situation of those children, especially if any programs ostensibly targeted at the children might have a spillover benefit for their parents. We could debate the efficacy of spending on specific programs endlessly and probably not come to agreement, so rather than invite that sort of debate I’ll just ask whether you think I am wrong in my overall impression that conservatives are generally disinclined to roll up their sleeves and apply themselves to the task of doing everything that can be done to help children in poverty have something approximating an equal opportunity in life? And whether I wrong in thinking that such a disinclination stems in large part from a tendency, fostered by or at least consistent with some religious teachings, to view families as an ontological unit, all in the same boat morally, and so to apply the same sort of moral reasoning when thinking about any programs for “the poor” whether they are targeted at adults or at children? Am I mistaken in my perception that conservatives, like liberals, do not generally reason along the lines of “okay, let’s put out of mind for the time being any thought about the rights and responsibilities of adults and just figure out everything we can do for kids who, clearly through no fault of their own, are born into the hell of urban poverty”?
Below is a response to Rick's post on critiques of the CLT mission from MOJ friend Gerald Russello:
1. The criticism that adding the modifier "Catholic" does not add anything to the range of positions would be applicable to any of the "critical X" approaches to law. Feminist legal theory, for example, at its best exposes the law's sometimes unwarranted presumptions of maleness where a female perspective should be included. CLT introduces the same element of critique: first, to show that legal doctrines may/may not be compatible with Catholic understandings; and also to show how they could be changed to so be compatible. The obvious objection is that some may not wish for doctrines to be changed, but that is a policy or legislative argument, not an argument against a body of scholarly inquiry.
2. Some of the critics seem to think that the Catholic tradition to external to that, say, of the common law. That is not so, and insofar as that syatem - with its assumptions about the indicvidual, the family, and the nature of obligations or promises, for example - remain constitutive parts of the legal system, reflections on the Catholic contribution to them can be helpful.
3. CLT is just a part of a broader social tradition. If law schools want to educate the whole person as a new professional, immersion in a comprehensive tradition would seem to be an appropriate mission for a Catholic law school. Does this mean that Catholic scholars/lawyers will advocate for positions seemingly at odds with majority understandings? Sure. But I don't see how that detracts from the mission of a Catholic law school qua law school. I don't hear many CLT scholars arguing against the federal rules of civil procedure or a standard first-year curriculum.
A few weeks ago, there were a series of interesting posts -- here, at the Volokh Conspiracy, on Professor Leiter's blog, at Legal Theory -- about religion and public reason, with particular emphasis on the stem-cell-research debate.
Readers might be interested in this statement, by Robert George, which he produced in the context of the President's Council on Bioethics work, "Human Cloning and Human Dignity: An Ethical Inquiry."
Commenting on Tom Berg's post, a few weeks (?) ago, on CST and income-disparities, blogger Matthew Fish has this post, which includes an interesting chart of the "Gini coefficient," and also a link to a global map of income disparity. (Fish's blog, by the way, is full of thoughtful and interesting stuff.)
In this post, a blogger and college student named Dave Harris reacts to a recent MOJ post, and to the "Catholic Legal Theory" enterprise more generally. He is, to put it mildly, unimpressed. Here is a bit:
CLT definitely seems preferable to the legal theories of the radical evangelical right, but I'm not seeing any brilliant insights, either. Based on my (very limited) research, the key element of CLT seems to be "the dignity of the human person and respect for the common good." I'm all for that, as I've written before. I think it should be fairly uncontroversial that "community [i]s indispensable for human flourishing" and that "authentic freedom" is a good thing. " And I'm an atheist. Thus, I'm not sure what CLT has to add. . . .
Basically, it seems like the good elements of CLT can be found elsewhere, and forcing a distinctively Catholic element onto the ideas I've seen so far has seemed confusing and unproductive at best. That's not to say that they won't have anything interesting or useful to say as a result of their Catholicism. With a few exceptions like the Talmudic tradition and perhaps law itself, there aren't many systems of thought that have struggled more intensely or for a longer period of time with the nature of the law than the Church. In fact, I'd be surprised if Catholicism didn't have something useful to say on the subject, just as I'd be surprised if Buddhism's introspective tradition didn'thave anything useful to say about psychology. Still, I'm confident that there are issues on which Catholic teachings are worthless and even dangerous, and people are going to have an extremely difficult time convincing me to adopt a particular position simply because a Catholic theologian or scholar supports it. . . .
And it's a conceit to believe that others--particularly experts and others that believe that they have access to a capital-T Truth that flatly contradicts Catholic teachings--don't understand their own affiars. Like I said earlier, it's quite likely that over the last 1500 years some Catholics have produced tremendously useful ideas that should be given more thought. I'm not going to reject an idea just because it's rooted in Catholic doctrine. But I don't think that people should accept them for that reason, either. And if the posts I looked through are any indication, there's a danger of that with CLT.
I'd be happy if someone can prove me wrong, though. I'm certainly not going to pretend to be an expert on something I hadn't heard of until several hours ago. Am I missing something?
So . . . is Harris missing something? Or, are we ("arrogant[ly]) wasting our time on "confusing and unproductive" repackaging? I'd welcome others' thoughts.
UPDATE: Another sharp critique of the MOJ project -- or, at least -- its execution, is here (scroll down).
UPDATE: Here is a response -- defending the CLT enterprise -- to Harris's post, by David Schraub.
According to a new study by the Pew Research Center, "[d]espite talk of 'culture wars' and the high visibility of activist groups on both sides of the cultural divide, there has been no polarization of the public into liberal and conservative camps[.]" Hmmm.
UPDATE: Professor Joseph Knippenberg discusses, and critiques, the study here.
Who are “the poor” being written about in previous posts about Conservatives and the Poor?A stereotypical liberal lumps “the poor” together into one category and says their poverty is a result of various forms of oppression stemming from structural and institutional defects.A stereotypical conservative lumps “the poor” together into one category and says their poverty is the result of personal defects of various forms.These stereotypical liberals and conservatives (to the extent that they exist and are not merely caricatures created by their opponents) suffer from common defects.They both fail to see the humanity of individual poor people and the complexity in which their lives are lived out.There are no doubt institutional causes of poverty – racism, xenophobia, poor schools (with my meager brain, I still fail to see the liberal argument against school vouchers to help alleviate this problem), lack of quality medical care, lack of cheap transportation, etc.And, there are no doubt individual causes of poverty – alcoholism, out of wedlock births, lack of personal discipline (the ability to show up on time and consistently), lack of personal hygiene, etc.Many people are truly poor through no fault of their own or their family (but in many cases, these folks –through a combination of individual initiative, private help, and public help - can change their status over a couple of generations.) And, there may be a few people who are poor only through the fault of themselves or family.But, I suspect that many are poor through a combination of institutional factors and personal decisions, which inevitably will be influenced by the broader culture and, in turn, influence the culture.
Do conservatives care about poor people?Some do and some don’t.I just came back from a conference attended mostly by conservatives and one of the battle cries of the conference was that your money is not your own, it is a gift from God to be used in the service of others.Do liberals care about poor people?Some do and some don’t.When I suggested to a liberal colleague years ago that one way to solve the Social Security crisis is to means-test benefits, her response was “hell know, I put in, and I will demand that I receive my share of the benefits.”I grew up biased in favor of the liberal democratic responses to poverty and the poor assuming that they conformed to Catholic Social Teaching.As I started to study CST, I realized that many of the liberal democratic responses to the poor were actually contrary to CST.My metaphor (which may be overly simplified) for much of the democratic response is that it treated the poor like dogs who were put in kennels in the form of high rise housing projects.These measures might have provided minimum material needs but at the cost of poor people’s humanity.
My hope is that we can get beyond the caricatures of liberals, conservatives, and the poor to address real human needs, including the needs of poor people in the complexities of their situations.I suspect that we will differ as to the proper mix of individual initiative, private charity, and public welfare to address this and other problems.But, hey, that makes life interesting…
