Locke and the Rights of Children

Locke firmly denies Filmer's theory that it is morally 
permissible for parents to treat their children however they please: 
"They who allege the Practice of Mankind, for exposing or selling 
their Children, as a Proof of their Power over them, are with Sir Rob. 
happy Arguers, and cannot but recommend their Opinion by founding it 
on the most shameful Action, and most unnatural Murder, humane Nature 
is capable of." (First Treatise, sec.56) Rather, Locke argues that 
children have the same moral rights as any other person, though the 
child's inadequate mental faculties make it permissible for his 
parents to rule over him to a limited degree. "Thus we are born Free, 
as we are born Rational; not that we have actually the Exercise of 
either: Age that brings one, brings with it the other too." (Second 
Treatise, sec.61) On top of this, he affirms a postive, 
non-contractual duty of parents to provide for their offspring: "But 
to supply the Defects of this imperfect State, till the Improvement of 
Growth and Age hath removed them, Adam and Eve, and after them all 
Parents were, by the Law of Nature, under an obligation to preserve, 
nourish, and educate the Children, they had begotten." (Second 
Treatise, sec.56) Apparently, then, Locke believes that parents may 
overrule bad choices that their children might make, including 
self-regarding actions. Leaving aside Locke's duty of self- 
preservation, his theory permits adults to do as they wish with their 
own bodies. But this is not the case for children, because their lack 
of reason prevents them from making sensible choices. To permit a 
willful child from taking serious risks to his health or safety even 
if he wants to is permissible on this theory. Parents (and other 
adults as well) also seem to have a duty to refrain from taking 
advantage of the child's weak rational faculties to exploit or abuse 
him. On top of this, Locke affirms that parents have enforceable 
obligation to preserve, nourish, and educate their children; not 
because they consented to do so, but because they have a natural duty 
to do so. 2. The Problem of Positive Parental Duties The first 
difficulty with Locke's theory of childrens' rights is that the 
positive duty of parents to raise their children seems inconsistent 
with his overall approach. If, as Locke tells us, "Reason teaches all 
mankind, who will but consult it, that being all equal and 
independent, no one ought to harm another in his Life, Health, 
Liberty, or Possessions." (Second Treatise, sec.6), it is difficult to 
see why it is permissible to coerce parents to provide for their 
offspring. In general, in Locke's scheme one acquires additional 
obligations only by consent. Even marriage he assimilates into a 
contract model: "Conjugal Society is made by a voluntary Compact
between Man and Woman " (Second Treatise, sec.78) We should note that 
in section 42 of the First Treatise, Locke affirms that the radically 
destitute have a positive right to charity. "As Justice gives every 
Man a Title to the product of his honest industry so Charity gives 
every Man a Title to so much out of another's Plenty, as will keep him 
from extream want, where he has no means to subsist otherwise." But 
this hardly rules out relying on voluntary charity if it is sufficient 
to care for all those in "extream want." Quite possibly, this right 
would never have a chance to be exercised in a reasonably prosperous 
society, since need would be minimal and voluntary help abundant. 
Moreover, it is hardly clear that the duty to provide for the 
extremely needy rests only on some sub- group of the population. This 
passage seems to make it a universal duty of all of society's
better-off members. For these two reasons, then, it would seem hard to 
ground positive parental duties on the child's right to charity. For 
if the number of children with unwilling parents is sufficiently tiny, 
and the society in which they are born sufficiently rich, the 
preconditions for exercising the right do not exist. Moreover, there 
is no reason for parents, much less the parents of a particular child, 
to have a duty to that child; more plausibly, all able-bodied members 
of society are equally obliged to fulfill this duty. Nor would it work 
to say that parental obligation is derived from the right of 
restitution for harm, which Locke explains a criminal owes to his 
victim: "he who hath received any damage, has besides the right of 
punishment common to him with other Men, a particular Right to seek 
Reparation from him that has done it." (Second Treatise, sec.10) How 
has a child "recieved any damage" from his parents? At the time of 
birth, his mother has already endured a painful burden in order to 
give the child life. Far from having in any way harmed her newborn 
baby, a mother could easily claim to have long since dispatched her 
share of the social obligation to care for the radically destitute 
after nine months of carrying him. The father may or may not have
assisted the mother in this process; but surely he can't be said to 
have harmed the child in any way that would give the child a right to 
restitution from him. 3. The Question of Consent The second difficulty 
with Locke's theory of childrens' rights is that he doesn't integrate 
the theory with his overall contractualist approach. If Locke could 
find some sort of a contractual understanding between parents and 
their children (as he does for marriage and other social interaction), 
then the theory of childrens' rights would better cohere with his 
overall theory. A contractualist approach might also better illuminate 
the nature and extent of parental duties.

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 Reconstructing the Theory of Childrens' Rights The best thing 
about Locke's theory of childrens' rights is that it explains why
children must be treated differently in order to respect the human 
rights that they share equally with adults. Some thinkers in the
Lockean tradition have been willing to defend the "rights" of children 
to be molested by adults, to buy drugs, to sell their legs, and so on. 
I think that there is a grotesque confusion here (as well as a lack of 
common sense), since it assumes that childrens' serious lack of 
intelligence and information in no way taints the voluntariness of 
their consent.

 While I am in agreement with Locke up to here, I think his 
theory needs to be reformulated. First of all, we should deny that
parents have a non-consensual obligation to support their children. As 
explained earlier, even if we endorse Locke's right to charity, no 
involuntary duties to one's offspring follow. Second and more 
basically, we should integrate the theory of children's rights with 
Locke's theories of contract and consent. The main obstacle to such an 
approach is that a child can't consent in the normal sense; indeed, if 
he could, why would the child need a guardian in the first place? 
Tacit consent works no better than explicit consent, since lack of 
rational ability undermines tacit consent too. The difference between 
explicit and tacit is merely in the manner of expressing consent; and 
if a child is rationally unable to say "I consent" then he is no more 
rationally able to indirectly imply that he consents.

 So neither explicit nor tacit consent work. But despair not; 
for there is a third concept of consent, namely hypothetical consent.
While this notion is ordinarily suspect, in the case of children it is 
uniquely useful. Adults must treat children only in ways to which they 
would consent, if their faculties were sufficiently developed. 
Everyone has the duty to treat children only in ways to which they 
would consent: there is a general obligation to refrain from using 
violence against children, molesting them, giving them poison or 
drugs, and so on. And a child's would-be guardians can only become his 
guardians on terms to which the child would consent if his mind were 
mature. The precise content of the consent, being hypothetical, is of 
course quite vague (which, happily, implies that there is no need to 
sacrifice the pluralism inherent in wide parential discretion). But at 
minimum, the hypothetical contract would assure the needs of 
nourishment, preservation, and education. Though the child's consent 
need merely be hypothetical, the consent of his guardian(s) much be 
actual (probably tacit rather than explicit). Since it is the mother
of the child who automatically suffers a large cost to bring the child 
to term, there should be a strong presumption in favor of her 
exclusive guardianship. Naturally, she may share guardian duties with 
the father if they both consent through an agreement such as marriage; 
or she may give up her guardianship of the child through adoption. 
Some may object that hypothetical consent is infinitely variable. 
(Robert Pollock told me that he heard a NAMBLA member recall how glad 
he was that he was molested as a youth.) But I think that every theory 
of childrens' rights eventually appeals to hypothetical consent: for 
you could also deny that a child would refuse to be killed, or 
crippled, or castrated. On most modern Lockean rights theories (though 
not in Locke himself), such things are only a rights violation if the 
victim refuses to consent; so such things violate a child's rights 
only if in some sense his consent is absent.

 You might argue that all that is necessary to know is that it 
is extremely unlikely that the adult into whom the child will grow
would consent to poisoning, castration, or molestation. That is one 
possible reply to the NAMBLA objection. Alternately, perhaps this 
suggests that it is futile to try to develop an exclusively political 
theory of morality. While the law should not try to instill a 
particular view of the good life in adults, children may be another 
matter. Maybe we should treat children as they would consent to be 
treated if they were not only rational, but also virtuous. If this 
view turns out to be right - and I am not sure that it is - our whole 
understanding of classical liberalism may change. In particular, 
classical liberal theories that try to address only political 
philosophy, remaining silent on all other questions, will turn out to 
be wrong. As might be expected, the anamolous case of childrens' 
rights raises new and serious questions about the ultimate 
justification of a liberal order.