That something is legal does not make it right or best

From the archives: Posted on 11th February, 1995

I think part of the disagreement here is due to the convolution of two different sets of ideas, concerning [A] the legal status of children, and [B] how people (particularly parents) ought to treat children.

There are different sets of questions: those that can be argued in legal/moral/economic terms, about the lower limits of behaviour and how much a parent can ‘get away with’ while still remaining within legal or moral bounds, and those that ask (taking good intentions as given), out of all the myriad actions that are legally or morally defensible, which is best.

Suppose an artist has a canvas and a box of paints. He might use them to produce a brilliant painting. Or, he might pile them up and set them on fire. (And, let’s say, he would sell the painting, or else sell the bonfire as “performance art”.) Now, we could say that it is perfectly legal (or if you prefer, consistent with property rights) for him to burn the supplies: after all, they are his own paints and canvas and he can do as he likes with them. Fine – but that is not an argument in favour of the bonfire. The painting is also legal, as are countless other things he could do with the paints. We can’t support a particular course of action by such arguments. We can use legal or economic arguments to exclude some actions; for instance, he can’t daub paint on unwilling passers-by. But we (or he) can’t use legal/economic grounds to decide what he should best do.

But that does not imply that there is no way to distinguish the options. It just means that we have to judge them some other way. (In this case, we might argue on esthetic grounds; but of course that would all be open to argument.) We might eventually be able to decide that, even though many other options are legally/morally acceptable, the best thing for an artist to do with paints and canvas is to produce a brilliant painting.

That does not mean that we should then change the legal system to require an artist who has paints and canvas to produce a brilliant painting. Even if we thought it desirable (I don’t), it simply wouldn’t work (shown well enough by the artistic output of the USSR). Although we might want artists to produce brilliant paintings, we get worse results by telling them to do so, than by letting them do as they please. (Parenthetically, I think that’s true regardless of whether we’re talking about independent artists or state-supported artists or privately employed artists or whatever.) But, to repeat, acknowledging that the artist need not produce a brilliant painting does not mean he shouldn’t, and is not an argument against producing the painting.

A poster wrote:

“If a wife, or an elderly parent, disregards the wishes of the person who supports them, there may be negative consequences. Husbands generally tolerate only so much, as well they should.”

Saying this is so for elderly parents and wives just as for children, you make the point: this is no reason to establish for children a different legal status than elderly parents or wives. That is, if it is legal to act in such-and-such a way toward adults (elderly parents, wives), and if there is no difference in legal status between adults and children, then, obviously, we could not on that basisforbid acting in the same way toward children.

That doesn’t mean that we have to (or ought to) threaten to withhold support from children in order to influence them. Assuming for the sake of argument that this is legal and morally permissible, we still have the choice of doing so or not. The point is, the legality doesn’t settle the question. (BTW, I don’t think the question of the arbitrary legal distinction between children and adults directly relates to this question.)

The poster had previously written:

“Why are all parents seen as potential child ‘oppressors’?”

I had replied:

“In practice, because it is sometimes very hard for adults to act non-coercively toward children, however good their intentions. Particularly when stressed, the bad ideas learned from one’s own upbringing may be irresistible.”

The poster wrote:

“Both parents and children get stressed. Toleration of mistakes and adaptation to new and better solutions should extend in both directions. These things are best done without state coercion though.”

Agreed, I think. (But, I think children do do far more tolerating and adapting than do parents.)

Sarah Fitz-Claridge had written:

“If consent is the real issue, why is there this difference of approach? Why not be consistent about this competence criterion and apply it to adults? Because they are adults? Does that not strike you as a little circular?”

The poster had replied:

“No. Adults are responsible for themselves. They are not dependent as children are on their parents. This is a significant difference.”

I had replied:

“It is not clear what you mean by ‘responsible for themselves’, if it is not a matter of competence. Many adults are entirely dependent economically on others, yet they are neither relegated to the legal status of children nor (generally) treated like children in personal relationships.”

The poster replied:

“If adults are dependent for their subsistence, they know better than to bite the hand that feeds them. There is a breaking point in all relationships. No one unconditionally supports another.”

As above, if this is so for adults, then, giving children had the same legal status as adults would not preclude this being so for children as well.

But, this doesn’t mean that it is a good idea for parents to withdraw support (or threaten to) from their children. Actually, I can’t imagine a situation where a reasonable parent would want to withdraw support from their children – that is, I don’t see how such a situation could arise, if the parent has been reasonable all along.

The poster had written:

“Your proposal undermines the parent’s role as the child’s protector.”

I had replied:

“How so? You speak, below, of protection from the parents, rather than protection by the parents.”

The poster replied:

“You are setting up a situation where the child may appeal to the state for any reason, for any wish or want, to be ‘saved’ from his parents. The parents may even be reasonable in their requests.”

I don’t see this. A child could appeal to the protection of the law in the same cases that an adult can – e.g. against violence, theft, etc. It is not illegal for one adult to make “reasonable requests” of another – only to use force to ‘support’ such a request, in which case one has abandoned reason.

The poster wrote:

Now who is to protect the interests of the child since the parent is out of the picture? The state?”

I’d hope not, based on having met quite a few people who were raised by the state.

The poster wrote:

“What she proposes and what she will get are two entirely different things, unfortunately.”

You might wish to re-read the beginning of Thoughts on the Legal Status Of Children.

The poster wrote:

“She proposes to prevent coercion, but what she will get are children who are able to act on any whim of the moment.”

What’s wrong with that? I wish I could bring myself to do it.

The poster wrote:

“There will be no need to listen to parents. The state will be able to propagandize in schools”

Actually, I don’t advocate sending children to schools. Legally, children should not be compelled to go to school (by the state or by individuals). This, I think, would follow from giving children the same legal status as adults: adults can’t be compelled to go to school, at least not without a fair trial 🙂 Children could go to conventional schools, or unconventional schools, or none, or sometimes, or whatever. All this says nothing about whether schools are or are not a good idea for children – I happen to think they are not, but that is not a matter of their legal status.

The poster wrote:

“that parents are evil oppressors and that all”

No one here has said that all or most parents are evil oppressors. I think some are evil, but more are merely well-intentioned but misguided oppressors. A few are accidental oppressors, despite trying not to be.

The poster wrote:

“self-respecting children should make all of their own decisions. Tell me that children are not susceptible to propaganda? Better yet, tell me that the state is above the use of such tactics?”

Neither the state nor other institutions nor individuals are above the use of such tactics at present. At present, because of their subordinate legal status, children can be subjected to such tactics in ways that adults cannot be, including being forced to listen to and memorize propaganda (in schools, churches, etc.) and being legally denied access to certain alternative sources of information.

The poster had written:

“Whether you realize it or not, whenever you invoke the law you are substituting state power for individual power.”

I had replied:

“No different for adults. The question is which individual’s power. If, say, I were to abduct you, the state would indeed seek to ‘substitute’ its power for mine (that is, to override my wishes), but that is not generally seen as objectionable.”

The poster wrote:

“The state has jurisdiction to protect the lives of all its citizens. The state does not have the right to take the existing power of parents in domestic matters and claim it for its own.”

The “existing power of parents” depends (in part) on children being denied the protection of the law that is available to everyone else.

There is no proposal that the state take over the exercise of the illegitimate power over children, but rather that there be no such power.

The poster had written:

“What is in this deal for the parent? Sounds like a very unfavorable situation for parents. Why would any reasonable person assume such a compromised role?”

I had replied:

“Perhaps because the role of the parent is not inherently ‘compromised’: it is possible to obtain satisfaction from personal relationships in the absence of the ability to force the other person to do what one wants.”

The poster wrote:

“You incorrectly assume child-parent relationships are based on force.”

No – I’m saying that giving up on force would not be detrimental to child-parent relationships.

I do think that some degree of force (threat, coercion, compulsion, etc.) is part of nearly every existing child-parent relationship.

I had written:

“Perhaps because one might care about the other person and thus not feel “compromised” in doing things to benefit them.”

The poster wrote:

“If one didn’t feel compromised, one would be flexible with the child without the need for coercion. You are proposing state coercion to prevent parental coercion. How does adding coercion to the relationship help it to be less coercive?”

By proscribing violations of individual rights. For example, an adult cannot legally beat another adult with whom he disagrees, which makes the relationship between them less coercive.

The poster had written:

“If I didn’t expect to get something for my efforts, I wouldn’t have voluntarily chosen to have children in the first place.”

I had replied:

“You have voluntarily chosen to have children, but they didn’t voluntarily choose to have you. Why should your choice to expend effort on someone oblige them to do what you want?”

The poster wrote:

“What I did in the past does not obligate them. What I expect to do in the future should. If they wish me to continue providing for them, they must be participate in the relationship. Going to the state and saying, “save me” from that nasty parent, will not improve my disposition.”

It’s been argued elsewhere that since you caused them to be in a dependent state, you are obliged to support them until they are no longer dependent. However, the point I want to make here is different: granting that your position is legally correct and morally defensible, that fact does not support your position. There are plenty of alternatives which are also legally correct and morally defensible, so we need different kinds of argument, other than the legal/economic, to choose between them.

The poster had written:

“It will eliminate the necessity for interpersonal relationships.”

I had replied:

“I think this is exactly backwards; coercion is necessarily inimical to personal relationships. To the extent the other person merely does what one wants, it doesn’t matter who they are – rather than an interpersonal relationship, one has a ‘relationship’ with one’s own fantasies.”

The poster wrote:

“The child-parent relationship is not based on coercion.”

Then, it is not threatened by eliminating coercion.

Kevin Schoedel, 1995, ‘That something is legal does not make it right or best’, https://www.takingchildrenseriously.com/that-something-is-legal-does-not-make-it-right-or-best/