Normative legitimacy

Without in any way claiming to be exhaustive, in this chapter, I offer a critical overview of numerous ways in which philosophers have evaluated the legitimacy of power. My exegesis will take a particular form as I have a specific purpose in mind. Although I will discuss numerous theoretical positions (in particular, republicanism, anarchism, various forms of liberalism, and social contract theory), I do not pretend to offer a comprehensive judgement of their value as political theories. I do not have the space required to do justice to such a task, but in any case it would not meet our current needs. I am not concerned here with which theoretical position is the best ‘fit’ with the reality of parental power, although in the main it is in those terms that they have been presented to us. Rather, I will analyse these various opposing theoretical arguments in order to illustrate how moral values may come into conflict when we evaluate the legitimacy of parents’ power in concrete situations. I hope to show the inadequacy of efforts made to equate power with one of its forms and, in that way, to reduce moral complexity concerning the legitimacy of power, namely arguments about liberty, coercion, control, authority, and paternalism. Even among those who concern themselves with, say, coercion, seemingly intractable moral disagreements arise, and these theoretical disagreements are, I shall argue, evidence of underlying conflicts between independent moral values.

Children’s agency

Even when parents exercise their power in a paternalistic fashion so as to make up for children’s deficits, parents can be faced with moral dilemmas, conflicts which call into question the legitimacy of parents’ exercise of power even in these instances. This is the case, I shall argue in this chapter, because a number of different moral considerations are relevant when we consider children’s agency, and they can pull in different directions and make incompatible demands when we evaluate parents’ power. In particular, we address the following question: how do we evaluate situations where, while promoting children’s positive freedom, parents violate the rights that protect children’s negative freedom?

Caretaker or liberator?

Are parents caretakers or liberators? Is the role of parents to act in a paternalistic fashion so as to take care of their children or is it instead to set their children free? In this chapter, I argue that those who defend the caretaker thesis do so on the basis of assumptions characteristic of the liberal view on paternalism. It is assumed that paternalism entails interfering with another’s liberty, that it does not involve moral conflicts, and that it is justified treatment of those who lack the qualities of an agent. In addition, no clear distinction is made between children who lack the qualities of an agent and children who are merely incompetent. What is more, the same assumptions underlie the liberation thesis. Indeed, both the caretaker thesis and the liberation thesis are questionable because they operate with a definition of paternalism that is highly problematic. I also want to make one further argument here. Namely, even an adequate conceptualisation of paternalism is insufficient as a general account of parental power, as there are non-paternalistic forms of parental power as well.

Sharing lives, shaping values, and voluntary civic education

When we consider civic education, we are led to ask whether parents have a right to share a way of life with their children and whether the State may justifiably shape the values of its future citizens. And when we try to answer these questions, we may on occasion have to deal with tensions and conflicts between respecting diversity and protecting adults’ rights to religious freedom, promoting the autonomy of the adults children will one day, and protecting the liberty of children. It is indeed the case that parents should not be permitted to sacrifice their children’s future autonomy for the sake of their (the parents’) religious beliefs, and nor should children’s license be permitted to undermine the project of education itself. But nonetheless, there are cases where we should accept some sacrifices in respect of future autonomy so as to better protect the liberty of children or their parents. For instance, in some cases we should allow children greater freedom to influence the design and delivery of civic education classes and to opt out of certain aspects of those programmes, if in doing so we guarantee gains in children’s liberty; and we should allow parents to remove their children from civic education classes, for short periods, and so as to engage in religious ceremonies, so as to respect diversity and protect parents’ right to liberty.

Paternalism

In this chapter, I introduce the central themes of the book. These themes can best be presented as questions, as follows: When parents exercise power over their children, what are the various forms power takes and what forms of power can be morally justified? When we evaluate the legitimacy of parental power, can we be faced with moral dilemmas, and if so how can we resolve such conflicts? Finally, in what ways may parents exercise power over children who lack the qualities of an agent, those who are capable of agency but are incompetent, and those who are fully competent? I do not claim to answer all of these questions in full in this chapter. However, by examining two competing definitions of paternalism (liberal and pluralist) I think we can highlight what are the pertinent issues that we must explore further, while I will also endeavour to make clear the arguments to be made in the coming chapters.

Introduction

This is a book about parents, power, and children and, in particular, the legitimacy of parents’ power over their children. It is also a book about political philosophy itself, as it examines the role of this discipline when we evaluate the legitimacy of parents’ power. If parents have power, and if they exercise power over their children, what makes some power relations legitimate and others illegitimate, and how do we justify these conclusions?

Conclusion

We have seen in this book that many political philosophers assume that, when we are faced with conflicting moral claims, the job of a political philosopher is to identify general rules to resolve such conflicts. Such an approach assumes that, when we engage in political philosophy we work out ideals in our head and then apply them directly to specific cases: we apply them ‘neat’, to use Jonathan Wolff’s terminology. Throughout this book, I have argued against such an approach. It is the case that we should do highly abstract and theoretical work, and such work does or should have generality. For instance, when I argued that paternalism as a concept was not sufficient to account for the power exercised by parents, I intended this as a general theoretical claim. At the same time, we should also be doing quite applied work, and this requires that we look closely at cases, and make decisions based on practical judgements in those cases. In doing so, I have reached conclusions about substantive issues and have made practical judgements in specific cases. In one sense, these have generality, as I have made an argument in each instance and therefore I am looking for agreement from others. The rationale I have offered in each case has been in line with the ideas of reasonableness and public justification in a context of actual disagreement, borrowed from Rawls and Nagel respectively, although with some adaptations.

Licensing, monitoring, and training parents

We should distinguish the rights parents have ‘over’ their children from the ‘right to parent’. This is the distinction between parents’ power over their children, or more precisely parents’ legitimate power over their children, on the one hand, and the right to play the role of a parent and therefore the right to raise or rear children, on the other hand. It is widely accepted that, in one sense or another, the ‘right to parent’ is conditional. That is, if adults do not satisfy certain requirements, for example the requirement of being a competent parent, society may refuse to grant the right in the first place, or the right already granted may be restricted or rescinded altogether. In this case study, I will look at three proposals concerning the conditions to be placed on the ‘right to parent’: that we should license parents, that we should monitor parents, and that we should train parents.

Moral dilemmas

The argument of this chapter is that we can be faced with genuine, real moral dilemmas, that is, moral conflicts for which there is no general rule for their resolution and conflicts that leave us with moral regret at the item not acted upon. For example, there is a moral conflict involved in every act of parental paternalism. When I, as a parent, act paternalistically, in attempting to do what is best for my child I violate a moral rule in regard to my child. In making this argument, I reject Philippa Foot’s counter arguments claiming to show the moral dilemmas are a logical contradiction. If we cannot identify a general rule for their resolution, how can we resolve moral conflicts? In this chapter I try to show that we can do so through practical reasoning and practical judgement. In doing so, I will borrow from John Rawls and his account of reasonableness and Thomas Nagel’s account of public justification in a context of actual disagreement. However, we must be cognisant of a number of possible dangers here. In particular, we must ensure that we do not impose a ‘liberal’ political solution on moral conflicts and in that way ourselves become guilty of the moral simplification we have been critical of in others.

Children and the provision of informed consent

When researchers try to recruit children as participants in a scientific study or when physicians recommend a course of medical treatment for children, a question then arises as to who may authorise such activity. May parents make these decisions on behalf of their children? May children make them independently of their parents? Or should such decisions be made jointly? To address these questions, in this chapter I explore the topic of informed consent, and more precisely, how it is that informed consent authorises children’s research participation and medical treatment. I first ask how we should define competence. In this chapter, I will argue that a person is competent to make a decision if she is able to reflect on the alternative courses of action and the likely consequences of each, and also, crucially, she is aware of the plurality of moral values and the possibility for conflict between those values, and reasonable in the face of such conflicting moral claims. We shall also consider voluntariness. In this chapter, I argue that a person acts voluntarily if she wills the action without being under the liberty-infringing influence of another. One issue to examine here is whether and in what ways parents can, through the exercise of their power, help their children become more competent and yet without limiting their children’s voluntariness.