The institution of the family is in transition



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FAMILY

The institution of the family is in transition


Social forces are ending the cultural domination of the traditional nuclear family

David Popenoe (prof. of sociology, Rutgers Univ.) in Family In America, ed. by Viqi Wagner, 1992, p. 18

“The recent social transformation of the family has been so momentous that, in my opinion, we are witnessing the end of an epoch. Today’s societal trends are bringing to a close the cultural dominance of what historians call the modern (I will use the term ‘traditional’) nuclear family, a family situated apart from both the larger kin group and the workplace; focused on the procreation of children; and consisting of a legal, lifelong, sexually exclusive, heterosexual, monogamous marriage, based on affection and companionship, in which there is a sharp division of labor, with the female as full-time housewife and the male as primary provider and ultimate authority.”
The trend is for single-parent homes regardless of race

Dedrick Muhammad (Senior Organizer and Research Associate at the Institute for Policy Studies), 40 Years Later: The Unrealized American Dream, April 2008, p. 5

“The increase in the share of white children living in a single parent home has been much higher (229%) than for Black children (155%) since 1960.”
Men are not committed to their children

Sarah Blaffer Hrdy (professor emeritus of anthropology at the University of California at Davis), “The Past, Present, and Future of the Human Family,” in The Tanner Lectures on Human Values, Delivered at the University of Utah, February 27 and 28, 2001, p. 81. Online: www.tannerlectures.utah.edu/lectures/documents/Hrdy_02.pdf, accessed May 29, 2008

“According to the United Nations report from the Commission on Status of Women, one in four households in the world today are designated ‘female-headed.’ Scanning the world around us, relatively few such women receive child support from husbands. In the United States alone, the White House reports that some $34 billion in child support due goes unpaid annually, while according to a 1994 study by the Children’s Defense Fund fathers ‘are more likely to make car payments than pay child support’

(Associated Press 1994). Arguably, supporting children from defunct relationships is not a top priority for males in our species.”


The decline of the family has damaged the next generation

David Popenoe (prof. of sociology, Rutgers Univ.) in Family In America, ed. by Viqi Wagner, 1992, p. 18

“Despite these positive aspects, the negative consequences of family decline are real and profound. The greatest negative effect, in the opinion of nearly everyone, is on children. Because children represent the future of a society, any negative consequences for them are especially significant. Substantial, if not conclusive, evidence indicates that, partly due to family changes, the quality of life for children in the past 25 years has worsened. Much of the problem is of a psychological nature and this is difficult to measure quantitatively.”
The individual has replaced the family as the fundamental social unit

David Popenoe (prof. of sociology, Rutgers Univ.) in Family In America, ed. by Viqi Wagner, 1992, p. 18

“During the past 25 years, the institution of the family has weakened substantially in a number of ways. Individual family members have become more autonomous and less bound by the family group, and the group has become less cohesive. Fewer of the traditional social functions are now carried out by the family; these have shifted to other institutions. The family has lost more power and authority to other institutions, especially to the state and its agencies. The family has grown smaller, less stable, and has a shorter life span; people are therefore family members for a smaller percentage of their life. The outcome of these trends is the people have become less willing to invest time, money, and energy in family life. It is the individual him- or herself, not the family unit, in which the main investments are increasingly made.”
Nontraditional family arrangements are becoming more common

Emily Buss (Professor of law, Univ. of Chicago Law School), Geoffrey R. Stone (Distinguished Service Professor of Law, The University of Chicago), Parental Rights, The University of Chicago Public Law and Legal Theory working paper series #23, May 2002, p. 2. Available online from the Social Science Research Network: papers.ssrn.com/sol3/papers.cfm?abstract_id=312179; accessed January 10, 2009

“The traditional conception of a family includes two parents, one of each sex, and the group of biologically-related children under their care. Many children are not, however, raised in such traditional homes. Children often are raised by single parents, by same-sex couples, by extended family, or by unrelated caregivers. Moreover, advances in reproductive technology are producing an expanding array of potential parental claimants, some linked to their children by biology, others only by contract. A growing awareness of this variation in child-rearing structures has called into question the ongoing relevance of traditional parental rights principles that were developed around the conventional nuclear family model. In particular, lawmakers and scholars have expressed increasing concern that this body of law inadequately protects the important relationships children commonly develop with adults other than their biological parents.”
There is no alternative to the stable family

Jan Andrew (freelance writer on family and medical issues), Divorce and the American Family, 1978, p. 118

“Only one thing is certain — the family is an old institution that continues to survive after thousands of years. And despite many experiments, no one has suggested a totally successful alternative. Many observers suggest that the family may be our last refuge from an increasingly complex and frustrating world. Still, it is under siege and the rising divorce rate is just one barometer of this.”

The family is not in decline


The right of adults to create a family is enshrined in law

The United Kingdom Human Genetics Commission, Choosing the Future: Genetics and Reproductive Decision-Making, 2004, p. 21

“The United Nations Universal Declaration of Human Rights established the right of men and women to found a family. This, in addition to a right to privacy and to respect for family life, is enshrined in a range of European and international charters and covenants (see the United Nations Universal Declaration of Human Rights, Article 16, 1948, the European Convention on Human Rights, Article 8 and Article 12, 1950 and the International Covenant of Civil and Political Rights, Article 23, 1976).”
The claims that eroding families will harm society have passed their shelf life

Jan Andrew (freelance writer on family and medical issues), Divorce and the American Family, 1978, p. 6

“Because the traditional definitions of marriage are under attack, some experts predict it will lead to the breakdown of the family, maybe even the downfall of society. The family is the backbone of society, they argue, and if it falters, the society is weakened. This argument is not new. Such doomsayers have been predicting this ‘breakdown’ for almost one hundred years.”
Nonstandard family forms are just as valid as traditional nuclear families

Dr. Constance R. Ahrons (prof. sociology and assoc. director of the Marriage and Family Therapy Program, Univ. of Southern California), The Good Divorce, 1994, p. 42

“Nonnuclear family forms must not be labeled inferior. If they are, we will label more than half of American families failures. As a society we must not send the message to the children in those families that they are doomed, deviant failures. To me, this message does much more harm than good.”

Families are good


Families are proven assets to society

James Q. Wilson (professor of public policy at Pepperdine University, professor emeritus at UCLA), The Moral Sense, 1993, p. 157-158

“There is no mystery here; almost everyone can describe, without benefit of having studied the matter, the characteristics of a bad family. What deserves comment is not that such families exist but that they are so rare. Suppose that families were machines assembled without much instruction by amateurs, often illiterate ones, out of whatever materials happened to be handy. Suppose that we knew what we wanted the machines to produce — people with a decent moral sense and a willingness to act on that sense most of the time. What fraction of those machines would we expect to malfunction and produce people with no moral sense and little proclivity to act on whatever sense they had? A quarter? A third? Most of them? In fact, the proportion that turn out to be real lemons is astonishingly small: only about 6 percent of teenage boys and a much smaller fraction of girls growing up in families get involve in serious and protracted criminality.”
Families are universal across human societies

James Q. Wilson (professor of public policy at Pepperdine University, professor emeritus at UCLA), The Moral Sense, 1993, p. 158

“In virtually every society into which historians or anthropologists have inquired, one finds people living together on the basis of kinship ties and having responsibility for raising children.”
Families are instruments of moral instruction for all members

James Q. Wilson (professor of public policy at Pepperdine University, professor emeritus at UCLA), The Moral Sense, 1993, p. 162-163

“The family is a continuous locus of reciprocal obligations that constitute an unending school for moral instruction. Like a marriage, a family is a commitment, one that places heavy burdens on its members, burdens that the experience of history has shown must nevertheless be shouldered if people are to be happy and society is to prosper. These burdens may be light and bearing them can be a joy, or they may be heavy and bearing them can be an affliction. Whichever is the case, one can no more choose to take the joy and ignore the afflictions than one can choose to live a life that is both solitary and happy.”
Families teach us how to deal with other people

James Q. Wilson (professor of public policy at Pepperdine University, professor emeritus at UCLA), The Moral Sense, 1993, p. 163

“We learn to cope with the people of this world because we learn to cope with the members of our family. Those who flee the family flee the world; bereft of the former’s affection, tutelage, and challenges, they are unprepared for the latter’s tests, judgments, and demands.”
We must love those in our family even if they are not morally perfect

Damien Freeman (philosophy Ph.D. candidate, Magdalene College, Cambridge), “Love and the morally ambiguous,” Quadrant, April 2008, p. 82

“There comes a time when most young people discover that their parents are not paragons of virtue. In an age of high divorce rates, this time is likely to come earlier rather than later. Do we cease to love our parents when we discover their moral flaws? Is it an open question whether we should still love them? Ought we to suspend our love of them whilst we resolve our judgment of their moral ambiguities, and only afterwards decide whether to resume our loving relationship? No. What is required is the ability to continue loving them whilst we struggle with the moral ambiguities we have discovered, and ultimately to find a way to love them notwithstanding any moral judgment.”
Family love is unconditional

Damien Freeman (philosophy Ph.D. candidate, Magdalene College, Cambridge), “Love and the morally ambiguous,” Quadrant, April 2008, p. 82

“Most children have a healthy experience of the unconditional love of their parents. At some point during their childhood, they have committed some transgression which their parents have expressed disapproval of without withdrawing their parental love. In this case, young people have first-hand experience of the fact that love is not contingent upon maintaining a particular moral status. It is this that they must take into their later lives, both in terms of their relationships with other people and with entities such as nations.”
Our happiness depends — in part — in being able to sustain love with imperfect people

Damien Freeman (philosophy Ph.D. candidate, Magdalene College, Cambridge), “Love and the morally ambiguous,” Quadrant, April 2008, p. 82-83

“Despite Hollywood’s forceful claims to the contrary, we should not encourage young people to seek perfection in their personal relationships. Moral perfection is rarely a characteristic of those we encounter in life. Ultimately, our happiness depends upon our ability to forge loving relationships with people who are to one degree or another morally ambiguous. And we require the resources to sustain such love at times when the flaws become exposed. It is only in the context of the loving relationship that we can resolve how to deal with the moral ambiguities of those we love.”
Family bonds are the sources of all social relations

Loren E. Lomasky (prof. of philosophy, Bowling Green State Univ.), “Sense and Sensibilities: knowing right from wrong", Reason, December 1993, p. 42

“Accordingly, the primary basis of sociality can be located in the bond between mothers and their children. Infants within a few hours of their birth observe and imitate. They are genetically programmed to elicit through their appearance and behavior affection and nurturance, in the first instance from their mothers but to a non-negligible extent also from fathers, other kin, and the wider community of adults.”
The family is the foundation of the social order

Bradley P. Hayton (family counselor; former research analyst, Focus on the Family) in Family In America, ed. by Viqi Wagner, 1992, p. 65

“Fifth, the stable family is the foundation to a stable social order. Broken marriages are at the root of many of America’s present social problems. Literally hundreds of studies have correlated broken families with decreased mental health and increased crime, child abuse, unemployment, poverty, substance abuse, and reliance upon welfare.”
Family life should exceed utilitarian calculations

The President’s Council on Bioethics, Taking Care: Ethical Caregiving in Our Aging Society, September 2005, p. 123-124

“But such narrow utilitarianism seems out of step with our society’s moral understanding of family life. Central to our ideals of family life are the bonds of fidelity it entails, both for better and for worse. We do not (or should not) enter into and out of families like contracts, where the only purpose is our maximum pleasure or advantage. Rather, we aspire to live in and through families — as parents, children, siblings, spouses, grandparents — in a spirit of unconditional mutuality, recognizing that just as others care for us, we may one day care for them, and recognizing that mutuality is not always the same as reciprocity: in families, we must sometimes give more than we seem to get. By reducing an individual family member simply to a source of benefit or pleasure for other family members, we risk undermining the very idea of the family that such a utilitarian calculus supposedly aims to promote. In the name of family happiness, we risk undercutting family fidelity and loyalty altogether.”
Families should be considered the moral foundation

Barbara Ehrenreich (editorial commentator; liberal American writer, feminist, and social activist), “Oh, Those Family Values,” Time, July 18, 1994, p. 62

“[P]ublic figures would sooner advocate free cocaine on demand than criticize the family. Hence our unseemly interest in O.J. and Erik, Lyle and Lorena: they allow us, however gingerly, to break the silence on the hellish side of family life. But the discussion needs to become a lot more open and forthright. We may be stuck with the family — at least until someone invents a sustainable alternative — but the family, with all its deep, impacted tensions and longings, can hardly be expected to be the moral foundation of everything else.”
The family reinforces individual success

Bradley P. Hayton (family counselor; former research analyst, Focus on the Family) in Family In America, ed. by Viqi Wagner, 1992, p. 65

“Individual rights are rooted in the responsibilities of a family. Male incomes are highly correlated with the number of children that the man must support.”
The family reinforces the value of community

Bradley P. Hayton (family counselor; former research analyst, Focus on the Family) in Family In America, ed. by Viqi Wagner, 1992, p. 65

“Families provide the environment to care for the physical, emotional, spiritual, moral, and educational needs of future citizens. Families cater to specific needs of individuals, rather than to masses. They are the training grounds for community living.”
The family determines the human potential for the economy and government

Jack Kemp (former HUD and Dept. of Education Secretary; cofounder, Empower America), “A Cultural Renaissance,” Imprimis, August 1994, p. 3

“An economy and a government have limits set at the boundaries of the human heart. And the habits of the heart are learned in families — shelters for civilized standards and ethical behavior. Strong families are often stronger than the deepest poverty and the worst disadvantages. Broken families often frustrate all the help we can provide. The primary need of children is not better laws or public programs. It is better childhoods.”
The need to assure future justice justifies parental rights over children

Harry Brighouse (prof. of philosophy at University of Wisconsin at Madison) and Adam Swift (fellow in politics and sociology at Balliol College and director of the Centre for the Study of Social Justice, Oxford Univ.), “Parents’ Rights and the Value of the Family,” Ethics, October 2006, p. 85-86

“Another variant claims that the family is causally necessary for, if not itself constitutive of, a just society. One might, for example, regard personal liberty as the central value of political justice and regard the family as necessary for the kind of moral development that will produce citizens capable of respecting the liberties of others. Parental rights, then, are not owed to parents in their own right but must be granted them in order to reproduce justice over generations.”
The loving family is the best means to prepare children for citizenship

Adlai E. Stevenson (U.S. statesman and presidential candidate, 1900-1965), What I Think, 1955, p. 188

“In a family based upon mutual respect, tolerance, and understanding affection, the new generation of children — the citizens of tomorrow — stand their best chance of growing up to recognize the fundamental principle of a free society — the uniqueness and value and wholeness of each individual human being.”
Family obligations outweigh ethics

Randy Cohen (syndicated ethics columnist, New York Times Magazine), The Good, The Bad, & The Difference, 2002, p. 172

“The obligation of each family member to the others is not merely to be good but to be kind. To be part of a family benignly entangles one in a network of relationships defined not by duty but by love, transcending anything as narrow as ethical necessity, and aspiring to true generosity and a profound concern for the well-being of other family members that obviates moral obligation. Of course, there’s still time for bickering.”
Society has an interest in encouraging strong family commitments

Peter Singer (prof. of philosophy, Monash Univ., Australia), The Expanding Circle: Ethics and Sociobiology, 1981, p. 36

“Why is it that in almost every human society concern for one’s family is a mark of moral excellence? Why do societies not merely tolerate but go out of their way to praise parents who put the interests of their children ahead of the interests of other members of the community? The answer may lie, not just in the universality and strength of family feeling, but also in the benefits to society as a whole that come from families taking care of themselves. When families see that the children are fed, kept clean and sheltered, that the sick are nursed and the elderly cared for, they are led by bonds of natural affection to do what would otherwise fall on the community itself and either would not be done at all or would require labor unmotivated by natural impulses.”
The existence of some bad families does not undermine the worth of family itself

The President’s Council on Bioethics, Taking Care: Ethical Caregiving in Our Aging Society, September 2005, p. 124

“Without question, family life is often hard and imperfect and, for some, a source of pain more than strength, heartache more than joy. But the suffering many people endure within families — especially the experience of feeling abandoned or betrayed — does not justify denying what family can be at its best or what people might reasonably aspire to in family life. And it does not require giving up the hope that some families in trouble can reconcile and renew the ties that bind, and with it the willingness to stand with those fellow family members in need.”

Families are bad


Our biologically-mandated defense of our family is not automatically good

Peter Singer (prof. of philosophy, Monash Univ., Australia), The Expanding Circle: Ethics and Sociobiology, 1981, p. 36

“A bias toward the interests of our own family, rather than those of the community in general, is a persistent tendency in human behavior, for good biological reasons. Not every persistent human tendency, however, is universally regarded as a virtue. (Compare attitudes toward another persistent human tendency, which probably also has a biological basis, the tendency to have sexual relations with more than one partner).”
Historically, the family has been a tool for the subjugation of women

Dr. Constance R. Ahrons (prof. sociology and assoc. director of the Marriage and Family Therapy Program, Univ. of Southern California), The Good Divorce, 1994, p. 23

“Historian Carl Degler says it well: ‘The historic family has depended for its existence and character on women’s subordination. The equality of women and the institution of family have long been at odds with each other.’”
Family opposes, rather than promotes, other social institutions

Steven Pinker (Johnstone Family Professor of Psychology, Harvard), “Strangled by Roots,” The New Republic, August 6, 2007, p. 34-35

“Contrary to a shibboleth of the American right, family values do not uphold religion and country; they subvert them. An extended family is a rival coalition to any other group, held together not by an ideology or social contract or common purpose but by brute genetic relatedness. And it is a coalition with an unfair advantage: relatives care for one another more than comrades do. Religions and political movements thus have to undermine family loyalties. Marxist collectivization and Moonie programming are obvious recent examples, but millennia before them Jesus momentously declared, ‘A man’s foes shall be they of his own household. He that loveth father or mother more than me is not worthy of me: and he that loveth son or daughter more than me is not worthy of me.’”
Family provides a poor model for democratic society

Randy Cohen (syndicated ethics columnist, New York Times Magazine), The Good, The Bad, & The Difference, 2002, p. 172-172

“Family life has been portrayed variously as a microcosm of the larger society and as a refuge from it. But even in a country that prizes democracy, there’s little of that in family life. There has been some progress from the most authoritarian model of father-as-autocrat. Between the parents, power is now distributed a bit more equitably, at least along gender lines, with mother and father sharing the leadership (a change that paralleled women’s increased economic power). But even in the most liberal households, the children function as a kind of constituent assembly with the power to consult but not to legislate, rather along the lines of certain moderate Persian Gulf states, if you see Kuwait as moderate.”
Families can promote violence

Colin McGinn (prof. of philosophy, Rutgers Univ.), “Mothers and Moralists,” The New Republic, October 3, 1994, p. 30

“It is odd, too, to suggest that the family is the place to look for a nonviolent culture when, as we know, there is so much violence within families, and not all of it committed by men. Families are as much a part of the problem as a part of the solution.”
All the evidence says that families damage their members

Barbara Ehrenreich (editorial commentator; liberal American writer, feminist, and social activist), “Oh, Those Family Values,” Time, July 18, 1994, p. 62

“Americans act out their ambivalence about the family without ever owning up to it. Millions adhere to creeds that are militantly ‘pro-family.’ But at the same time millions flock to therapy groups that offer to heal the ‘inner child’ from damage inflicted by family life. Legions of women band together to revive the self-esteem they lost in supposedly loving relationships and to learn to love a little less. We are all, it is often said, ‘in recovery.’ And from what? Our families, in most cases.”
There is a long history revealing the hazards of the family

Barbara Ehrenreich (editorial commentator; liberal American writer, feminist, and social activist), “Oh, Those Family Values,” Time, July 18, 1994, p. 62

“There is a long and honorable tradition of ‘anti-family’ thought. The French philosopher Charles Fourier taught that the family was a barrier to human progress; early feminists saw a degrading parallel between marriage and prostitution. More recently, the renowned British anthropologist Edmund Leach stated that ‘far from being the basis of the good society, the family, with all its narrow privacy and tawdry secrets, is the source of all discontents.’”
The decline of the family has had positive effects on Western civilization

David Popenoe (prof. of sociology, Rutgers Univ.) in Family In America, ed. by Viqi Wagner, 1992, p. 21

“Certainly, one should not jump immediately to the conclusion that family decline is necessarily bad for our society. A great many positive aspects of the recent family changes stand out as noteworthy. During this same quarter century of family decline, women (and many minorities) have clearly improved their status and probably the overall quality of their lives. Much of women’s gain in status has come through their release from family duties and increased participation in the labor force. In addition, given the great emphasis on psychological criteria for choosing and keeping marriage partners, it can be argued persuasively that those marriages today that endure are more likely than ever before to be emotionally rewarding companionships.”
Acting preferentially to one’s family creatures a barrier to social justice

Harry Brighouse (Professor of Philosophy and Affiliate Professor of Educational Policy Studies, University of Wisconsin at Madison), “Justifying Patriotism,” Social Theory and Practice, October 2006, p. 555

“I choose to spend my time reading to my own (already advantaged) child. This activity imposes a direct cost on a strange disadvantaged child — she faces stiffer competition in the labor market than if I neglected my child. But there’s also an opportunity cost: I could have spent the time reading to the strange disadvantaged child, thus improving her human capital and providing her with an intrinsically delightful experience. I’m not saying this to impugn parental partiality. There are good reasons, rooted in the kinds of goods families and the intimate relationships carried out within them provide to family members, for not eliminating parental partiality, and, in fact, for thinking of parents as having considerable prerogatives with respect to their children. But these prerogatives, when taken up, do provide a barrier to justice independently conceived, as do prerogatives toward compatriots.”
The duties of parenting conflict with the virtues of integrity

Alan Wolfe (contributing staff editor), “Looking Good,” The New Republic, March 18, 1996, p. 37

“I owe my children love, time, sympathy, concern, discipline, and a sense of right and wrong, yet the realities of parenting are rarely such that one can teach about integrity by acting with integrity. Parental love is far too passionate, too one-sided, too unfair (to others outside the relationship) for complete consistency. In putting my children first, I violate daily the rules of integrity.”

Society must work to reform families


Laws constrain the rules whereby marriage can create families

Jill Elaine Hasday (Associate Professor, University of Chicago Law School; Visiting Associate Professor, Vanderbilt University Law School), The Canon of Family Law. The University of Chicago Public Law and Legal Theory working paper series #77, October 2004, Online: The Social Science Research Network Electronic Paper Collection: ssrn.com/abstract_id=612342, accessed May 28, 2008. p. 12-13

“The persistence of status is evident, for example, in the continued limits that family law places on marriage formation. All states prohibit polygamous marriages, prohibit marriages between some relatives, and prohibit marriages before a certain age. All states but one prohibit same-sex marriages. These laws are status rules set by the government and unalterable by the individuals involved. They limit a person’s ability to choose whom he will marry and when he will marry.”
Current treatment of marital rape continues to oppress women

Jill Elaine Hasday (Associate Professor, University of Chicago Law School; Visiting Associate Professor, Vanderbilt University Law School), The Canon of Family Law. The University of Chicago Public Law and Legal Theory working paper series #77, October 2004, Online: The Social Science Research Network Electronic Paper Collection: ssrn.com/abstract_id=612342, accessed May 28, 2008. p. 20-21

“Let’s begin with the marital rape exemption. At common law, a husband was completely exempt from prosecution for raping his wife. Courts and treatise writers defended the exemption with the same reasoning they employed to defend all of marital status law and common law coverture. A wife, they explained, gave her irretractable consent to marital sex when she agreed to marry, just as her agreement to marry constituted her irrevocable consent to the rest of marital status law and to the other legal disabilities associated with common law coverture. Starting in the last quarter of the twentieth century, states made two changes to this common law regime. First, a majority of states modified the scope of their marital rape exemptions so that the exemptions were no longer absolute, and a minority of states eliminated their exemptions. Second, almost every marital rape exemption was rewritten in sex-neutral terms, so that it shielded ‘spouses’ rather than husbands from marital rape prosecution. The first change was important. It is now at least formally possible to prosecute some marital rapes, something that was impossible in any state before the 1970s. But the modern law of marital rape preserves substantial elements of the common law order. Modern marital rape exemptions may speak in a sex-neutral idiom, for example, but that has essentially no effect on how the exemptions operate in fact. All the available evidence indicates that husbands commit virtually every act of marital rape. Indeed, law enforcement authorities have found only a handful of cases that may have involved a woman raping any adult man. In virtually all instances, men are the ‘spouses’ who continue to receive legal protection when they commit marital rape, and women are the ‘spouses’ who are legally unprotected when they are the victims of marital rape. As a matter of practice, marital rape exemptions continue to define a man’s rights in marriage to include sexual control over his wife.”
Current rules on interspousal tort immunity continues to oppress women

Jill Elaine Hasday (Associate Professor, University of Chicago Law School; Visiting Associate Professor, Vanderbilt University Law School), The Canon of Family Law. The University of Chicago Public Law and Legal Theory working paper series #77, October 2004, Online: The Social Science Research Network Electronic Paper Collection: ssrn.com/abstract_id=612342, accessed May 28, 2008. p. 21-22

“Let’s turn to interspousal tort immunity. Courts created doctrines of interspousal tort immunity in the middle of the nineteenth century. Before then, there was no possibility of interspousal litigation, because married women were prohibited from filing any kind of suit. The married women’s property acts, however, granted wives the right to sue in their own names. The acts did not specifically give married women the right to sue their husbands, but they raised the specter of interspousal litigation for the first time. Courts promptly responded by establishing a common law rule of interspousal tort immunity and interpreting the married women’s property acts to leave that rule undisturbed. Interspousal tort immunity functioned to limit the reach of the married women’s property acts and to preserve an important element of common law coverture. Today, notable aspects of this regime remain in place. At least eight states retain some form of interspousal tort immunity, preserving a rule that courts created to protect coverture in the face of the married women’s property acts.”
The child’s interests are not the determinative factor in custody decisions

Jill Elaine Hasday (Associate Professor, University of Chicago Law School; Visiting Associate Professor, Vanderbilt University Law School), The Canon of Family Law. The University of Chicago Public Law and Legal Theory working paper series #77, October 2004, Online: The Social Science Research Network Electronic Paper Collection: ssrn.com/abstract_id=612342, accessed May 28, 2008. p. 27-28

“We can start with the law of custody. Courts and scholars reporting the demise of common law property norms take the law of child custody as their central illustration, yet a large portion of child custody law does not actually turn on a child’s interests. These interests may help settle custody disputes between two biological parents, where a reliance on parental rights cannot decide the dispute. But today, as at common law, a child’s interests are not the central concern of suits in which the state seeks to take permanent custody from parents, and they do not guide most custody disputes between biological parents and third parties. The key question in these cases is not where the child would be best off. Instead, these cases focus on a parent’s rights, and protect those rights unless the state or third parties can meet a very high evidentiary burden to prove parental unfitness. As the Supreme Court has explained, for example, parental termination proceedings do not consider ‘whether the natural parents’ or some other caretakers ‘would provide the better home’ for a child. A child can be ‘deeply interested in the outcome’ of a parental termination proceeding, yet ‘the focus emphatically is not on’ him. Parental termination proceedings revolve around the parent’s ‘fundamental’ right to his child, and uphold that right unless there is ‘clear and convincing evidence’ of ‘parental unfitness. ‘Many courts deciding custody disputes between parents and third parties similarly report that ‘[t]he issue is not which side would provide the better home for the child.’ These courts enforce the rights of parents and award them custody against third parties, in the absence of ‘clear and conclusive’ ‘[e]vidence of unfitness.’ In this way, parents continue to enjoy substantial rights to the custody of their children simply by virtue of their status as parents.” [brackets in original text]
Parents have a legal right to apply corporal punishment for their children

Jill Elaine Hasday (Associate Professor, University of Chicago Law School; Visiting Associate Professor, Vanderbilt University Law School), The Canon of Family Law. The University of Chicago Public Law and Legal Theory working paper series #77, October 2004, Online: The Social Science Research Network Electronic Paper Collection: ssrn.com/abstract_id=612342, accessed May 28, 2008. p. 28

“Let’s turn to the law of corporal punishment, where parents also retain essential elements of their common law rights. At common law, a parent had the right to physically chastise his child. Courts and legal commentators endorsed physical chastisement as a way of securing a child’s obedience to his parent’s authority, and never required a parent to establish that the chastisement was in the child’s best interests. The exact scope of a parent’s common law right of correction varied modestly over time, but it was always wide-ranging. By the end of the nineteenth century, a majority of common law courts held that a parent could inflict reasonable or moderate correction on his child, and rarely convicted a parent for exceeding the bounds of reasonableness or moderation. Today, every state still recognizes a parent’s authority to impose corporal punishment on his child. At least thirty states and the District of Columbia, for instance, have codified a parent’s right to inflict ‘reasonable’ corporal punishment. At least thirteen states have codified a parent’s right to impose corporal punishment in slightly different terms.”
Parents have significant control over their children’s labor

Jill Elaine Hasday (Associate Professor, University of Chicago Law School; Visiting Associate Professor, Vanderbilt University Law School), The Canon of Family Law. The University of Chicago Public Law and Legal Theory working paper series #77, October 2004, Online: The Social Science Research Network Electronic Paper Collection: ssrn.com/abstract_id=612342, accessed May 28, 2008. p. 29-30

“Parents have similarly maintained important aspects of their common law right to control their child’s labor. Child labor laws have modified rather than eliminated the almost absolute authority that a parent (particularly a father) exercised over his child’s labor at common law, so that parents still retain significant control over their children’s work. Federal law, for example, gives parents who employ their children more power than other employers, and allows parents to consent to their children’s exemption from important labor protections. A child working for his parent on the parent’s farm is not protected by federal law’s minimum wage and maximum hour requirements, by federal law’s prohibition on child labor before the age of twelve, or by federal law’s ban on employing children under sixteen in ‘particularly hazardous’ occupations. A parent can authorize his child to work anywhere in agriculture at the age of twelve or thirteen, and can authorize a child younger than twelve to work on many farms that the parent does not own, even though federal law generally prohibits agricultural labor until a child reaches fourteen. A child who works on the same farm that employs his parent is also often excluded from federal law’s minimum wage and maximum hour protections. A similar pattern appears in state labor laws. Following a course begun at common law, none of these statutes requires a showing that the parent is acting in his child’s interests. All accord a parent significant control over his child’s labor simply because of his status as a parent.”

Society should not meddle with evolving family structure


We do not generally demand parents do everything possible on behalf of their children

Robert Sparrow (Senior Lecturer, Centre for Human Bioethics at Monash University, and an Honorary Research Fellow in the Centre for Applied Philosophy and Public Ethics, at the University of Melbourne, in Melbourne, Australia), “Procreative Beneficence, Obligation, and Eugenics,” Genomics, Society and Policy, Vol. 3, No. 3 (December 2007), p. 47

“Even the best parents typically fail to do everything they think would be best for their children let alone everything that is in fact best for their children. Parents often not unreasonably choose to put their own interests ahead of those of their children in relation to at least some of their decisions. In order to secure the best life possible for their children, parents would be obligated to spend all of their disposable income on their children’s education and upbringing. In order to maximise the opportunities available to their children, parents would have to teach them as many of the ‘world’ languages (English, Mandarin, Hindi, and Spanish) as possible. These are impossibly high expectations of parents and we do not criticise parents who fail to meet them.”
The state has only limited ground to interfere with child rearing

Emily Buss (Professor of law, Univ. of Chicago Law School), Geoffrey R. Stone (Distinguished Service Professor of Law, The University of Chicago), Parental Rights, The University of Chicago Public Law and Legal Theory working paper series #23, May 2002, p. 9. Available online from the Social Science Research Network: papers.ssrn.com/sol3/papers.cfm?abstract_id=312179; accessed January 10, 2009



“Because state intervention in child rearing inevitably comes at a cost, it should be limited to those circumstances where the costs of failing to intervene are great enough to justify the costs of intervention. State intervention, therefore, should be limited to those circumstances in which the state deems intervention necessary to protect a child from harm and, again, only from harm the state has some special expertise to assess. In the public realm, for example, the state has special expertise to assess risks associated with certain educational decisions. In the private realm, the state’s expertise allows it to prohibit child abuse and neglect as a child-generic harm condemned by the community.”


Prager’s LD Vault: Family · Revised July 2009 · © 2009 John R. Prager


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