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Guardianship

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AshRyan

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The "voluntary slavery" topic along with some local current events got me thinking about the issue of guardianship. I think this involves some very complicated issues, and I thought some discussion here might help me clear up my thinking about this.

First of all, what are the rights of a guardian (say a parent) as opposed to the rights of a child, and when, if ever, is it appropriate for the government to intervene? A guardian is legally responsible for a child (or whoever), but what exactly does that responsibility entail? And if that responsibility isn't met, in what ways should the government intervene?

For example, it is not a violation of a hobo's rights if I refuse to give him money or food--only if I actually initiate the use of physical force against him, by say physically assaulting him. But a guardian needn't go as far as physical violence--if a parent doesn't feed their child, it's classified (I'm inclined to say correctly) as abuse, and the parent is declared unfit for guardianship. What it is then proper for the government to do, is a little harder to determine.

Now, bring in a hard case, such as where parents refuse to obtain proper medical treatment for their child who is suffering from cancer, and instead seek "alternative medicine" treatments, or want to simply pray for their child. Should they have their guardianship rights revoked? And then what should be done with the child? On the one hand, I find it unappealing to say that the government should have a say in how one raises a child (beyond explicit violations of the child's rights, i.e. the initiation of physical force against him). But on the other hand, in the face of facts (such as that wishing won't make it so, and if they simply pray for their child they might as well just shoot him), it seems that these parents are definitely neglectful, abusive, and unfit for the role of guardian.

I think what I really need to understand is the essential legal meaning of "guardianship", and its proper philosophical justification, as well as the rights of the child involved. (We could also discuss related issues such as when a child can or should be held legally responsible for himself and his own actions, as assigning an arbitrary age has never seemed really satisfactory to me.) That should clear up all of these sticky matters. But it's a difficult issue.

Any thoughts?

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I would say that the government has no right to intervene even in the lack-of-feeding and lack-of-curing-disease type thing, but a child has a right to choose another guardian and a guardian can't guardian a child against their will. So say for example that a child doesn't like how his parent is treating him. He can then find someone else to parent him, either another relative or a friend or some charity orphanage organization.

This seems to work only for later ages though, for a 1-year-old there is no opportunity to do this when the child isn't being fed. So the above doesn't really solve the problem. ...Wow, I'm stumpted. I can't think of an easy way to solve it. Okay, how about this:

"Mis-parenting" could be defined as 'a non-criminal action which relieves a person of the right to parent the child in question, but is not a punishable issue otherwise', and this would include not feeding a 1-year-old, not seeking treatment for their cancer rationally, and so on. This would have be more strictly defined and guideline principles developed. The child would then select another guardian (if it is old enough to), or a reasonable choice made for the child, subject to the child's later ammendment (subject to the the new guardian's or charity orphanage's acceptence).

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I've just discovered Objectivism, and this whole guardianship issue troubles me.

As I understand it, an Objectivist government is rather like a mutual protection association: it exists purely in order to further the rational self-interest of the consenting governed, and this extends no further than the prevention of physical aggression and fraud.

What's the self interest argument for intervening to protect a child or animal?

Martin

(Puzzled newbie)

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Well, what facts are relevant here? I can think of two that are crucial.

1. An infant or young child cannot survive on his own.

2. The infant has no choice in being brought into the world; that choice is his parents--more specifically his mother's.

My tentative thoughts are that the choice to give birth to a child is an implicit contract with certain obligations. But I'd like to hear other thoughts on facts relevant to this issue before I commit myself.

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To summarize or abbreviate my previous post, the question is: Can the government intervene in certain cases? Why? What is the justification for their doing so? (The answer to the 'why' should make clear in which specific kinds of cases this would be justified.) And how? What particular actions may the government take in intervening?

Since the government's only proper role is to protect individual rights, I think this rests on the answer to the question: Are the child's rights being infringed upon by negligence on the part of their guardians? If there is an "implicit contract" between a child and its guardian, simply by the fact of the guardian choosing to act in that capacity, then the answer may be yes--in which case, government intervention would be justified. But then one would have to specify what particular responsibilities are entailed in guardianship, the neglect of which would be a violation of the "contract". And a full philosophical justification for the idea of such an "implicit contract" would have to be given.

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It seems proper that when a parent chooses to have or adopt a child, that he or she provide for the child's survival and teach him to be self-sufficient until he can survive on his own. But why is that? Why does having children entail a contractual obligation to raise them? I think that finding the source of the moral obligation will be helpful in determining just what the extent of that obligation is.

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I think that finding the source of the moral obligation will be helpful in determining just what the extent of that obligation is.

The source of moral obligation could probably rest in certain facts that are based on the assessment of the ability of the child to subsist independently. We certainly wouldn't want every parent to grab their child who couldn't fight back and drop them from tops of buildings.

I think governance of the home should be congruent with governance of an Oist system, therefore, the government can only intervene when the governance of the home breaks the law of physical force and fraud.

Obviously physical force must be defined a little differently in the home. On a continuum, basic subsistence is neutral, whereas negligence and physical force are taken as absolute values in the direction of physical force. This is also congruent with an Oist government that protects the country.

Basic subsistence is the benchmark.

Microgovernance should be congruent with macrogovernance. And where the actual variables involved are different, I think an attempt to find relationships with the Oist constant is a step toward the answer.

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I think mattbateman's approach is good, look at the facts:

1. An infant or young child cannot survive on his own.

2. The infant has no choice in being brought into the world; that choice is his parents--more specifically his mother's.

I would add:

3. A child is different from a dog or a car. And the acquisition of a child, either by making one or adopting one, entails a different set of responsibilities. The difference is that a child is a human, and has rights. And as such, has the right to freedom from physical force or coercion.

4. A child is not competent to judge his best interests, and cannot and should not be expected to.

By having a child, a couple does indeed take on the responsibility to raise that child to the best of their abilities until that child is self-sufficient. I would say that morally, parents have the obligation to do their absolute best for the child. It is part of taking full responsibility for your actions. As Matt points out, the child had no choice in the matter. The parents did. So the parents are accountable. The correct attitude of parents towards children should be: "I know you didn't choose life, we chose it for you, so we are going to do our best to make it the best it possibly can be for you."

As far as the role of government goes, I would say this: A child has rights. The government's job is to protect those rights. By being, by definition, dependent, it is indirect force to deny a child sustenance. With regard to what extent the government should get involved in judging what qualifies as "sustenance", I think the line is at the basic requirements for physical survival. This is food, shelter, clothing, etc. Failure to provide these things to a child at a basic level would qualify as negligence and a form of child abuse. It would then be the responsibility of a wing of police departments to investigate and prosecute instances of this. Judging what and what is not basic sustenance for a child is a judgement call that would have to be made by a qualified judge with all the relevant facts of the society, level of technology, economy, etc, at his disposal.

With regard to at what age a person becomes an adult, I'll share one of the best ideas I've ever heard. The idea is that within a specific age range, say 15-21, a young adult can go to a government office and sign a paper that legally declares him of the age of consent. Once that paper is signed, he is legally an adult and entitled to all the privileges of adulthood (voting, ability to enter contracts, marriage, etc.) At the same time, if he then commits a crime, he is prosecuted as an adult. The nice thing is the person then gets to assume the responsibilities of adulthood, when ready. It also gets the government out of the business of declaring these arbitrary points in people's lives where they can and cannot do certain things.

Ben

http://www.gmuoc.org

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After doing some more thinking about this issue, I think I've made a bit of progress.

First of all, a child is not a pet or a slave. His guardians do not "own" him. He is still (as many of you have pointed out) a human being with all the same rights as everyone else. It is therefore certainly proper for a government to intervene for the protection of his rights.

Now, how about the guardians? What are their rights as guardians? There are many, very noisy, "parents' rights" groups and such around today. But does their role as guardians actually give them any extra rights? No--they only have the normal individual rights that anyone else has. And not only do they not have any rights as a group, they in fact have many legal responsibilities.

A "guardian" is one who is legally responsible for someone else who is unable to care for themselves. This is I'm sure a highly inadequate definition for legal purposes, but it will do for the present discussion. By acting in that capacity, parents automatically take on that role, and thus assume the responsibilities that it entails. Children do not have to do anything to enter into this "agreement" beyond being born...the fact that they are incapable of making their own legal agreements is what makes this special implicit arrangement of "guardianship" necessary in a free society in which the government's role is to protect the individual rights of all of its citizens. The legal arrangement or "contract" need not, and indeed cannot be, explicit, because part of its very justification is the fact that one of the parties is unable to make such legal decisions on its own.

So what responsibilities does acting in the role of guardian entail? Basically, they have to make legal decisions for their dependents, and also provide for the objective facts of their survival to the best of their ability (as Ben suggested). In some contexts, this could go beyond merely providing food, clothing, and shelter, to issues like what kind of medical care a child should receive. Thus, in a free society, it may be perfectly justifiable for the state to force a family to procure, if it is able to afford it, a medical treatment proven to save lives rather than (or at least in addition to), say, community prayer on the child's behalf.

And if a guardian fails to carry out his responsibilities, the government may strip him of the right to that arrangement, since it is a legal arrangement that the government is perfectly justified in enforcing. What a government should then do with such children is a difficult question, however. Obviously, privately run orphanages, foster homes, and adoptive families could serve as new guardians for dependents whose previous guardians couldn't fulfill their responsibilities. However, there is no way to guarantee that there will be such people willing to take on those responsibilities. And it doesn't seem right for the state to take on guardianship responsibilities at the expense of its citizens in such cases, nor to pay private orphanages and other organizations to do so. So...that's still a big problem that needs to be resolved.

Perhaps that problem arises from an error I've made somewhere in the rest of my solution. Have I made any obvious errors here, or is this a reasonable conclusion?

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  • 2 weeks later...
Guest Grantsinmypants

I can't think of a situation in which no involved party's rights are not violated if you grant the full rights, but not responsibilities, to children that adults have.

If a mother can't or won't take care of her kid, the kid dies from neglect. If the kid has rights, then the kid's right to life has been violated.

If a mother can't or won't take care of her kid, the government steps in. If the rest of the citizens have rights, then their property rights have been violated.

I realize that this one is sticky, but I just don't understand why a mother-child relationship is to be considered unique because both mother and child are humans and have the same rights but not responsibilities. The argument that a woman implicitly agrees to give up her liberty when she becomes a mother is fallacious. When someone agrees to do something, all that they are giving up is their lack of responsibility (As if giving up a lack of something is a loss, much less possible). So why then, shouldn't a child be expected to assume some amount of responsibility for his or her life when he or she is born? Oh yeah, that's because he or she is an infant, they can't assume responsibility for themselves much less anything else. The only argument for the inherent rights of chilren that still stands then, is that they have the potential to assume responsibility for themselves and begin to respect the rights of others. Well, in order to guarantee that happens, should the mother cease to be willing or able to provide for her child, the government will have to step in in the meantime, and in doing so, violate the rights of other adults. That sounds alot like sacrificing the actual adults to the potential adults to me.

I don't know.

Grant Williams

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  • 3 months later...
I can't think of a situation in which no involved party's rights are not violated if you grant the full rights, but not responsibilities, to children that adults have.
Children are still volitional beings, even if they aren't entirely independent as far as their needs are concerned. I don't think that a parent can be responsible for a child's actions that are a result of his own volition. I do think its quite clear that parents are responsible for the child's state of dependency, as the act of their present position and even life was entirely a result of said parents' (usually volitional) acts.

If a mother can't or won't take care of her kid, the kid dies from neglect. If the kid has rights, then the kid's right to life has been violated.

Agreed.

If a mother can't or won't take care of her kid, the government steps in. If the rest of the citizens have rights, then their property rights have been violated.
Rights, when property understood, cannot be contradictory. If the child has a positive right to care from his parents, or in other words, the parents have an oglibation to care for the child they had a direct hand in procreating/birthing (whichever you choose), then it isn't a violation of the rights of the parents for Government to step in and insist that they meet the obligation.

I realize that this one is sticky, but I just don't understand why a mother-child relationship is to be considered unique because both mother and child are humans and have the same rights but not responsibilities.

I wouldn't say *just* the mother, but I would say both the mother and father. They both had a hand in that child's procreation.

The reason is quite simple -- you have to ask yourself "who did what to whom?" A child had no pre-existence, and his present existence was entirely the result of the actions of his parents. His presence, state of dependency, etc. are all a result of their (usually volitional) action. In conception, and after birth, children are metabologically dependent on their parents, but not developmentally dependent or mentally dependent (at least in the latter, not mentally dependent in the sense that I am trying to portray). Hence though parents are responsible for the things the child cannot do himself, a parent can never claim responsibility for a mental/volitional act of the child himself (unless the parent coaxed the child into that act), even if they wanted to.

In short, I tend to agree that a parent cannot be responsible for the volitional acts of a child that violated the rights of another, so long as it wasn't the parent that coaxed them into said act, but he/she must be responsible for their own volitional acts that procreated a dependent child. Otherwise, the act of procreation/birth and subsequent neglect/abandonment is tantamount to bring a child into a death trap.

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  • 1 month later...

as a child care professional I'd like to add in some input.

1. The question was asked how does self interest play in.....

any society, and thus the members of such society, which fails to protect and nurture its young is generally screwed because A)they generally die, thus leaving few able to care for us when degenerative diseases kick in. :) those that survive are often unable to exercise sound judgement (many of the Arab League Countries that are causing us so much problems for instance, their literacy rate is disgustingly low)

2. The Doctrine of "implied consent" works here. When people are in an irrational state (from being knocked unconscious during a robbery, from being young and neurologically undeveloped) The state often assumes that a "reasonable and prudent" person would make decisions in their best interest. the idea is that when competency is restored, choice is restored. (i.e. when the kid grows up and can be proven competent, or when the guy regains consciousness)

Now nobody wants "uncle sam" deciding their best interests... Which is why the government is generally only permitted to act on a basic level, if somebody is denying a child the right to their basic life(food, water), or not making an effort to develop their ability to reason. (education)

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