I think you have to separate the concept of rights from ideas regarding their implementation. The concept of rights is a moral issue, and therefore the product of philosophy. Morality tells man what he should do.
I’m reading Ominous Parallels by Leonard Peikoff, and I’ve realized something important about the role of philosophy in guiding morality. The utter evil and systemic brutality of Nazism was the product of a moral depravity made possible only by a completely absurd and unreasoned philosophy - if I understood properly. What’s interesting is that a common feature of the philosophies that contributed to Nazism is the idea that the mind is impotent. I’ve wondered about this because at first it seems wrong. If people believe that the mind is impotent - which seems impossible and absurd in the first place - how could they even wake up in the morning, or eat? Not to mention the fact that Nazis built missiles, rockets, jet planes and so forth.
But what I missed was that the concept that the mind is impotent doesn’t apply to the use of the mind in all situations. The mind can be used to get through each day, build rockets, and everything else, but remain impotent as long as the choice of what to do - moral values - is the product of mysticism. Ultimately, these values would destroy a society, but presumably it could function for awhile. The issue - when it comes to man - is volition. Man must choose to survive, and make choices based on the premise that his life is in fact a moral value. My observation is that philosophy has the strongest effect on - and is the only source - of moral values and the choice of right and wrong. It answers the question, specifically, “What to do?”
Now consider the concept of the social contract. Forget the stupidity associated with general will, let’s define a social contract as an arrangement between individuals regarding a common understanding on the proper use of force among them. Force, because anything not involving force requires no general common understanding.
If you ‘sign on’ to such a contract (say you are on a desert island with just a few other people), there are two moral issues involved. Primarily, you accept the rightful use of force against you if you breech the contract. Secondarily, you give your sanction to the use of force against other people in your name as a signatory.
Without rights, as the absolute justification for and standard of the social contract, you as an individual have not moral basis for joining it. Obviously, we are born into a country today, and by advocating for, and voting for correct political ideas you retain moral integrity. But as far as rights are concerned: absolute rights, discovered through philosophy, must be the basis for a proper social contract. It can’t properly exist without them.
So, the nitty-gritty of how to organize and implement a social contract is irrelevant initially. Checks and balances are as meaningful as Nazi industrial achievements unless they exist to protect rights that are pre-existing and objectively accepted.
That said, I think that rights do usually require a practical framework in order to be protected. That is, they exist without a social contract, and they can be protected without one under ideal circumstances, but a social contract might be a rational way of protecting them under many circumstances.
That said, a child can have ‘rights’ but that doesn’t mean they will be protected. In the same sense, a person can be completely moral, work and think to their fullest capacity, and still fail to survive. This may be tragic, but nowhere is there a moral failure. Somebody who violates a child’s rights - or yours for that matter - can rightfully be punished for doing so. But that is a moral statement, objectively derived, and speaks in no way about how that punishment will occur. Importantly, the moral issue is completely settled from the beginning. While exactly what to do requires more thought, what to do generally - the ought as is - has been decided.
My personal vision of an ideal government involves parents retaining a certain ‘stewardship’ over minors that details how some of the child’s rights are retained ‘through’ the parent. While the government has no explicit obligation to protect the child’s rights, and therefore maintains no authority to expropriate funds from citizens by force in order run orphanages or pay foster parents, it can authorize a ‘transfer’ of stewardship where a concerned party can bring ‘bad parents’ to court and take their kids from them. The issue with children is custody, because obviously they can’t function as an adult and require someone else’s efforts to survive for at least some portion of their childhood. Rights are all about man acting in support of his own life, which a baby would obviously fail at. So this stewardship idea is my best effort
And about the idea of a person retaining rights ‘through’ somebody else, consider these examples: a child chooses to leave home, say they are 8, and can survive selling newspapers on the street. In this case, the ideal thing for the government to do would be to tell the parents that they have no right force the child back home. In another situation, the child wants to stay at home, but the parents are clearly intimidating the child and there is clear evidence of abuse. This time, the child’s ‘choice’ is not acknowledged. This might be an error - adults are expected to know what’s good for themselves, whether they demonstrably do or don’t - but something about especially small children lacking the remotest opportunity to obtain enough knowledge to know better changes my opinion regarding them. Sure, you could just say the line is too fine to ever draw - that 18 is just convention - and 10, or 8 or even a ‘scientific’ standard is too subjective. In that case, you just ask a child what they want, and whatever best guess you have as to their answer, you allow them to reap the consequences of that choice even if you know they don’t even have the capacity to do so rationally, and the only reason for this is that they are a child.
I guess, in the end, you don’t draw a line. You include in the architecture of the law basic regard towards rights. All people have defined rights, and whether they be adults, the mentally ill, or children, those rights apply and are manifested clearly in the legal framework. That is, just because a person isn’t properly aware of their rights doesn’t mean they do not have them. So a child, or mentally ill person, can be deemed unable to properly make rational judgments, but they still have rights. So an abused child who says they want to stay in the abusive home can be taken out of one in protection of its rights. The standard for competence is broad. Emotionally damaged battered wives, or emotionally confused adolescents cannot be judged incompetent (or polygamous mormons). The state cannot remove them from a situation ‘for their own good’. But mentally ill citizens, or small children who are clearly incapable of basic rational judgment can be removed ‘for their own good’. In that sense, children have their rights ‘through’ their stewards - those who see to the survival of those utterly incompetent to do so themselves. And of course, being a steward is voluntary, so no taxes for orphans.
More broadly, my vision for a social contract is one where the use of force is authorized through the contract only. So even retaliatory force is subject to the dictates of the contract and its constitution. This is willful, you turn over your right to the use of force properly to the judgment of the constitutional government in exchange for a civilized consensus about the use of force. The government, therefore, cannot initiate force, only proscribe allowable use of force in retaliation (or immediate self-defense). It, therefore, cannot tax. But it can commission. It can authorize people - who through their own wealth, or donations (possibly according to a systematic process detailed by the legislature) - to use force in the preservation of rights.
It’s like the desert island situation expanded.
By the way, these conclusions are all mine, and I don’t claim that they are endorsed by anyone else.
UPDATE: I started this post an hour or two ago, and took a break, and then finished it. Since then, there have been many new comments. If my post is at all redundant, this is the reason.
UPDATE #2: I have read the new posts, and give full credit to TLD and others who expressed what I have expressed, first. They have expressed everything I wanted to express, though I’d like to know if rangingpanda is satisfied by my thoughts concerning protecting the rights of children.
If I can have a philosophical conversation with him about rational beings then he no longer needs to be a bear in your analogy. He could just as well be a potential murder. So we’re back to square one on that point…