From The Righteous State
by Severin Christensen
15.—Rights of Minors
Children occupy a peculiar position within the ethical legal system. What exactly are they? They cannot be perceived as independent personalities within the legal order, because only adults can be. (As adults I consider here those who meet certain agreed average conditions for social maturity). Are they then property? Are the children owned by their parents or by the state? No, obviously not, because neither parents nor the state can establish any property rights for them, if one refers to the ethical conditions for property rights set out above. In certain states, e.g. Sparta, however, the state has asserted an unconditional right of ownership over the children, so that during their upbringing they are considered mere means for public purposes—elsewhere the parents have assumed full ownership over them and considered themselves entitled to turn them out and kill them after well-being.
It has been emphasized above that the ownership rights to the natural goods and to the things created by work are justified in different ways. As regards the first, ethical right results in a common agreement on value, since some of them are not divisible at all and none of them are divisible equally, and since one has no power to deny any newly admitted member of society equal co-ownership.
The minors also have an ethical right to a share in the common goods, for to these one member of the family can just as well justify a special right as one person can do to one of his contemporaries. It would therefore be an abuse if the living people wanted to block access to these values for those to come. The children then occupy the peculiar special position that they must be recognized as rightful partners in a certain community area without, however, having the ability or the right to independently dispose of this property. Can one then possess legally recognized and insured property without the right to dispose of it in full? Yes, the legal philosophers assume this, and ethics can subscribe to this view. Legal capacity usually begins at birth, indeed, legal protection can even be created for unborn people through declarations of will; anyone with legal capacity can be an owner, claimant and debtor. Something else is that not everyone has the ability to establish or terminate legal relationships by their own actions; legal capacity, in contrast, is only the passive ability to be in possession of a right. Minors have legal capacity, but they cannot raise claims themselves; it is the authorities that must prosecute infringements of their rights on their behalf, whether it is the private individuals, the parents, who have something to complain to the state, or conversely the state, which has something to complain to the parents.
A co-ownership right of this kind is therefore what, according to natural law, must be awarded to minors; it extends to all individuals; that the social abilities of the minors are not—or not yet—fully developed, entitles the adult members of the family to take over the property system on their behalf, but not to exclude them from the right of ownership.
Let’s take a simple example to illustrate what happens when a new baby is born. Let us assume a community of 9 members, of whom 5 have divided the fertile island on which they live among themselves, so that each of them cultivates his own lot, while the other 4 have other occupations. If the number now increases to 10, no new value has thereby been created, but the common F (the levied land tax) can be assumed to have become larger because the greater demand for the seized land has raised the price, because a relatively larger part of the population are excluded from the land (5/10 instead of 4/9). According to principles of natural law, it can be stated that when there were 9 inhabitants, each of them was entitled to 1/9 of the common wealth F, while each of them is now entitled to 1/10 of F1, (the new value). But what we must draw attention to here is that even if F1>F, it is not this increase that creates the tithe’s right to its share; this is quite independent of the fluctuations of the common wealth and what causes them (in fact they can also be due to reasons other than population growth).
What and how much do the minors own, and how should this property be managed by a state agency that will also look after the interests of all citizens in this case?
The relationship must be seen as follows: from their birth, the children are the rightful owners of shares equal to the adults in the common property. As their minor state makes them unfit to be self-governing, the adults manage this share of theirs on their behalf and as their property. The rent on the common natural values, both those of minors and those of seniority, i.e. the annual amount of the land tax belongs to everyone equally. After the necessary government expenses have been covered, the remaining amount will be distributed among all members of society as equal profit shares. The children’s profit shares are then managed by the parents until they reach the age of majority, and can e.g. used for teaching. In return, all parents are obliged to have the children insured to reassure those who may become orphans.
The rule of law does not recognize any right of inheritance if this is understood as a right for the children (or others) to inherit inheritances. On the other hand, the owners have the right to bequeath their possessions to whomever they see fit, because the right of gift is a necessary component of the right of ownership, and the “right of inheritance” would interfere with this. If there is no will, the person’s estate belongs to the public.
In the same way that the citizens of legal age could demand that the common funds be used for the complete maintenance of each individual or for individual needs, but only for a certain basis for living, certain main conditions therefore, and for securing what the individuals legitimately acquire, so it can nor is it required that the state must completely provide for the children’s material maintenance, for each individual child’s individual and professional development or for the full satisfaction of every individual desire or urge during childhood. The public task is simply to ensure that the minors have such living conditions that they will one day be suitable as full-fledged citizens to independently take over and manage their share in the common goods and act as independent active members of the legal society. Since the children have a share in the common income, they have a right that these not only benefit the lives of the adults, but that they also serve their own living conditions. The interests of the adults are safeguarded by the fact that the legal institutions do not allow abuse or fraud in the business world and thus a security is provided that the adults would not be able to overcome individually. This therefore dictates the common interest for the adults. For the children, who are not capable members of the social organism, this legal protection is not enough; if there were no other measures for their good, their property would be quite imaginary and indulgent; they obviously have a right to be secured more effectively through precautions that are consistent with their stage of development.
In cases where the private homes themselves are ready to take care of the children entirely, the state can limit itself to ensuring that a certain minimum of life’s goods, which are necessary for their social development, really become their share. (The right to proper nutrition (women’s milk), care and upbringing). The state must, as far as possible, guarantee the child’s right to grow up in a home; it should ensure everyone such a measure of knowledge communication as the prospective social citizen necessarily needs‚—and this requirement enables the child’s profit shares, which the parents administer, to fulfil. The public must check that it really happens. Material provision and individual upbringing, cultural communication and professional training naturally become the home’s own business (as a natural counterpart to the parental authority the state entrusts to the parents). Because care must be shared, and I see no other natural dividing line.
The cases where the child is left without parents who can or will provide him with proper care require special mention. Here the state must step in with further positive help; because the child’s right to property comes before everything and will always be able to invoke the state’s protection in the last instance.
In order for parents to be able to guarantee the child’s full right to development in the event that they should drop out, the public authorities must be able to require that all parents take out adequate child insurance.
From this consideration, that the children are just as much the property of society as the parents, the following emerges: neither the state nor the parents dare to regard the children as things or as unjust means for tasks that are only the adults’ heart. The children have an independent right, which it is the business of both to respect, and the state, as the supreme guarantor of all law enforcement, is also the one who watches over the relationship in this case.
To those Parents who wish to take care of their children themselves, the state grants parental authority over the children, on the condition that they fully protect the children’s right to the above-mentioned benefits of life, to which they are unconditionally entitled. In this case, the state’s direct role will only be to watch over that this happens fully. Parental authority is therefore not based on any property rights, because the state reserves the right to sue and intervene where the children’s rights are disregarded. It is a guardianship that applies within the limitation required by the above considerations. The state must necessarily grant this authority over the children to the parents, so that they can fulfil their obligations towards the children, i.e. secure to them that part of their rights which they owe to them. The state, on the other hand, has no right—without the reasons mentioned—to demand that parental authority be directly transferred to it or to deprive parents of their children, if the parents fully fulfil their obligations. For although the parents do not have property rights over the children, the state has even less; and it would be encroachment on the part of the State to sever natural ties and violate private family feelings. It is this consideration that in this case conditions the mutual relationship between the state and the parents and limits their rightful intervention. The state cannot, without offending legitimate feelings—when the child’s rights are not compromised—go beyond the role of being a control and making the child’s profit share available for education.
That parents have an obligation both to the child and to the state should be obvious, since no parent has a claim that society must provide everything for a child’s upbringing, and since it is the state’s business to protect the child’s rights vis-à-vis the parents. Even if parental authority were therefore to be abused, or it was voluntarily relinquished, and the children were placed under the state’s full care, it would not be unjustified if the state demanded remuneration from the parents.
It must still be maintained that the fixed point in this chain of mutual rights and obligations is the right of the child to certain benefits of life; its right to life, nutrition, home, upbringing and a certain measure of education is paramount; the division of tasks between parents and society is of secondary importance.
If the parents are to be able to exercise parental authority effectively, the child must be a minor in all personal matters; the young person cannot bind himself by legal acts, any more than the parents can encroach on the children’s rightful property by their dispositions. The legal acts of a minor are invalid, even if the co-contractor had every right to assume him to be of legal age.
The question now is what is to be understood by authority: Only those who are socially mature should be in authority. But since it would lead to too much arbitrariness to let the decision of this depend on individual studies, for practical reasons it must be rewritten to mean that only those who have reached the age at which, according to scientific studies, it has been shown that people of such and such race, under such and such natural conditions, on average attains maturity.
To be socially mature is to possess the ability to independently assume and fulfil social obligations fully developed. A certain fund of intelligence and experience is required to refrain from undertaking more than there is prospect of fulfilment; and a certain fund of moral sense (sense of justice) is required to want to fulfil an obligation when it applies. The mere act of refraining from imminent temptations to encroach on one’s neighbour’s property requires a certain measure of knowledge of and interest in what rightfully belongs to oneself and others. Furthermore, it is required of the socially mature that he is able to assert his financial independence, because authority first and foremost includes the fact that parental authority and parental responsibility can cease.
It must now be obvious that the very abilities which enable a person to financially support himself and to independently enter into moral obligations in private life must be the same as those which entitle him to active participation in state life; for politics is nothing else (or should be nothing else) than the art of applying legal morality in the affairs of public life, and there is in principle no difference between justice in private and public life.
There is one more significant boundary between those of legal age and the minors: Only people of legal age can be punished, never minors. This principle is nowhere fully respected, but with the introduction of guardianship councils a significant step has been taken towards replacing punishment with educational care for certain minors. This difference should be constantly deepened more and more deliberately, so that in return for the adults, educational care is replaced by punishment.
In order to get an overview of what society’s share in the care of the infirm consists of, it would be correct to consider the physical and the spiritual part of the care separately.
Since the parents are interested in having parental authority recognized and guaranteed by the state, the latter can, in turn, demand that they fully fulfil their parental duty, which consists in providing the children with the part of the necessary benefits of life that the common funds are not sufficient to provide them. This distribution must be said to be the one that simultaneously serves the common interest and guarantees the children the full use of their property rights in the best way. But much more than establishing this (the right to material care, etc.) as a right that the children have, and in necessary cases asserting this right by force, the state power can hardly do without overstepping the private domain to an all too worrisome degree; simply conducting effective control that the parents do their duty in this respect has its great difficulties, if it is not to become imminent interference.
How early can such care for the children’s material things begin? Some believe that it can even begin before birth. Here, one thinks in particular of the harmful influence of certain occupations on the woman who is about to become a mother. When in England the women worked in the manufacture of white lead, a study was commissioned of 77 women from such a factory, and it was found that during the period covered by the study, there were 21 stillbirths and 90 abortions; in addition, 40 infants had died of convulsions caused by lead poisoning. In Silesia, where young girls are used in the glass industry, their bone structure is destroyed to such an extent that they later have the most difficult births, even become morbid oddities.
Based on such and a number of similar facts, it will not be unwarranted if the state authority intervenes in certain cases. That it is fully justified in doing so to the minor woman, there can be no doubt for us; with regard to the minor, the state stands as guarantor that he or she is not abused for the sole purpose of adults. And it is not interference with parental rights, because this is still limited by what is required in the interests of the child’s own development.
As soon as it concerns the adult, empowered woman, interventions by the state power become more questionable. On the one hand, they are no longer so necessary when the woman has passed the developmental age, on the other hand it is in the very concept of authority that she must now take responsibility herself. —However, we must take the position that as long as it can be considered irrefutably scientifically proven that a certain course of action on the part of the woman (even the adult) entails danger of one kind or another for the descendants, the state will always have the right to intervene their protection. It is not women’s protection that the state aims at, but child protection; if it was only about the interests of women of legal age, regardless of the descendants, the state would not be empowered to “protect”.
A particularly well-founded intervention is authorized by the Danish Factory Act of 1901, as it is mandated that no female worker in the period around the birth may be employed by certain companies. However, it cannot be the state’s business to replace the loss of earnings simply because it sues a court, and this does not happen in other countries either.
Is the state entitled to prohibit marriages in certain cases to prevent bad offspring? This thought has often come up, but the inheritance laws are hardly yet sufficiently clarified for preventive intervention to be taken here. Perhaps it would be defensible if the state refused its approval of marriages between epileptics, insane, tuberculosis, and the like; but this at least did not prevent looser connections, and to punish in such cases would be questionable for several reasons.
The period of the child’s life when state control would be most effective is the first year of life; for child mortality, especially in this period, is still far too great. And it can largely be traced back to a single factor: the homes’ lack of sense of responsibility. When today’s maternal feeling is not strong enough to keep the wife attached to the home and to personally care for and feed her child, the state must all the more eagerly defend this right. The child’s right to his mother’s breast should not remain a phrase or a pious wish; it is, in fact, an elementary ethical right. Mandating by law that every child must be fed with human milk for at least the first six months would therefore in no way be an unjustified abuse. On the whole, the women have to put up with such restrictions on their work and right to enter into contracts as are necessitated by their primary duties towards the children. Presumably, on the other hand, one will cite the difficult social conditions etc.; but firstly, all the proposals made in this writing rest on the idea of a state of society where home should no longer be the privilege of the few. Furthermore, the state is entitled to demand that those who intend to start a family pay some attention to the most immediate consequences. And the most important of these, however, are those that even the animals respect. If a woman can foresee that as a married woman she has the prospect of being separated from her home, it is her duty not to start a family. But otherwise, during the child’s upbringing, the state must limit itself to being the power to which appeal can be made when it comes to deficiencies in the children’s physical care. We cannot admit that the state or any other power has the right to interfere in the relationship between parents or children, except in precisely such cases where there is demonstrable abuse. A closer examination of the legal conditions in the marriage is required in this context.
The starting point here is the relationship between the child and its mother. As already stated, every child has a legal right to be cared for and nourished by his mother in her home, and to be looked after and brought up by her personally until he can support himself; and if this happens demonstrably unjustifiably, the public has the power to assert this right of the child on its behalf.
Something similar does not apply to the father. The Norwegian writer Sigrid Undset is right that the paternal relationship is less obvious, more subtle than the maternal relationship “No man has any other guarantee that a woman’s child is his than what lies in her personality”. And no father has the ability and therefore any duty to nurse or care for an infant. On this point, nature cannot meet the democratic demands of equality. But therefore his rights will not be the same either.
If the circumstances therefore mean that no domestic cohabitation is established between the parents, or if a cohabitation is interrupted, the child has the right to remain with its mother, and the mother has a corresponding duty and right to keep the child with her, as does the child and in certain cases its mother is entitled to adequate financial support from the father. Positive evidence must be required that the mother is unfit to keep and raise the child, in order for another placement to be initiated (That she has, for example, been a neglectful mother, a criminal, poor person or an unfaithful and bad spouse, who is mainly to blame for the breakup of the family).
In such cases, the father’s parental rights cannot be considered revoked, but its practical exercise is limited to a certain right of visitation and control; he has no right to positively direct the development, but only to prosecute obvious negligence.
Cohabitation between the parents cannot be absolutely required solely for the sake of the child; it must have the voluntary agreement as a prerequisite. If the father does not enter into family life, care and upbringing responsibility must, as I said, become the mother’s business; but a child has an unconditional right to know his father, and to the name of both, of free choice, when he has come of age. Therefore, every time a child is born, a report must be made about this and about the family relationship, so that it can be ascertained where the parental authority is. On the other hand, the public has nothing to do with childless marriages, unless they contain contractual provisions which require ordinary legal protection.
If the child’s parents decide to live together and form a joint home for the child, this must be reported to the authorities as a marriage, and the report is renewed each time a child is born.
Of course, changes must also take place under the control of the public for the sake of the children’s proper placement. Because in this case the parental power is shared by both (which does not mean the same as that they each have exactly half the power that the public has to defend).
As far as the relationship between the two parents is concerned, the woman must be considered equal in all respects to the man before the law. Special provisions for men or women can only be justified on the basis of consideration for third parties. With regard to the marriage itself, the public only has to deal with what may have been contractual, especially financial agreements, e.g. provisions on joint property, separate property, prenuptial agreement and bequests to the children and the conditions during and after any divorce (for example, a rule such that if a joint property is terminated by divorce, each party must be considered to have received half of the lot). The content of these agreements can take any form that does not infringe the rights of third parties. Far be it from us to assert here that marriage is essentially a contractual relationship; it is not the business of judicial morality to drag life’s most sacred values into the dust, it is, on the contrary, its task to protect them, and this it does by outlawing them from unauthorized interference. What we assert, therefore, is only that, insofar as the public necessarily has to deal with marriage, it is only with that side of it which contains a contractual relationship. In addition to purely financial matters, there may be other mutual obligations here, so-called “normal obligations”, the neglect of which on one side may result in the other party not being obliged either.
Incidentally, the arrangement in marriage is an internal one; this of course also applies to who should be the leader in the affairs of the home, e.g. in the disposal of the joint estate. Nor should any external power demand a mutual or unilateral maintenance obligation. It is another matter when it is the child’s first right to the necessary goods of life that is attacked; then the public sector must step in and demand that the maintenance obligation is met; which of the parties must provide the funds for the maintenance of the children is in and of itself a matter for the public; it must be able to refer to both parents.
Access to divorce must be open to any of the parties without hindrance. In that case, the mother’s care usually comes into play; nor can there be any unconditional mutual maintenance obligation after the divorce, except where there is a contractual agreement to that effect. But there is a maintenance obligation towards the children on both sides, where, however, appropriate consideration must be given to the mother’s personal services towards the children and the interruption she suffers through this position as a whole.
Faced with the interventions on the part of the public, which are constantly called for, and which now and then threaten to take the form of “marriage laws”, the following must be recommended: by its intervention, the public can do an infinite amount to destroy a cultural power such as marriage, which have enough difficulties already to contend with; but promoting interest in the ideal marriage, let alone raising its cultural value, is far beyond the capacity of the public, even if it were in its interest. The public sector has no motives to assert that the individual people do not possess to a much greater degree. To bring children into the world, to bring them up well, to live in hearty and faithful cohabitation with their mother, to make a cosy and personal home‚—all these things are likely to continue to exert an attraction on individual people‚—but no man or woman will do any of these things for the sake of society.
The common interest of society is not only that the minor must live and live under reassuring material conditions, but also requires that he be subjected to such conditions in spiritual terms that, upon reaching the age of majority, he can be considered fully socially qualified.
This entails a certain level of awareness and training. What interests us here is to determine what and how much of this it is the state’s duty to demand. It is then about disregarding school education as it is; because none of the usual teaching plans are prepared with this goal in mind. In general, the teaching is stated as aimed at the goal of enabling the young person to slip into one or another profession, or its purpose is expressed as raising and developing the young person’s individual spiritual culture.
What is required to become socially mature and qualified‚—this, however, is a completely different task, and it is only this that the state has the duty to control. What degree of special skill he or she can achieve in a subject, or what degree of individual culture he can achieve, this is not something that is on the heart of all citizens, it is included, like individual physical care, under the duties of the home and constitutes a part of the parental duties that correspond to the parental rights. On the other hand, everyone is equally interested in ensuring that an unsocial family does not grow up; a family which, upon entering the period of authority, lacks the necessary prerequisites to be able to independently take over the administration of their own and the country’s affairs, because this would expose the legal order itself to the greatest danger. And since, as shown above, it would be an assault on the childless, if the common wealth was used to cover all the expenses of a child’s maintenance and education, it is obviously cheap and natural that the parents, as remuneration for the advantage the state guarantees them, to be able to lead the lives of their children to the extent that parental power allows, provides them with that part of all the physical and spiritual care which can essentially only be done in the home, namely, everything that concerns them as individual beings; so that it will be the home that will especially shape their personal culture and take care of their professional education. And it is equally natural and cheap that the state, which makes the children’s surplus shares available to the parents, ensures that the latter do not deprive the children of their right to enjoy the necessary social education and upbringing.
In order to stand on one’s own two feet in social terms, it is necessary to be able to write, calculate and read (this includes the ability to express oneself clearly orally or in writing). Otherwise, one is unable to understand contracts and agreements, make written statements or participate in the simplest trade transactions. In addition, there are a number of subjects which must be considered necessary for the future independent citizen, namely social studies (consisting of natural law (ethics), insight into society’s political organization and its legal rules) as well as logic and private and social economics. Finally, some knowledge of healthcare (danger of infection).
All other subjects must be regarded as belonging to the purely individual culture and therefore as the task of the homes. The same applies to all professional and technical education.
If compulsory education is limited to these subjects, it will probably not occupy more than a few hours a day. The best arrangement would be for the parents to e.g. of the surplus share which accrues to the children, arranges for each child the sum necessary for the compulsory education, but that all schools are run privately under the control of the state.
The time left over from elementary education can be used by the parents at their best discretion, according to the children’s future prospects and their own circumstances; supplement the schooling with further education in a private school; practical, technical, artistic education etc.
Upbringing is an essential matter for the home, and no upbringing can take place without a personal outlook on life. To trump a certain outlook on life, religious or materialistic, or on the other hand to prohibit e.g. religious upbringing would be equal abuse on the part of the state; the public control has nothing to do with personal culture or with individual schools of thought, unless it could be shown beyond doubt that they seemed positively immoral.