Relationships

This may be the chapter people turn to first because of the title, but the only thing to say about sex is that there is nothing to say. The role of government is to enforce rights, to stop people from stepping on each other. There is nothing about consensual sex that is the business of government.

On the other hand, marriage has to do with sex, or is supposed to, and the powers-that-be have always had much to say about it. That relates partly to the joy of messing about in other people’s business, but partly it also has to do with something real. Families are the irreducible unit in the social mix, and all societies recognize that by giving them legal rights. Hence the role of government in what could be construed as a private matter. The few societies that have tried to ignore those bonds, such as the early Communists, have failed. Families aren’t called “nuclear” for nothing.

In fairness, though, the recognition of the strength of the bond between people who love each other has to apply to everyone equally. It shouldn’t be limited to biological or sexual relationships. The germ of that idea lies behind the right to adopt, but there’s no reason why voluntary lifelong commitment should be limited to the parent-child relationship. (Well, it’s voluntary for the parent(s). Children’s rights are discussed later.) Any pair or group of people who have a lifelong commitment to support each other should have the legal rights of families. And the same legal obligations if they decide to part ways.

Last, there is the nasty topic of sex crimes. Let’s be clear from the start: these are not an unfortunate form of sex. They are crimes that use sex. Like any other crime, they are completely the business of government. I’d maintain that since they affect people at a point of maximum vulnerability and can poison much of life’s joy, they should be dealt with much more severely than nonsexual crimes. Other crimes that attack vulnerable people are penalized more severely, or at least are supposed to be, such as profiteering in time of disaster or violence against toddlers.

The hallmark of a sex crime is the lack of consent, which of course implies that if consent can’t be given, a crime has been perpetrated regardless of any other factor. So, for mentally competent adults to have sex with the mentally incompetent or with children is, ipso facto, criminal. Sex among young but sexually mature adolescents is a much grayer area. If no abuse of any kind of power is involved, then it’s hard to see how it could be called criminal, although each case would need to be considered on its own merits. As with gray areas in other aspects of life, the fact that they exist does not change the clarity of the obvious cases. It’s simply another situation where the rules are the same — in this case that sex must be consensual — which means that the remedies may vary.

Another favorite bugbear of the restrictive sexuality proponents is that any freedom will lead to no limits at all. What, they worry, will stop people from marrying dogs? The answer is so blazingly obvious, the question wouldn’t even occur to a normal human being, but since there seem to be some very odd people around, I’ll be explicit. An animal can’t consent, so bestiality comes under the category of cruelty to animals.

Parents

The current concept of parenting goes right back to the one provided by Nature: it’s something for everyone to do to the maximum extent compatible with survival. This works well in Nature’s merciless biological context. It produces lots of extra offspring, who are selected against if they’re less adaptable than their peers, and over time the species gets better and better. To put it in plain English, the system works if enough children die young.

As human beings, we’re having none of that, and we’ve been quite successful at the not-dying-young part. But we’re still determined to follow Nature’s program as far as maximum parenting goes. This has not been working out well for us. We’re an ecological disaster, all by ourselves.

It’s important to fully absorb the fact that Nature always wins. There is no way to continue overpopulating the planet and to also get off scotfree. It isn’t going to happen. We may be able to put many more people on the planet than we once thought possible, but space on the earth is finite and reproduction is not. There is no way, no way at all, to avoid Nature’s death control if we humans don’t practice birth control first. One way or the other, our numbers will get controlled. We don’t get to choose to reproduce without limits. We only get to choose whether the limits are easy or lethal.

The limits themselves are a matter of biological fact within the bounds set by what one sees as an acceptable lifestyle. The earth can hold more people who have one mat and one meal a day than people who want two cars and a summer house. That’s why estimates of the Earth’s carrying capacity for human beings can vary all the way from 40 billion down to two billion.

However, it’s academic at this point what a desirable carrying capacity might be because under any comfortable lifestyle scenario we’re already either above that level or very close to it. (AAAS, 2000) It’s becoming more critical by the day to at least stabilize population, and preferably to reduce it to a less borderline level. On the other hand, without totalitarian controls and a good deal of human suffering, it seems impractical to try to limit people to fewer than two children per couple. So the answer to our current reproductive limits is rather clear, even without extensive studies.

The good news is that two children per couple is actually slightly below replacement levels because not everyone reproduces, and of those who do, some have only one child. That limit would allow for a very gradual reduction of our over-population until some previously agreed, sustainable level was achieved. At that point, an egalitarian system — a raffle of sorts, perhaps — could be applied to fairly distribute the occasional third child permit.

In the real world, it’s not always couples who raise children, although I’ve been discussing it that way because it takes a pair to produce them. (Yes, I’m aware that with new genetic engineering methods it can get more complicated than that. However, it’s still about people producing children, and the number of children per person doesn’t change based on the means of production. Only the method of doing the math changes.) The right to have children should, obviously, apply to everyone equally, but there’s the usual stumbling block that although the number of children women have is not subject to doubt, the number of children men have can be much harder to guess. A fair method requires some way to determine who is the male parent, and in this technological age that’s easy. All that remains is to apply the methods we already have.

And, no, that would not be a DNA test one could refuse. The socially essential function of fairly distributing the right to have children takes precedence over the right to refuse to pass a toothpick over the inner cheek cells to provide a sample. It’s a parallel case to the requirement for vaccinations in the face of an epidemic.

I know that I’ve used the dreaded word “permit.” It leads to the difficult question: How are these desirable limits to be achieved?

There are a non-punitive measures that limit the number of children in families to smallish numbers, and all those measures would already operate in a fair society. First, people must have enough security in old age that they don’t need a small army of offspring as their own personal social security program. Second, women must have their rights to self-determination, education, and other occupations besides motherhood. (An example from just one study of abortion rights in India, 2005.) Judging by the experience of developed European countries, those two things bring the rate of reproduction close to replacement level. Maybe with the addition of strong cultural support for families with no more than one or two children, other measures might only rarely need to be applied. Advertising, mass media, and social networks would all have to send the same message, in a similar way as they do now, for instance, about the undesirability of smokers.

However, limits laid down in law would still be necessary if for no other reason than to stress their importance and to provide recourse against the occasional social irresponsibles who we will always have with us. The punishments for exceeding those limits would have to be rather different than for other anti-environmental excesses. After all, nobody on earth would want to, how should I say this?, “remove” the children. Incarcerating the parents also wouldn’t be helpful. It would create problems and solve none.

What’s really at stake is a special case of environmental mitigation. Just as an industrialist would be required to pay for cleanup, likewise parents would be required to pay the excess costs brought on by the overpopulation they’re facilitating. But that doesn’t really help to put a price on it. The immediate actual cost of just one extra child in a whole country is nothing. If the actual cost of everyone having extra children were visited on just one pair of parents, the richest people on the planet would be ruined.

So actual costs unfortunately don’t provide actionable information. One would have to fall back to the merely practical and set the level high enough to be a deterrent, but not so high as to be ruinous. Just as with incarceration, ruining the parents creates more problems than it solves. A deterrent is necessarily a proportion of income and assets, not an absolute amount, and the higher the level of discretionary funds available, the higher that proportion needs to be. For the poorest, one percent of income might be enough of a motivation, whereas for the richest the level might have to be fifty percent. Time and experience would tell. Furthermore, like unpaid taxes, this overpopulation mitigation cost could not be avoided by bankruptcy, and if it were not paid, it could be taken straight from the individual’s pay or assets. And the amount would be owed for the rest of one’s life. There’s nothing naturally self-limiting about the effects of overpopulation, and neither should there be for the deterrent implemented to prevent it.

There’s one technical aspect to replacement levels that has a big effect but that people sometimes ignore. Aside from absolute number of children, the age at which those children themselves reproduce changes population numbers. Just to make that clear, let me give an example. Consider a sixty year span of time. If a couple produces two children at thirty, and those children each have a child apiece when they are thirty, then the total number of people after sixty years, including all three generations, is six. If, instead, everybody reproduces at fifteen, there are five generations after sixty years and the total number is ten. Everybody has only one child each, but age at reproduction has a big effect on total numbers. The longer lifespan becomes, the more critical this effect is. If lifespan increases very gradually, that might not matter, but should there suddenly be a medical advance that has us all living to 400, it would again become important to adjust reproductive rates downward or suffer the consequences of reduced quality of life. I wouldn’t be hugely suprised — maybe just a bit surprised — to see noticeably lengthened life spans, say to 120 or so, as a consequence of stem cell therapies, so even in the near future this discussion is not completely theoretical.

Producing children has always been socially as well as personally important. But fairness requires changes to its significance. Who has sex with whom has zero public significance, and the sooner that’s universally recognized, the sooner we can stop generating massive suffering by unfairly, unethically, and immorally interfering in each others’ lives. On the other hand, parenting has huge environmental consequences which are ignored at this point. We’re used to that luxury, but that doesn’t make it right.

Children

The first thing that has to be said about children is that they have rights. They have none now, at least not in law. Where children are involved, the discussion is about how much damage parents can do before their rights are revoked in favor of the state. To find other human beings with similar status, one has to go back to the days when people argued about how much husbands could beat their wives.

Any mention of actual children’s rights is written off as impractical, just as every other expansion of rights to former chattel has been, and with about as much actual merit. I’ll discuss below some possible ways that children’s rights could be implemented, although there may well be much better and more practical ways to achieve the desired result.

Another class of objections is variations on the theme that any rights will result in a dictatorship of rude, free range children. That’s nothing but a false dichotomy between absolute parental rights and absolute children’s rights. Those are not our only choices. This is yet one more case, perhaps the most difficult case of all, where many different rights have to be balanced. An issue that depends on balance cannot be solved by saying balance is too difficult. With echoes of other similar excuses, it’s amazing how consistently the corollary is that all power has to stay in statu quo.

All that said, there are major differences between children’s rights and those of any other class of people because of children’s lack of experience. Rights for children does not imply that they should suddenly dictate how schools or families are run. Their usual ideas on those topics would prove neither sustainable nor effective. Under normal circumstances, parents need to be the final authorities on what children do for the sake of the children themselves. But that’s under normal circumstances. It’s in abnormal circumstances that the problems arise, and it’s those situations that children’s rights must help rectify.

There are other differences based on the lack of experience. It’s plain that children would not do well as voters, soldiers, drug takers, or drivers. It’s plain that they have much to learn and need teachers. However, the fact of their different needs is a reason to satisfy those needs, not to deprive them of all rights. Parents don’t own their children. This is another aspect of parenting, besides producing the children to begin with, where we have latitude to step on the rights of others, and where each individual needs more limits than we have now, not less. That’s never a welcome message, not for polluters, and not for you and me. But it’s true. In a fair world, children have rights.

Children have the same fundamental right to be secure in their own persons as any human being. The exercise of all other rights depends on that one in adults, and the same is true of children. That means it takes the same precedence for children as for adults. And that means the child’s rights take precedence over parental rights when the adults are being abusive.

Parenthetically, I want to comment up front on the cost issue. I get the sense that the primacy currently given to parental rights is at least partly due to a rather broad-based horror at otherwise having to care for strange kids. It’s true and it’s unavoidable that the right to escape an abusive situation is going to be more expensive for society than ignoring the problem. But the fact that it’s cheaper is not an adequate reason for allowing some people to suffer at the hands of others. It’s not adequate when everyone is the same age, and it’s not adequate among different ages. Furthermore, just as a practical footnote, I’m not at all sure that the overall cost of enabling children to escape abuse really would be more expensive. Abused children go on to become some of the most expensive adults in society, and this may be yet one more instance where prevention turns out to be cheaper than cure.

What constitutes abuse is another prickly issue because teaching children what is acceptable behavior sometimes requires physical measures. However, this is not a unique situation. Adults sometimes have to be physically restrained from bad acts as well. We have models for what is appropriate corrective action, and it does not involve beating people up. Also, in a child’s case, the motivation has to be teaching, not simply a removal from society of an offending element. In other words, the good of the child is the primary criterion, and not the convenience of adults. Taking both those criteria together, it seems to me that it’s possible to define physical restraint versus abuse, and a wholesome upbringing — one that gives the child options — versus one that’s nothing but limits.

Medical treatments are one area where the rights of children have to differ from those of adults. Given children’s lack of experience, that probably goes without saying. Again, the criterion is the benefit to the child and keeping their future options more open, not less. Making sure a child gets necessary medical treatment for health is an essential parental function. That doesn’t mean all medical treatments are at the discretion of adults. When benefit to the child is the criterion (as it always should be), then body-altering treatments for the sake of a beauty pageant are arguably child abuse.

A core right of children, as of adults, is the right to a living. It’s a much more expansive right for children, of course. Since we adults produced them and have a responsibility toward them, they have a right to be supported mentally and emotionally as well as physically. They have, furthermore, the right to be given the skills needed to make their own living when the time comes.

That’s not a startling idea. It’s been more or less standard practice since before the dawn of humankind. The difference, though, is that having an explicit right means there can be no “less” about it. A defined level of care and education has to be provided, and if it’s lacking the child has the right to get it elsewhere and the state has the obligation to make that financially possible by exacting support from the parents and supplying any shortfall. Except for the fact that the right to leave rests ultimately with the child, there’s nothing unusual in that idea either.

Another legal difference should be that minors’ rights and responsibilities relate to each other. There is something fundamentally skewed about pronouncing a person old enough to take on major responsibilities, such as supporting oneself, but simultaneously insisting that they’re not good enough to have rights. If they’re old enough to be legally obliged to support themselves, they’re old enough to vote, to decide which drugs to take, and who to have sex with.

The corollary is that they have the right not to work until that age as well. If, for whatever reason, their parents cannot support them, it comes the responsibility of society at large or of the state, to do so. That’s been a generally recognized idea since the dawn of time, and has had various implementations. Extended families are not always extended enough these days. Orphanages have fallen out of favor, and foster families have taken their place. I’m not sure that a well-run and -staffed orphanage isn’t better than some foster situations, but whichever solutions or combinations of solutions a society uses, the point remains the same. Children have a right to have their physical needs met in an emotionally kindly environment that gives them enough knowledge to earn a living when the time comes.

The right not to work, however, is not the same as a prohibition against working. If children are citizens with rights, within the limits of their lack of experience, it makes no sense to deny them the choice to work if they want it. I realize that at the current levels of accepted exploitativeness — accepted, not even egregious exploitativeness — any suggestion that children could work if they wanted to is likely to be met with scorn. However, as a matter of simple fairness, if children were reliably free agents in the decision, there’s nothing ipso facto bad about children working. Such work has two limiting characteristics: it is not physically taxing and it does not interfere with the time the child needs to stay healthy, to learn, and to play. There’s a difference between sometimes babysitting or doing garden work for the neighbors, and stunting one’s growth by working twelve hours a day in a carpet factory or a diamond mine.

One point that’s cropped up several times already is that children have the right to enough education and skills to make them fit for life on their own. That means free public education up to a degree that’s sufficient to enter work that pays a modal income. That was once the idea behind free schooling in the US. At the time, a high school diploma was enough to get good work. In Europe that principle carried forward into modern times when university education became freely available. (At least until the Eurozone started following the US example and trying to water that down.) In the US, sadly, the original idea has been almost lost, but it was a good one. It is a hallmark of a fair society that it gives all its citizens equal tools when starting the business of life.

The more intangible freedoms, those to thought, speech, religion, and movement, have varying degrees of application to children. They’re all rather meaningless to a toddler, but they acquire meaning gradually, without any strict on-off switch to make things easy. It would make sense, it seems, to have target dates for the application of various rights, but if a specific child has decided to exercise one of the rights earlier, then the validity of doing so should be decided on a case by case basis. There have, for instance, been several high school free speech cases recently which have involved political speech issues, such as criticism of school policy. They haven’t been excuses for porn or bullying. And yet they’ve been decided in favor of the powers-that-be simply, as far as I can tell, because to decide otherwise would be to admit that minors have rights. That’s the kind of thing explicit children’s rights should prevent.

The application of rights to children could be eased if they weren’t quite as all-or-nothing as they are now. Children grow gradually, and maybe a gradual increase in rights would better suit the situation. For instance, the right to vote could start with municipal elections. (In the US situation, that includes school boards, which could turn into a true exercise in democracy.) A couple of years later, county, province or state elections would be included, and finally national and then, when the world has reached that stage, international ones. The right to support shouldn’t go from 100% to 0% at the stroke of midnight on a given birthday. It could decrease by 20% a year between 16 and 21. Legal responsibility for criminal activity, likewise, doesn’t have to go from nothing to total. The requirement to get schooling could be transformed into the availability of free schooling and ultimately, depending on the country’s resources, the need to pay some fees. Drug-taking could be allowed first for “low-voltage” substances like beer, marijuana, or coca leaves. As the age of greater and greater discretion is achieved, the limits would be fewer.

I’ve stressed repeatedly that children’s lack of experience affects which rights are useful to them. It also affects whether they can exercise them. Saying that children have rights, but then not providing any means to compensate for their huge inequality in any struggle with adults is to render those rights meaningless. So the question is really a specific and acute instance of the more general problem of how to give weaker parties the tools to deal with stronger ones.

For children, the most meaningful and practical means of exercising the most basic right to live free of abuse would be the right to leave it. They should be able to get a divorce, as it were, from a bad situation. The parents would be assessed child support which would be paid to the new caregivers. It would be up to the child who that would be. If another family was willing to take on their care, then that arrangement could be formalized. Alternatively, the child might decide that a State institution, whether foster care, halfway houses,or orphanages, was preferable to an abusive home.

The means available to children to put rights into practice are the most difficult issue. I don’t see any solution that does not involve bringing other adults into it. (That isn’t to say there may not be better solutions; only that I can’t imagine them. Whatever the best methods are, the point is always to make sure that children can, in fact, exercise their rights.) The other adults could, at least in the first line of defense, be any of the older people a child knows: neighbors, teachers, pediatricians, nurses, or relatives.

This friendly adult when approached by a child for help would be under an obligation to consider the merit of the situation. If it’s a complaint about being made to eat peas at dinner time, then further action would be unwarranted. If it looks like it might be more than that, the adult would be obliged to help the child talk with a children’s ombudsman, or whatever that office might be called when we’re finally lucky enough to have it. The fact that a child can ask any adult for help ought to be a clear and present part of the curriculum from the earliest days of day care up through grade school.

The necessity of having many workers specialized in advocating for children would cost money. That is not a sufficient reason to give up on children’s rights. Nobody complains that police are a luxury and that we should just learn to deal with crime on our own because it’s cheaper. I’ve said it before and I’ll say it again: the same is true of children. Their inalienable rights must be enforced, and the expense of doing so is simply part of being a fair society. Besides, the fewer abusive adults there are, the smaller the child advocacy offices can be. People who want to reduce the money spent on abused children need to figure out how to deal with the adults causing the problem, not the children suffering it.

The thing about children’s rights is that currently, assuming a normal family and school and community, they’re not nearly as far off the mark as many of our other deviations from fairness and justice. That may not be too surprising given that most normal people care about children, certainly more than they do about any other class of human beings. There aren’t that many changes needed in normal situations. Where society fails badly is in the abnormal cases, the ones where children are neglected, abused, or preyed upon. And the core reason for that failure is that children have no rights. The optimum balance will be enough rights for the child to avoid, escape, or stop bad situations without interfering in benign families that require no interference.