Rearing Future Citizens for a Liberal Democracy

            Modern democracies of the twentieth century, for a variety of reasons, began to recognise family privacy as an important aspect of a well-ordered society.  Thus in the United States as early as the 1920s state governments were told they could not require a public education over the objection of parents.  Nearly fifty years later, the U.S. Supreme Court extended that holding to prohibit any mandatory education for children of parents who objected on religious grounds, once the children were of a certain age.   Other results of parental rights inherent in a concept of family privacy include a strong presumption in favour of natural parents in custody proceedings, regardless of a child’s welfare; great reluctance to terminate parental rights to allow adoption of neglected or abused children; and most recently, the ability to deny children access to relatives, even grandparents, at the parents’ whim.  However, not all liberal democracies take such a parent-centred view of childrearing.  The U.S.’s neighbour to the north, Canada, is one such example that will provide us with a comparison.

            It will be my contention in what follows, that whatever the virtues of family autonomy, a strong form of parental rights, such as exists in the United States, is inconsistent with protecting the liberty of future generations.  I will proceed by setting out some recent court decisions that illustrate the dangers to liberalism posed by excessive deference to parental choices.  After a critique of those decisions, I will turn to various theories of liberty and freedom, namely those of Hobbes and Locke, to get a sense of the foundations of modern statehood and some of the tensions inherent in liberal polities.  Then I will return to the cases initially presented and apply the foundational frameworks to their facts to demonstrate how more thoughtful solutions might have been achieved.  Simply put, I hope to show that assertions of parental right have the potential to negatively impact a liberal polity by disrupting the training ground of the concerned child—and future citizen—thereby undermining the shared values of the community.

 I.  Case Studies in Conflict: Parents against the State

             The following examples all have the common theme of parents claiming some inviolable liberty of theirs, as parents with rights over their children, has been breached.  The parents did not win every case, but the claims presented show how strongly the culture of rights has extended to the parent-child relationship.  As we analyse the facts of the cases presented below, we should keep in mind several key questions that will help to guide our later inquiries into the application of political theory.  First, what was the nature of the decision made on behalf of the children involved in the dispute?  By clarifying the nature of the decision, we can better assess to what extent the case bears on liberal ideals. Cases whose nature affects how a child acquires ideas seem to strike at the heart of the maintenance of a liberal society.  Whereas cases that concerned with ordinary child custody disputes might cause us less concern where no larger issue is involved. Second, who made the decision, and who was contending for the competing right to decide otherwise?  We are interested in the child’s decision-maker primarily to recognise a parent-state conflict when we see one.  Once it is clear who that party is, then we can make more use of the answer to our last query, what was the basis for the decision actually made, and what is the basis for the competing decision of the complaining party?  Fundamentally we want to know if the basis of the decision was a liberal one.  Suppose we have a case that concerns what new ideas a child is to learn.  Two possibilities might present themselves in the form of a conflict: one party want to restrict the child’s knowledge base, while the other is fighting for exposure.  If the state is involved, and it considers itself a liberal state, then almost certainly it will be on the side of more, not less, idea exposure.  As I will argue below, there can be no legitimate liberal perspective that urges limited exposure under the guise of parental rights.

 Education and Religious Indoctrination

            The first case we will consider is Mozert v. Hawkins Co. Bd. of Ed.,[1] decided by the United States Court of Appeals for the Sixth Circuit in 1987.  The case caused quite a stir in the legal journals about decade ago.[2]  In Mozert, a group of ‘born again Christian’ parents sued the Tennessee school district where their children were enrolled because they objected to the mandatory Holt reader series utilised in classrooms district-wide.[3]  The parents felt the children’s exposure to the readers violated their (the parents’ and the students’) free exercise rights protected by the First Amendment.  A unanimous panel of the Sixth Circuit rejected the plaintiff-parents’ claims, but the extreme nature of those claims is what calls our attention to the case.

            The religious parents specifically objected to stories in the readers that they felt portrayed evolution, secular humanism, ‘“futuristic supernaturalism,” pacifism, magic and false views of death.’[4]  Assurances from the school district that the children were not required or taught to subscribe to any particular belief did not satisfy the parents.  Even having teachers note on the students’ worksheets that they were ‘not required to believe the stories’ was not enough for these plaintiffs.[5]  Instead, in exchange for the students’ exposure to the Holt readers, the parents demanded ‘a statement that the other views are incorrect and that the plaintiffs’ views are the correct ones.’[6]  As one parent testified: ‘it would be acceptable for the schools to teach her children about other philosophies and religions, but if the practices of other religions were described in detail, or if the philosophy was “profound” in that it expressed a world view that deeply undermined her religious beliefs, then her children “would have to be instructed to [the] error [of the other philosophy].”’[7]

            The nature of the decision in the Mozert case regards the range of ideas thought necessary by the community to communicate to its young through the public schools.  Simply put, the heart of this case was exposure to ideas, some of which the parents found objectionable.  If we look at the claims more closely, however, we can also detect a desire by the complainants for the state to reaffirm their view of the world.  In the testimony quoted above, one parent explicitly demanded that the school pass judgment on all philosophies, and affirm only hers.  Thus the plaintiffs in Mozert were asking that their children not be permitted to form any critical faculties that might undermine the parents’ religious views.

            The competing decision-makers here were the elected school board and the complaining parents.  The school board had decided upon a certain curriculum that required exposure to a range of existing ideas.  The parents wanted the children to read less provocative material.  The competing bases of the decision-makers are the more interesting questions in this case.  The school board presumable based its initial decision on adoption of the Holt reading series on the quality of the books to promoting reading skills to the youngsters in its charge.  There was no evidence, not even a suggestions from the plaintiffs, that the decision was based on hostility to religious groups, nor was there evidence that the board knew in advance that some religious peoples would be offended by the contents.  The basis of the parents’ objections was clearly a concern for their children’s spiritual well being.  Because of the religious views of the parents, they felt that unless their views were reinforced and unchallenged in the schools, then their children would be subject to some sort of divine sanction.  We will analyse the implications of these circumstances below.

            The other case we will consider involving a dispute over the role of religion in childrearing is Young v. Young,[8] decided by the Supreme Court of Canada.  The question in Young was whether a divorced father, who did not have custody but only visitation rights, could be required by court order not to discuss his religion with his children because it was not in their best interest.  The father had recently converted to the Jehovah’s Witness religion, and that apparently was one of the main reasons for the divorce from his wife.  In making the order providing for visitation and access to his children, the trial court added the following conditions on the father: he could not discuss his religion with his children nor take them to religious activities without the consent of their mother, he could not prevent blood transfusions should the need arise, and he could not make disparaging remarks about the mother’s religious beliefs or lack thereof.  The father challenged the access order as a violation of his right to freedom of religion, thought, and association under the Canadian Charter of Rights and Freedoms.

            The Supreme Court held that the statutory basis of the trial court’s decision, the best interest of the child, did not violate the father’s Charter rights.  ‘The reason is that the guarantees of religious freedom and expressive freedom in the Charter do not protect conduct which violates the best interest of the child test,’ the Court explained.  The Court further elucidated why a parent’s religious claim could not trump the best interest standard: ‘The vulnerable situation of the child heightens the need for protection; if one is to err, it should not be in favour of the exercise of the alleged parental right, but in favour of the interests of the child.’[9]  This analysis, however, also led to a reversal of the access order because it vested too much of a parental right in the mother to decide what ideas her children were exposed to.  In reversing the order, the majority explained: ‘The trial judge’s undue emphasis on the “rights” of the custodial parent, coupled with her failure to consider the benefits to be gained from unrestricted contact with the access parent or whether those benefits were offset by a greater risk of harm to the children, may have clouded her appreciation of what was in their best interest.’[10]

            The nature of the decision in Young was idea exposure, just as in the Mozert case described above.  The fact that the contested ideas here were those of a father and those in Mozert were contained in a school textbook is of no consequence to the nature of the childrearing decision.  The competing decision-makers in this case were the mother, the father, and the courts.  The mother desired a veto over what ideas the children’s father could explore with them.  The father wanted to discuss his beliefs and question his children about religion.  The Supreme Court, however, held that it would decide what ideas were and were not in the children’s best interest, with both parents’ preference only of secondary concern.  The bases of the various decisions were all quite different.  The father certainly wanted to provide his children spiritual guidance, but he also was concerned with his own exercise of religion, which involved spreading his beliefs to others.  The mother expressed concern that her children suffered stress at having to listen to their father’s religious messages, but because this was part of a divorce proceeding, there was some vengeance in her decision as well, especially since the religious issue was a cause of the divorce.  The Court’s basis for its decision was the statutorily required ‘best interest of the child’ standard.  That basis was taken quite seriously by the Court and applied in as objective a way as possible.

            Mozert and Young both provide examples of parental claims of right to control the ideas exposed to their children.  When we return to consider the consequences of such claims of right, we will want to remember what position the children would have been in had their parents’ claims succeeded.

 II.  The Problems Raised by Parental Rights

            In this section I will briefly sketch out some problems I see caused by claims of parental rights.  Let me begin by taking the abstract claim that there is a moral right conferred by natural parenthood that the state is required to respect by not infringing too deeply into the childrearing realm.  The most basic problem this claim presents is that it ignores the fact that the child will one day be an independent, reasoning being, who will have to interact with a diverse community.  Allowing too great an amount of unrestricted liberty in the parents has the tendency to isolate the child from points of view due to parental parochialism.  It might seems as though I am suggesting that recognising the state’s power to act as parens patriae will result in a greater respect for pluralism and that this is a good thing.  On that point, however, my position is agnostic.  Not only does excessive deference to parental rights result in limited idea exposure for the children, it also exacerbates the number of different points of view within a society because of the privatisation of families.  As a result of family privacy, we are thus left with an increase in parochialism and an increase in diversity of views—a sure recipe for social, cultural, and political strife as children become full citizens, expected to interact with others to govern a society foreign to them because of their narrow upbringing.

            Consider the Mozert case again.  Admittedly this case is the easiest to criticise because the claims made by the religious parents were so extreme and troubling to those who believe in the centrality of a humanistic education for civic success.  Perhaps the easiest way of explaining the problems with the plaintiffs’ views is to consider the arguments of an academic defender of the parents. Nomi Maya Stolzenberg claimed that there was a paradox in the idea of a liberal education that did not respect the values of fundamentalist Christians, who find the liberal values of ‘tolerance and evenhandedness’ offensive.[11]  She asserted that exposing the children to a diversity of viewpoints was interference per se with the free exercise of the parents’ religion.  I have no difficulty conceding the point that many religious parents do indeed feel that in practising their religion they must transfer their beliefs onto their children.  What I object to, however, is the assertion that such control over a third-party, even a child, is in any way consistent with liberal individualism.  In other words, moulding a child’s plastic mind to unquestioningly accepting a particular worldview seems to be the farthest thing from liberal education as possible.

            Stolzenberg tries to play the role of liberal sympathiser with the evangelical parents.  A better description of her endeavour might be that of an anthropologist, objectively observing a lost tribal culture, doing her best to make non-judgmental assessments.  This leads her to make the following claim regarding the appellate court’s failure to see things her way:

Chief Judge Lively’s incomprehension reflects no purely personal intellectual failing, however.  The fundamentalists’ argument against exposure is truly difficult for one raised in the liberal tradition to grasp, because it relies on a dizzying subversion of the contrast between the objective and inculcative methods of education.  The contrast is denied in the plaintiffs’ charge that exposure has an indoctrinating effect, and, again, in the proposition that the legitimate alternative to the state inculcating values…is not mere exposure but rather “opting out” to allow the parents to inculcate the appropriate values.  Such a viewpoint challenges the conventional wisdom that critical reflection, rational thought, and individual choice are the antithesis of, and the best safeguards against, indoctrination.[12]

 At this point, one wishes Stolzenberg would apply some critical reflection and rational thought of her own.  The fact that we are dealing with a child—a future citizen—seems to have been lost on her entirely.  No liberal would deny anyone from holding whatever view he desires, even if that includes turning his back on rationality and adopting the Bible as his literal truth.  What a liberal can, and it seems to me must, deny is that an illiberal parent can retard his child’s intellectual growth in the face of opposition from a liberal democratic state.

            Stolzenberg tries to acknowledge the existence of the child by asserting that the real problem is locating the locus of child belonging, whether in the state, the parents, or both.  She claims the primary locus of belonging is with the parents and thus they should have the right to rear their children through indoctrination.  This problem, however, is more imaginary that real; it is entirely irrelevant to the intellectual development of the child.  Regardless of family or national origin, there is a transcendent characteristic of children, namely, they are all capable of acquiring knowledge.  Moreover, all children will one day cease being children and will ‘belong’ not to their parents, but to their community.  It is quite ridiculous to worry that if the children of evangelical parents are exposed to profound ideas, then the survival of evangelical religion is under threat.  It is feared by many of these religious sects that if their children are provided with a more philosophical education they will turn their backs on their faith, thus diminishing its numbers.  But we can trace historically the rise of particular religions, and know from that that all religions had their origins in the free choice of the original founders.  The fact that a smaller number of educated citizens would chose to follow the fundamentalist religions would not be the result of liberalism per se, but the result of education.  It is an odd type of liberal who advocates keeping a segment of its society mentally enslaved from exercising the free and rational choice that becomes available to one educated in a liberal polity.

 III.  Theories of Liberty and the Paternal Role

            Now we will consider various theories of liberty within an organised state with the goal of understanding how to best conceive the parental role consistent with a liberal polity.  While the main concern here is to explore to what extent a denial of parental rights is inconsistent with the liberty of parents qua parents, other values must also be kept in mind as we proceed.  In addition to parents’ liberty, we will also consider the eventual liberty of the children to lead autonomous lives as adults, the implications for a community dedicated to pluralism, and the role of democracy in preparing children for civic life.[13]  The focus here on Hobbes and Locke is not entirely artificial.  As Francis Edward Devine has noted, the theories of Hobbes and Locke form the basis for competing ideologies of ‘absolute democracy’ and ‘indefeasible right’ in modern society.[14]  To the extent there is some degree of truth in that thesis, it is the goal here to explore how parental power fits into these foundational philosophies.  Even if one is sceptical about Devine’s thesis, Hobbes and Locke both provide sophisticated theories of liberty that we can use to evaluate our two case studies of Mozert and Young.  Moreover, it should not be surprising that both seventeenth-century philosophers had something to say about the basis of the family structure, especially since they were abstractly interested in general power structures and forms of governance.  Thus the metaphor of the family as a miniature government serves their purposes well in analysing notions of sovereignty and subjection.  Perhaps that very fact should caution us against taking their writings on family structures too seriously as theories of domestic relations.  I will argue, however, that their writings are important, and should be taken seriously, as statements about what is required of subjects or citizens in securing their liberty, and a fortiori what every child must learn to be a successful and productive member of his political community.

 Hobbes on Liberty

            In understanding Hobbes’s Leviathan, it is important to appreciate his concept of nature and the natural state of man as opposed the artificial state of man, which is carried out under the auspices of the civil state.  In Hobbes’s state of nature, everybody enjoys complete liberty, but this includes the liberty to interfere with others’ peaceful existence.  As such, man is in constant competition and conflict, a perpetual state of war.  Through the use of reason, man comes to realise that peace and security and self-preservation all justify the imposition of sovereign rule by a single artificial man—the state.  Hence those subsequently subject to the state are constrained by artificial chains called laws.  The laws are entirely the creation of the sovereign without question.  It is important to emphasise, however, that the artificial shackles of the laws do not infringe man’s natural liberty.  Hobbes understands the agreement to enter into civil society to be the result of conscious deliberation, and that one is always at liberty not to follow the laws of society.[15]  Of course the result of one’s failure to obey may be physical confinement or death, but it is a free choice nonetheless—a Hobbesian choice.

            This same sort of reasoning is extended to the domestic realm when Hobbes discusses the rule of parents over children as ‘dominion by generation’.  What Hobbes concludes is that such dominion is acquired in the same way a people acquire a government, through rational choice.  As Hobbes explains, this paternal dominion, ‘is not so derived from the Generation, as if therefore the Parent had Dominion over his Child because he begat him; but from the Childs Consent, either expresse, or by other sufficient arguments declared.’[16]  We will turn to the ‘other sufficient arguments’ shortly, but we should note that Hobbes also seems to be acknowledging that a child of vocalising age is not only capable of expressing consent to governance by his parents, but that such words of an infant are to have some moral effect.  This must then presume that the child is aware, that without such guardianship, he is likely to face the perils of the state of nature.  Perhaps the ability to vocalise is not even necessary to imply consent, and the child’s clinging to a parent would suffice for acceptance of his subjection.

            Absent the ability to express consent, we turn to other sufficient arguments that justify parental dominion over children.  As a preliminary matter, it must be settled that only one parent can have true dominion over his children, ‘for no man can obey two Masters.’[17]  Here, Hobbes seems to be reinforcing the point that sovereignty must be absolute and indivisible.  But it should be noted that such a definition of sovereignty is entirely for the benefit of the subject, so that he knows exactly of what his artificial duties consist.  Once it is established that a child can have only one dominant parent, we learn that the only reason it is usually the father by law is because men have been the ones who have established the artificial states and thus the artificial laws.  Not so in nature.

            ‘In the condition of meer Nature’ it is the mother who is dominant.  Hobbes explains this role reversal: ‘seeing the Infant is first in the power of the Mother, so as she may either nourish, or expose it; if she nourish it, it oweth its life to the Mother; and is therefore obliged to obey her, rather than any other; and by consequence the Dominion over it is hers.’  It thus follows that ‘if she expose it, and another find, and nourish it, the Dominion is in him that nourisheth it.’  But surely it is the case, even in an artificial state of government, that the mother almost always nourishes her children, regardless of an artificial law providing for the dominion in the father.  Thus there must be something more than mere sustenance of life that leads to a dominant-subjective relationship.  Hobbes has one final thought on this matter that might help to clarify this confusion.  Regarding the child, he says, ‘it ought to obey him by whom it is preserved; because preservation of life being the end, for which one man becomes subject to another, every man is supposed to promise obedience, to him, in whose power it is to save, or destroy him.’  The key lies in unpacking what Hobbes means by preservation of life.

            In one sense, of course the child’s life is preserved when it receives nourishment from its mother.  In another sense, a more removed sense, but also a higher sense, the artificial laws regarding domestic relations preserve the child.  In other words, by law the father is responsible for the maintenance of a child born into wedlock, and also for the maintenance of his wife.  In turn, the civil law provides for the peaceful coexistence of various families in society, so that no man may lawfully take from another that property necessary to maintain his wife and children.  Ultimately, the child owes its preservation to one supreme sovereign lawgiver, who has made the laws that allow for its family’s peaceful existence.  The hierarchy of subjection thus goes from child to father to sovereign.  ‘For he that hath Dominion over the person of a man, hath Dominion over all that is his; without which, Dominion were but a Title, without the effect.’[18]  Thus for Hobbes, the sovereign has absolute dominion over the children of all its subjects, how it exercises that dominion is entirely the sovereign’s prerogative.  Lest that sound ominously despotic, it must be emphasised that the sovereign retains this absolute power only so long as the subjects restrain their natural liberty because they calculate the advantages provided by subjection worthwhile.  I suppose we could add that acceptance of the sovereign’s rule can be either express or implicit, such as in the subjects’ act of clinging to civilised society.

            The final point we need to make about Hobbes’s theory of liberty returns us to the distinction between the artificial and the natural.  Hobbes is generally regarded as the progenitor of the modern doctrine of negative liberty.[19]  He begins his chapter dedicated to the liberty of subjects with a definition: ‘Liberty, or Freedome, signifieth (properly) the absence of Opposition’.[20]  This idea of negative liberty is entirely centred on the individual, and only concerns itself with whether the person in question has been prevented from taking action by some particular impediment.  To understand Hobbes, however, we must distinguish between natural liberty and artificial liberty, or the ‘liberty of subjects’; otherwise, we might fall into the trap of believing falsely that the creation of the state somehow impinges our natural liberty.  But as Hobbes explicitly tells us, ‘the Consent of a Subject to Soveraign Power’ results in ‘no restriction at all, of his own former naturall Liberty.’[21]

            Matthew Kramer has criticised this formulation of negative liberty as devoting too much attention to the freedom to do a particular act, and not enough attention to the result laws have on overall freedom.  Take, for example, a law that forbade the beating of one’s children and provided for a year’s confinement if convicted of disobeying the law.  Kramer understands Hobbes to be saying that regardless of the existence of the law, a man is free to beat his son because he is able and nothing is physically preventing him from doing so.  Kramer then asks us to consider the consequences of this hypothetical child beater: he would be confined for a year and unfree to do a whole number of things he would otherwise have been free to do but for his violation of the law.  Thus Kramer concludes, the Hobbesian view of freedom is short-sighted and ignores the long-term effects of liberty-restricting laws.[22]

            Kramer is correct, however, only in a very superficial sense.  Hobbes would not deny that the liberty of subjects is curtailed by the existence of laws in society.  So in this sense he is in agreement with Kramer that law itself is liberty-restricting.  He goes so far as to say, ‘The Greatest Liberty of Subjects, dependeth on the Silence of the Law.’[23]  But Hobbes’s denial that natural liberty is restricted is really meant to emphasise the contractual nature of the sovereign-subject relationship.  To understand why the restriction of artificial liberty is consistent with the exercise of natural liberty, we must carry our analysis out a litter further.

            Let us return to our law prohibiting child abuse.  The subject of a sovereign who has enacted such a law is not at liberty to abuse his offspring.  Under this regime, a parent may be at liberty to conduct himself any number of ways with regard to his children, so long as there is no law expressing what he must do or refrain from doing.  Thus a subject parent potentially retains a great deal of sovereignty over his children, despite the explicit limitations.  Contrast this, however, to a natural parent—a mother—who has absolute sovereignty over the infant she preserves by nourishing it.  The natural parent is at liberty to strike the child as much as she pleases.  It should be obvious that the subject parent and natural parent can be one in the same person, differing only on which state he chooses to place himself in.  If this parent obeys the commands of the sovereign, then he retains all the advantages of civil society.  However, should the parent freely choose to disobey the sovereign, and abuse his child, then he has returned himself to a state of nature, and potentially put himself at war with others.  In this case the main ‘other’ he has to be concerned with is the artificial man, known as the civil state, who will exercise its natural liberty to invade and confine the natural liberty of the parent who returned himself to nature.  It is of course possible that this natural parent may evade and outsmart the artificial man by avoiding capture, again, exercising his natural liberty all the meanwhile.

            In a sense, all I have done here is detail the choice every individual must make for himself: obey the laws of the artificial state, or exercise one’s natural liberty to the contrary and accept the consequences.  The main questions left unanswered for our purposes is where does that leave children in the grand scheme of things.  We have established that a child is no less a subject of the sovereign than its parents because all owe their preservation to the state.  Within civil society, Hobbes also seems to be implying that there is no special relationship between a parent and her child, as would be the case in nature.  Take, for example, the rules of any modern sovereign where a parent has no option to expose her child, and thus really has no life or death power over her child once it is born, as she would in the state of nature.  Thus from every subject’s earliest and most vulnerable moments on earth, it owes its life to the sovereign’s protection.  The fact that most sovereigns require a child’s parents to nourish and maintain it is really of no significance to the child.  The child would be as well preserved if the sovereign took it at the moment of birth and distributed it to another person to maintain or kept it in a state-run facility to be looked after by common nurses.  The point here is that any relationship created by nature between parent and child is inoperative in the artificial state of civil society.

            Hobbes is notably quiet on anything further in which we might be interested, such as what makes for a good subject, or what sort of sovereign is most compatible with expansive liberty of the subject.  For these answers we will have to turn to others.

 Parental Rights in Hobbes’s State of Nature

            Let us now consider how our case studies would play out in Hobbes’s state of nature.  Recall that Hobbes understood sovereignty over children to reside in whoever had a life and death power over them, but preserved their lives nonetheless.  Usually it was the mother who was sovereign over her children because she fed and cared for them.  Thus in the state of nature, the mothers could instruct their children as to any philosophy or religion they chose and could keep their children from visiting with anyone to whom they objected.  The problem, of course, is that anyone––a cult leader, a grandparent, a disgruntled father—might exercise his liberty to take a child by force, feed and preserve it, and thus demand obedience from it.  In other words, anarchy would ensue.

 Reconciling Parental Rights with a Hobbesian Peace

            Because every subject of a Hobbesian sovereign owes absolute obedience to the laws, any right of parents over their offspring would only exist within the interstices of the existing sovereign commands.  In the Mozert case, the parents would not have been heard to complain that a governmental decision regarding the school curriculum violated some right of theirs.  The only right the parents could have exercised would have been in the area where the law was silent.  In that case, the only option would have been for the parents to send their children to a private school of their choosing, or to home school their children.  All things considered, the liberty of the Mozert parents was actually quite great.  The sovereign in the shape of the state of Tennessee did not exercise the limit of its authority over the education and rearing of children.  The parents were not prohibited from conducting religious teachings at home, including instructing their offspring as to the error of the teaching of the state schools if that is what they desired.  The parents were not even prevented from keeping their children out of the state schools altogether.  They had the right to send their children to a private religious school, where the truth of scripture was taught.  If we are counting the number of freedoms given to parents in the state of Tennessee, even by Kramer’s tallying they have to be quite substantial.

            Despite the fact that the artificial (legal) liberties of the parents were great in Mozert, the sovereign command was the only voice of liberalism in the dispute.  The only reason the parents had the freedom they did was because a state committed to liberty permitted it.  If liberty is valued, and its continuance as a political and moral principle is desired, then the sovereign must be permitted to carry out its prerogative that its future citizens (and futures sovereigns where a democracy is concerned) are reared in a liberal tradition.  It would be a perverse result if parents were able to thwart future liberty by the exercise of their current liberty.

            In Young in appears as though a Hobbesian court was at work.  The Supreme Court of Canada refused to acknowledge either parent in the dispute to have what amounted to sovereignty over the children.  Instead the Court reserved the absolute sovereignty of the state over its own children.  Such a strong and unequivocal pronouncement indicates that liberty is quite secure in Canada for future generations to enjoy.

 Locke on Liberty

            Locke’s state of nature shares with Hobbes’s a state of complete liberty or perfect freedom.  Their notions of liberty, however, differ to some extent; Locke places more restrictions on what it means to be free:  ‘For Liberty is to be free from restraint and violence from others which cannot be, where there is no Law: But Freedom is not, as we are told, A Liberty for every Man to do what he lists: (For who could be free, when every other Man’s Humour might domineer over him?)’[24]  Men thus form civil society so that violence might be restrained and individuals’ natural liberty can flourish.  Locke is similar to Hobbes only to the extent that they both believed civil society was instituted to prevent war among persons, which would otherwise occur without sovereign pronouncements regulating men’s actions.  The main disagreement occurs over the extent of sovereign authority.  For Hobbes the sovereign’s power was absolute, whereas for Locke the power of government only extends to whatever is necessary to guard natural liberty from oppression.  Locke takes a very non-rational turn when he speaks of natural liberty.  In a sense Locke tries to mix Hobbes’s natural and artificial states, by having the latter protect the supposed benefits of the former.  Let us see how a Lockean interpretation of paternal power fits into civil society and whether retaining the notion of natural liberty within state government poses a problem for such analysis.

            According to Locke, ‘all Parents were, by the Law of Nature, under an obligation to preserve, nourish, and educate the Children, they had begotten, not as their own Workmanship, but the Workmanship of their own Maker, the Almighty, to whom they were to be accountable for them.’[25]  Nature dictates these parental obligations because children, unlike adults, are not yet subject to the Law of Reason.  Locke explains: ‘For Law, in its true Notion, is not so much the Limitation as the direction of a free and intelligent Agent to his proper Interest, and prescribes no farther than is for the general Good of those under that Law.’[26]  Since children are not yet free and intelligent agents, they must received direction as to what is in their own interest.  ‘To inform the Mind, and govern the Actions of their yet ignorant Nonage, till Reason shall take its place, and ease them of that Trouble, is what the Children want, and the Parents are bound to.’[27]  However, once children become subjects to the law of reason, the parental authority ceases.  The natural duty to preserve offspring ‘will scarce amount to an instance or proof of Parents Regal Authority.’[28]  ‘And thus we see how natural Freedom and Subjection to Parents may consist together, and are both founded on the same Principle.’[29]

            In discussing the parent-child relationship, Locke refers to two sets of laws—the Law of Nature and the Law of Reason.  As we saw, he says parents are under a natural duty to care for their children, but only until they attain the age of reason.  This leads to the question what is the Law of Nature and how do parents know they are bound by it?  Recall Hobbes’s state of nature had no laws, only perfect liberty, and that was the whole problem.  For Hobbes, it was reason that led men to prefer and form civil society.  But for Locke, the process is reversed; it is only through reason that man can discover the law of nature.  The best sources for definitions of these terms are Locke’s earlier essays on the law of nature.  There he specifically tells us that lex naturae can be described as ‘ordinatio voluntatis divinae lumine naturae cognoscibilis’.[30]  And the lumen he has in mind is reason.  Lex naturae is know to us ‘lumine quod natura nobis insitum est’.[31]  Locke deliberately rejects a rationalist definition of reason, in favour of one that is consistent with acceptance of natural law: ‘Per rationem autem hic non intelligendum puto illam intellectus facultatem quae discursus format et argumenta deducit, sed certa quaedam practica principia e quibus emanant omnium virtutum fontes et quicquid necessarium sit ad mores bene efformandos.[32]  Thus a child attains the age of reason, not when he can argue like a philosopher or perform mathematical calculations, but when he can distinguish virtue from vice, good morals from ill.

            It is important to remember how Locke’s discussion is also a metaphor for the relation of the sovereign to its subjects.  Locke wants us to keep in mind that natural freedom and subjection to the sovereign are consistent, because they are founded on the same principle of protection, not restraint, of liberty.  The same way children need guidance until they develop their rational faculties, subjects need guidance in the exercise of their own freedom.  Moreover, in the same way that a parent’s authority is limited to preparing the child for the ‘general Good’, the sovereign’s power is also limited to promoting the general good.  As Locke reminds us, the power exercised by parents, ‘to speak properly … is rather the Priviledge of Children, and Duty of Parents, than any Prerogative of Paternal Power.’[33]  To thus speak properly of the state’s power, we would have to conclude that it is rather the privilege of its citizens, and duty of the state, than any prerogative of the sovereign.

           Parental Rights in Locke’s State of Nature

            As we learned above, Locke considered parental power more appropriately termed parental duties imposed by the law of nature.  Moreover, the law of nature required that parents exercise no more power than is necessary to allow their offspring to develop their own reason, so that they might then know the laws of nature for themselves.  Thus, unlike in Hobbes’s state of nature, we do not inquire who the child’s sovereign is, and then end our inquiry.  Instead, we must ask whether the claimed parental right is in accord with a parent’s natural duty to his children.

            Thus in Mozert we must ask whether withholding exposure to the fictional stories in the reading textbook accorded with the natural duty of parents to prepare their children to exercise liberty.  The answer must be that it did not, that is, the religious parents were not helping their children to develop their own reason, but were in fact attempting to stunt it.  We do not even need to know what the laws of the state of Tennessee were regarding education because even if they were silent about how a parent was to educate his child, Locke would say that natural law requires that they do not hamper the infant’s development.  The only sort of negative duty a parent could have in the educational realm would be to shield his children from patently harmful information that warped his moral development, for example, teaching that promoted cruelty to other humans would have to been shunted by a dutiful parent.

            Young is more difficult to analyse because there was no obvious interference with moral development by either competing parent.  Certainly the father thought his children needed religion to be moral adults, but there is no suggestion that either childrearing method would have been positively detrimental to the children’s development in society.  By employing the ‘best interest of the child’ test, it seems the Court struck a good Lockean balance.  Locke is not interested in any parental or sovereign ‘right’.  And indeed the Court openly disavowed any parental right.  Moreover, the ‘best interest’ standard can fairly be equated with the parental duty to lead his children to reason.  While it is true that earlier I counted the Court’s action as one of a Hobbesian sovereign, I do not think the two interpretations are mutually exclusive.  For we can understand the Canadian Supreme Court to have exercised a sovereign duty, rather than a right in casting the decision it did.

 IV. Conclusion

            By making use of the frameworks of liberty set out by Hobbes and Locke, we can better analyse contemporary parent-state conflicts.  Hobbes can be deployed to assure that illiberal decisions are not made on behalf of a child and against the interest of the liberal nation to which he belongs.  Locke can be called into action to assure that parents do not prevent their children from acquiring right reason, even in the absence of contrary sovereign declarations.  As we saw in the realms of education and parental visitation, parents can and do ignore the interests of their children in favour of their own supposed claim right to their offspring.  In their own distinct ways, Hobbesian and Lockean analyses assure that ‘parental rights’ play no part in the decisional outcome.

Here is my paper.  Not all of it is relevant to the material we studied.  If
you find any of it useful, it would be section III, pp. 10-17 and 19-22.
Sean Coyle read a draft of it and told me that the only thing I needed to
clarify was the distinction between normative and non-normative liberty,
which I tried to do.  You shouldn’t get bogged down in the main argument or
any of the cases I discuss.


 [1] 827 F.2d 1058 (6th Cir. 1987).

[2] See Stolzenberg.

[3] The Holt reader series was an ordinary anthology of fictional stories and fairy tales out of which the children learned to read.

[4] Mozert, 827 F.2d at 1062.

[5] Id. at 1060.

[6] Id. at 1062.

[7] Id. at 1064.

[8] (1993) 49 R.F.L. (3d) 117 (S.C.C.).

[9] Id. at 152-53.

[10] Id. at 156.

[11] Stolzenberg, 591.

[12] Stolzenberg, 613.

[13] I must emphasise at this early point that by the term democracy, I mean nothing fancier than rule by a majority of citizens, whether directly or through elected representatives.  In other words, democracy is simply a governing commitment to rule by majoritarianism; there is no room in this definition for giving effect to the desires of a losing minority.

[14] See Devine, ‘Absolute Democracy’.

[15] It is my intention to discuss what might be called moral, physical, or non-normative liberty and not juristic or normative liberty.  That is to say I am only interested in the same abstractions Hobbes was, and not in a modern jurisprudential theory.  Though I must admit, as a pragmatist, the distinctions do not always seem that useful when discussing human freedom.  Further, to the extent Hobbes’s distinction between ‘natural’ and the ‘artificial’ is not well explained by me, see Skinner, Visions of Politics, whose historical interpretation is preferred here to Kramer’s.

[16] Hobbes, Leviathan, ch. 20, 139.

[17] Ibid.

[18] Ibid., 141.

[19] By ‘negative liberty’ all I mean is the same notion developed by Bentham and then Berlin, that the greatest amount of artificial freedom (to use Hobbes’s term) is achieved by the absence of artificial law.

[20] Ch. 21, 145.

[21] Ibid., 151.

[22] Kramer, 38-40.

[23] 152.

[24] Locke, Second Treatise, § 57, 20-24, (p. 306).

[25] Locke, § 56, 10-13, (p. 305).

[26] § 57, 10-13, (p. 305).

[27] § 58, 3-6, (p. 306).

[28] § 60, 19-20, (p. 308).

[29] § 61, 3-5, (p. 308).

[30] The law of nature is ‘an ordinance of divine will known by the light of nature.’

[31] The law of nature is known to us ‘by the light that nature has instilled in us.’

[32] ‘However, by reason, I think is not meant that made intelligible through the intellectual faculty which forms discursions and deduces arguments, but that practical principle out of which the founts of all virtue emanate and whatever is necessary for forming good morals.’  Locke, Essays on the Laws of Nature, 110.

[33] Locke, Second Treatise, § 67, 11-13, (p. 312).