Amintaphil: The Philosophical Foundations of Law and Justice

Series Editors: Mortimer Sellers · Ann E. Cudd

Laurence D. Houlgate

Philosophy,
Law and
the Family
A New Introduction to the Philosophy of
Law
AMINTAPHIL
The Philosophical Foundations of Law and Justice

Series editors
Mortimer Sellers, University of Baltimore 
Ann E. Cudd, Boston University  

Editorial board
Leslie P. Francis, University of Utah
Carol Gould, Hunter College
Steven P. Lee, Hobart and William Smith Colleges
Rex Martin, University of Kansas and University of Cardiff
Larry May, Washington University in St. Louis
Christine T. Sistare, Muhlenberg College
More information about this series at http://www.springer.com/series/7372
Laurence D. Houlgate

Philosophy, Law and the

Family
A New Introduction to the Philosophy of Law
Laurence D. Houlgate
Department of Philosophy
California Polytechnic State University
San Luis Obispo, CA, USA

ISSN 1873-877X     ISSN 2351-9851 (electronic)

AMINTAPHIL: The Philosophical Foundations of Law and Justice
ISBN 978-3-319-51120-7    ISBN 978-3-319-51121-4 (eBook)
DOI 10.1007/978-3-319-51121-4

Library of Congress Control Number: 2016963753

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For my family
Acknowledgments

I would like to acknowledge the support and assistance of the California State
University Emeritus and Retired Faculty Association whose generous grant made it
possible to do the writing and editing necessary to complete the final draft of the
manuscript. I am also thankful to the students in my philosophy of law classes at
California Polytechnic State University who wrote helpful reviews of an earlier
draft of the book: Kohl Kreutziger, Alex Delzell, Hunter Tasseff, Anthony Haddad,
Shawn Farrington, Eden Moalem, Nicholas Brunner, Jorge Nozot, Scarlett Fivey,
and Alexandra Ongman. And, although we have never met, I am indebted to
Professor William P. Statsky for the many books he has written on United States
family law since the mid-1970s. Although mainly intended for those studying to be
paralegals, the clarity, organization, and precision of his writings about this impor-
tant body of law have made it accessible to thousands of ordinary citizens, students,
and professionals. My thanks also go out to Professor Andrew Altman whose book
Arguing About Law influenced the structure of my book by convincing me to use a
single theme (family law) throughout all chapters. Thanks also to the University of
Pennsylvania Law School, Oxford University Press, Kluwer Academic Publishers,
and Harcourt Brace for the permission to use selected parts of articles I have previ-
ously published in (respectively) the University of Pennsylvania Journal of
Constitutional Law; International Journal of Law, Policy and the Family; Law and
Philosophy; and the reader Vice and Virtue in Everyday Life: Introductory Readings
in Ethics.

California Paso Robles

January 2017

vii
Contents

1 Introduction.............................................................................................. 1
1.1 A Plea for the Philosophical Study of Family Law......................... 1
1.2 A Typology of Family Law............................................................. 4
1.3 Jurisprudence vs Philosophy of Law............................................... 6
1.4 Plan of the Book.............................................................................. 7
References.................................................................................................. 9

Part I  Law, Morals and the Constitution

2 Natural Law Theory................................................................................ 13
2.1 Positive and Natural Law................................................................ 13
2.2 The End of Miscegenation: Loving vs. Virginia.............................. 15
2.2.1 Historical Background...................................................... 15
2.2.2 Factual Basis of the Case.................................................. 16
2.2.3 Decision and Findings of the U.S. Supreme Court........... 17
2.3 Traditional Natural Law Theory...................................................... 18
2.3.1 An Example of Traditional Natural
Law Theory: John Locke................................................... 18
2.3.2 Assessing Traditional Natural Law Theory
in the Context of Family Law........................................... 23
2.4 Modern Natural Law Theory: Lon Fuller....................................... 26
2.4.1 Principles of Legality........................................................ 26
2.4.2 The Inner Morality of Law................................................ 27
2.4.3 The Social Purposes of Law.............................................. 27
2.4.4 Objections to Fuller........................................................... 28
2.5 Contemporary Natural Law Theory: Ronald Dworkin................... 28
2.5.1 Rules and Principles.......................................................... 29
2.5.2 Principles as Natural Law................................................. 30
2.5.3 Objections to Dworkin...................................................... 31
References.................................................................................................. 33

ix
x Contents

3 Legal Positivism........................................................................................ 35
3.1 The Separation of Law and Morals................................................. 36
3.2 Rape and Forced Marriage in Morocco.......................................... 36
3.3 Traditional Legal Positivism: John Austin...................................... 37
3.3.1 Law as Sovereign Commands........................................... 37
3.3.2 Legal and Moral Validity................................................... 38
3.4 Assessment of Austin...................................................................... 41
3.4.1 Are Marriage Laws the Commands
of a Sovereign?.................................................................. 41
3.4.2 Are Child Custody Laws the Commands
of a Sovereign?.................................................................. 43
3.5 Modern Legal Positivism: H.L.A. Hart........................................... 45
3.5.1 Law and the Obligations Created by Law......................... 45
3.5.2 The Key to Understanding the Nature of Law.................. 46
3.5.3 The Application of Hart’s Theory to Family Law............. 47
3.5.4 Objections to Hart’s Theory.............................................. 49
3.6 Hart’s Compromise: The Minimum Content of Natural Law......... 51
3.7 Minimum Content of the Rules of Family Law.............................. 52
3.7.1 Rules of Marriage.............................................................. 53
3.7.2 Rules Protecting Infants and Young Children................... 54
3.7.3 Rules of Custody Assignments at Birth............................ 54
References.................................................................................................. 57
4 Constitutional Interpretation.................................................................. 59
4.1 The Concept of “Person” in the Constitution.................................. 60
4.2 Three Supreme Court Family Law Cases....................................... 63
4.2.1 Parent’s Right to Control Their Child’s
Education: Meyer v. Nebraska (1923)............................... 63
4.2.2 Children’s Rights of Free Speech:
Tinker v. Des Moines School District (1969).................... 65
4.2.3 Marital Privacy: Griswold v. Connecticut (1965)............. 68
4.3 The Role of Stare Decisis in Supreme
Court Decision-Making................................................................... 69
4.4 Theories of Constitutional Interpretation........................................ 72
4.4.1 Originalism........................................................................ 73
4.4.2 Non-originalism................................................................ 79
References.................................................................................................. 86

Part II  State Intervention in the Family

5 The Moral Limits of Family Law........................................................... 91
5.1 Legal Intervention in the Family..................................................... 91
5.2 Is “Family” a Political Concept?..................................................... 94
5.2.1 Relationship of Family Law
to the Concept of Family................................................... 96
5.2.2 Resolving the Dispute Between Traditionalists
and Radicals...................................................................... 99
Contents xi

5.3 Theories of Legal Intervention and Their Application

to Family Law................................................................................. 100
5.3.1 Utilitarianism and the Harm Principle.............................. 100
5.3.2 Paternalism........................................................................ 105
5.3.3 Moralism........................................................................... 107
5.4 Testing the Limits of Intrafamily Sexual Behavior......................... 111
References.................................................................................................. 113
6 Family Crime and Punishment............................................................... 115
6.1 Public and Private Harms................................................................ 115
6.2 Intrafamily Crimes: Justifications for Punishment.......................... 116
6.2.1 Punishment as Deterrence................................................. 117
6.2.2 Punishment as Retribution................................................ 120
6.3 Therapy, Not Punishment................................................................ 123
References.................................................................................................. 126
7 Child Abuse and Neglect......................................................................... 127
7.1 Protecting the Child: The Family Court Option.............................. 127
7.2 Two Cases....................................................................................... 128
7.3 The Standard of “Best Interests of the Child”................................. 129
7.4 Using Family Models to Determine the Best
Interests of a Child.......................................................................... 132
7.4.1 Family Preservation vs Child Protection........................... 134
7.4.2 Compassion vs Control..................................................... 135
7.5 An Alternative Dispositional Standard............................................ 137
References.................................................................................................. 140
8 Family Torts and Remedies..................................................................... 143
8.1 Tort Liability and Remedies............................................................ 144
8.2 Philosophical Questions About Torts and Tort Remedies............... 146
8.3 Theories of Justification for Tort Remedies.................................... 148
8.3.1 Corrective Justice.............................................................. 149
8.3.2 Retributive Justice............................................................. 150
8.3.3 Distributive Justice............................................................ 151
8.4 Intrafamily Torts and Immunities.................................................... 152
8.4.1 Parental Tort Immunity..................................................... 152
8.4.2 Interspousal Tort Immunity............................................... 155
8.5 Summary: Limits of Tort Intervention............................................ 158
8.6 Standards of Care in Intrafamily Negligence Torts......................... 161
8.6.1 Objective and Subjective Standards of Care..................... 162
8.6.2 H.L.A. Hart’s Two-Question Proposal
for Determinations of Negligence..................................... 164
8.6.3 Objections to Hart’s Proposal: Standards
of Care for Children.......................................................... 164
8.6.4 An Alternative Approach: Sub-categorization.................. 165
References.................................................................................................. 168
xii Contents

Part III  Marriage, Children and the State

9 Family Contracts: Marriage and Divorce.............................................. 171
9.1 A Conversation About Marriage: Past and Present......................... 172
9.2 Traditional Marriage: Rights, Duties and Benefits.......................... 173
9.3 Justice and the Distribution of Marital
Benefits and Burdens...................................................................... 174
9.3.1 Egalitarian Principles........................................................ 175
9.3.2 The Difference Principle................................................... 176
9.3.3 Utility-Based Principles.................................................... 177
9.4 Legally Gendered Marriage............................................................ 179
9.5 Access to Marriage.......................................................................... 181
9.5.1 The Public Debate............................................................. 181
9.5.2 The Constitutional Debate................................................ 184
9.6 Alternatives to Traditional Marriage............................................... 186
9.6.1 Contract Law and the Abolition
of Legal Marriage.............................................................. 187
9.6.2 Marital Contracts as Private Contracts.............................. 187
9.6.3 Minimal Marriage............................................................. 188
9.6.4 Assessing the Alternatives
to Traditional Marriage..................................................... 190
9.7 The Exit Rules................................................................................. 191
9.7.1 Divorce and the Vulnerability of Women.......................... 193
9.7.2 Divorce and the Vulnerability of Young Children............. 195
References.................................................................................................. 200
10 Children, Parents and the State.............................................................. 203
10.1 The Custodial Status of Children.................................................... 204
10.2 Philosophical Theories on the Status
and Rights of Children.................................................................... 204
10.2.1 A Typology of Rights........................................................ 205
10.2.2 Parents as Owners of Children:
Thomas Hobbes................................................................. 206
10.2.3 The Perfect Freedom of Children:
Herbert Spencer................................................................. 207
10.2.4 Parents as Temporary Custodians:
John Locke and J.S. Mill................................................... 209
10.2.5 Criticisms of Locke and Mill............................................ 211
10.3 Constitutional Theories About the Rights of Children.................... 212
10.3.1 Socially Inappropriate Speech: Bethel v Fraser................ 214
10.3.2 “Reasonable” Censorship of Children’s
Speech: Hazelwood v Kuhlmeier....................................... 215
10.4 The Supreme Court’s Dilemma of Classification........................... 217
10.4.1 Limited Scope Rights........................................................ 218
10.4.2 Rights-to-Be-Balanced...................................................... 220
10.4.3 Rights-in-Trust.................................................................. 221
References.................................................................................................. 225
Contents xiii

Part IV Contract and Property Disputes Arising

from Alternative Birth Methods
11 Surrogacy.................................................................................................. 229
11.1 The Internal Oracle of Justice......................................................... 230
11.2 Two Surrogacy Cases...................................................................... 231
11.2.1 In re Baby M (1987).......................................................... 231
11.2.2 Johnson v. Calvert (1993)................................................. 232
11.3 The Biological Preference Principle and the Language
of Surrogacy.................................................................................... 232
11.4 Traditional Rules of Contract Law.................................................. 234
11.5 Natural Law..................................................................................... 235
11.6 Utilitarian Concerns........................................................................ 237
11.6.1 Best Interests of the Newborn Child................................. 237
11.6.2 Interests of Parents and State............................................ 239
11.7 Exceptions to the Biological Preference Principle.......................... 240
11.8 Utilitarian Objections to Surrogate Mother Contracts.................... 242
11.9 Kantian Objections: Selling Babies and Renting Bodies................ 244
11.9.1 Selling Babies................................................................... 244
11.9.2 Renting Bodies.................................................................. 245
References.................................................................................................. 248
12 Frozen Embryos....................................................................................... 249
12.1 Divorce and Cryopreserved Embryos............................................. 249
12.2 Four Cases....................................................................................... 250
12.3 A.Z. v. B.Z.: A Closer Look............................................................. 251
12.4 The Right to Procreate.................................................................... 252
12.5 The Right not to Procreate.............................................................. 254
12.5.1 Interpretations of the Right not to Procreate..................... 254
12.5.2 Application to Legal Decisions......................................... 255
12.6 Appeals to Utility............................................................................ 258
12.7 Non-discretionary Standards........................................................... 260
12.8 Pre-IVF Contracts........................................................................... 260
12.9 Limits on the Content of Pre-IVF Contracts................................... 262
12.9.1 Forced Procreation............................................................ 262
12.9.2 Interests of Future Persons................................................ 264
References.................................................................................................. 266

Part V  Alternative Approaches to the Philosophy of Law

13 Critical Legal Studies and Feminist Jurisprudence.............................. 269
13.1 Formalism and Legal Realism......................................................... 269
13.2 Critical Legal Studies...................................................................... 272
13.2.1 Legal Reasoning................................................................ 273
13.2.2 Stare Decisis and the Rule of Law.................................... 276
13.2.3 Family Privacy.................................................................. 277
13.3 Feminist Legal Theory.................................................................... 277
References.................................................................................................. 282
Chapter 1
Introduction

“It is the case of trouble which makes, breaks, twists or flatly

establishes a rule, an institution, an authority.” 
Adamson and Hoebel, The Cheyenne Way (1941)
“Perhaps more than in any other legal field, family law attempts
to impose some measure of coherence and rationality upon an
unruly, and often deeply irrational, domain of life.” 
Areen, et al., Family Law, 6th edition (2012)

Abstract  Although family law is an area of the law most often used by the average
citizen, and has seen the most modification as a response to changes in cultural
mores, philosophers of law have largely ignored it as an area of inquiry. This book
attempts to repair this omission by offering a unique introduction to the philosophy
of law. It draws exclusively on family law cases as a way of introducing most of the
traditional philosophical problems of legal philosophy: the nature of law and the
relationship between law and morality, theories of constitutional interpretation, the
moral limits of the law, theories of punishment, and tort liability. Other chapters are
devoted to contemporary issues unique to family law, including justifiable limits of
access to marriage, alternatives to marriage, child custody disputes involving sur-
rogate mothers, quasi-property disputes involving custody of frozen embryos and
the justifiable limits of the right not to procreate. This introductory chapter also
draws a distinction between the philosophy of law and jurisprudence and gives a
brief explanation of the typology of family law that will be used throughout the
book.

1.1  A Plea for the Philosophical Study of Family Law

The family has long been an object of legal attention through statutory, judge-made
and constitutional law. And almost everyone has had some kind of interaction with
the legal system because of the pervasiveness of family law. If we lead a life filled
with average human experiences, it is almost impossible to avoid some legal regula-
tion or intervention at some point in our lives regarding a present or future family

© Springer International Publishing AG 2017 1

L.D. Houlgate, Philosophy, Law and the Family, AMINTAPHIL: The
Philosophical Foundations of Law and Justice 7,
DOI 10.1007/978-3-319-51121-4_1
2 1 Introduction

relationship. We use the law to marry, divorce, achieve custody of a child through
birth, adopt a child, and when we have children we are required by law to feed,
clothe, shelter and educate them. When marriages break-up or families fail to live
up to minimum standards governing child neglect, there is a heavy use of local
courts for dispute resolution and responses to regulatory interventions. Some have
estimated that up to fifty percent of time and legal effort in some civil courts is taken
up resolving intrafamily legal disputes.
Most law schools require at least one course in family law and several case books
are available devoted to descriptions of the complexity of its many rules, principles,
statutes and precedent cases (sometimes published under the title “Domestic
Relations Law”). But philosophers of law have generally ignored family law, focus-
ing instead on the far more popular terrain of the criminal law, including theories of
punishment and the limits to the kinds of conduct that ought to be criminalized.
Although philosophy of law textbooks and compilations of readings include chap-
ters on philosophical problems in criminal, tort, contract, property, and constitu-
tional law, to my knowledge there has never been a textbook or a book of readings
that has included a chapter or section devoted exclusively to the philosophical prob-
lems of family law. There has been some slight movement in that direction with the
advent of interest in feminism and the law in recent years. This has spurred discus-
sion of the validity of the public/private distinction, a topic which is also central to
the question of justifiable interventions in the family. Textbooks will sometimes
include material on the contemporary debates for and against gay marriage. There
has also been some interest in recent years from philosophers who have published
articles and books on the moral and legal rights of children, but very little of this
debate appears in introductory philosophy of law texts. For the most part, textbooks
and readers in the philosophy of law make little mention of most philosophical
problems in family law.
Family law has undergone a radical transformation over the past 100 years that
is unrivaled by any other body of American law. The evidence of this can be seen in
the laws that define the formation and dissolution of marriage. In mid-twentieth
century America there was a social consensus as to what marriage meant.
Marriage was permanent and monogamous; children were automatic, essential, and central;
husbands earned money and made decisions; wives stayed home taking care of house, chil-
dren, and husband. The legal system reinforced the social norms for marriage. Now the
clarity and unity of the domestic picture is gone. Only a small percentage of American fami-
lies still have all the characteristics associated with the traditional nuclear family ideal. In
place of a single socially approved ideal we have compelling demands for autonomy and
privacy, and multiple models of intimacy: single parents, working wives, house husbands,
living-together arrangements without marriage, serial marriage, and stepchildren (Schultz,
207).

Marjorie Schultz wrote those words in 1982. We can now add same-sex marriage
to her list of “models of intimacy.” This addition only serves to reinforce her con-
cluding remark: “The changes are legion, and their message is clear: the destruction
of traditional marriage as the sole model for adult intimacy is irreversible.”
1.1  A Plea for the Philosophical Study of Family Law 3

There are several other changes in family law that are worth noting, each of
which are prime candidates for philosophical scrutiny (Statsky 2015:3). First, fam-
ily law in the United States is no longer based on male dominance. The legal status
of husbands and wives is now, to a large extent, equal. Second, Congress and federal
courts have brought about several changes in family laws that were once entirely the
province of the states (for example, federal laws on the legality of abortion and
same-sex marriage). Third, there is much more opportunity now than there was 60
years ago for people who wish to marry to enter into contracts (premarital agree-
ments) detailing the terms of their marriage, especially in the area of finances.
Fourth, new technologies affecting reproduction (cryopreservation of embryos for
future implantation) have brought new categories for legal dispute. Fifth, many of
the restrictions on the privacy rights (liberty) of married persons to make their own
decisions about sexual conduct and reproduction have been eliminated. Each of
these changes in the law were contested on normative grounds when they were
introduced and several are still in dispute. This is rich terrain for philosophers of law
who should have much to contribute to these important debates.
Another (possible) reason for the lack of attention paid by scholars to the philo-
sophical problems of family law is that laws concerning the family are a mix of
rules having different functions. Unlike criminal, contract, tort or property law,
there is no single set of rules having a common function that we can identify with
the label “family law.” The function of some family laws is mandatory, requiring or
prohibiting behavior on pain of punishment (incest, bigamy) or requiring that a par-
ent compensate a child she has injured through his neglect (intrafamily torts). Other
family laws confer powers on persons to achieve a particular status (marriage rules,
premarital agreements, and rules on adoption). As I shall discuss below, the only
thing that ties these diversely functioning laws into a bundle is the fact that they are
laws that concern a person either by virtue of his or her status as a family member
(spouse, child, parent, and guardian) or by virtue of being in the process of family
formation.
This book is an effort to correct this neglect by introducing readers to the main
philosophical problems of law through an examination of family law cases con-
tested in state, local and federal courts. Traditional problems in the philosophy of
law such as the nature of law and legal systems, the relationship between law and
morals, and interpreting the U.S. Constitution can just as well be illustrated using
family law cases as it is now illustrated using cases from criminal law. And this
book has the added benefit of introducing readers to special philosophical problems
in family law rarely included in standard philosophy of law readers: access to mar-
riage, the rights of children, custody disputes over children born to surrogate moth-
ers, and disputes about whether cryopreserved embryos should be regarded as
persons or property.
4 1 Introduction

1.2  A Typology of Family Law

Family law is the body of law that concerns persons by virtue of their status as a
family member or as an intending family member: a spouse, parent, child, legal
guardian or fiancé. For example, a law that prohibits spousal abuse is a family law
because it specifically prohibits persons from harming someone with whom he or
she has a marital relationship. By way of contrast a law that prohibits assault is not
classified as a family law because commission of the crime does not depend on the
existence of a family status, identity as a family member, or a family relationship
between perpetrator and victim.
There are other definitions of family law. Some have defined it as a set of laws
“whose purpose is to regulate relationships among family members” (Hamilton
2006). Another definition says that family law “defines relationships, rights and
duties in the formation, ongoing existence, and dissolution of marriage and other
family units” (Statsky 2015). Thus, laws on marriage and divorce would be within
the boundaries of these definitions, but not intrafamily conduct that could be classi-
fied as a crime or tort.
In this book I am going to take a more expansive view in constructing a typology
of family law. My approach is based on the various functions of the law. For exam-
ple, some laws have a penal or mandatory function. They impose or threaten to
impose fines or imprisonment in order to ensure compliance. Some family laws also
have this function. Spousal abuse, bigamy and incest are examples. Depending on
the circumstances and the jurisdiction in which it is prosecuted, these have been
treated as felonies subject to criminal punishment. Philosophical problems arising
from the use of the penal function in family law are discussed in Chap. 6 (“Family
Crime and Punishment”).
A second function of the law is remedial. Laws in this category define particular
grievances and specific remedies. Tort laws have this function, and some harms that
occur in the family can be pursued by the individual harmed for damages in a civil
lawsuit. Again, spousal abuse is an example of a family law that has a remedial
function (in addition to the previously mentioned penal function). Philosophical
problems arising from the use of the remedial function are explored in Chap. 8
(“Family Torts and Remedies”).
Third, some laws have a regulatory function. These laws are designed to protect
specific persons, usually children, from suffering harm, but they do not achieve this
by penal or remedial methods. An example of laws having this function are found in
statutory standards for child neglect and the power given to family court judges to
measure parental behavior against such standards. Although criminal sanctions are
rarely imposed for failing to meet the standards, children can be removed from the
home, and in the more serious cases, parental rights to custody can be terminated.
The regulatory function of family law is discussed in Chap. 7 (“Child Abuse and
Neglect”).
Fourth, a common function of the law is to confer power on individuals to alter
or create rights and obligations involving others. These private power-conferring
1.2  A Typology of Family Law 5

rules specify the procedures to be followed in order to invoke these powers, and they
indicate the legal significance of the changes in rights and obligations, status and
remedies that will result from their use. Marriage law, divorce law and adoption law
are examples of family laws that have this power-conferring function. This function
is front and center in debates about the employment of surrogate mothers for child
birth, and in pre-divorce contracts for the disposition of frozen embryos.
Philosophical problems arising from the use of this function are the subject of
Chaps.  9 (“Family Contracts:  Marriage and Divorce”), 11 (“Surrogacy”), and
12 (“Frozen Embryos”).
Fifth, there is a large group of legal rules that function to confer and distribute
benefits and, in some cases, to place burdens on individuals. The benefits are often
conferred on families for child care, child welfare, family counseling, family plan-
ning, income maintenance, tax benefits and family housing. They are also exten-
sively conferred on married couples: Social Security insurance, employment and
retirement benefits, inheritance and estate benefits, and entitlements under federal
immigration law (Hamilton, 44). The burdens are the constraints placed on some
persons to do or to refrain from certain kinds of acts on pain of not receiving a ben-
efit for which they would otherwise qualify (for example, under some cash assis-
tance programs for indigent American families with dependent children, single
parents are required to participate in work activities for at least 30 h per week.
Failure to participate in work requirements can result in a reduction or termination
of benefits to the family (Schott 2011). The philosophical issues involving the dis-
tributive functions of marriage law are part of the discussion in Chap. 9 (Sect. 9.3).
Finally, some legal rules have a defining function. In family law this function
brings some measure of coherence to an otherwise ambiguous concept. The non-­
legal uses of the word “family” are examples of a “case of trouble” alluded to in the
epigraph to this chapter. There are those who use “family” to refer only to a mother,
father and children, while many of us apply it to their extended family, by including
all their grandparents and cousins. Others will widen the scope of the word to
include a married couple with no children, or an unmarried couple with children.
Some genealogists use the word “family” to refer to all their ancestors, and college
roommates are known to refer to one another as “my family.” Statutes, codes and
judicial decisions provide legal definitions that recognize some of these uses of
“family” while ignoring others. The defining function of the law brings coherence
to a disputed term, but not always to the satisfaction of those who feel that their type
of intimate relationship should receive equal recognition. The defining function of
family law is evident in the debates illustrated in most of the chapters of this book.
I realize that there are other possible typologies of family law. Instead of classi-
fying family laws by their function, we could also classify them by the concepts
they embody, for example conjugality, contract, privacy and parens patriae
(Hamilton, 38). But this would limit my investigation to legal rules on marriage,
divorce, parenting and child welfare, perhaps excluding criminal and tort rules that
impact family relationships. Or one could simply point out that if certain harms
occurring within the family are in fact treated by the legal system as crimes, torts or
6 1 Introduction

breach of contract, then this should disqualify the harm as a matter of family law
concern. The problem with this suggestion is that one and the same harm occurring
within the family is sometimes treated under the criminal law, but at other times is
treated under family law (for example, some cases of sexual abuse of a child by a
parent are transferred from criminal to juvenile or family court and treated as a
ground for termination of parental rights).
Finally, the most important reason we should prefer the functional approach to
the typology of family law provided above is that it allows us to discuss most of the
issues and problems that arise in the philosophy of law, using family law cases as
my illustrations. This would not be possible if we excluded intrafamily crimes and
torts from the discussion, leaving us without an opportunity to examine the tradi-
tional debates about the limits of mandatory laws and the justification of punish-
ment in the criminal law or the assignment of remedies in the law of torts.

1.3  Jurisprudence vs Philosophy of Law

The words “jurisprudence” and “philosophy of law” are often used interchangeably,
as having the same meaning. In this book we will maintain a distinction between
them.
The word “jurisprudence” derives from the Latin term juris prudentia, which
means “the study, knowledge, or science of law.” Black’s Law Dictionary places the
emphasis in its definition on the word science:
In the proper sense of the word, “jurisprudence” is the science of law, namely, that science
which has for its function to ascertain the principles on which legal rules are based, so as
not only to classify those rules in their proper order, and show the relation in which they
stand to one another, but also to settle the manner in which new or doubtful cases should be
brought under the appropriate rules.

This definition does not apply to the philosophy of law. Philosophy is not sci-
ence. Its aim is not to explain existing rules by searching for the principles on which
the rules are based, but to determine whether the existing rules and principles are
justifiable. The central concern of legal philosophy is the moral evaluation of law
and legal systems. This is not to deny that philosophers will sometimes attempt to
discover the principles from which existing rules might have been derived, but this
is not done for any of the purposes mentioned in the definition of jurisprudence
quoted above. Nor do we deny that legal philosophers should be concerned with
basic factual questions about human nature. These facts might inform us of the con-
ditions that will limit what can and cannot be proscribed by law. And, as illustrated
in the previous section (Sect. 1.2), philosophical inquiry can be helped by a typol-
ogy or classification scheme to aid us in sorting the areas of the law about which we
wish to inquire.
But none of these tasks are within the province of philosophy. The central pur-
pose of the philosophy of law is normative. It is a discipline that falls under the
province of moral philosophy. If the existing rules cannot be derived from morally
1.4  Plan of the Book 7

acceptable principles, then the philosopher of law will either reject the rules or rec-
ommend new rules derived from moral principles that are justifiable. And so it is
with the philosophy of family law. Philosophers might look at a number of historical
principles that are believed to be the basis for family law, and they can attempt to
use these principles to justify the rules. But they may fail in this effort. For example,
it has been persuasively argued that in the United States, rules on marriage enforc-
ing conjugality have been influenced in part by the principle of “Biblical traditional-
ism” (Hamilton 2006). Notice that the key words here are “influenced by.” Nothing
is said or implied about whether these marriage rules are justified by Biblical tradi-
tionalism. If someone today were to attempt to use this principle to justify the res-
toration of the idea of marriage as a single unit headed by the husband, this would
be immediately rejected on the ground that it conflicts with the contemporary liberal
ideal of gender equality. In other words, contemporary scholars might accept
Biblical traditionalism as an explanation of early American family law, but reject
this principle as a justification. It is at this point – the search for a justification –
where the philosopher joins the debate.
The other part of the philosophy of law is logical or conceptual. In order to pres-
ent rationally grounded arguments for normative claims about the relationship
between law and morals, for example, we need to present an analysis of the meaning
of these concepts, in addition to many other concepts which figure importantly in
family law such as “marriage,” “family,” “child,” “parent,” “privacy,” “custody,
“guardian,” and “person.” There is an important connection between this conceptual
task of legal philosophy and its normative moral task, because a normative claim
might stand or fall on how the concepts used in the claim are defined.

1.4  Plan of the Book

Each chapter begins with an abstract for quick review of its contents and ends with
a set of discussion questions and references for further reading. In order to avoid
redundancy, the following comments give only brief descriptions of each chapter
and how the chapters have been organized into three major parts.
The first part (Law, Morals and the Constitution) has two chapters (2 and 3) dis-
cussing the traditional debate between natural law theory and legal positivism about
the relationship between law and morals, and a chapter (4) about the conflict
between several theories about the best way for Supreme Court judges (and the rest
of us) to interpret the U.S. Constitution.
The second part of the book (State Intervention in the Family) has a chapter (5)
on the moral limits of family law (to what extent ought the state, through the coer-
cive power of law, intervene in family relationships?). The following chapter (6)
looks at the problem of deciding on the type or manner of the state’s response to
intrafamily crime (through a system of punishment, therapy, or a mixture of both).
Chapter 7 discusses the contentious issue of dealing, not with the perpetrator of
harm, but the child victim. Should the emphasis be placed on preserving the family,
8 1 Introduction

on protecting the child from further harm, or again, on some combination of both
approaches? Chapter 8 takes the first venture into private law by examining the
philosophical problems that arise from special rules regarding intrafamily harms
(torts). Should parents be immunized from tort liability for accidental harm caused
to their children? Should married persons be immunized from liability for acciden-
tal harm they have caused to their spouse?
The third part of the book (Marriage, Children and the State) is about problems
that are unique to family law: the justification of marriage (9), the moral and legal
relationship between children and the state (10), and legal responses to the new sci-
ence and technology of birth (11, 12). Chapter 9 raises several philosophical ques-
tions about marriage law, most of them about the justice of the state’s regulation of
this ancient institution. In Chap. 10 we will examine several philosophical theories
about the moral and legal relationship between children and parents as a preliminary
to a critical discussion of several confusing Supreme Court pronouncements about
the status of children in public school settings. Chapters 11 and 12 are about the lag
between new birthing methods and technologies of assisted reproduction, the prac-
tice of surrogacy, cryopreservation, and the resulting normative debate about
whether and how to change the ancient rules governing motherhood and child
custody.
The final part of the book is devoted to brief descriptions of two relatively recent
theoretical movements in legal philosophy: Critical Legal Studies and Feminist
Jurisprudence. We will show how these theories arose from early twentieth century
Legal Realism and the effect these theories have had on debates about the rule of
law, legal reasoning, and (of particular interest to a central theme of this book) dis-
putes between advocates and opponents of the principle of family privacy.
In its strong form, the principle prohibits coercive state intervention in the family
in all instances, including those situations in which one family member has caused
or is threatening to cause harm to other family members. The principle was consis-
tent with the early doctrine of coverture and the related understanding that upon
marriage a woman lost her legal identity and became one with her husband, thereby
making it difficult if not impossible for her to complain about his abusive treatment
of her children. A weak (and more defensible) modern version of the privacy prin-
ciple allows harm-preventing interventions, but prohibits the state from intervening
in other behaviors that are regarded as private, for example parental decisions about
the content of a child’s education (sex education in the public schools), how a child
should be disciplined for misbehavior, or a married couple’s decision to use artifi-
cial contraceptives. The weak version is also seen in protests about rules that pro-
hibit certain kinds of marriages (same-sex, polygamous), rules that prohibit
non-harmful behavior within marriage (incest, bigamy, adultery), and rules that dic-
tate whether and how a marriage can be terminated. The general question we shall
explore in these final chapters is whether the state has any sound moral reasons for
legally regulating behavior within the family that it does not have in regulating the
same kind of behavior between persons who either are not in nor are attempting to
be in some kind of family relationship. Should we treat individuals as individuals,
or does family membership matter?
References 9

References

Areen, Judith, et al. 2012. Family law: Cases and materials, 6th ed. New York: Foundation Press.
Hamilton, Vivian. 2006. Principles of U.S. family law. Fordham Law Review 75: 1.
Schott, L. 2011. Policy basics: An introduction to TANF. Center on budget and policy priorities.
http://www.cbpp.org/cms/index.cfm?fa=view&id=936 Accessed 02 Nov 2015.
Schultz, Marjorie Maguire. 1982. Contractual ordering of marriage: A new model for state policy.
California Law Review 70: 204.
Statsky, William P. 2015. Family law: The essentials, 3rd ed. Stamford: Cengage Learning.
 Part I
Law, Morals and the Constitution
Chapter 2
Natural Law Theory

“No human laws are of any validity, if contrary to the law of

nature; and such of them as are valid, derive all their authority,
mediately or immediately, from this.” 
Wm. Blackstone, Commentaries on the Laws of England (1765)

Abstract  In this chapter we will critically examine natural law theory and the pro-
posal that there is a necessary connection between positive (human-created) family
law and natural family law (objectively valid, universal moral rules not created by
humans). Natural law theory, as it applies to family law, proposes that the rules of
positive family law are valid only if they conform to the rules of natural family law.
Our question is whether this theory can be successfully defended. We begin with a
description of a Supreme Court case invalidating a state statute prohibiting sexual
activity and marriages between persons of different races, in which the prohibition
was partly based on appeals to natural law. We will then test several versions of
natural law theory, beginning with a classical version originally proposed in the
seventeenth century by the English philosopher John Locke. We conclude with a
discussion of two modern versions of the theory proposed and defended in the twen-
tieth century by American philosophers Lon Fuller and Ronald Dworkin.

2.1  Positive and Natural Law

One of the standard problems in textbooks and readers in the philosophy of law is
about the relationship of law and morals, usually discussed as the question “What is
the relationship of positive law to natural law?” Positive law refers to laws or entire
systems of laws that are created (legislated) by humans and enforced (executed) by
them within a given state, country, or other jurisdictional locality. Natural law refers
to the set of moral rules that both impose obligations and can be legislated and

© Springer International Publishing AG 2017 13

L.D. Houlgate, Philosophy, Law and the Family, AMINTAPHIL: The
Philosophical Foundations of Law and Justice 7,
DOI 10.1007/978-3-319-51121-4_2
14 2  Natural Law Theory

executed as positive law for the human community.1 These rules are called natural
because they are not created by humans nor are they logically dependent on human
enactment. They are believed to be objectively true, discoverable by the use of rea-
son, and not restricted to any geographical or political territory. They are universal
and apply to all persons, cultures and communities past, present and future. They
can be legislated and executed as positive law in the sense that it is physically pos-
sible for those to whom the rules apply to do the acts that are proscribed or prohib-
ited, but they cannot be legislated and executed in a way that will make these rules
valid. People will sometimes obey an invalid law, not because they are under a
moral obligation to obey, but only because they are coerced to obey by the threat of
punishment.
The positive laws usually chosen by textbook authors for discussion are criminal
laws and the natural laws selected are those that prohibit actions universally regarded
as morally wrong. In asking the question whether there is a necessary connection
between law and morals (that is, between positive and natural law), those who
answer affirmatively will choose examples like murder and rape, proclaiming that
laws prohibiting such acts are valid only because the acts themselves are universally
believed to be morally wrong. Those who answer the question negatively will also
choose their own examples, typically drawn from times past or from non-western
cultures. For example, apostasy (the act of abandoning one’s faith) and blasphemy
(defined as speech or actions considered to be contemptuous of God or the divine)
are regarded as crimes in many non-western countries, punishable by fines or even
death (Pew Research 2014). Apostasy and blasphemy are not universally believed to
be morally wrong, but laws prohibiting such acts are nonetheless valid in those
countries that enforce them. Hence, the critic will argue that there is no necessary
connection between law and morals: a law believed to be immoral can nonetheless
be legally valid.
The examples of apostasy and blasphemy will not silence those who believe
there is a necessary connection between law and morality. They will insist that rules
prohibiting such acts are objectively true and can be known to be true by anyone
using their natural powers of reasoning. They would argue that those who deny this
are either ignorant of the laws of nature or they are so biased by self-interest that
they refuse to recognize that these behaviors (apostasy, blasphemy) are condemned
by the natural law. Acts that violate such acts are necessarily crimes, and any system
of positive law that fails to criminalize them is defective.
These examples are taken from the existing criminal law of several sovereign
states2 and are here used only to outline the debate between various versions of

1
 The rules of natural law can be legislated and executed by human beings in the sense that it is
physically possible for those to whom the rules apply to do the acts that are legally proscribed or
prohibited by positive law.
2
 A Pew Research analysis finds that as of 2012, nearly a quarter of the world’s countries and ter-
ritories (22%) had anti-blasphemy laws or policies, and one-in-ten (11%) had laws or policies
penalizing apostasy. The legal punishments for such transgressions vary from fines to death
(Theodorou 2014).
2.2  The End of Miscegenation: Loving vs. Virginia 15

Natural Law Theory and a second debate between all natural law theories and Legal
Positivism. Legal positivists argue that the preceding internal debate between pro-
ponents of natural law theory about whether apostasy and blasphemy are prohibited
by the natural law is irrelevant to deciding whether such laws are valid or invalid.
Positivists contend that the validity of the laws of a community has nothing to do
with their content “but with their pedigree or the manner in which they were
adopted or developed” (Dworkin 1977, 38). If these laws have been enacted in
accordance with the procedures for creating law that exist in the political commu-
nity in which they are enforced, then this entirely decides the question of their
validity.
It is the aim of this and the following chapter to recast the debate between these
theories as a debate about the connection between positive family law and the moral
rules governing family relationships. There are several versions of both theories,
only one of which (to my knowledge) has ever cited rules of morality and law per-
taining to family relationships as examples when attempting to support the theory.
As I mentioned above, the examples have almost always been drawn from the crimi-
nal law, and little attention has been given to other branches of the law, especially
the large body of law that deals with family relationships, or to those parts of the
criminal law proscribing intrafamily harms.
Before we begin discussion of natural law theory let us examine a famous
U.S. Supreme Court case that gives a clear description of how the theory was once
used to influence positive laws on marriage and marital relations that had existed in
America from the time of the British colonial period.

2.2  The End of Miscegenation: Loving vs. Virginia

2.2.1  Historical Background

Anti-miscegenation laws prohibit interracial sexual activity and marriages between

persons of different races. The prohibition primarily bans the marriage of whites
and blacks, but often also the marriages of whites and Native Americans and Asians.
The first laws criminalizing marriage and sex between whites and blacks were
enacted in the colonial era in Virginia and Maryland. The original intent of these
laws was to prohibit sexual activity and marriages between slave owners and their
indentured servants and slaves. But by 1691, Virginia also prohibited the marriages
of free blacks and whites. Anti-miscegenation quickly spread to all of the colonies,
and most of these laws were retained in the states after the independence of the
United States had been secured from England. And they continued to be enforced in
many states long after the abolition of slavery. However, by 1887 eleven states had
repealed their anti-miscegenation laws, and an additional fourteen states had
abolished such laws by 1967. This left Virginia and fifteen other states, most of them
16 2  Natural Law Theory

in the South, with anti-miscegenation laws still on the books at the start of the
famous U.S. Supreme Court case of Loving v. Virginia on June 6, 1967.

2.2.2  Factual Basis of the Case

The incident that culminated in the Loving case began in June 1958 when two resi-
dents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a white man,
were married in the District of Columbia pursuant to its laws. Shortly after their
marriage, the Lovings returned to Virginia and established their marital home in
Caroline County. At the October Term, 1958, of the Circuit Court of Caroline
County, a grand jury issued an indictment charging the Lovings with violating
Virginia’s ban on interracial marriages. The two statutes under which the appellants
were convicted and sentenced are part of a comprehensive statutory scheme aimed
at prohibiting and punishing interracial marriages. The Lovings were convicted of
violating § 20–58 of the Virginia Code:
Leaving State to evade law. —If any white person and colored person shall go out of this
State, for the purpose of being married, and with the intention of returning, and be married
out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be
punished as provided in § 20–59, and the marriage shall be governed by the same law as if
it had been solemnized in this State. The fact of their cohabitation here as man and wife
shall be evidence of their marriage.

Section 20–59, which defines the penalty for miscegenation, provides:

Punishment for marriage. —If any white person intermarries with a colored person, or any
colored person intermarry with a white person, he shall be guilty of a felony and shall be
punished by confinement in the penitentiary for not less than one nor more than five years.

On January 6, 1959, the Lovings pleaded guilty to the charges and were sen-
tenced to 1 year in jail; however, the trial judge suspended the sentence for a period
of 25 years on the condition that the Lovings leave the State and not return to
Virginia together for that period of time.
After their convictions, the Lovings took up residence in the District of Columbia.
In late 1963 they filed a motion in the Virginia state trial court asking it to vacate the
judgment and set aside their sentence on the ground that the relevant statutes vio-
lated the Fourteenth Amendment of the U.S. Constitution. After being ignored by
the trial court, they brought a class action to the U.S. District Court for the Eastern
District of Virginia. The state trial judge denied a motion to vacate the sentences and
the Lovings appealed to the Supreme Court of Appeals. This court upheld the con-
stitutionality of the anti-miscegenation statutes and, after modifying the sentence,
they affirmed the convictions. The Lovings appealed this decision, and the
U.S. Supreme Court noted probable jurisdiction on December 12, 1966.
2.2  The End of Miscegenation: Loving vs. Virginia 17

2.2.3  Decision and Findings of the U.S. Supreme Court3

When the case reached the U.S. Supreme Court the justices heard arguments from
both sides and unanimously ruled that the Virginia statutes were unconstitutional:
This case presents a constitutional question never addressed by this Court: whether a statu-
tory scheme adopted by the State of Virginia to prevent marriages between persons solely
on the basis of racial classifications violates the Equal Protection and Due Process Clauses
of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning
of those constitutional commands, we conclude that these statutes cannot stand consistently
with the Fourteenth Amendment.4

The justices noted that the state trial court judge had invoked natural law princi-
ples in his defense of the Virginia statutes. The Court quoted this passage:
Almighty God created the races white, black, yellow, Malay and red, and he placed them on
separate continents. And but for the interference with his arrangement there would be no
cause for such marriages. The fact that he separated the races shows that he did not intend
for the races to mix.

The trial court judge also referenced other natural law arguments used to justify
miscegenation. In a previous case, the Virginia state court concluded that Virginia’s
legitimate purposes in enacting miscegenation laws were “to preserve the racial
integrity of its citizens,” and to prevent “the corruption of blood,” “a mongrel breed
of citizens,” and “the obliteration of racial pride.” All of this was obviously an
endorsement of the doctrine of natural White Supremacy (Naim v Naim, 1955).
These arguments assume that blacks are naturally inferior and that mixing the races
is unnatural. The implied natural law is that there is a moral obligation to maintain
the superiority of the white race.5 “Natural law logic therefore underscored the fol-
lowing condition: If the laws of nature forbade miscegenation, and if the laws of
man, to be valid, had to reflect the laws of nature, then legislators needed to promul-
gate statutes banning interracial sex” (Mendenhall 2013, 38).

3
 Twenty years prior to the U.S. Supreme Court’s decision to consider the constitutionality of mis-
cegenation laws, the California Supreme Court struck down all state and local laws prohibiting
interracial marriage. (Perez v Sharp. 32 Cal. 2d 711, 198 P. 2d 17 Cal. 1948) Associate Justice
Roger Traynor wrote for the majority: “Since the right to marry is the right to join in marriage
with the person of one’s choice, a statute that prohibits an individual from marrying a member
of a race other than his own restricts the scope of his choice.” He added: Equal protection laws
could not be based on “arbitrary classifications of groups or races.” Associate Justice Jesse Carter
concurred with his colleague, but went further: Laws that barred interracial marriage were “the
product of ignorance, prejudice and intolerance.” (Cairns 2015).
4
 Section 1 of the Fourteenth Amendment to the United States Constitution: “All persons born or
naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.”
5
 Justice Warren, writing for the majority, noted “the fact that Virginia prohibits only interracial
marriages involving white persons demonstrates that the racial classifications must stand…as mea-
sures designed to maintain White Supremacy” (Loving v Virginia1967, 11).
18 2  Natural Law Theory

All arguments of the Virginia state trial court justifying the prohibition of inter-
racial marriage were rejected by the Supreme Court on the ground that the ultimate
legal validity of a statute can only be secured by showing conformity to the provi-
sions of the U.S. Constitution and its amendments, not by conformity to what some
legislators or judges believe to be the laws of nature or laws that God or any other
divine being had or had not ordained. Since the Virginia statutes “cannot stand con-
sistently with the Fourteenth Amendment” the Court implied that it is irrelevant that
they do or do not conform to what some believe to be the law of nature.

2.3  Traditional Natural Law Theory

Traditional natural law theory has two parts. The first part is the doctrine that “there
are universally binding (objectively valid) moral rules, knowable by use of our natu-
ral faculties” (Simmons 1992, 103). The second part is the claim that positive laws
are invalid and cannot have legal authority if they conflict with these moral rules.
There have been many in the long history of philosophy who have argued for the
traditional position, including the medieval philosopher Augustine who famously
said “a law that is not just is not a law” (Augustine, 11) and Thomas Aquinas who
wrote that a human law must be “derived” from the law of nature: “ … If in any
point it deflects from the law of nature, it is no longer a law but a perversion of law”
(Aquinas 1981, 58).
Although Augustine and Aquinas both saw the natural law as laid down by God,
the claim that there are objectively valid moral rules need not be theologically
based. Moral rules and principles can be called objectively valid even if these prin-
ciples are not taken to be the commands of God, and even if the proposed rules are
acknowledged to be created (not discovered) by human fiat. It is quite possible to
use utilitarian or Kantian arguments to support a claim of objective truth for moral
rules6 and then proceed to the second part of natural law theory by taking the posi-
tion that the positive law must conform to these rules in order to qualify as valid law.

2.3.1  A
 n Example of Traditional Natural Law Theory: John
Locke

I have chosen the seventeenth century English philosopher John Locke as represen-
tative of natural law theory for two reasons. First, Locke is one of the few natural
law theorists who often defends natural law theory independent of any of his

6
 A utilitarian might argue that conventional moral rules are justifiable only if adherence to such
rules promotes the greatest net utility (using the utilitarian or Greatest Happiness principle).
Alternatively, one could take a Kantian position and argue for the justifiability of a conventional
moral rule on the ground that it is a maxim through which one can will that it become a universal
law (using the Categorical Imperative as a decision procedure for moral reasoning).
2.3  Traditional Natural Law Theory 19

commitments to God’s role as lawgiver and creator. His arguments can be judged on
the basis of his promise that “reason alone” is sufficient to reveal the natural law.
Second, Locke is one of the few philosophers to argue for the existence of natural
laws governing family relationships. Although his ultimate motive was to show an
important distinction between political and paternal power, his discussion of the
paternal power reveals much about how he would have us construct a “just” system
of family law.

The State of Nature

In his Second Treatise of Government, Locke writes that the original state (condi-
tion) that all men are naturally in is a state of perfect freedom and equality. Humans
are free to do as they wish “without asking leave, or depending upon the will of any
other man,” so long as what they do does not violate “the law of nature.” Second, all
persons are equal in the sense that none has more power (rights) than any other
person, “there being nothing more evident, than that creatures of the same species
and rank, promiscuously born to all the same advantages of nature, and the use of
the same faculties, should also be equal one amongst another without subordination
or subjection …” (Locke, II, 4).
The pre-political condition of humankind is called the state of nature, and in that
condition there is “a law of nature to govern it, which obliges everyone; and reason,
which is that law, teaches all mankind, who will but consult it, that being all equal
and independent, no one ought to harm another in his life, health, liberty, or posses-
sions” (Locke, II, 6).7 Before humans came together to form political society and
develop systems of positive law, there was a natural law that conferred on them the
moral obligations not to kill, injure, impede another’s movements or damage anoth-
er’s possessions. These obligations reciprocally confer on all persons the rights to
life, health, liberty and possessions. These rights ought to serve as the model for
human creation of the laws governing civil society.
Our question in this chapter is about the relationship between natural and posi-
tive law. The relationship could take two forms in natural law theory. First, the the-
ory might be construed as establishing requirements for legal validity. A positive
law is valid only if it conforms to the law of nature. If it does not conform, then it is

7
 A. John Simmons says of this passage that Locke is suggesting “a kind of ‘practical contradiction’
involved in harmful conduct toward others. If I truly regard my fellow human beings as “all equal
and independent,” then it would be irrational or inconsistent to treat others as if they were different
from me.” We should note that Locke makes no reference to God’s will or to his commands in the
quoted passage (Simmons 1992, 40). In an earlier paragraph Locke quotes approvingly from
Richard Hooker: “The like natural inducement, hath brought men to know that it is no less their
duty, to love others than themselves, for seeing those things which are equal, must needs all have
one measure; If I cannot but wish to receive good, even as much at every man’s hands, as any man
can wish unto his own soul, how should I look to have any part of my desire herein satisfied, unless
myself be careful to satisfy the like desire, which is undoubtedly in other men, being of one and
the same nature?” (Hooker, Eccl. Pol. Lib. 1).
20 2  Natural Law Theory

invalid, and there is no moral obligation to obey an invalid law. For example, if a
legal system contained rules giving a monarch arbitrary power over “the lives and
fortunes of the people,” then such rules would be invalid. They would not count as
“law” because the fundamental law of nature is the preservation of mankind, and
“no human sanction can be good, or valid against it” (Locke 1980, XI, 135). I will
call this version of natural law theory the “strong” version. Second, natural law
theory might also be interpreted as making recommendations for determining when
positive laws are good or bad. In the event that a bad law is nonetheless enacted by
a legislative body, it would remain valid and enforceable until it is repealed. For
example, if natural law is interpreted to prohibit interracial marriage but the positive
laws permit and regulate it, then these laws might be declared bad law but remain
valid because they were duly enacted in accordance with the rules and procedures
of the state legislature. I will call this the “weak” version of natural law theory.
Only the strong version of natural law theory claims that there is a necessary
connection between positive law and morality. The rules of positive law must not
conflict with the principles of natural law. Such rules are invalid, and they impose
no obligations. This is what Locke means when he argues that the higher obligation
of the law of nature to preserve mankind invalidates any obligation imposed by a
positive law that would give a ruler the arbitrary power to decide whether a citizen
should live or die, be enslaved or be free.
The strong version of natural law theory appears to deal only with existing posi-
tive laws, declaring them to be valid or invalid depending on whether or not they
conform to or violate the fundamental law of nature (preservation of life, liberty and
possessions). It does not tell us how we are to proceed when a legal system fails to
enact any positive laws that enforce the laws of nature. Is the system itself to be
declared invalid? Locke answers this question by declaring that there are a certain
minimum number of positive laws that must be enacted if people are to escape the
state of nature and “join in society with others, who are already united, or have a
mind to unite, for the mutual preservation of their lives, liberties and estates” (IX,
123). These positive laws are those required to guarantee or insure that people not
do whatever they individually think necessary for self-preservation of themselves
and “the rest of mankind” (IX, 129). Locke does not mean that persons must give up
the right to self-defense. He means that we must give up to the community the right
to decide what laws are to be enacted, to be the final judge and executioner of the
law of nature, and “by force to make good” any injustices we believe that has been
done to us or others (IX, 124, 125, 126). If anyone insists on retaining any of these
rights, then they cannot be a part of civil society.
We should notice that the natural rights we give up to the community are denoted
by Locke as “powers” of which, Locke writes, there are two. “The first is to do
whatsoever he thinks fit for the preservation of himself, and others within the per-
mission of the law of nature … [and] the other power … is the power to punish the
crimes committed against that law” (IX 128, 129). We give up both of these powers
“to be regulated by laws made by society” (129). In the language of contemporary
legal philosophers, the laws in question here are “power-conferring rules.” These
are rules which empower public officials to enact, repeal and change laws (legisla-
2.3  Traditional Natural Law Theory 21

tive power), to apply and interpret them (judicial power), and to enforce them (exec-
utive power).
Power-conferring rules are different from the mandatory rules of the criminal
law. They give both private persons and public officials the power or right to realize
their wishes. If I want to see to it that my estate is given to my child after my death,
then the private law on wills gives me the power to do this. If legislators want to see
to it that murder is legally prohibited, then their status as legislators confers on them
the public power to make this happen. But the law on murder itself is mandatory, not
power-conferring. It commands people under threat of punishment to refrain from
killing other persons, even if they may have a strong desire to do this. Power-­
conferring rules give us the legal ability to realize our wishes; mandatory rules
prohibit or require us to do certain acts, despite our wishes.
If the unanimous agreement to give up our private power to create our own laws
constitutes the social contract which creates civil society, then what mandatory rules
should the first legislature create if they are to be guided in their decision-making by
the laws of nature? The answer to this question has already been given by Locke.
The first mandatory rules must be those that prohibit conduct that would harm per-
sons in their “life, health, liberty and possessions.” Hence, a minimum set of rules
that comprise a criminal law would include prohibitions on murder, assault, kidnap,
enslavement, theft, and damage to private property. These are the mandatory laws
which are necessary to guarantee “the preservation of society,” which is “the first
and fundamental natural law, which is to govern even the legislative itself … and (as
far as will consist with the public good) of every person in it” (XI, 134). Moreover,
since the entire reason that persons left the state of nature to enter into society was
to preserve their own lives, liberty and possessions, they cannot transfer to a legisla-
tive body more power than they had as individuals in the state of nature. Hence,
there is a severe restriction on the positive laws that a legislature can enact. “Their
power, in the utmost bounds of it, is limited to the public good of the society. It is a
power that hath no other end but preservation and therefore can never have a right
to destroy, enslave, or designedly to impoverish the subjects” (XI, 135).

Natural Law and Paternal Power

Prior to entering the social contract which creates political society, Locke wrote that
“the first society” was the family, made up of man and wife, children and servants
in which “the master or mistress of it had some sort of rule proper to a family” (VII,
77). Locke also uses the phrase conjugal society to describe the voluntary contract
between a man and a woman which consists “chiefly in such a communion and right
in one another’s bodies as is necessary to its chief end, procreation” (VII, 78). The
terms of the contract also commit the man and woman to give each other “mutual
support and assistance” which is necessary not only for their own care and affection,
“but also necessary to their common off-spring, who have a right to be nourished,
and maintained by them, till they are able to provide for themselves” (id.) Finally,
when the child attains the age of reason, his parents lose their power over him. But
22 2  Natural Law Theory

this freedom “exempts not a son from that honor which he ought, by the law of God
and nature, to pay his parents.” Children have a “perpetual obligation of honoring
their parents,” which includes not only outward expressions of “esteem and rever-
ence,” but also to never do anything that will “injure or affront, disturb or endanger,
the happiness or life of those from whom he received his.” This obligation extends
to defending his parents from those who would harm them, and to providing them
with relief, assistance and comfort” in their declining years (VI, 65, 66).
Locke does not clarify how we are to understand the nature of the relationship of
positive family laws to the laws of nature that concern marriage, parent-child and
filial relationships. Nor does he give any examples of family laws that would be null
and void on the grounds that they violate the law of nature. However, we can create
our own examples. First, imagine a society with a legal system that enforces the
paterfamilias rule of ancient Rome, giving the oldest male in the family complete
decision-making power over all things concerning the extended family. A male
child of 65 years would still be under the control and direction of his 85-year-old
father. This would violate Locke’s natural law that says that the right of the parent
to command the obedience of the child should end at the “at the age of reason.”8
Hence, we can safely assume that the paterfamilias rule would be void under the
strong version of natural law theory. Here is a second example from early Roman
law: It is allowable for a father to sell or even kill his child without suffering any
legal consequences. This would certainly violate the natural law duty of parents to
protect, educate, nourish and shelter their children. Third, although most would
agree with Locke that adult children have a moral obligation to give aid to their
parents when they are sick or infirm Locke does not recommend the enactment of
positive laws requiring this behavior.
Another example mentioned by Locke is divorce. And here his position is mark-
edly different from divorce law in eighteenth century England in which a divorce
was possible only by private act of Parliament, a procedure that was “difficult, time
consuming and expensive.”9 Moreover, fathers had an absolute legal right to custody
of children after divorce, a law that was not changed until 1857. Locke has a much
different view of these matters. After writing that the husband has the “last determi-
nation” in settling disputes about “things of their common interest and property,”
Locke quickly adds the remark that “he has no more power over her life than she has
over his.” Hence, “the wife has in many cases a liberty to separate from him, where
natural right, or their contract allows for it; whether that contract be made in the
state of nature, or by the customs or laws of the country they live in; and the children
upon such separation fall to the father’s or mother’s lot, as such contract does deter-
mine” (VII, 81). These may be empty words. In eighteenth century England the
marriage contract could not be altered by the marital partners and there was no state
of nature to which those who wanted to marry could retreat in order to make their
own marital contract.

8
 Locke writes that a man cannot be “under the law of England” until the age of twenty-one, which
is the age at which we can presume that he has “a capacity of knowing that law” (58).
9
 Only 13 petitions were granted between 1700 and 1749, and in the remainder of the 18th century
no more than 10 petitions were granted on average per year (Olsen 1999, 44).
2.3  Traditional Natural Law Theory 23

2.3.2  A
 ssessing Traditional Natural Law Theory
in the Context of Family Law

Our question is whether traditional nature law theory, as represented by John Locke,
gives us any guidance on the validity or legitimacy of positive family law. The first
problem we confront in answering this question is whether we can accurately dis-
cern the relevant natural laws. As noted above, Locke’s fundamental law of nature
commands us not “to harm another in his life, health, liberty, or possessions.” In
creating positive law, including laws governing family relationships, the enlight-
ened legislator must enact laws that serve this purpose, and no other purposes. The
legislator’s power, “in the utmost bounds of it, is limited to the public good of soci-
ety,” to which words Locke adds the clarification “it is a power that hath no other
end but preservation” (XI, 135).
Let me refer to the miscegenation case of Loving v Virginia introduced earlier.
Are the laws prohibiting interracial marriage justified by natural law? Certainly they
were believed to be justified by their proponents. If the natural law is understood as
God’s law, then there were a large number of legislators prepared to provide quotes
from religious writings showing that God prohibited both interracial marriage and
sexual relationships. Although Locke quotes a great deal of Scripture in Second
Treatise, he has nothing direct to say about its application to these practices, except
in the opening paragraphs where the alleged natural equality of men might be used
to invalidate laws prohibiting interracial marriage: “[There is] nothing more evi-
dent, than that creatures of the same species and rank, promiscuously born to all the
same advantages of nature, and the use of the same faculties, should also be equal
one amongst another without subordination or subjection … “(II, 4). This looks
promising. If all human beings are equal, then any positive law that subjects or sub-
ordinates one class of persons to the rule of another class of persons would be an
invalid law. It would seem that this voids all laws legalizing both slavery and misce-
genation. However, among those who found a way to avoid this result was Thomas
Jefferson, the author of the Declaration of Independence and a slave owner. Jefferson
was an avid reader and follower of Locke’s political theory, yet there is a loophole
in the preceding quote from Locke about natural equality which was used by
Jefferson and many others to justify the unequal treatment of black people. The
loophole they exploited is found in the phrase “the use of the same faculties.”
According to fashionable philosophical principles of the day, if laws of nature and the uni-
verse applied equally to all humans, then blacks had to be conceptually remade as a lesser
degree of human to validate any measure forbidding [slavery and] black–and–white sexual
activity. Philosophy and law had to be rewritten to account for scientific revelations about
racial distinctions. What is more, philosophy and law had to be rewritten so that equality
was something (like the forces of nature or God’s will) that each human was subject to but
not that each human possessed (Mendenhall, 23).

In his Notes, Thomas Jefferson denied that black people have the same faculties
as whites. Under the theory of “fixed nature,” he described blacks as inherently
inferior to whites in critical reasoning and beauty (Jefferson, 1955, 139–142, 162).
24 2  Natural Law Theory

According to Mendenhall, quoted above, this theory was Jefferson’s rationalized

justification for the racial caste of slavery (Jefferson, 139–142). Because black peo-
ple lack the same faculties as whites, they are not morally equal, and we can assume,
whites and blacks ought not to be allowed to marry.
John Locke, like Thomas Aquinas before him, refers to promoting the public
good of the community as a legitimate purpose of positive law, although Locke
limits this to the goal of “preservation” (of life, liberty, health and possessions).
Locke is also convinced that we can use our power of reasoning to discover the basic
moral principles that comprise the law of nature (see fn. 6). And yet as shown above,
there are fundamental disagreements about the content of the natural law between
proponents of natural law theory. Legislators who adhere to natural law principles
have put forward positive laws that many other legislators, using the same princi-
ples, would today regard as immoral or unjust. There are  some who believe that
divorce, gay marriage, interracial marriage, contraception and abortion violate the
natural law, and consequently any legal rules enabling such activities are condemned
as immoral. There are just as many others who deny this and would retain the same
rules as promoting morality and justice.
Moreover, traditional natural law theory cannot support the general claim that an
unjust rule of positive law fails to qualify as “law.” The history of family law stands
as testimony to several hundred years of laws on marriage, divorce and child cus-
tody (to name only a few laws) to disprove this. If the rules of natural law are those
rules that are objectively valid for all persons at all times and universally apply to all
cultures, then there is still plenty of room for disagreement about what constitutes
the content of natural law. And, as mentioned earlier, utilitarians and Kantians,
while agreeing with proponents of natural law that there are objectively valid moral
rules, may also have profound disagreement about what these rules demand or pro-
hibit for family members.
Finally, there are deep differences between seventeenth and twenty-first century
Western cultures about the moral law governing decisions made within the family.
The common law of England and its colonies prior to the nineteenth century “con-
ceived of the family as an organism that had the husband/father at its head and his
wife and children in its lower reaches” (Grossberg 1985). The law assumed that all
members of the family had the same interests, and these were best represented by the
male head of the family. This presents a dilemma for Locke. After arguing that man
does not have a natural dominion over woman, he tries to align himself with the
English patriarchal tradition by declaring that man does have a certain “priority” over
her. The wife “owes” her husband a limited “subjection.” Locke’s argument is this:
But the husband and wife, though they have but one common concern, yet having different
understandings, will unavoidably sometimes have different wills too; it therefore being
necessary that the last determination, i.e. the rule should be placed somewhere; it naturally
falls to the man’s share, as the abler and the stronger. (VII, 82–83).

The argument is clearly unconvincing. Greater ability and strength are not always
a sufficient ground for granting greater authority in the family. Before authority is
ceded it is important to know exactly what kind of ability is needed to carry out the
2.3  Traditional Natural Law Theory 25

relevant task. If a man is “abler and stronger” than his wife at tilling the fields
behind a team of horses, these qualities have little relevance to success at other tasks
requiring mental rather than physical ability, for example balancing the family bud-
get or making decisions about a child’s education.
Family planning is another area of contention between natural law proponents,
especially when it involves abortion. Unlike reproductive rights in general, there is
no universal consensus on abortion. The controversy is grounded in the belief held
by the majority of legislators in some Roman Catholic countries that abortion
involves two lives, that of the fetus as well as that of the mother, and the law of
nature prohibits the intentional taking of any human life. This is contested by legis-
lative majorities of other countries who may be of the opinion that the fetus, while
human and innocent, does not have an absolute right to occupy a woman’s body
when her pregnancy is due to rape. Others may believe, also on grounds of natural
law, that a woman has a right to make the final determination about what happens in
and to her own body (“the right to choose”).10
Among those states which recognize a public interest in the preservation of
human life, moreover, there is a range of views as to when fetal life comes into
being. The Inter-American Convention, for example, refers to “a right to life from
the moment of conception.” German law, in contrast, accepts as a matter of scien-
tific fact that life begins 14 days after conception. Under the Hanafi School of
Islamic law, “ensoulment” occurs at 4 months, before which abortion may be per-
mitted (Stark 2005, 138–139).
The morality of divorce is another area in which one finds wide variation between
the beliefs of different cultures and religions. Consider the way in which various
cultures respond to adultery as a ground for divorce.
In Nigeria, for example, a woman who has been raped may nevertheless be guilty of adul-
tery. The practice of polygamy, similarly, which allows men in some Islamic states to take
up to four wives, means that men may have multiple partners without committing adultery
while women may not. In Egypt, following reforms in 1979, a woman had an automatic
right to a divorce from a husband who took another wife. The 1985 law, in contrast, removed
the presumption of injury and required the wife to prove that she had suffered harm by
reason of her husband’s subsequent marriage. This represented a return to the classical posi-
tion. … In India, in addition to divorce by mutual consent, divorce is available for fault for
adultery, cruelty, desertion, or if the spouse has ‘ceased to be a Hindu by conversion to
another religion’; or ‘has been suffering continuously or intermittently from mental disor-
der of such a kind and to such an extent that the petitioner cannot reasonably be expected to
live with the respondent.’ In Uganda, fault is still required for divorce. While adultery is
grounds for a divorce for either a wife or a husband, the wife must also prove that the hus-
band was cruel or had deserted her (Stark 2005, 77).

10
 Although Locke never discussed abortion, at the beginning of his famous discussion Of Property
he declares in Second Treatise that “every man has property in his own person: this nobody has any
right to but himself” (V, 26). Using the word “man” in the generic sense, we can assume that a
pregnant woman is the only one who has property in her own person – with all the rights of owner-
ship, including the right to choose whether or not to abort the fetus she is carrying. It would be
irrelevant how the fetus come into being, whether this was due to rape, failure of a birth control
device, or to her intention to become pregnant.
26 2  Natural Law Theory

Each of these cultures and religions would be quick to argue that the natural law
is on their side when they enact laws opposing abortion and divorce, or when enact-
ing the details of the exact time during a pregnancy when abortion is permissible, or
the exact conditions when adultery ought or ought not to be allowed as a condition
for divorce. In light of these extreme discrepancies it is difficult for proponents of
natural law theory to launch a rational argument to convince us that there is a uni-
versal moral law to which we can appeal in constructing a valid body of family law.

2.4  Modern Natural Law Theory: Lon Fuller

One popular twentieth century attempt to make a necessary connection between

positive law and morality is to have us look not at the conditions under which par-
ticular laws are deemed valid or invalid, but at the conditions under which systems
of regulation and control qualify as genuine systems of law. The philosopher of law
who best represents this approach is Lon Fuller.

2.4.1  Principles of Legality

According to Fuller there are eight ways in which a system of regulation and control
could fail to qualify as a system of law. A person might be required to obey a legal
rule that (1) does not exist or (2) is kept secret from him or (3) that came into exis-
tence only after he had acted or (4) was unintelligible or (5) was contradicted by
another rule of the same system, or (6) commanded the impossible, or (7) changed
every minute, or (8) is disregarded by those charged with its administration. (Fuller,
1969, 41).
Fuller refers to (1)–(8) as “abuses” of a legal system (Fuller, 43). Here is an
example of (3), the “abuse of retroactive regulation”: A policeman shows up at the
home of Richard and Mildred Loving a few days after their return to Virginia as a
married couple. The officer tells them that they are under arrest and will be prose-
cuted. They ask the prosecutor to explain. He says that a law was enacted today
making it illegal for a black man to marry a white woman. He then tells them that
legislators have made the law retroactive for the previous month.
Abuses (1)–(8) are violations of principles of legality. These principles impose
on law makers and executors of the law the moral duties (a) to create rules and not
make decisions on an ad hoc basis, (b) to publicize the rules that people are expected
to obey, (c) not to create retroactive legislation, (d) to make rules understandable, (e)
not to enact contradictory rules, (f) not to enact rules that require conduct beyond
the powers of the affected party, (g) not to make frequent changes in the rules in
such a way that persons cannot orient their actions by the rules, (h) to apply (exe-
cute) the rules that government expects all citizens to follow.
2.4  Modern Natural Law Theory: Lon Fuller 27

2.4.2  The Inner Morality of Law

The principles of legality represent an inner morality of positive law. It is this that
imposes an obligation to obey the law. Inner morality is expressed in the moral
principle that we have an obligation “to show respect for human agents capable of
choosing their own conduct” (Altman 2001, 55). A system of regulation and control
that violates even one of the procedural principles in (a)–(h) fails to address “humans
as agents capable of deliberation and choice” (Altman, 55). Hence, there is no obli-
gation to obey the laws of that system. Although it is possible that a law created in
accordance with (a)–(h) may be an unjust law, Fuller’s point is that a genuine legal
system must contain the inner morality expressed by the eight principles of legality.
And it is here that we see how Fuller makes the connection between law and moral-
ity. If we consider positive law from the standpoint of a system of law and not from
the standpoint of individual laws, then the necessary connection between law and
morality is between the inner morality of its procedural rules and the laws that are
generated by that system.

2.4.3  The Social Purposes of Law

One of the debts owed to Fuller by natural law theorists is for his argument that
there are social purposes behind the rules of positive law. For example, it is a rea-
sonable assumption that the purpose of the First Amendment rule prohibiting
Congress from creating a law abridging freedom of speech is to promote the free
exchange of ideas – as much free exchange as is necessary for citizens and their
representatives to make informed choices in a constitutional democracy. This pur-
pose cannot be realized if persons are prevented by law from freely discussing their
moral, political, and religious opinions. Suppose that Congress passes a federal law
making it illegal for a person to falsely shout fire in a crowded theater, causing
people to panic and make a rush for the exits, with the result that several are injured.
Under a literal reading of the First Amendment, shouting the word “Fire!” would be
regarded as constitutionally protected speech. But under an interpretation of the
amendment that refers to the social purpose of the amendment it would become
clear that falsely shouting “Fire!” with the intention of causing panic has nothing to
do with promoting the free exchange of ideas.11

11
 This became known as the “clear and present danger test” for the permissibility of abridging
speech. “The most stringent protection of free speech would not protect a man falsely shouting fire
in a theater and causing a panic. … The question in every case is whether the words used are used
in such circumstances and are of such a nature as to create a clear and present danger that they will
bring about the substantive evils that Congress has a right to prevent” (O.W. Holmes in Schenk v.
United States1919).
28 2  Natural Law Theory

2.4.4  Objections to Fuller

Let us consider a system of regulation and control of family relationships that gen-
erates unjust positive law even though it meets all of Fuller’s criteria for possession
of an inner morality. Is it logically possible that such a system could contain unjust
laws? Andrew Altman cites examples of unjust laws enacted and enforced in Nazi
Germany during the 1930s and 1940s. Among the most infamous cases of Nazi
injustice were the Nuremberg laws prohibiting marriage and sexual intercourse
between Jews and persons of “German blood.” It would be difficult to argue that
there was a prima facie obligation to be faithful to such laws on the ground that any
system of positive law as such puts certain constraints on government evil-doing. In
certain cases, those constraints are woefully short of what morality can tolerate, and
the only reason for being faithful to such laws is fear of the awful consequences of
disobedience (Altman, 57).
Even if it is objected that the system of laws that existed in Nazi Germany was
not a genuine legal system because it violated so many of the principles of legality,
it would still be possible to imagine a legal system enacting the same laws that did
not violate these principles. In fact, Americans do not need to use their imagination.
It has not been that long since we have had such laws in the United States. Both the
rules granting white citizens the right to own slaves and the later anti-miscegenation
laws that existed in many southern states until the mid-1970s were all duly passed
in accordance with the principles of legality. They were clear in meaning, widely
promulgated, and enacted according to established procedures. But this does not
seem sufficient to confer even a prima facie moral obligation to obey them. Those
who defied such laws believed them to be unjust and disputed any claim that they
had a moral duty to conform.

2.5  Contemporary Natural Law Theory: Ronald Dworkin

As noted above, one problem with Fuller’s purposive theory of interpretation is that
it does not exclude laws whose social purposes are immoral or unjust. The Virginia
miscegenation statute is a prime example. A law that prohibits interracial marriage
and interracial sexual conduct had as its social purpose to promote a nineteenth
century conception of equality that regards black people as inferior to whites. Most
white people in Virginia still held this view in the mid-twentieth century and Virginia
legislators and judiciary at the time apparently believed that it was no affront to
equality to prohibit marriages between blacks and whites.12 This view of what

 In Naim v. Naim (1955) the state court of Virginia concluded that the State’s legitimate purposes
12

were “to preserve the racial integrity of its citizens,” and to prevent “the corruption of blood,” “a
mongrel breed of citizens,” and “the obliteration of racial pride,” obviously an endorsement of the
doctrine of White Supremacy.
2.5  Contemporary Natural Law Theory: Ronald Dworkin 29

constitutes equality has now changed. We have long since rejected the idea that race
is a relevant consideration when creating rules regarding eligibility for marriage.13
If Fuller’s theory of law is to be rescued from the fate of promoting immorality
by endorsing legal systems with laws that promote unjust social purposes, then he
must introduce criteria for distinguishing between just and unjust purposes in order
to correct this defect. But, as Andrew Altman observes, “nothing in the idea of law
or the idea of a legal system guarantees that the law’s purposes will be morally
acceptable” (58). This is where Ronald Dworkin’s “interpretive” version of natural
law theory enters the conversation.

2.5.1  Rules and Principles

Dworkin begins by distinguishing between three types of standards that are used by
lawyers when they reason or dispute about legal rights and obligations: rules, prin-
ciples and policies. In family law, a rule would be equivalent to a statute or code, for
example, “Except as otherwise provided by statute, all property, real or personal,
wherever situated, acquired by a married person during the marriage while domi-
ciled in this state is community property.” (California Family Code 2016, 760). A
principle is a standard to be observed because it is a requirement of justice or fair-
ness or some other dimension of morality, for example, “Parents and guardians have
the privacy right (liberty) to direct and control the upbringing of their children.” A
policy is a standard that sets out a goal to be reached, for example, “California will
attempt to significantly decrease the rate of child abuse by 2020.”
The differences between these standards are apparent. A rule is applied in an “all
or nothing” fashion (Dworkin 1977, 45). It is either violated or it is not violated. If
the husband claims most of the property acquired during the marriage, then he
­violates the statute (cited above). A rule does not function like an aspirational stan-
dard which one can “more or less” achieve. In the example provided above, if the
facts are as stated (the husband claims most of the marital property), then it is logi-
cally impossible that he has the right to most of the real or personal property
acquired during the marriage and for the relevant statute to be valid. This is not to
deny that there are exceptions to legal rules,14 but if these exist then “it is inaccurate
and incomplete to state the rule so simply, without enumerating the exceptions.”
(Dworkin 1977, 46).
Principles function in a quite different way. Principles “do not set out legal con-
sequences that follow automatically when the conditions provided are met”
(Dworkin, 46) Most lawyers and judges involved in the process of reasoning about
family law cases would agree with the principle (doctrine) of family privacy quoted

13
 It is plausible to predict that it will not be long before gender and sexual preference is also uni-
versally regarded as an equally irrelevant (and therefore unjust) consideration.
14
 There are several exceptions to California Family Code 760, for example “Nothing in this section
affects the community character of property that is transferred before, on, or after July 1, 1987, in
any manner or to a trust other than described in this section.” (761e).
30 2  Natural Law Theory

above. But they also know that the principle does not have the “absolute” feature of
a rule. They do not say that the state can never justifiably intervene in the parent-­
child relationship. In fact, it often does this in cases of child neglect and abuse. And
when such interventions occur they do not conclude that the family privacy princi-
ple is not a principle of family law, nor do they treat instances of state intervention
as “exceptions” to the principle.
Second, unlike a rule, a principle like “Parents and guardians have the privacy
right (liberty) to direct and control the upbringing of their children” does not set out
the conditions that make its application necessary. It is not even clear how we would
spell out these conditions. If the conditions are simply giving birth to a child or
acquiring guardianship rights to a child through adoption, this does not imply that
the state may not intervene. Instead, as Dworkin observes, the principle “states a
reason that argues in one direction.” In this case, it is a reason which the law will
take into account when there is a cause for intervention. “All that is meant, when we
say that a particular principle is a principle of our law, is that the principle is one
which officials must take into account, if it is relevant, as a consideration inclining
in one direction or another” (Dworkin, 47).
Finally, “principles have a dimension that rules do not – the dimension of weight
or importance.” When principles collide (the principle of family privacy in conflict
with principles of child protection, for example), “one who must resolve the conflict
has to take into account the relative weight of each” (47). It is an understatement to
say that “the judgment that a particular principle or policy is more important than
another will often be a controversial one,” (Dworkin, 47) with no bright lines point-
ing the way to an obvious decision.

2.5.2  Principles as Natural Law

What does any of the above have to do with natural law theory? The answer is that
Dworkin’s “principles” are Lon Fuller’s “social purposes,” but with one important
difference: Dworkin ties legal rules to those moral principles that express “the fun-
damental purposes of government and the proper relation between government and
the individual” (Altman, 59). Fuller left his concept of “social purposes” an empty
vessel, allowing that any regime that comes along could fill that vessel with pur-
poses that most would reject as immoral. If the social purpose of the Virginia mis-
cegenation law was to keep inferior people from marrying those who are judged to
be superior, then Fuller appears to be committed to the unwelcome conclusion that
a legal system will sometimes promote immorality. Dworkin’s theory of “the best
moral principles” underlying the rules of law appears to solve this problem.
The best way to understand this is to look at how Dworkin would deal with the
Loving case. He would want us to consider a moral principle of the political com-
munity that is both logically consistent with the Virginia miscegenation statute and
would justify it. Accordingly, a principle stating that (a) race is relevant to a deter-
mination of how people are to be treated under the law would make a good fit with
2.5  Contemporary Natural Law Theory: Ronald Dworkin 31

the statute when it was enacted in the nineteenth century. By way of contrast, a
principle stating that (b) race is not relevant to determining how people are treated
under the law would now fail on both counts: it is neither consistent with the statute
nor would it justify it. The former principle expresses the nineteenth century origi-
nal understanding of equality that allowed the separation of the races.15 The latter
principle rejects that idea.16 It expresses a conception of equality that was enunci-
ated by Chief Justice Earl Warren in the concluding paragraph of the Loving
decision.
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and
survival. To deny this fundamental freedom on so unsupportable a basis as the racial clas-
sifications embodied in these statutes, classifications so directly subversive of the principle
of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citi-
zens of liberty without due process of law. The Fourteenth Amendment requires that the
freedom of choice to marry not be restricted by invidious racial discriminations. Under our
Constitution, the freedom to marry or not marry a person of another race resides with the
individual and cannot be infringed by the State (Loving v Virginia, 388 U.S. 12).

Dworkin argues that the conception of equality expressed here by a unanimous

Supreme Court is a more advanced conception of equality than the idea expressed
100 years earlier. Moreover, a principle that includes this advanced conception is
morally better than the earlier principle justifying the use of race as a relevant con-
sideration when creating laws governing marriage and the family. Finally, if the
promise of natural law theory is that we cannot fully understand the nature of law
and a legal system until we understand not only its rules but the fundamental moral
principles that lie under and justify them, then the very idea of a legal system does
appear to guarantee the moral acceptability of its principles.

2.5.3  Objections to Dworkin

One objection to Dworkin is that he does not give us a standard for determining
when one principle is “morally better” than another. What are we to conclude when
persons disagree over what is morally best?

15
 “The State argues that the meaning of the Equal Protection Clause, as illuminated by the state-
ments of the Framers, is only that state penal laws containing an interracial element as part of the
definition of the offense must apply equally to whites and Negroes in the sense that members of
each race are punished to the same degree. Thus, the State contends that, because its miscegenation
statutes punish equally both the white and the Negro participants in an interracial marriage, these
statutes, despite their reliance on racial classifications do not constitute an invidious discrimination
based upon race.” Loving v Virginia, 388 U.S. 1 (1967).
16
 Over the years, this Court has consistently repudiated “distinctions between citizens solely
because of their ancestry” as being “odious to a free people whose institutions are founded upon
the doctrine of equality” (J. Earl Warren, Loving v Virginia quoting from Hirabayashi v. United
States 1943, 100).
32 2  Natural Law Theory

Moral judgments are notoriously controversial. What is a judge, or anyone else, to do in the
fact of such disagreement? Dworkin grabs the bull by the horns: each person must decide
for him or herself about what is morally best. [For example, if a judge decides that the late
20th century conception of equality is best, then that is the one she should use in deciding
the outcome of a case.] She may not arrive at the correct legal outcome; after all, she may
be mistaken in her moral judgment. But a judge who follows Dworkin’s method of legal
interpretation will make a good-faith effort to determine what is morally best. And such a
judge is, in Dworkin’s view, fully authorized to make her legal decision on the basis of what
she regards as the correct moral judgment (Altman, 62).

The fact that a judge is “fully authorized” to make a moral judgment when decid-
ing a case does not imply that she should exercise her right to do so. She might
understandably refrain on the ground that her choice of a moral principle to support
her decision would be arbitrary. She might believe this because she once took a
university course on ethical theory and came out of this experience with more ques-
tions about what mode of moral argument is best than she had before she took the
course. She was confused when she went in and declared herself a skeptic when she
came out. She tells us that she has no way to establish which mode of the many
conflicting modes of moral argument she has studied is correct. We can understand
why she also says “I was appointed to perform the role of judge, not the role of
moral philosopher.”
I suspect that Dworkin’s response to her dilemma is to restate his theory: a judge
often has no choice in the matter. She must employ a moral principle when making
a judicial decision. An appeal to legal rules is not sufficient. Chief Justice Warren’s
interpretation of the Equality and Due Process clauses of the Fourteenth Amendment
in the Loving decision is a prime example. He must answer the question: “What
conception of equality should I choose when deciding whether the law treats people
equally by prohibiting them from marrying one another if they are not of the same
race or skin color? Should I use the conception employed by the Virginia state trial
court (based on Jefferson’s ideas of fixed nature and racial inferiority) or should I
use a broader conception that rejects the relevance of racial distinctions?” This is a
moral choice that the judge cannot avoid making.
A second objection to Dworkin is that he has only shown a connection between
the laws and moral principles such as we now have in the U.S.A. after 1970. He has
proved the hypothetical “If S is a legal system with positive laws resembling those
that exist now, then the principles underlying the rules in S are morally acceptable.”
But he has not proved the much more ambitious hypothetical “If S is a legal system,
then the principles underlying the positive laws in S are morally acceptable.” That
is, the very idea of a legal system does not guarantee the moral acceptability of its
principles. There not only have been many legal systems in the past that did not have
morally acceptable underlying principles (Nazi Germany and Fascist Italy in the
1930s come to mind), but there are many legal systems that exist at present that do
not have such principles (North Korea, Saudi Arabia, Iran). A legal positivist would
be quick to say that we can still refer to them as legal systems, albeit as bad, evil, or
oppressive legal systems. That is, a legal system with some unjust or otherwise
immoral laws is still a legal system. Hence, Dworkin faces the same dilemma faced
by Lon Fuller. As there is no necessary connection between the concept of a legal
References 33

system and laws serving morally good social purposes, so there is no necessary
­connection between the nature of a legal system and its laws being founded on uni-
versally acceptable moral principles.
Questions for Thought and Discussion 
1. How would Dworkin’s theory of law deal with the issues surrounding the arrest
and conviction of Richard and Mildred Loving? Could the convictions be justi-
fied from the perspective of his theory? Does Dworkin’s theory provide a con-
vincing approach to the issues raised by the Loving case?
2. How would Fuller’s theory of law deal with the issues surrounding the arrest and
conviction of Richard and Mildred Loving? Could the convictions be justified
from the perspective of his theory? Does Fuller’s theory provide a convincing
approach to the issues raised by the Loving case?
3. Before the 1946 Perez decision of the California Supreme Court, it had been
argued by some scholars and progressive politicians that state laws prohibiting
marriages between people of different races are invalid because they are unjust.
Hence, judges and ordinary citizens alike had no obligation at all to enforce or
obey them. Rather, they argued, everyone has an obligation to reject, subvert,
and destroy the institutions that create anti-miscegenation laws. Do you agree
with these recommendations? What if you agreed about the injustice of anti-­
miscegenation laws and (a) you are a judge who has sworn to uphold the state
constitution and laws of the state? (b) You are a county clerk in charge of dis-
pensing marriage licenses and you have taken an oath to obey all state laws regu-
lating who will qualify for a marriage license? (c) You are a private citizen who
has been asked to hide a young couple in your house, one white and the other
black, who had been recently married but do not want their marriage discovered
because they fear being arrested?

References

Altman, Andrew. 2001. Arguing about law: An introduction to legal philosophy. Belmont:
Wadsworth.
Aquinas, Thomas. 1981. In The political ideas of St. Thomas Aquinas: Representative selections,
ed. Dino Bigongiari. New York: Hafner Library of Classics.
Blackstone, William. 1765–1769. Commentaries on the laws of England, vol. 4. Oxford: Clarendon
Press.
Cairns, Kathleen. 2015. California judge paved path for marriage ruling. San Luis Obispo Tribune,
July 7. http://www.sanluisobispo.com/2015/07/073711189_california-judge-paved-path-for.
html?rh=1.
California Family Code. 2016. http://www.leginfo.ca.gov/.html/fam_table_of_contents.html
Accessed 25 Mar 2016.
Dworkin, Ronald. 1977. Is law a system of rules? In Philosophy of law, ed. Ronald Dworkin.
New York: Oxford University Press.
Ferling, John. 2000. Setting the world Ablaze: Washington, Adams, Jefferson, and the American
Revolution. New York: Oxford University Press.
Fuller, Lon. 1969. The morality of law. New Haven: Yale University Press.
34 2  Natural Law Theory

Grossberg, Michael. 1985. Governing the hearth: Law and the family in nineteenth century
America. Chapel Hill: University of North Carolina Press.
Hirabayashi v. United States, 320 U.S. 81 (1943).
Jefferson, Thomas. 1955. In Notes on the state of Virginia, ed. William Peden. Chapel Hill:
University of North Carolina Press.
Locke, John. 1980. In Second treatise of government, ed. C.B. Macpherson. Indianapolis: Hackett.
Loving v Virginia. 388 U.S. 1 (1967).
Mendenhall, Alan. 2013. From natural law to natural inferiority: The construction of racist juris-
prudence in early Virginia. http://www.academia.edu/2541976/From_Natural_Law_to_
Natural_Inferiority_The_Construction_of_Racist_Jurisprudence_in_Early_Virginia Accessed
25 Mar 2016.
Naim v. Naim 197 Va. 80; 87 S.E.2d 749 (1955)
Olsen, Kirsten. 1999. Daily life in the eighteenth century. Connecticut: Greenwood Publishing.
Perez v Sharp. 32 Cal. 2d 711, 198 P. 2d 17 Cal. 1948.
Schenk v. United States, 249 U.S. 47 (1919).
Simmons, A. John. 1992. The lockean theory of rights. Princeton: Princeton University Press.
Stark, Barbara. 2005. International family law. Burlington: Ashgate.
Theodorou, Angelina. 2014. Which countries still outlaw apostasy and blasphemy? Fact Tank:
News in the Numbers. Pew Research Center. http://www.pewresearch.org/fact-tank/2014/05/28/
which-countries-still-outlaw-apostasy-and-blasphemy/ Accessed 7 Jan 2016.
Chapter 3
Legal Positivism

“The existence of law is one thing; its merit or demerit is

another. Whether it be or be not is one enquiry; whether it be or
be not conformable to an assumed standard, is a different
enquiry.” 
John Austin, The Province of Jurisprudence
Determined (1879)

Abstract  This chapter provides descriptions and critical discussions of two ver-
sions of the philosophical theory known as Legal Positivism: the classical account
of John Austin and the modern version of H.L.A.  Hart. Legal Positivism makes
what John Austin calls a “clean separation between law and morals,” thereby refut-
ing the central thesis of natural law theory. This is not a rejection of the idea that
morality is a source of positive laws. Legal Positivists accept the notion that laws
prohibiting murder, assault and theft reflect prohibitions of the same acts that we
find in the rules of positive (human-made) morality. But this prompts the question
“What is the reason why law and morals should include a specific content?” It is
here that H.L.A. Hart enters the debate with a recommendation that ties together
both the theory of natural law and legal positivism. Although he finds no logical
relationship between law and morals, he believes that there are truths about human
nature that “not only disclose the core of good sense in the doctrine of Natural Law
but are of vital importance for the understanding of law and morals.” (Hart 2012,
199) These truths or “simple truisms” provide us with the “minimum content of
natural law.” Using Hart’s methodology, we here examine rules of family law in
order to determine whether there are any facts about human nature and the environ-
ment in which we live that necessitate any specific rules concerning family forma-
tion or access to family relationships.

© Springer International Publishing AG 2017 35

L.D. Houlgate, Philosophy, Law and the Family, AMINTAPHIL: The
Philosophical Foundations of Law and Justice 7,
DOI 10.1007/978-3-319-51121-4_3
36 3  Legal Positivism

3.1  The Separation of Law and Morals

The theory known as Legal Positivism takes a position on the relationship of law
and morality that is exactly the opposite of Natural Law theory. Legal Positivists
argue that there is no necessary connection between positive law and morals. When
laws prohibiting infanticide were enacted, the positivist would say that the validity
of the laws bears no logical relationship to an alleged moral rule or a “law of God”
that says infanticide is morally wrong. We may regard the anti-infanticide law as
good or bad because it conforms or fails to conform to our moral sensibilities, but
this moral evaluation “of approbation or disapprobation” has no relevance to the
validity of the law.
As in natural law theory (Chap. 2) there are traditional and modern versions of
legal positivism. We shall present authors who are representative of each version
and discuss their theories in the context of family law. We begin with a test case for
the legal positivist.

3.2  Rape and Forced Marriage in Morocco

Until 2014 the penal code of Morocco allowed the rapist of a minor to escape pun-
ishment if he marries his victim:
Whoever abducts or deceives a minor without using violence, threat or fraud, can escape
prosecution and imprisonment if (1) the abductor marries the victim, or (2) those persons who
have a right to request an annulment of the marriage do not file a complaint (Article 475)

In one of many cases, a 15-year-old girl experienced constant harassment and

threats from a 35-year-old man in her town. He waited for her each day outside of
her school and on several occasions told her, “I will force you to marry me.” One
day, he abducted and raped her at knifepoint. The victim made a complaint to the
police, who arrested the man. In his statement to the police, the rapist admitted his
crime, declaring that he did it “because it was the only way I would be able to marry
her.” In order to avoid scandal, the victim dropped out of school and married him. “I
am raped now every day,” she told members of the local association that works with
women survivors of domestic violence.
In a second case, Amina Filal was raped at the age of 15 by an older man. Instead
of seeing her rapist punished for his crime, Amina was forced to marry him in order
to preserve the honor and reputation of her family. A few months into an unconscio-
nable marriage  she told her mother that her rapist/husband was beating her. Her
mother counseled her to try and bear it. Amina must have seen no way out, no future
worth living. She was only 16-year-old when she took her own life by swallowing
rat poison (Presthold 2014).
The public response to the Filal case, especially in Western countries, was uni-
versally condemnatory, forcing the Moroccan parliament to amend that part of the
code that allowed rapists to avoid accountability by marrying his victim (Al Jazeera
3.3  Traditional Legal Positivism: John Austin 37

2014). The strongest reason given for the Western condemnation was that the “mar-
riage rape” provision violated the fundamental human rights of women and girls.
Although there is no evidence that either human rights activists or defenders of
Article 475 joined the debate between natural law theorists and legal positivists
about the validity of the code, it is clear what John Austin would have said. If Article
475 exists, then it is a valid law and it would remain valid until it is changed by the
Moroccan parliament. The law’s validity has nothing to do with whether its content
is or is not “meritorious.”

3.3  Traditional Legal Positivism: John Austin

John Austin was a nineteenth century legal theorist who was largely responsible for
what is known as “analytical jurisprudence,” an approach to legal theory requiring
analysis of its key concepts (for example, “law,” “legal validity” “command,” “sov-
ereign”). The theory of legal positivism developed out of this analytical approach.
Austin saw the law as an object of “scientific” study (Austin 1879: 1107–1108), not
as a body of rules to be morally evaluated and prescribed by those who undertake a
study of legal systems. He argued that we cannot begin a scientific study of the law
until we have a clear grasp of the meaning of legal concepts. In this respect, Austin’s
conceptual inquiry is well within the bounds of what we have previously referred to
as “philosophy” (Sect. 1.3).

3.3.1  Law as Sovereign Commands

Austin defines law as “a rule laid down for the guidance of an intelligent being by
an intelligent being having power over him” (Austin 1832, Lecture I). This defini-
tion includes under it both “the laws set by God to his human creatures, and laws set
by men to men” (Lecture I). Austin equates the laws set by God with natural law or
the law of nature. Laws set by men fall into two classes: those established by per-
sons who are political superiors within an independent political society, and the
rules of positive morality. The latter rules are not established by political superiors,
nor by God. “The name morality severs them from positive law, while the epithet
positive disjoins them from the law of God” (Lecture 1). If I say that the rule obli-
gating us to keep our promises is a moral rule this tells us that the rule is not created
by political superiors; and if I also call this rule positive I mean that it was created
by humans, not by God.
To this general definition of law Austin uses the word “command” as signifying
what he means by “laid down for guidance.” Every law or rule is a species or type
of command. Commands, in turn, are expressions of wishes or desires directed to
rational beings to do or forbear from doing certain actions. And these expressions
are backed by threats that some evil will be brought down upon those persons to
38 3  Legal Positivism

whom the command is directed if they fail to comply. When you command me to
close the door this is more than you expressing a desire that I close the door. It also
implies that I will suffer certain unwanted consequences if I do not shut the door.
Austin further adds that laws are general, not specific commands. This means
that laws command persons generally to acts of a determined class. They do not
command specific acts to be done or avoided at specific times. When the Connecticut
legislature prohibited the sale or dispensation of artificial contraceptives for a given
period or indefinitely, and acts of this kind were generally forbidden, then their
command is a law. But if a judge commands a specific person not to sell or give
away artificial contraceptives, or orders her not to do this on specific days or at spe-
cific times of the day, this would be an order, not a law or rule. “… [A] law is a
command which obliges a person or persons, and obliges generally to acts or for-
bearances of a class” (Austin 1832: Lecture 1).
The concept of a command also implies superiority. “For superiority is the power
of enforcing compliance with a wish: and the expression or intimation of a wish,
with the power and the purpose of enforcing, are the constituent elements of a com-
mand.” It follows that the proposition “laws emanate from superiors” is analytically
true. If laws are commands and commands emanate from superiors, then laws must
emanate from superiors.” (Lecture 1).
It is logically possible that a person or group of persons (superiors) command
others (inferiors) to do or refrain from doing a certain class of acts under threat of
punishment, even though they have no authority to do this. In that case, their com-
mands do not yet constitute law. In order to repair this defect Austin introduces the
concept of sovereignty. A sovereign is a person or body of persons in a given society
who has most of that society “in a habit of obedience or submission” to him or them
(Lecture 6). Moreover, “that certain individual, or that certain body of individuals,
is not in a habit of obedience to a determinate superior.” It is only when the com-
mands emanate from a sovereign in a politically independent society that the com-
mands constitute the laws of that society.

3.3.2  Legal and Moral Validity

Austin reiterates the central tenet of the theory of legal positivism in a blistering
critique of the noted English jurist William Blackstone’s claim that human laws
have no validity if they are contrary to the laws of God (Blackstone, Vol. 1, Sect. 2).
The implication of the words “have no validity” is “are not binding” and “are not
laws.”1 (Lecture 5). Here is Austin’s response:

1
 The exact quotation from Blackstone: “This is what is called the law of nature, which, being
coeval with mankind, and dictated by God himself, is, of course superior in obligation to any other.
It is binding over all the globe, in all countries at all times. No human laws are of any validity, if
contrary to this; and such of them as are valid, derive all their authority, mediately or immediately,
from this original” Volume 1, Introduction, section II (“Of the Nature of Laws in General”).
3.3  Traditional Legal Positivism: John Austin 39

Now, to say that human laws which conflict with the Divine law are not binding, that is to
say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those
which are most opposed to the will of God, have been and are continually enforced as laws
by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by
the sovereign under the penalty of death; if I commit this act, I shall be tried and con-
demned, and if I object to the sentence, that [it] is contrary to the law of God, who has
commanded that human lawgivers shall not prohibit acts which have no evil consequences,
the Court of justice will demonstrate the inconclusiveness of my reasoning by hanging me
up, in pursuance of the law of which I have impugned the validity. An exception, demurrer,
or plea, founded on the law of God was never heard in a Court of Justice, from the creation
of the world down to the present moment. (Lecture 5)

We began this chapter with what most would agree is a pernicious and immoral
law from Morocco. A man rapes a woman in order to force her to marry because,
under Article 75, the rapist will not be prosecuted if he marries his victim. Another
man is threatened with jail if he refuses to marry the 15-year-old girl he has raped.
He marries her and she later commits suicide. If someone tells the Moroccan court
that Article 475 is an invalid law because it justifies rape and encourages forced
marriages, this appeal will be rejected on the ground that the immoral content of the
law is irrelevant to the question of its validity.
Some critics of Austin would argue that an appeal to examples like the Moroccan
statute does not constitute a “reasoned argument” for the conclusion that a perni-
cious law is valid and genuine. A defender of natural law theory would agree that
immoral laws have frequently been enacted and enforced, but this is not an argu-
ment for the conclusion that they are valid. She would simply respond that this law
is invalid because it conflicts with natural law. We now have a standoff between two
theories, each giving contradictory answers to the question “Is a rule enacted by the
courts a valid law if it is contrary to natural law?”
This is clearly a dispute about the correct application of the word “valid” to posi-
tive laws. Legal dictionaries define it as “Binding; possessing legal force or strength;
legally sufficient” (West, 2008). Using this definition, we can proclaim Article 475 as
a valid law. It is “binding” and it possesses “legal force or strength.” It was created in
compliance with all the requisite formalities under Moroccan legislative procedure.
But again, the natural law theorist would not dispute this. They would accept that this
law is legally valid. However, they would insist that it is not morally valid. For a law
to be morally valid it must possess moral force or strength. It must be morally suffi-
cient. Since Article 475 has no moral force it fails the test of moral validity.
If this debate is about the correct answer to the question “How is the word valid
used in positive law?” then the legal positivist give the correct answer to this empiri-
cal query: a law is valid if it possesses legal force or strength. The force or strength
in a positive law is punishment or the threat of punishment. If the debate is about the
correct answer to the question “How is the word valid used in natural law?” then the
natural law theorist also gives a correct answer: a moral rule is valid if it possesses
moral force or strength. The moral force or strength is either the external fear of
Divine punishment, the hope of Divine reward, the fear of loss of reputation, the
hope of approval from others in the community, or the internal promptings of one’s
own conscience.
40 3  Legal Positivism

However, legal positivists are not interested in the natural law answer to the latter
question for they have already said that this answer has no relevance to the validity
of positive law Suppose, however, that the debate is about the question “How ought
the word valid be used in positive law?” This is where the debate between the two
theories is finally joined. The logical positivist is committed to the answer already
given, whereas the natural law theorist wants to change the criteria for legal validity
and inject a moral component: the positive law ought to possess moral force or
strength.
This puts the burden squarely on the shoulders of the natural law proponents.
They must answer two questions: (1) Why do we need to add a moral component to
the criteria for legal validity? (2) Where are we to find this moral component?
1. The natural law answer to the first question is that there must be a moral obli-
gation to obey the law and this is not supplied by a mere enactment and
enforcement of a rule. Austin’s command theory is obedience by threat and
threats do not constitute moral obligation. To use an oft-repeated example, if a
gunman comes up to me and says “Your money or your life” and I hand over
my money, my motive for doing this is not “I have a moral obligation to hand
over my money,” but “I do not want to be shot.” Hence, Austin is wrong when
he claims that “command, duty, and sanction are inseparably connected terms”
(Lecture 1). The mere fact that the gunman has the power to enforce compli-
ance with his wish for me to hand over my wallet does not impose on me any
moral duty to do this.
Notice that this answer begs the question “Why do we need a moral obligation to
obey the law?” If the answer is “Because this makes it more likely that people will
obey the law,” then this reply is relevant only to the efficacy of the law, not to its
validity. If the law conforms to what we all understand to be what is demanded by
common morality, then it is more probable that the law will command our obedi-
ence than when we cannot see a correspondence between law and morality. But
probability of efficacy is an empirical prediction, presumably based on observation
and experience. It does not prove a necessary connection between law and morals.
Hence, it does not prove that legal validity must contain a moral component.
2. Austin says that positive morality includes both those moral rules “set and
enforced by mere opinion” and those rules conforming to “the laws of God”
(Lecture 1). Finding out the opinion of the people about what is and is not
immoral can be easily discovered by empirical polling methods, although what
might be found is that there is great disagreement about many moral issues,
especially regarding the family.2 Finding out what constitutes the laws of God
makes this more difficult as soon as one is confronted with the questions “How

2
 For example, there are some who would deny that two gay men raising a child constitutes a fam-
ily; others will just as vigorously reject this assessment.
3.4  Assessment of Austin 41

do we know that God exists?”, “If God exists, how do we know what laws God
has communicated to humans?”, and “How do we know that the laws God has
communicated to humans are true or correct?”
A review of family law both during and after the colonial period of America, or
a study of comparative contemporary non-European cultures shows an enormous
disparity in the opinion of people about what is and is not morally approved behav-
ior within the family. This disparity is only matched by the differences between
world religions about what is and what is not approved. The natural law theorist
must either prove that there is a universal morality that applies to all family rela-
tions, or she must argue that the positive law of each independent state must be
based on the morality of the culture or religion of that country. Both options require
some heavy lifting. The first implies that the natural law theorist show that the rules
of other moral systems are false if they differ from what she regards to be “the laws
of the one, true God.” The second implies a relativism about family morality that
most natural law theorists would reject.
Finally, Austin cautions that a requirement of conformity to morality or to the
laws of God for legal validity would be “mischievous.” It implies that people have
no obligation to obey laws that they dislike, especially if their dislike is grounded in
their beliefs about what God commands them to do. “To proclaim generally that all
laws which are pernicious or contrary to the will of God are void and not to be toler-
ated, is to preach anarchy, hostile and perilous as much to wise and benign rule as
to stupid and galling tyranny” (Lecture 5).

3.4  Assessment of Austin

Like most legal theorists before him, Austin gives few examples to illustrate the
application of his theory, and among these examples none come from family law.
This is partly because of the variety of types of laws that affect or concern the family.
Only a few family laws are criminal (mandatory rules having a penal function). The
function of most family laws are remedial, regulatory, or power-conferring  (Sect.
1.2). It is with these types of laws that Austin’s theory of law has the most difficulty.

3.4.1  Are Marriage Laws the Commands of a Sovereign?

The latter point can be seen in marriage law. These laws do not appear to command
obedience on the threat of punishment. The rules created by marriage law are not
mandatory. They are power-conferring. That is, they give private people the power
to significantly alter their relationship with others. Imagine a man and a woman in
Austin’s England or in the United States in the mid-nineteenth century. Suppose that
a young couple is engaged to be married. Before marriage the woman would have
42 3  Legal Positivism

no legal obligation to be sexually available to her fiancé, and he would have no legal
obligation to provide material/financial support for her, even if she were in dire need
of such support. Their relationship changes immediately upon conclusion of the
marriage ceremony that makes them husband and wife. The nineteenth century
bride now has a legal obligation to be sexually available to her new husband and he
has a legal obligation to provide his new wife with material and financial support.
Their legal status has changed because, by exercising their power to marry, they
have created legal rights and duties they did not have prior to their marriage. Of
course prior to marriage they could have privately agreed with one another to do
these things, but these agreements would not be legally binding.
Can power-conferring rules be seen as commands? The young couple in the pre-
vious example are not commanded by virtue of the law to get married. If they decide
not to marry, they do not suffer any legal consequences as a result. Their legal status
is unchanged. And if they are discovered to be under the legally proscribed age, they
are not punished for this. Instead, the marriage is declared null and void.
Some have argued that private power-conferring rules that people use to marry
“are like commands in an important way: the point of each is to alter the world in
some way, rather than simply to describe the world as it is” (Altman, 71). But this
seems to be a weak analogy, not unlike saying that commands and power-conferring
rules are similar because both apply only to people, not to dogs and cats. The dis-
analogy between power-conferring and mandatory rules (commands) is that com-
mands get people to do what they do not want to do, whereas power-conferring rules
give them the ability to do what they want to do. Hence, marriage laws cannot be
compared to commands without seriously distorting their actual function.
Other critics have argued that the power-conferring rules comprising marriage
command behavior in the sense that they tell people they can only get married by
following certain rule-based procedures, for example being of a certain age, giving
an expression of consent at some point during the marriage ceremony, getting a
blood-test, a marriage license, or appearing before a duly appointed officer of the
court (a judge, minister, rabbi, priest) who conducts the ceremony. The threat behind
the command is that the marriage will be null and void unless the procedures are
followed. But this is like saying that the scoring rules in (American) football that
inform players about how points can be scored in the game are actually threats
backed by punishment: if a kicker fails to kick the ball between the goal posts, then
his team is not awarded three points. But this is not a punishment that is imposed
upon the team, as if the behavior (failing to get the ball between the posts) could be
forgiven by the referee. It is a logical implication of the rule itself. If the referee
should award three points after the ball goes wide of the posts, the content of the
rule itself has been ignored. Similarly, if a marriage ceremony is conducted by
someone not authorized by law to do this, resulting in a nullification, this is not
punishment. The term “nullity” simply means that a marriage does not exist in the
same way that a missed kick means that a goal does not exist. The young couple
may be disappointed by the nullification, but it is not the object of the marriage law
to cause disappointment (or happiness) in those who attempted to use the power of
the law to get married.
3.4  Assessment of Austin 43

3.4.2  Are Child Custody Laws the Commands of a Sovereign?

The complex laws on child custody are a combination of rules that define key con-
cepts (“custody”, “guardianship”, “child”), and rules that regulate or determine the
conditions under which a person shall be the legal custodian of a child. The question
is whether such rules are a species of commands of the sovereign.
Let us begin with an example. Suppose that an unmarried woman gives birth. She
is presumed to have the legal right to legal and physical custody of the newborn
child. This means that she alone has “the right and the responsibility to make the
decisions relating to the health, education, and welfare” of her child, and that the
child “shall reside with and be under her supervision, subject to the power of the
court to order visitation” (California Family Code, 3006, 3007). Her rights are supe-
rior to those of the biological father or any other person. Of course, these rights can
be defeated if it can be shown that the mother is unfit or has abandoned the child.
Is the presumption of a right to custody a command, that is, is it an order backed
by a threat of evil consequences unless there is compliance? In order to answer this
question, we need to know (1) to whom the command is directed, (2) what would
constitute disobedience, and (3) the kind and amount of punishment for the
disobedience.
1. If the child custody rules in the California codes are commands (orders backed
by a threat), then in our example the unmarried mother is the person at whom the
order would be directed. But to inform her that she has a right to make the deci-
sions noted in the codes is to inform her that she and she alone has these powers.
She is not told what she must do under threat of punishment, but what she and no
one else legally can do, pursuant to her wishes. The language of the code is not
the language of coercion.
2. We do not think of a grant of legal rights (powers) as a burden, that is, as some-
thing that persons would ordinarily not want to assume. We are more acquainted
with battles between divorcing parents who want to be granted custody than we
are with the rare cases in which a parent refuses or attempts to escape custody. If
it is objected that a birth mother’s refusal to take custody of her newborn child
constitutes abandonment, an act that is punishable under the penal code,3 this
does not constitute a counter-example to our contention that the rules of child
custody are not commands of the sovereign. The example of abandonment
proves only that a refusal to perform the legally proscribed duties of a parent
would constitute disobedience. But there is no such thing as “disobedience” con-
ceptually tied to a power-conferring rule. There is a distinction between having
a legal power and exercising it. The birth-mother has the right to legal and physi-

3
 “If a parent of a minor child willfully omits, without lawful excuse, to furnish necessary clothing,
food, shelter or medical attendance, or other remedial care for his or her child, he or she is guilty
of a misdemeanor punishable by a fine not exceeding two thousand dollars ($2000), or by impris-
onment in the county jail not exceeding 1 year, or by both such fine and imprisonment” (California
Penal Code, 270).
44 3  Legal Positivism

cal custody of her child, and she has a duty to exercise these rights when the
circumstances call for her to do this (for example, to make a decision about
whether to get medical treatment for her ailing child). It is only the duty to exer-
cise the right that can be construed as a command. But that it can be so construed
is not relevant to answering the question whether the right itself can be dis-
obeyed. It cannot.
3. If there is no such thing as disobedience to statutes granting the rights of custody
of a child to a person or persons, then there is no punishment that would be tied
to these codes. The concept of punishment implies not only the idea of a viola-
tion, but the imposition of a burden, some form of deprivation or the withholding
of a benefit. It also implies that the person who suffers the burden or deprivation
is believed to have acted wrongly and has been found guilty by persons autho-
rized to make such a finding. Although there is a legal procedure by which the
birth mother can voluntarily cede her parental rights to another person (for exam-
ple, to the biological father), there is no implication that she is has behaved
wrongly. Hence, custody rules cannot be conceived as commands of the sover-
eign without serious distortion of such rules.
Not all critics are convinced by the previous argument. Some have argued that
even if we cannot easily conceive of power-conferring rules as commands, we can
still see them as declarations of the sovereign, in the important sense that they
would not exist unless persons with sovereign authority (for example, a state legis-
lature) had enacted them. It is only because of the enactment of the sovereign that
the people have the power to marry, divorce, and adopt children. Austin’s central
idea is that legal concepts are to be explained in terms of the power of a political
sovereign. He can easily modify this central idea that takes account of the distinc-
tion between declarations and commands (Altman, 71).
I am not convinced by this defense. To say that a power-conferring rule can be
“explained in terms of the power of a political sovereign” means that the sovereign
has the right or authority to create such rules. This right, in turn, is the product of a
public power-conferring rule, that is, a higher order rule that confers on a person or
persons the right to make new law or change current laws. Suppose that the sover-
eign is a single person, a monarch. If her power is exhibited by her declaration that
the people shall have certain private powers (such as the power to marry) this does
not entail either the conclusion that her exercise of her public power to do this or
that the private powers she declares to exist can be conceived as commands (orders
backed by threats) to do something on pain of punishment. It is better conceived as
a gift or benefit that allows them to do something they could not otherwise do (get
married, adopt a child).
In summary, Austin is correct in his idea that we should maintain the distinction
between what the law is and what it ought to be. The injection of a moral component
into the criteria for legal validity is both unnecessary and would have bad conse-
quences. The main problem with the classic version of legal positivism, as repre-
sented here by John Austin, is that by using the command model of the criminal law
to determine the nature of all law, including the rules of family law, leads to the false
3.5  Modern Legal Positivism: H.L.A. Hart 45

conclusion that all law can be seen as a large set of mandatory rules backed by
threats of punishment.
We turn now to another version of legal positivism that claims to correct these
defects. It is a theory that supports the positivist attempt to separate laws and morals
while at the same time providing us with a theory about the nature of law that will
account for the types of rules we find in family law.

3.5  Modern Legal Positivism: H.L.A. Hart

H.L.A. Hart was a mid-twentieth century British philosopher who developed a the-

ory about the nature of law and legal obligation that managed to repair the defects
of traditional legal positivism while avoiding the pitfalls of natural law theory. Hart
did this by replacing Austin’s command theory of law with the theory that laws
should be seen a type of rule. And he avoided the pitfalls of natural law theory by
retaining Austin’s distinction between the criteria for the validity of a law and the
standards for judging whether a law is good or bad, reasonable or unreasonable. But
he does not create the wide gap between law and morals argued for by most classi-
cal positivists. Hart contends that natural law theory is correct in thinking that there
is a “minimum content” that all primary rules must have, even though we cannot use
this content to invalidate particular laws. Let us examine both of these aspects of
Hart’s theory, beginning with the concept of a rule.

3.5.1  Law and the Obligations Created by Law

The advantage of conceiving laws as rules is that it allows us to explain why some
laws cannot (without distortion) be understood as commands. Consider the rules of
a game. For example, the rule in chess about the movement of the pawn is that the
pawn can never move backwards. Suppose that Mary, who is just learning the game,
moves her pawn backwards. If this rule is construed as a command, then there
should be a perceived threat that Mary has ignored. The first thing that might come
to mind is that her backwards move will not count as a valid move. Hence, she must
return her piece to the square on which it sat prior to the move. But does the possi-
bility that one’s move might be declared invalid operate as a threat to players in the
game of chess?
It is true that we use the words “must” and “not an option” when explaining the
rules of a game, but this does not make all of them into commands. The conse-
quence of making an incorrect move in chess is that the move is void, not that the
person who made the move will now be subject to punishment. In order to see this,
consider the fact that with mandatory rules we can logically separate or distinguish
a violation of the rule from its proscribed punishment. For example, in some chess
leagues there is an unsportsmanlike conduct rule that says players may not swear or
46 3  Legal Positivism

“trash talk” their opponents before or during the games. The punishment for a viola-
tion is a 3-game suspension. Notice, however, that it is possible to distinguish the
violation from the punishment. Suppose that John violates the swearing rule but is
not punished for the violation. We can still say “John was playing the game of chess
when swore at his opponent,” even if he is not suspended for being unsportsmanlike.
But we cannot imagine a player violating the “pawns do not move backwards” rule
without nullifying the move. If Mary’s illegal move is ignored by the referees during
a chess match, then Mary is no longer playing the game of chess, but some other
game in which pawns move backwards.
The same analysis applies to the power-conferring rules of family law. If the rules
say that all couples must apply for and receive a marriage license from the County
Clerk’s office in order to get married, and the official conducting the marriage cer-
emony does not realize that the couple standing before her do not have a license,
then the marriage she performs is null and void. The marriage does not exist, regard-
less of what the official and others might believe at the time. The invalidation of the
marriage, like the invalidation of an incorrect chess move is not a punishment, but
recognition of a failure to do what is logically necessary to get married.4
This explains why we cannot claim that all family laws are commands. Hart’s
theory that laws are rules allows us to understand and account for the great variety
of rules in family law. Some of the rules are mandatory and can be conceived as
commands of the sovereign, for example, criminal laws prohibiting child and spou-
sal abuse. Other rules are power-conferring, for example the rules that make it pos-
sible for private persons to marry, divorce and adopt children. Some family law
rules have both a mandatory and a power-conferring element. Domestic tort rules
have this dual feature. For example, a husband with herpes might be restrained from
sexual relations with his spouse by the knowledge that he might be sued for medical
costs and emotional distress. If he succumbs and infects his wife, then she might
exercise her right to bring a law suit to obtain compensation.

3.5.2  The Key to Understanding the Nature of Law

Hart realizes that the idea of a rule “is not a simple one.” Using the examples cited
earlier, he distinguishes two types of rule, both necessary to explain “the complexity
of a legal system” (Hart, 80). The distinction between primary and secondary rules
should by now be familiar to the reader as identical to the earlier distinction between
mandatory and power-conferring rules:
Under rules of the one type, which may well be considered the basic or primary type,
human beings are required to do or abstain from certain actions, whether they wish to or
not. Rules of the other type are in a sense parasitic upon or secondary to the first; for they
provide that human beings may by doing or saying certain things introduce new rules of the

4
 The couple in this example might be punished for having a counterfeit license, but that would be
a violation of another rule prohibiting this act.
3.5  Modern Legal Positivism: H.L.A. Hart 47

primary type, extinguish or modify old ones, or in various ways determine their incidence
or control their operations. Rules of the first type impose duties; rules of the second type
confer powers, public or private. (Hart, 81)

Examples of primary rules include the mandatory rules of criminal and tort law.
Examples of secondary rules include the public power-conferring rules authorizing
lawmakers to create, modify or remove a primary rule, or the private power-­
conferring rules giving individuals the ability to alter their legal relationship with
others. As noted throughout this book, there are many examples of mandatory and
private power-conferring rules to be found in family law (Sect. 1.2).
Hart writes that he has found what Austin wrongly claimed to have found in the
notion of coercive orders, namely “the key to the science of jurisprudence.” Hart’s
key to unlocking the door to understanding the nature of law is that law and the
obligations created by law are only to be found in the interplay of primary and sec-
ondary rules.
What Hart means by this is that laws and the obligations created by law could not
exist unless the primary rules have been created in a system that has given some
persons the authority to create such rules. And this authority cannot exist unless
there is another set of rules (secondary rules) that give persons or groups of person’s
legislative and executive power. Hence, primary rules prohibiting murder, rape and
theft could not exist unless there was some authoritative person or persons who had
the right to make such acts illegal. A command to cease and desist is ineffective
unless it is given by a person who has the legal right or power to give this
command.
This has important implications for both natural law theory and legal positivism.
First, the natural law theory is wrong in arguing that the obligation to obey a positive
law does not exist if the proscribed behavior is immoral according to the (objec-
tively valid) natural law. If a legal system contains secondary rules giving authority
to a group of persons (a legislative body) to create the primary rules, then this is
sufficient to create an obligation to obey these rules even if the enacted rules do not
correspond with the natural law. Second, classical legal positivism is wrong in argu-
ing that the obligation to obey the law arises from orders backed by threats. If the
orders are given by someone who has the physical capacity to make good on his
threat, but has no authority to issue the order, then there can be no obligation to obey
(Sect. 3.3.2).

3.5.3  The Application of Hart’s Theory to Family Law

How does Hart’s theory apply to family law? It appears that the only obligations
created by family law are those that emanate from rules governing criminal and tor-
tious behavior within the context of the family. For example, the laws prohibiting
child abuse are both crimes and torts. But Hart would argue that they are made so
only because there are public (secondary) rules giving legislatures the power to
48 3  Legal Positivism

create such laws, executives the police power to enforce them, and the judiciary the
power to punish offenders and order remediation for the victims.
Hart does not discuss the private laws enabling persons to marry, divorce or
adopt children. But let us assume that he would count these among the primary
rules, even though they create private powers, not private obligations (for example,
marriage law creates a power, not an obligation, to marry). Assuming that this is an
oversight, we can certainly agree that these private power-conferring laws are “made
so” only because there are public (secondary) rules that give legislatures the power
to create or change these rules and a judicial system to apply them in individual
cases.
Second, we can agree with Hart that legal obligation “is not to be found in the
gunman situation” (Sect. 3.3.2). The gunman forces or obliges me to hand over my
wallet, but his order does not obligate me to do this. I am under no obligation to give
him my wallet for the simple reason that he has no right to do what he is doing. The
gunman is not the government. If a family court judge orders the non-custodial par-
ent of a child to make child support payments owed to the custodial parent, then the
judge has the right to do this by virtue of laws empowering the court to collect, and
if necessary, to seize the funds owed. A gunman has no such authority.
Third, not all rules of family law are conceived in terms of obligation. We have
already seen this in our discussion of the rules of marriage (Sect. 3.4.1) and child
custody (Sect. 3.4.2). These are rules that function as definitions of key terms and as
rules giving powers to individuals who are in or who desire to be in various kinds of
family relationships. We distort the function of such rules by conceiving of them as
mandatory rules imposing obligations to do or refrain from doing actions they do
not want to do or refrain from doing.
Fourth, since so many of the rules of family law are power conferring, how do
they fit in Hart’s general theory of law? In order to answer this, let me quote again
what Hart says about the key to understanding the nature of law: “The obligations
created by law are only to be found in the interplay of primary and secondary
rules” Sect. (3.5.2). The problem with Hart’s theory is that it focuses too narrowly
on the criminal law, as evidenced by his use of the term “obligations” in the previ-
ous sentence. It is this narrow focus that prompts him to ignore the private powers
created by family law and other branches of the law (contract and property law).
Here is a revision that applies Hart’s “key” to the philosophy of family law: “The
obligations and private powers created by family law are only to be found in the
interplay of primary and secondary rules.” These obligations are not to be found in
morality, in natural law, or in the commands of the sovereign. They are to be found
in those societies in which there are public secondary rules that empower “an indi-
vidual or body of persons to introduce new primary rules for the conduct of the life
of the group, or of some class within it, and to eliminate old rules” (Hart, 95). In a
small jurisdiction, this may be a town council or a county board of supervisors. In a
larger jurisdiction, it may be a state legislature. For example, if there is to be a law
or a change in an existing law regulating the conditions under which a custodial
parent can move out of the jurisdiction where custody was established without the
3.5  Modern Legal Positivism: H.L.A. Hart 49

consent of the noncustodial parent, then this can only be done by a body empowered
to create or change the laws of the jurisdiction.5

3.5.4  Objections to Hart’s Theory

Ronald Dworkin wrote the most significant objections to Hart’s theory of law. His
argument begins with the contention that rules tell only a part of the story about law
and legal obligation. In the previous chapter we  discussed Dworkin’s distinction
between rules, principles and policies (Sect. 2.5.1). To quote again from Dworkin:
… when lawyers reason or dispute about legal rights and obligations, particularly in those
hard cases when our problems with these concepts seem most acute, they make use of stan-
dards that do not function as rules, but operate differently as principles, policies and other
sorts of standards. Positivism … is a model of and for a system of rules, and its central
notion of a single fundamental test for law forces us to miss the important roles of these
standards that are not rules (Dworkin 1977, 43).

Although the analogy is not exact, I would add to this the observation that to
conceive of the law as only a system of rules is as inadequate as conceiving of
games as only a system of rules. When people who know the game of chess reason
or dispute about the game they no longer talk about the rules of chess, but are
mainly concerned about differences in strategy. They know the rules that says the
pawn cannot move backwards, the bishop only moves on the diagonal, and the king
can only move one space but in any direction. What they want to know is what valid
moves they can make with these pieces in order to gain an advantage over their

5
 Rules of recognition “specify some feature or features possession of which by a suggested rule is
taken as a conclusive affirmative indication that it is a rule of the group to be supported by the
social pressure it exerts” (Hart, 94). In the early law of a primitive society this feature might be that
the suggested rule can be found carved on a public monument, or in a text of rules on an authorita-
tive list. In a modern legal system, the rules of recognition are more complex. The primary rules
may be identified “by the fact of their having been enacted by a specific body, or their long custom-
ary practice, or their relation to judicial decisions” (Hart, 95). For example, if a custodial parent
wants to move out of the jurisdiction where custody was established without the consent of the
noncustodial parent, then she will want to know what primary laws and practices governing reloca-
tion are authoritative in her state. She will identify such laws and practices by looking at existing
statutes and judicial decisions of family courts, probably with the assistance of a family attorney.
Rules of change, in their simplest form, are rules which empower “an individual or body of
persons to introduce new primary rules for the conduct of the life of the group, or of some class
within it, and to eliminate old rules” (95). In a small jurisdiction, this may be a town council or a
county board of supervisors. In a larger jurisdiction, it may be a state legislature. As Hart argues,
there is a “close connection” between rules of change and rules of recognition: “for where the
former exist the latter will necessarily incorporate a reference to legislation as an identifying fea-
ture of the rules” (96). If the legislature enacts a change in the law regulating the conditions under
which a custodial parent can move out of the jurisdiction where custody was established without
the consent of the noncustodial parent, then we know that the rule of recognition is that the change
was enacted by the legislature.
50 3  Legal Positivism

opponent. Their question is not “What are the rules of chess?” but “What strategies
can I employ in order to win the game?”
By (rough) analogy, once the court understands the relevant statutes and codes
that apply to a case on which the court must rule, this knowledge may not be suffi-
cient. They must also acquaint themselves with the relevant legal principles. Ronald
Dworkin illustrates this with the court’s reasoning in a famous case in which the
judge had to decide whether a man who murdered his grandfather could inherit
under his grandfather’s will. The court chose not to base its decision on the statute
governing wills, which would “give this property to the murderer” (Riggs v Palmer
1899, 188). Instead, the court chose to be guided by a fundamental principle of the
common law that said “No one shall be permitted to profit by his own wrong.”
Similarly, when the U.S. Supreme Court struck down the Virginia miscegenation
statute in Loving v Virginia (388 U.S. 1, 1967), they did so not on the strict applica-
tion of the Fourteenth Amendment to the Constitution, but on the moral principles
they said are contained therein: “Marriage is one of the basic civil rights of man,
fundamental to our very existence and survival,” and “the freedom to marry or not
marry a person of another race resides with the individual and cannot be infringed
by the State” (Loving v Virginia, 388 U.S. 12). These principles played an important
part in the argument supporting the decision about the constitutional right to marry
(Sect. 2.5.2). We should note that a rule giving persons of different races a constitu-
tional right to marry did not exist before the Loving decision. In this respect it is not
like a statute. Instead, the Court cited the principle of equality as its justification for
creating and applying a new rule governing marriage law. Dworkin would say that
these moral principles operate as “background standards” against which to read the
Fourteenth Amendment, thereby justifying a new interpretation of that amendment
(Dworkin 1977, 50).
Can Hart accommodate the use of principles in legal reasoning without abandon-
ing one of the main tenets of legal positivism, namely that the law of a community
is a set of special rules identified by tests having not to do with their content but with
their pedigree? I think that he can. There is no reason why principles could not be
placed with rules in the set of standards identified by their pedigree. Hart argues that
rules get their pedigree from the legal system’s “rule of recognition,” defined as a
secondary rule that allows us to discover whether a rule is indeed a rule of the
­system.6 Principles get their pedigree in the same way. They are created by judges
who formulate them to decide specific cases, thereby establishing them as prece-
dents for the future. Consider, for example, the principle used by the Supreme Court
majority in Loving proclaiming that “the freedom to marry or not to marry a person
of another race resides with the individual.” The proclamation establishes the pedi-
gree. Although members of the Court certainly used their moral sensibilities in con-
structing the content of the principle, it has no validity until the principle is actually
used in arriving at a judicial decision.
In rebuttal, Dworkin would point out that the use of principles implies that the
current set of valid rules is not exhaustive of the law. New cases must be decided by
a judge “exercising his discretion.” This means “reaching beyond the law” for a

 See footnote 4 supra.

6
3.6  Hart’s Compromise: The Minimum Content of Natural Law 51

principle that will guide the judge in “manufacturing a fresh legal rule or supple-
menting an old one” (38). This is perhaps the strongest challenge that Dworkin
makes against legal positivism and against Hart in particular. If the judge must reach
beyond the law for a principle in order to make a judicial decision, then the wall that
the positivist has set up between law and morals starts to crumble, especially if we
add the proviso that judicial decisions cannot be made in a large number of cases
without an appeal to moral principles.
I believe that Hart has a response to this final challenge, but it can only be made
against the backdrop of his theory of minimum content of natural law. Let us now
turn to Hart’s discussion of this interesting idea and show its relevance both to
Dworkin’s challenge and to the understanding of family law.

3.6  H
 art’s Compromise: The Minimum Content
of Natural Law

One possible criticism of Hart’s brand of legal positivism is that the basic primary
rules he says are needed for the survival of any society are identical to many of the
laws of nature mentioned by John Locke and other natural law theorists. Locke
writes that “the law of nature...teaches all mankind … that no one ought to harm
another in his life, health, liberty, or possessions” (II, 6). Hart writes that the rules
of any society, from the most primitive to the most modern, must contain, in some
form, restrictions on acts harmful to others if we are to coexist in close proximity to
each other (Hart, 91). Both agree that there must be a minimum set of laws prohibit-
ing (for example) murder, assault, kidnap, and theft. The difference is that whereas
Locke traces these rules to the natural law (or the laws of God), Hart derives them
empirically from the conflict between the natural desire to survive and the propen-
sity of some people in all societies to cause harm to others. The desire to survive
cannot be satisfied unless we have primary rules to constrain those who refuse to
exercise self-restraint.
None of this makes Hart a convert to natural law theory. Although he sees a close
connection between law and morality, he does not believe this to be a necessary con-
nection. It is logically possible, though highly unlikely, that there could be a legal
system that lacks one or more of the aforementioned basic primary rules. Suppose,
for example, that at some point in the future human beings are no longer vulnerable
to bodily attack. This is not a logical impossibility,7 but the lesson he draws from this
thought-experiment is that “there would vanish one obvious reason for the most
characteristic provision of law and morals: thou shalt not kill” (Hart, 194–5).
This is Hart’s theory of “the minimum content of natural law.” If survival is the
aim, then this fact about human nature (our vulnerability) “affords a reason why...
law and morals should include a specific content” (Hart, 193). There are five contin-

7
 I will leave it to the reader’s imagination or to the writers of science fiction to imagine suitable
scenarios of this change in the human exoskeleton.
52 3  Legal Positivism

gent facts or “simple truisms” on Hart’s list: In addition to the fact of (1) human
vulnerability, he mentions (2) the approximate equality of all persons (“no individ-
ual is so much more powerful than others, that he is able, without co-operation, to
dominate or subdue them for more than a short period”); (3) our limited amount of
altruism (“if humans are not devils, neither are they angels … human altruism is
limited in range and is intermittent”); (4) limited resources (human beings need
food, clothes and shelter, but “these do not exist in hand in limitless abundance”);
(5) our limited understanding and strength of will (“All are tempted at times to pre-
fer their own immediate interests and many would succumb to the temptation”).
Each of the above provides a reason why the rules of law and morals should
include a specific content. The first three (human vulnerability, approximate equal-
ity, and limited altruism) provide reasons why we need a system of rules requiring
mutual forbearance and compromise. The fourth (limited resources) makes “indis-
pensable some minimal form of the institution of property (though not necessarily
individual property), and the distinctive kind of rule that requires respect for it” (for
example, rules “excluding persons generally other than the ‘owner’ from entry on,
or the use of land, or from taking or using material things”). The fifth natural fact
(limited understanding and strength of will) is a reason we have rules creating a
special organization for the detection and punishment of those who give in to selfish
temptation and thereby “try to obtain the advantages of the system without submit-
ting to its obligations. Sanctions are therefore required “not as the normal motive for
obedience, but as a guarantee that those who would voluntarily obey shall not be
sacrificed to those who would not” (Hart, 198).
Hart concludes with the remark that these simple truisms about human nature
“not only disclose the core of good sense in the doctrine of Natural Law [but they]
are of vital importance for the understanding of law and morals” (199). Although he
does not support Aquinas’s famous remark that an unjust law is not law, Hart does
endorse the claim that the minimum forms of protection for persons, property and
promises that are provided within a municipal system are a natural necessity.8

3.7  Minimum Content of the Rules of Family Law

Does the theory of minimum content apply to any of the rules of family law? Are
there any “simple truisms” about human nature that make it contingently necessary
to have minimal rules on marriage, divorce, parenting, child welfare, or rules encour-
aging (through provision of benefits) family formation? Let us begin with marriage.

8
 There is evidence that the germ of Hart’s theory about minimum content can be found in the
dialogue Minos (or On Law), attributed by ancient editors to Plato. Although there is a modern
dispute about whether Minos should be included in the group of dialogues of Plato regarded as
authentic, it is generally thought to have originated in Plato’s Academy shortly after his death
(348/7 B.C.). See R.F. Hathaway and L.D. Houlgate (Hathaway and Houlgate 1969) for a com-
mentary and translation. We argue that Minos is not only an excellent introduction to Plato’s Laws,
but it deserves serious study, whether or not it is authentic (107).
3.7  Minimum Content of the Rules of Family Law 53

3.7.1  Rules of Marriage

John Locke used the phrase “conjugal society” to refer to moral marriage, defined
as a society of one man and one woman “made by a voluntary compact.” The com-
pact consists “chiefly in such a communion and right in one another’s bodies as is
necessary to its chief end, procreation.” The other essential feature of the compact
is that “it draws with it mutual support and assistance, and a communion of interests
too, as necessary not only to unite their care and affection, but also necessary to
their common off-spring, who have a right to be nourished, and maintained by them,
till they are able to provide for themselves” (Locke 1980, VII, 78) These two fea-
tures are essential because they are consistent with the ends of conjugal society,” or
else the compact cannot count as a marriage contract. But everything else can be
altered by the man and wife, including the traditional presumption of eighteenth
century marriage contracts that the man will make all important decisions for the
family (Simmons, 170).
Our question is whether there are any natural facts that make necessary the
“essential” provisions of the marital contract. Although Locke never answered this
question he might fashion the follow reply. First, “the continuation of the species”
requires the “conjunction between male and female” for the purpose of procreation.
Second, this conjunction should last “as long as is necessary to the nourishment and
support of the young ones, who are to be sustained by those that got them, till they
are able to shift and provide for themselves.” And because the female “is commonly
with child again” while the first child is still dependent on his parents for help, the
father is needed “to make provision and lay up goods for their common issue,” (VII,
79, 80) at least until the mother is beyond her child-bearing years and the last child
is “able to shift for himself.” Third, Locke concludes with the radical remark that he
can find no reason why “this compact … may not be made determinable” like any
other compact “there being no necessity in the nature of the thing, nor to the ends of
it, that it should always be for life” (VII, 81).9
Let us suppose that Locke’s facts about the necessity for people to procreate and
raise their children are true. What follows from this is not only that men and women
could step forward and volunteer to procreate, but in the event of a lack of volun-
teers, women of child-bearing age could be required to have “conjunction” (sexual
intercourse) with a man until she conceives. In other words, all that follows from the
alleged necessity to continue the human species is sexual conjunction of male and
female, not voluntary sexual conjunction. Second, although Locke would not know
this, there is now no need for conjunction at all: conception and procreation can now
be done artificially by in vitro fertilization and transfer of the embryo to the wom-
an’s womb.

9
 Locke is quick to remind the reader that this only applies to those who “are under no restraint of
any positive law, which ordains all such contracts to be perpetual.” This leaves us wondering why
those who are under the restraint of a positive law forbidding divorce are morally compelled to
continue their marriage after their last child leaves home.
54 3  Legal Positivism

Nor does it follow from the (alleged) need to continue the human species that
men and women must enter into a marital contract that commits them to remain
married and rear their children until the last one leaves home. This task could cer-
tainly be done without entering into a contract of marriage. Therefore, the “natural
fact” that the human species requires procreative activity and the performance of
subsequent lengthy child-rearing tasks in order to perpetuate the species does not
require the creation of contracts for the purpose of sexual conjunction (marriage). In
sum, laws creating the institution of marriage are not a natural necessity.

3.7.2  Rules Protecting Infants and Young Children

Another candidate for “simple truisms” about human nature that might require the
minimum content of family law is the special vulnerability of newborns and young
children. Locke refers to them as “weak and helpless, without knowledge or under-
standing” (VII, 56). Childhood is an “imperfect state … wherein [the child] has not
understanding of his own to direct his will” (VII, 58). Young children are not only
physically incapable of protecting themselves and providing the sustenance required
for their survival, but they are mentally incapable of devising the means to achieve
these ends. Hence, there is good reason for rules prohibiting child neglect and abuse.
The content of these rules would require not only the assignment of specific caretak-
ers and guardians, but the rules would charge them with the duty to protect the child
from external threats to life and limb, and providing for food, shelter and clothing
sufficient to keep the child alive and in good health.

3.7.3  Rules of Custody Assignments at Birth

Locke assigns the duties of custody and guardianship to the child’s biological par-
ents. And from this duty “which is incumbent on them, to take care of their off-­
spring, during the imperfect state of childhood,” Locke also gives parents the
reciprocal right “to govern the actions of their yet ignorant nonage.” Since the
young child lacks the understanding to direct his own desire to obtain what is neces-
sary to survive, the parent “must understand for him, must will for him too; he must
prescribe to his will, and regulate his actions” (VII, 58).
It might be objected that this duty and its reciprocal rights could be assigned to
any adult or group of adults, whether biologically related to the child or not. But if
it is agreed that there is a minimum-content rule assigning presumptive custody of
a newborn to the biological parents, and the concept of “custody” implies “care,
control and maintenance”, then the duty of protecting the child and providing for
her basic needs would naturally go to her parents. Locke states this in the language
of classical natural law:
3.7  Minimum Content of the Rules of Family Law 55

From [Adam] the world is peopled with his descendants, who are all born infants, weak and
helpless, without knowledge or understanding, but to supply the defects of this imperfect
state, till the improvements of growth and age hath removed them, Adam and Eve, and after
them all parents were, by the law of nature, under an obligation to preserve, nourish, and
educate the children they had begotten … (VII, 56).

Here is a restatement, in the language of a “minimum content of family law,” in

which the content of both rules respond not to religious mythology, but to facts
about human nature which justify these rules:
F1 There is a fundamental duty to provide for the basic survival needs of those children who
are physically and mentally incapable of providing for themselves.

F2 Initial (presumptive) custody of a newborn child should go to the biological parents who
shall have both the duty to provide for the basic survival needs adumbrated in F1 and the
rights (powers) required to carry out this duty.

F1 is justified by the special vulnerability of infants and young children due to

their inability to protect or provide for themselves. F2 is justified by facts about
human nature which afford a reason why family law and morals should have this
particular content. However, whereas F1 is linked to the natural aim of survival, F2
does not have this link. Newborn and young children will not die if their custody at
birth is given to adults who have no biological relationship to them.10 Instead, the link
is to the fact that “during pregnancy many – perhaps most –expectant parents form a
poignantly embodied, but also emotional, intimate relationship with their fetus”:
Because children come into existence through gestation, pregnant women and their sup-
porting partners have to invest a significant amount of resources into having birth children;
this is an often conscious, intentional process, akin to other projects in which people
engage: it contains much anticipation and planning, thinking and hoping, imagination and
projection. Through their bodily connection with the baby and their various psychological
investments, expecting parents normally build a relationship with their future baby, rela-
tionship which is sometimes highly emotional and already quite developed at birth. Bearing
parents and their newborns already share a common history including numerous embodied
common experiences (“you kicked me on the 1st of March,” “you made me worry,” “you
made me so happy”). The fact that the body plays such a central part in pregnancy, makes
pregnancy a uniquely privileged context for developing a bond that is at the same time
physical and imaginative with the future child. (Gheaus 2012)

In this passage, Anca Ghaeus gives us an empirical basis for the universal prac-
tice of granting presumptive custody rights of a newborn child to its birth parents.
The rules giving parents the moral and legal right to keep their birth baby “obvi-
ously depends on the way in which we come into the world.” If human procreation
were to change radically, such that babies would be born in artificial wombs, then a
case for allocating babies to future parents in other ways (for example, via lotteries)
would become significantly stronger. “Not only would the meaning of ‘biological

 Although there is evidence that some newborn adoptees may have bonded in utero during preg-
10

nancy. If they are immediately handed over to adopting parents at birth, this may result in future
psychological problems for the adopted child (U.S. Dept. of Health and Human Services. 2007,
2–7; Atwell, Barbara. Atwell 2012, 201).
56 3  Legal Positivism

parent’ become less substantial, and signify a genetic connection only, but such
change would pose a radical challenge to parents’ right to keep their biological
babies” (Gheaus 2012).
This is not unlike Hart’s imagined scenario of a world in which all persons are
encased in an impenetrable armor such that none are vulnerable to external efforts
to cause them to suffer harm. In such a world the meaning of “murder” would even-
tually be forgotten and “Thou shalt not kill” would only be a curiosity for historians.
By analogy, consider Plato’s recommendation in Republic that all infants born to the
ruling class of the ideal state should be permanently taken from them and given to
professional child rearers at birth, so that no child would ever know its own biologi-
cal parents, and no parents would know their own biological child (Book V).11 As a
result, when parents use the phrase “my child” they would be referring to any child
born in the same month as the month in which “their” biological child was born. All
children born in that month to any of the rulers would be “their children,” the chil-
dren would consider all the rulers to whom these children were born as “my par-
ents,” and the children would consider each other as “brother and sister.” In Plato’s
imaginary world, the phrase “my child,” would neither say nor imply anything about
the parent’s emotional and intimate relationship with the particular child they have
borne. If we assume that there is sufficient evidence for such a relationship, we can
safely conclude that rules giving presumptive custody to birth parents are a natural
necessity.12
Questions for Thought and Discussion
1. What does a legal positivist mean by separation in the phrase “the separation of
law and morals”? Use the Moroccan statute 475 on forced marriage as your
example of law and use the Western conception of human rights as your example
of morals.
2. Hart says that understanding the nature of law lies in our acknowledgement that
law and the obligations created by law are only to be found in the interplay of
primary and secondary rules. What does he mean by this? Explain how this
compares to John Austin’s earlier attempt to define the nature of law.
3. Why is Hart’s discussion of “minimum content” seen as a compromise between
the theories of natural law and legal positivism?
4. Are there any “simple truisms” about human nature that make it contingently
necessary to have minimal rules on marriage, divorce, parenting, child welfare,
or rules encouraging (through provision of benefits) family formation? What are
these truisms? What kind of rules pertaining to the family do they justify?

11
 Plato’s motive for this recommendation was to reduce the temptation of the rulers to give special
favors to their biological children, thereby taking their attention away from their primary task of
ruling the city-state. This motive was also behind his recommendation that the rulers not be
allowed to have private possessions, nor claim exclusive sexual access to any person of the oppo-
site sex by referring to them as “my husband,” or “my wife.”
12
 We will return to this discussion in Chap. 11 when we look at the role of the common legal prac-
tice of giving preference to the gestational mother in custody disputes between a surrogate gesta-
tional mother and the genetic parent(s) of a newborn child Sect. (11.7).
References 57

References

Al Jazeera. 2014. Morocco repeals ‘rape marriage’ law. http://www.aljazeera.com/news/

africa/2014/01/morocco-repeals-rape-marriage-law-2014123254643455.html. Accessed 15
Jan 2016.
Atwell, Barbara. 2012. Nature and nurture: Revisiting the infant adoption process. William & Mary
Journal of Women and the Law 18: 2.
Austin, John. 1832. The province of jurisprudence determined. London: John Murray.
———. 1879. Lectures on Jurisprudence, or The philosophy of positive law, 2 volumes, ed.
R. Campbell, 4th edition, rev., London: John Murray; reprint, Bristol: Thames Press, 2002.
Blackstone, William. 1765–1769. Commentaries on the laws of England, vol. 4. Oxford: Clarendon
Press.
Dworkin, Ronald, eds. 1977. The philosophy of law. New York: Oxford University Press.
Gheaus, Anca. 2012. The right to parent one’s biological baby. The Journal of Political Philosophy
20(4): 432–455.
Hart, H.L.A. 2012. The concept of law. 3rd ed. Oxford: Oxford University Press.
Hathaway, Ronald, and Laurence Houlgate. 1969. The platonic Minos and the classical theory of
natural law, with Minos, a Translation by R.F. Hathaway. The American Journal of Jurisprudence
14: 105–124.
Locke, John. 1980. ed. McPherson, C.B. Second treatise of government. Indianapolis: Hackett.
(First published in 1690).
Loving v Virginia 1967. 388 U.S. 1.
Presthold, Jennifer. 2014. Morocco: Human rights violations under Article 475. The Advocates for
Human Rights. http://theadvocatespost.org/2014/01/13/morocco_humanrightsviolationsunder-
article475/ Accessed 15 Jan 2016.
Riggs v Palmer 1899. 115 N.Y. 506, 22 N.E. 188
U.S. Department of Health and Human Services. 2007. Helping your foster child transition to your
adopted child. Child Welfare Info Gateway, 2–7. https://www.childwelfare.gov/ Accessed 3
Apr 2016.
West’s Encyclopedia of American Law, 2nd edition. 2008.
Chapter 4
Constitutional Interpretation

“We deal with a right of privacy older than the Bill of Rights –
older than our political parties, older than our school system.“
 – J. Wm. O. Douglas, Griswold v Connecticut (1965)
“With all deference, I can find no such general right of privacy
in the Bill of Rights, in any other part of the Constitution, or in
any case ever before decided by this Court.” 
– J. Potter Stewart, Griswold v Connecticut (1965)

Abstract In this chapter we examine the ongoing debate about how the
U.S.  Constitution should be interpreted. Although family law is traditionally the
responsibility of the states, there are a few U.S. Supreme court cases that brought
about a change in areas once controlled mainly by state laws: the right of parents to
control their child’s education; the right of children to freely express their political
or moral views in school; and the right of married couples to use artificial contracep-
tion. We briefly look at these cases in order to get an understanding of the debate
between proponents of two broad categories of theories of constitutional interpreta-
tion: Originalism and Non-originalism. Originalist theories insist that the only con-
siderations to use when interpreting the Constitution and its provisions are those
that are temporally “fixed” to the time when they were written or ratified. Non-­
originalism denies this and considers such non-temporal factors as the purpose of
the Constitution or the  underlying moral philosophy that might have  inspired its
authors. All of the interpretations are normative. They attempt to answer the ques-
tion as “Why ought the justices on the Supreme Court to defer only to the intentions
of those who wrote the Constitution and its amendments or to the intentions of those
who had a hand in the ratification of these documents? “What moral standing do the
framers, ratifiers and the general public in the 18th century have that gives them the
final word on interpretation?” We begin the chapter by looking at how the word
“person” was originally used in the Constitution in order to get some perspective on
“originalist” theories of interpretation. We then examine three U.S. Supreme Court
cases involving family law in order to illustrate the persistent arguments that occur

© Springer International Publishing AG 2017 59

L.D. Houlgate, Philosophy, Law and the Family, AMINTAPHIL: The
Philosophical Foundations of Law and Justice 7,
DOI 10.1007/978-3-319-51121-4_4
60 4  Constitutional Interpretation

over how the doctrine of stare decisis is employed, and in the final sections of the
chapter, to show how the various theories of constitutional interpretation have been
employed by justices and legal scholars when deciding these and other cases that
have come before the U.S. Supreme Court.

4.1  The Concept of “Person” in the Constitution

Debates about how the U.S.  Constitution should be interpreted began almost as
soon as the ink dried on this revered document. In what is generally regarded as the
most important of the early cases before the Supreme Court (Chisholm v. Georgia,
1793), three of the four justices quarreled with the lone dissenting justice about the
best way to interpret the meaning of key terms like “state,” “suable” and “contro-
versy” in Article III of the Constitution.1 Ten years later, in a seminal case that
changed the balance of power between all three branches of government (Marbury
v Madison, 1803) the Supreme Court interpreted “judicial power” in the same arti-
cle to mean that it and it alone was the only branch having the right of judicial
review – the power to invalidate laws created by Congress and to nullify any actions
of the executive that it deemed unconstitutional.2

1
 Chisholm, a citizen of South Carolina and executor of the estate of a South Carolina merchant,
sued the State of Georgia in the U.S. Supreme Court to recover the value of clothing supplied to
Georgia during the Revolutionary War. Georgia refused to appear, on the ground of sovereign
immunity. A majority of the Court rejected this claim and rendered default judgment against the
State.
The relevant sections of Article III of the Constitution referenced by the Court are these:
Section 1
The judicial power of the United States, shall be vested in one Supreme Court, and in such
inferior courts as the Congress may from time to time ordain and establish. The judges, both of the
supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated
times, receive for their services, a compensation, which shall not be diminished during their con-
tinuance in office.
Section 2
The judicial power shall extend to all cases, in law and equity, arising under this Constitution,
the laws of the United States, and treaties made, or which shall be made, under their authority;–to
all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and
maritime jurisdiction;–to controversies to which the United States shall be a party;–to controver-
sies between two or more states;–between a state and citizens of another state;–between citizens of
different states;–between citizens of the same state claiming lands under grants of different states,
and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a
state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before
mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such
exceptions, and under such regulations as the Congress shall make.
2
 Congress had passed the Judiciary Act of 1789, giving the Supreme Court original jurisdiction
over writs of mandamus. (These are judicial orders to any government subordinate court, corpora-
tion or public authority to do (or forbear from doing) some specific act which that body is obliged
4.1  The Concept of “Person” in the Constitution 61

The vagueness of ordinary and legal language has always been a problem for
those jurists who attempt to interpret the Constitution and its amendments. The
inclusion of some words and the omission of others is also of paramount impor-
tance. For example, the Constitution contains many instances of the words “person,”
“people,” “male” and “citizen,” but not a single instance of “female,” “women,” or
“children.” It was generally understood in the late eighteenth century that women
and children were not persons for purposes of constitutional protections and rights.
Women were not allowed to vote in state or federal elections and children did not
have any of the rights guaranteed to adults under the first ten amendments. Women
did not achieve the right to vote until passage of the Nineteenth Amendment in 1920
and it was assumed until the late 1960s that children had no free speech rights under
the First Amendment, nor the right to counsel under the Sixth Amendment. It took
a new constitutional amendment to get women the right to vote and it took an “inter-
pretation” of existing amendments to determine that children should have free
speech rights in school and the right to an attorney if charged with a crime.
A theory of constitutional interpretation provides an answer to the question
“How ought the provisions of the Constitution and its amendments be interpreted?”
This is a normative question, calling on us to state and defend a standard or principle
that would give us the most plausible interpretation of a troublesome phrase, para-
graph, section or amendment of the Constitution. There have been several attempts
by philosophers of law to provide a theory of constitutional interpretation. However,
some scholars have implicitly rejected making any such attempt by saying that a
judge needs only to look at the text and plain meaning of the words in the
Constitution.3 No interpretation is needed. This is analogous to most of our non-­
legal day-to-day conversations. If my wife tells me she is going grocery shopping
this afternoon, I do not need to “interpret” what she has told me. She is not speaking
a foreign language, nor is she using technical terms that I cannot comprehend. I do
not need to deduce what she means from her statement, as if she has given me the
premises of an argument from which I am to arrive at a conclusion. By analogy, if
the words used in the Constitution or in its amendments are in plain English, under-
standable by anyone who is conversant with the language, then there is no need for
an interpretation or a deduction. Consider, for example, the “plain English” used by
the framers in writing the First Amendment:

under law to do (or refrain from doing)—and which is in the nature of public duty, and in certain
cases one of a statutory duty.) Justice Marshall held that Congress does not have the power to
modify the Supreme Court’s original jurisdiction. Consequently, Marshall found that the
Constitution and the Judiciary Act conflict. This decision settled the important question of what
happens when an Act of Congress conflicts with the Constitution. Marshall ruled that Acts of
Congress that conflict with the Constitution are not law and the Courts are bound instead to follow
the Constitution.
3
 In Chisholm v Georgia, Justice Wilson argued that the doctrine used to decide the case “rests not
upon the legitimate result of fair and conclusive deduction from the Constitution: It is confirmed,
beyond all doubt, by the direct and explicit declaration of the Constitution itself.”
62 4  Constitutional Interpretation

Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.

There may be some otherwise intelligent people in the twenty-first century who are
not familiar with the words “redress,” or “abridging,” but to many persons these words
have a clear meaning. They certainly understand the phrase “make no law…abridging
the freedom of speech or of the press.” There is no need to launch into an interpreta-
tion of its meaning. As Justice Hugo Black famously put it in a free speech case:
The First Amendment’s language leaves no room for inference that abridgments of speech
and press can be made just because they are slight. That Amendment provides, in simple
words, that “Congress shall make no law … abridging the freedom of speech, or of the
press.” I read “no law … abridging” to mean no law abridging (Concurring opinion, Smith
v. California1959)

It has been pointed out that those who use Justice Black’s textualist or literal
approach to reading the First Amendment makes it impossible for Congress to cre-
ate a law prohibiting the disclosure of military secrets. They would argue that
although the language of the amendment mentions no exceptions to the prohibition,
“the framers never intended that it be applied in a perfectly literal way” (Altman,
98). I suspect that if Justice Black was alive today he would greet this conjecture
about the framers’ intentions by repeating the following statement he made in the
first James Madison lecture:
It is my belief that there are “absolutes” in our Bill of Rights, and that they were put there
on purpose by men who knew what the words meant and meant their prohibitions to be
“absolutes.” (Black 1960).

If the framers knew what their words meant, then why shouldn’t we also con-
clude that the words “person” and “people” includes women and children? If I say
to you, in plain English, “Look at all the people in that crowd,” I do not mean “Look
at all the adult males.” I mean all the human beings in the crowd, including women
and children. Can we say, with the certainty of Justice Black, that the framers who
put the words “person” and “people” in the Constitution did so “on purpose,” know-
ing that these words included all human beings? Unfortunately, this is not what the
framers intended by these words:
The word “persons” was used [in the Constitution], which sounds gender neutral. However,
common law, inherited from British precedents, informed the interpretation of the law. And
many state laws were not gender-neutral. …New Jersey accepted voting rights for women,
[but] even those had been lost by a bill in 1807 that rescinded the right of both women and
black men to vote in that state. The principle of coverture prevailed at the time the
Constitution was written and adopted: a married woman was simply not a person under the
law; her legal existence was bound up with that of her husband’s (Lewis, 2014).

Although the framers might use the word “person” in everyday life outside of the
law to refer to all members of the human species (young and old, male and female),
they would use the prevailing legal meaning of the word when writing and enacting
legislation. Notice that this does not refute the literalist position on how to read the
Constitution and its amendments. The fact that the word “person” is ambiguous,
4.2  Three Supreme Court Family Law Cases 63

having both an ordinary and a legal meaning, only implies that there are two textual
or literal meanings of the word, and that when reading the Constitution, we should
defer to the legal meaning that was in use in the nineteenth century.

4.2  Three Supreme Court Family Law Cases

The preceding remarks are not enough to satisfy the critics. They will continue to
insist that we need a theory of interpretation if we are going to properly understand
how we should read and apply the Constitution in the twenty-first century.4 In what
follows we will look at the factual basis and the finding of three U.S. Supreme Court
case dealing with parent’s rights, the rights of children, and marital privacy. We will
then (Sect. 4.3) consider brief accounts of three theories of constitutional interpreta-
tion, showing how each would be used to arrive at a decision in the marital privacy
case (Griswold v Connecticut) and how each theory compares with the actual rul-
ing. This is by no means an exhaustive account of the existing theories of constitu-
tional interpretation, but the cases and theories discussed below are representative
of the current debate.

4.2.1  P
 arent’s Right to Control Their Child’s Education:
Meyer v. Nebraska (1923)

In 1920 an instructor at a parochial school in Nebraska was arrested for teaching the
German language to a 10-year-old child. He had violated a Nebraska state law
which said: “No person, individually or as a teacher, shall, in any private, denomi-
national, parochial or public school, teach any subject to any person in any language
other than the English language.” He appealed the decision to the Nebraska Supreme
Court, but the court affirmed the decision, explaining their reasoning with the
remark that the “salutary purpose” of the statute is clear:
The [Nebraska] legislature had seen the baneful effects of permitting foreigners, who had
taken residence in this country, to rear and educate their children in the language of their
native land. The result of that condition was found to be inimical to our own safety. To allow
the children of foreigners, who had emigrated here, to be taught from early childhood the
language of the country of their parents was to rear them with that language as their mother
tongue. It was to educate them so that they must always think in that language, and, as a
consequence, naturally inculcate in them the ideas and sentiments foreign to the best inter-
ests of this country. The statute, therefore, was intended not only to require that the educa-
tion of all children be conducted in the English language, but that, until they had grown into
that language and until it had become a part of them, they should not in the schools be
taught any other language. The obvious purpose of this statute was that the English lan-

4
 “The ‘plain meaning’ or ‘textualist’ theory of interpretation is not a theory at all; it is instead a
description of what happens when constitutional meaning is not problematic” (Post 1990).
64 4  Constitutional Interpretation

guage should be and become the mother tongue of all children reared in this state. The
enactment of such a statute comes reasonably within the police power of the state.

The case was further appealed to the United States Supreme Court. Justice
McReynolds, writing for the majority, began by noting that the constitutional prob-
lem is “whether the statute, as construed and applied, unreasonably infringes the
liberty guaranteed to the plaintiff in error by the Fourteenth Amendment.” The rel-
evant part of the amendment is contained in the words “No State shall … deprive
any person of life, liberty, or property, without due process of law.” The phrase “due
process” generally means operating within the law and providing fair procedures. If
a person is in danger of losing her liberty because she has been arrested and charged
with a crime, for example, then she has a right to not incriminate herself, to cross
examine anyone who testifies against her, to be given notice of the proceedings and
an opportunity to be heard. However, Justice McReynolds makes it clear that he is
more interested in the word “liberty” in the amendment than he is in what consti-
tutes fair procedure.
While this Court has not attempted to define with exactness the liberty thus guaranteed, the
term has received much consideration and some of the included things have been definitely
stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right
of the individual to contract, to engage in any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and bring up children, to worship God accord-
ing to the dictates of his own conscience, and generally to enjoy those privileges long rec-
ognized at common law as essential to the orderly pursuit of happiness by free men.

Reading these words, we might plausibly respond by saying that as long as the
state of Nebraska gave the appellant a fair trial, consistent with established proce-
dures noted above, then the statute does not violate the Fourteenth Amendment. But
Justice McReynolds has another interpretation of the amendment:
The established doctrine is that this liberty may not be interfered with, under the guise of
protecting the public interest, by legislative action which is arbitrary or without reasonable
relation to some purpose within the competency of the State to effect. Determination by the
legislature of what constitutes proper exercise of police power is not final or conclusive, but
is subject to supervision by the courts.

As the justice understands the Fourteenth Amendment, it is not sufficient that the
German language teacher got a fair trial. The state of Nebraska must also show that
the statute it uses to charge him with an offense does not “arbitrarily” interfere with
his liberty. There must be “a rational relation to some purpose within the compe-
tency of the State to effect.” Justice McReynolds is here making use of substantive
due process – a doctrine which looks at the content or substance of the statute, as
something distinct from procedural due process – used by the court to determine
whether the procedures used to determine guilt or innocence are fair. For example,
if the legislature exercised its police power to make it illegal to wear a tuxedo in
public before 6 p.m., this would be an arbitrary or unreasonable interference with
individual liberty under substantive due process standards. The statute would vio-
late the Fourteenth Amendment, even if someone prosecuted for wearing a tuxedo
before 6 p.m. was given a fair trial.
4.2  Three Supreme Court Family Law Cases 65

Writing for the Court, Justice McReynolds declared that the right of the Nebraska
school teacher to teach the German language and the right of parents to engage him
to instruct their children “are within the liberty of the Amendment.” The justice then
noted that the statute’s restriction on this right is arbitrary. It does not prohibit the
teaching of Latin, Greek, or Hebrew, but instead  puts German, French, Spanish,
Italian and every other alien speech within its ban. “Evidently the legislature has
attempted materially to interfere with the calling of modern language teachers, with
the opportunities of pupils to acquire knowledge, and with the power of parents to
control the education of their own.”
Finally, Justice McReynolds notes that there is no emergency which has arisen in
Nebraska which makes it harmful for children to gain knowledge of some language
other than English. “We are constrained to conclude that the statute as applied is
arbitrary and without reasonable relation to any end within the competency of the
State.” The statute was found to be in violation of the Fourteenth Amendment to the
U.S. Constitution. Accordingly, the judgement of the Nebraska Supreme Court was
reversed.5

 hildren’s Rights of Free Speech: Tinker v. Des Moines

4.2.2  C
School District (1969)

On December 16, 1965 Mary Beth Tinker, 13 years old, her brother John, 15, and
Christopher Eckhardt, 16, wore black armbands to their schools in order to publi-
cize their objections to the hostilities in Vietnam. A few days earlier, the principals
of the Des Moines (Iowa) schools became aware of the student’s plan. The princi-
pals met and quickly adopted a policy that any student wearing an armband to
school would be asked to remove it, and if he refused he would be suspended until
he returned without the armband. The children were made aware of the regulation
that the school authorities adopted, but kept to their plan. Shortly after arriving at
their school they were sent home and suspended until they agreed to return without
their armbands. Mary Beth, John and Christopher did not return to school until after
their previously planned period for wearing armbands had expired on January 1
(New Year’s Day).
The children, through their fathers, subsequently filed a complaint in the United
States District Court asking for an injunction restraining the school officials from

5
 Meyer is usually discussed with another case in which the Court reached a similar decision:
Pierce v Society of Sisters 268 U.S. 510 (1924). In Pierce the Court held unconstitutional the
Oregon Compulsory Education Act of 1922 that required all normal children between the ages of
8 and 16 years to attend public school. This was held a violation of the Fourteenth Amendment in
that the Act “unreasonably interferes with the liberty of parents and guardians to direct the upbring-
ing and education of children under their control” (573). No mention is made of the right of a child
to choose to attend a public or private school. Instead, the only concern of the Court with children
is to stress the judgment that in a conflict between their parents and the state over the general ques-
tion of who should “nurture and direct [their] destiny,” the parents should prevail.
66 4  Constitutional Interpretation

disciplining them. The District Court dismissed the complaint on the ground that
their suspension was a reasonable action needed to prevent disturbance of school
discipline. On appeal, the U.S. Court of Appeals for the Eighth Circuit was equally
divided, and the District Court’s decision was accordingly affirmed, without
opinion.
The U.S. Supreme Court agreed to take the case. When the Court reached a deci-
sion, Justice Fortas wrote for the majority. His first finding was that the wearing of
an armband for the purpose of expressing certain views is the type of symbolic act
that is within the Free Speech Clause of the First Amendment. Wearing or display-
ing a symbol to silently express a moral or political opinion should be treated under
the law in the same way we now treat verbal or written opinions. Second, the wear-
ing of armbands in the circumstances of this case was entirely divorced from any
alleged actual or potentially disruptive conduct by those wearing the armbands. It
was closely akin to “pure speech” (that is, speech without accompanying action),
which is entitled to comprehensive protection under the First Amendment. Third,
First Amendment rights, applied in light of the special characteristics of the school
environment, are available to teachers and students.
It can hardly be argued that either students or teachers shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate…. In our system, state-operated
schools may not be enclaves of totalitarianism. School officials do not possess absolute
authority over their students. Students in school as well as out of school are “persons” under
our Constitution. They are possessed of fundamental rights which the State must respect,
just as they themselves must respect their obligations to the State. (393 U.S. 503)

Fourth, Justice Fortas noted that the problem for the Court “lies in the area where
students in the exercise of First Amendment rights collide with the rules of the
school authorities.” Although students have the right to freedom of speech, “the
Court has repeatedly emphasized the need for affirming the comprehensive author-
ity of the States and of school officials, consistent with fundamental constitutional
safeguards, to prescribe and control conduct in the schools.”
However, Justice Fortas observed, the record does not demonstrate any facts
which might reasonably have led school authorities to forecast substantial disrup-
tion of or material interference with school activities, and no disturbances or disor-
ders on the school premises in fact occurred.
Their deviation consisted only in wearing on their sleeve a band of black cloth, not more
than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities
and their advocacy of a truce, to make their views known, and, by their example, to influ-
ence others to adopt them. They neither interrupted school activities nor sought to intrude
in the school affairs or the lives of others. They caused discussion outside of the classrooms,
but no interference with work and no disorder. In the circumstances, our Constitution does
not permit officials of the State to deny their form of expression.

The Supreme Court reversed the ruling of the Appeals Court in a 7-2 vote with
justices Black and Harlan dissenting. Justice Black’s dissent was long and vigorous.
Although he had argued in many previous cases that the Court should accept the
literal meaning of the First Amendment (Sect. 4.1) that “Congress shall make no
law abridging freedom of speech,” he argued that this does not mean that anyone
4.2  Three Supreme Court Family Law Cases 67

can say anything he or she wants to say in any place or at any time. I cannot stand
up in a church and loudly proclaim for atheism, not because the content of my
speech is atheism, but because of the place and time I chose to speak.
Assuming that the Court is correct in holding that the conduct of wearing armbands for the
purpose of conveying political ideas is protected by the First Amendment, the crucial
remaining questions are whether students and teachers may use the schools at their whim as
a platform for the exercise of free speech–“symbolic” or “pure”–and whether the courts will
allocate to themselves the function of deciding how the pupils’ school day will be spent.
While I have always believed that under the First and Fourteenth Amendments neither the
State nor the Federal Government has any authority to regulate or censor the content of
speech, I have never believed that any person has a right to give speeches or engage in
demonstrations where he pleases and when he pleases.

Second, Justice Black attacks the Court majority’s use of the “reasonableness”
test that was used in the substantive interpretation of the Fourteenth Amendment in
Meyer v. Nebraska (Sect. 4.2.1). He complains, first, that in cases that came after
Meyer, the “reasonableness” constitutional test was left “dead on the battlefield,” so
much so that the Court was able to conclude in 1963:
There was a time when the Due Process Clause was used by this Court to strike down laws
which were thought unreasonable, that is, unwise or incompatible with some particular
economic or social philosophy… The doctrine that prevailed …that due process authorizes
courts to hold laws unconstitutional when they believe the legislature has acted unwisely—
has long since been discarded. (Ferguson v. Skrupa1963)

We have earlier referred to this doctrine as substantive due process (Sect. 4.2.1).
Not only is there precedent for repudiating this doctrine, but Justice Black argues
that the judges who discarded it were right to do so. Judges do not “have the power
to hold laws unconstitutional upon the belief that the laws they are adjudicating
‘shock the conscience’ or that they are ‘unreasonable,’ ‘arbitrary,’ ‘irrational,’ ‘con-
trary to fundamental decency,’ or some other such flexible term without precise
boundaries.” If they had this kind of power, then judges “could strike down any law
they do not like.”
Further, even if it is true that the decision of the Des Moines school district to
prohibit the wearing of armbands to school is unreasonable, this is a decision that
only they have the power to make. This is because the “single purpose” of the public
schools is to give students “an opportunity to learn.” It is not to give students a plat-
form for them to air their moral, religious or political opinions:
Iowa’s public schools… are operated to give students an opportunity to learn, not to talk
politics by actual speech, or by “symbolic” speech. And, as I have pointed out before, the
record amply shows that public protest in the school classes against the Vietnam War “dis-
tracted from that singleness of purpose which the State [here Iowa] desired to exist in its
public educational institutions.” Here the Court should accord Iowa educational institutions
the right to determine for themselves to what extent free expression should be allowed in its
schools…
68 4  Constitutional Interpretation

4.2.3  Marital Privacy: Griswold v. Connecticut (1965)

On November 10, 1961, Estelle Griswold, Executive Director of the Planned

Parenthood League of Connecticut and Dr. C. Lee Buxton, Medical Director for the
League at its center in New Haven were arrested for violating statutes 53-32 and
54-196 of the General Statutes of Connecticut (1958, revised). Section 53–32 pro-
vides: “Any person who uses any drug, medicinal article or instrument for the pur-
pose of preventing conception shall be fined not less than fifty dollars or imprisoned
not less than sixty days nor more than one year or be both fined and imprisoned.”
Section 54–196 provides: “Any person who assists, abets, counsels, causes, hires or
commands another to commit any offense may be prosecuted and punished as if he
were the principal offender.” Ms. Griswold and Dr. Buxton admitted to having given
information, instruction, and medical advice to married persons as to the means of
preventing conception. They examined the wife and prescribed the best contracep-
tive device or material for her use. They usually charged fees for this service,
although some couples were serviced free. They were found guilty as accessories
and fined $100 each.
After a lengthy process in which the conviction was upheld by both the Appellate
Division of the Circuit Court, and by the Connecticut Supreme Court, the case was
finally argued before the U.S. Supreme Court in March of 1965. Three months later,
in a 7-2 vote the Court held that the Connecticut statutes were unconstitutional. Mr.
Justice Douglas delivered the opinion of the majority. The following two passages
are representative:
Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those
guarantees that help give them life and substance. Various guarantees create zones of pri-
vacy. The right of association contained in the penumbra of the First Amendment is one…
The Third Amendment, in its prohibition against the quartering of soldiers “in any house”
in time of peace without the consent of the owner, is another facet of that privacy. The
Fourth Amendment explicitly affirms the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” The Fifth
Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy
which government may not force him to surrender to his detriment. The Ninth Amendment
provides: “The enumeration in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people.” Would we allow the police to search the
sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The
very idea is repulsive to the notions of privacy surrounding the marriage relationship.

We deal with a right of privacy older than the Bill of Rights—older than our political par-
ties, older than our school system. Marriage is a coming together for better or for worse,
hopefully enduring, and intimate to the degree of being sacred. It is an association that
promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loy-
alty, not commercial or social projects. Yet it is an association for as noble a purpose as any
involved in our prior decisions.

In a biting dissent to the majority decision, Justice Potter Stewart argued that
there is nothing either in the literal words of the amendments to the Constitution or
in their intended meanings to support the conclusion that the Connecticut statutes
cited above are unconstitutional.
4.3  The Role of Stare Decisis in Supreme Court Decision-Making 69

As to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any of them to
invalidate this Connecticut law… It has not even been argued that this is a law “respecting
an establishment of religion, or prohibiting the free exercise thereof.” And surely, unless the
solemn process of constitutional adjudication is to descend to the level of a play on words,
there is not involved here any abridgment of the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a redress of
grievances. No soldier has been quartered in any house. There has been no search, and no
seizure. Nobody has been compelled to be a witness against himself.

What provision of the Constitution, then, does make this state law invalid? The Court says
it is the right of privacy “created by several fundamental constitutional guarantees.” With all
deference, I can find no such general right of privacy in the Bill of Rights, in any other part
of the Constitution, or in any case ever before decided by this Court (529).

Justice Black was equally dismissive of Justice Douglas’s suggestion that there
is a constitutional right to privacy:
One of the most effective ways of diluting or expanding a constitutionally guaranteed right
is to substitute for the crucial word or words of a constitutional guarantee another word or
words, more or less flexible and more or less restricted in meaning. This fact is well illus-
trated by the use of the term “right of privacy” as a comprehensive substitute for the Fourth
Amendment’s guarantee against “unreasonable searches and seizures.” “Privacy” is a
broad, abstract and ambiguous concept which can easily be shrunken in meaning but which
can also, on the other hand, easily be interpreted as a constitutional ban against many things
other than searches and seizures. I have expressed the view many times that First Amendment
freedoms, for example, have suffered from a failure of the courts to stick to the simple
language of the First Amendment in construing it, instead of invoking multitudes of words
substituted for those the Framers used. For these reasons, I get nowhere in this case by talk
about a constitutional “right of privacy” as an emanation from one or more constitutional
provisions. I like my privacy as well as the next one, but I am nevertheless compelled to
admit that government has a right to invade it unless prohibited by some specific constitu-
tional provision. For these reasons, I cannot agree with the Court’s judgment and the rea-
sons it gives for holding this Connecticut law unconstitutional (510).

4.3  T
 he Role of Stare Decisis in Supreme Court
Decision-Making

The Latin phrase stare decisis translates as “following precedent.” The source of
authority most frequently relied on by the Supreme Court in deciding cases that
come before is precedent, that is, the Court’s (or particular justices’) own prior
opinions. Robert Post provides a reason for this reliance.
In American law, the principle [of stare decisis] constitutes a fundamental aspect of “the
rule of law,” for it requires courts to decide cases based on public and predictable rules,
applied in an even-handed manner, upon which persons can rely in the conduct of their
lives. In constitutional adjudication “adherence to precedent can contribute to the important
notion that the law is impersonal in character, that the Court believes itself to be following
a ‘law which binds [it] as well as the litigants.’” The principle of stare decisis helps to
ensure that our constitutional order retains the kind of stability and continuity that are pre-
requisite for institutional legitimacy (Post, 16).
70 4  Constitutional Interpretation

Post here describes not only the doctrine of stare decisis but he justifies its role
in constitutional decision-making. His argument is based on adherence to the rule of
law and its role in ensuring stability and continuity in the “constitutional order.” In
order to retain this ideal, the people need public and predictable rules. Rules are both
public and predictable when the court decides cases by an appeal to precedent.
The rule of stare decisis is not an “inexorable command.” There are circum-
stances in which a prior decision is overturned. Here are the words of justices
O’Connor, Kennedy and Souter in Planned Parenthood v Casey (1992), suggesting
what circumstances might be relevant:
When this Court reexamines a prior holding, its judgment is customarily informed by a
series of prudential and pragmatic considerations designed to test the consistency of over-
ruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of
reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has
proved to be intolerable simply in defying practical workability…; whether the rule is sub-
ject to a kind of reliance that would lend a special hardship to the consequences of overrul-
ing and add inequity to the cost of repudiation…; whether related principles of law have so
far developed as to have left the old rule no more than a remnant of abandoned doctrine…;
or whether facts have so changed or come to be seen so differently, as to have robbed the
old rule of significant application or justification (854).

Let us see how stare decisis is used in Griswold before we assess these and other
remarks. As we might expect, the first thing that Justice Douglas does is to cite sev-
eral previous cases decided by the Court in which there is no explicit mention of the
specific action that the Court ruled to be constitutional, for example, the right to
educate a child in a school of the parent’s choice (Peirce), or the right to study any
particular subject or any foreign language (Meyer). And yet, Douglas argues, the
First Amendment has been interpreted by the Court to include some of these rights.
By Pierce v. Society of Sisters, the right to educate one’s children as one chooses is made
applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v.
Nebraska the same dignity is given the right to study the German language in a private
school. In other words, the State may not, consistently with the spirit of the First Amendment,
contract the spectrum of available knowledge. The right of freedom of speech and press
includes not only the right to utter or to print, but the right to distribute, the right to receive,
the right to read…and freedom of inquiry, freedom of thought, and freedom to teach  –
indeed, the freedom of the entire university community…Without those peripheral rights,
the specific rights would be less secure. And so we reaffirm the principle of the Pierce and
the Meyer cases.6

Justice Douglas’s argument is that since there is a general precedent for the
Court’s practice of locating “peripheral rights” within the ambit of the specific rights
mentioned in the First Amendment, then there is no reason why this precedent
should not be followed in the attempt to locate a (peripheral) right to privacy.
Douglas argues that the precedent cases provide the Court with a principle that
can be used as the guide. For lack of a better term, I will call it the Principle of Non-­
Contraction. In the same way that “the State may not, consistently within the spirit
of the First Amendment, contract the spectrum of available knowledge,” so the State

 See fn 5 for a description of Pierce v Society of Sisters.

6
4.3  The Role of Stare Decisis in Supreme Court Decision-Making 71

may not, consistent with the First, Third, Fourth, Fifth, Ninth and Fourteenth
Amendments, contract the right to privacy of the people. To allow the state of
Connecticut to prohibit married couples from using artificial methods of
­contraception contracts or diminishes their freedom to make their own choices
about when and how to avoid pregnancy. The Principle of Non-Contraction prohib-
its the state from limiting personal privacy in a way that significantly impacts an
important part of marital life.
What Justice Douglas has done is to use preceding Court decisions to tease out a
principle that can be used to determine the constitutionality of the Connecticut stat-
utes. Justice Black’s response to this reading is that the amendments cited by
Douglas should not be construed as precedent cases. For example, Black argues that
the First and Fourth Amendments cannot be stretched “so as to afford protection to
the conduct of these defendants in violating the Connecticut law”:
…The Court talks about a constitutional “right of privacy” as though there is some consti-
tutional provision or provisions forbidding any law ever to be passed which might abridge
the “privacy” of individuals. But there is not. There are, of course, guarantees in certain
specific constitutional provisions which are designed in part to protect privacy at certain
times and places with respect to certain activities. Such, for example, is the Fourth
Amendment’s guarantee against “unreasonable searches and seizures.” But I think it belit-
tles that Amendment to talk about it as though it protects nothing but “privacy.” …The
average man would very likely not have his feelings soothed any more by having his prop-
erty seized openly than by having it seized privately and by stealth. He simply wants his
property left alone. And a person can be just as much, if not more, irritated, annoyed and
injured by an unceremonious public arrest by a policeman as he is by a seizure in the pri-
vacy of his office or home.

The most serious criticism made by Justice Black in his dissent is that Justice
Douglas is using as precedents a range of earlier decisions that used a doctrine that
had long since been discarded by the Court. The doctrine to which he refers is sub-
stantive due process, as described earlier in this chapter (Sect. 4.2.1). Justice Black
says that the Court had long since discarded this interpretation of the Fourteenth
Amendment. “We [the Court] have returned to the original constitutional proposi-
tion that courts do not substitute their social and economic beliefs for the judgment
of legislative bodies, who are elected to pass laws.” And yet, he argues, this is
exactly what Justice Douglas has done in Griswold. By using Meyer as a precedent
case he has ignored other precedents and returned to the practice of substituting his
social beliefs (in this case, about the desirability of privacy for married couples) for
those of the Connecticut state legislature.
We should notice that the debate between the two justices is not about whether
precedent should be followed. I suspect that both Black and Douglas would agree
with Robert Post’s suggestion (quoted above) that the use of precedent in judicial
decision-making is important for maintaining the rule of law as well as judicial
stability and continuity. Instead, their disagreement is about what precedent cases
are authoritative and how they should be interpreted. Justice Douglas uses Meyer to
generate the Non-Contraction Principle and thereby to support his claim that the
First and Fourteenth amendments imply several “peripheral rights” not explicitly
mentioned in these amendments. Justice Black rejects Meyer and Pierce as authori-
72 4  Constitutional Interpretation

tative and also rejects the idea of peripheral rights, as does Justice Stewart who
writes the following dissenting words:
What provision of the Constitution, then, does make this state law invalid? The Court says
it is the right of privacy “created by several fundamental constitutional guarantees.” With all
deference, I can find no such general right of privacy in the Bill of Rights, in any other part
of the Constitution, or in any case ever before decided by this Court.

This debate exposes one serious flaw in the doctrine of stare decisis. Judges have
a great deal of discretion in deciding what prior cases will serve as precedents.
Justice Douglas uses cases that Justice Black says are irrelevant, and vice versa.
Second, even when there is agreement about what precedents are authoritative,
there is often substantial disagreement about exactly what the precedent cases
imply. One side might read the cases narrowly while the other side reads them
broadly. Douglas interprets some of his precedents as supporting the idea that there
is a right of marital privacy protected by the Constitution. Justice Hugo Black
(joined by Justice Potter Stewart) interprets the same precedents in the opposite
manner. Finally, as mentioned earlier, no precedent is an “inexorable command.”
Prior decisions can be and have been overturned by a later Court. We will return to
a further discussion of judicial discretion and its impact on the doctrine of stare
decisis in Chap. 13 where it will appear as part of the Critical Legal Studies (CLS)
attack on the rule of law (Sect. 13.2.2).
Although precedent is often used to interpret the Constitution, the doctrine of
Stare Decisis is not a theory of constitutional interpretation. It does not provide a
guiding principle that tells the Court when a past case ought to serve as a precedent
for the case at hand. The choice of one case rather than another as a precedent begs
the question “Why ought we to defer to this case and ignore other possible candi-
dates?” The answer to this question is to be found in a theory of constitutional
interpretation – a theory that will tell us (for example) why Justice Douglas is con-
vinced that the Bill of Rights contains a right to privacy and Justice Black writes that
he can find “no such general right.” We turn now to a discussion of some of the theo-
retical bases that have been suggested by legal scholars almost since the first cases
were decided by the Supreme Court (1791–1794).

4.4  Theories of Constitutional Interpretation

The Constitution and its Amendments are documents that beg for interpretation.
Many of its concepts are vague or ambiguous, and therefore susceptible of being
given multiple meanings and appear to have been understood by citizens in multiple
ways. The purpose of providing a detailed summary of the previous three Supreme
Court cases (Sect. 4.2) is to illustrate how different theories of constitutional inter-
pretation are at work in both the majority decisions and in the dissents to these deci-
sions. Following a recommendation of the late Justice Antonin Scalia, we will
categorize and discuss all theories as residing either under the banner of originalism
or non-originalism (Scalia 1988). The terms “originalism” or “originalist” refer to
4.4  Theories of Constitutional Interpretation 73

theories that view the meaning of words and phrases in the Constitution and its
amendments as fixed at the time of their origin. The terms “non-originalism” or
“non-originalist” allows that the meaning of these words or phrases are not tempo-
rally fixed.

4.4.1  Originalism

Originalist theories come in several forms. Here are four variations: (1) The words
of the Constitution should be taken literally (Textualism); (2) We should defer only
to the intent of those men who created, ratified or framed the Constitution and its
amendments (Framers’ Intent); (3) We should rely on the understanding of those
people who read the Constitution and its amendments and to whom it applied at the
time it was enacted and ratified. (Original Understanding); (4) We should interpret
the Constitution in terms of the political and intellectual atmospheres of the time
leading up to ratification, the influence of British law on the framers and ratifiers,
and the records of the ratifying debates in all the states (Informed Understanding).
Because Textualism has been previously discarded as a theory of interpretation
(on the grounds that it calls for the Court not to interpret the words of the
Constitution), and because it is usually confused with Framer’s Intent theory, we
will here discuss only variations (2)–(4).

Framers’ Intent

Although Justice Black in both Griswold and Tinker shows himself to be an unre-
lenting textualist in his interpretation of the Constitution, no one who believes we
should defer to the intended meanings of the framers would disagree with his tex-
tual analyses. For example, not only does the word “privacy” not occur in the
Amendments, there is no evidence that it would be among the “multitudes of words”
that the framers would have used to express their intended meaning when they
wrote the Amendments. Nor would the framers agree with the words of Justice
Fortas in Tinker that “Students in school as well as out of school are ‘persons’ under
our Constitution.” It was never the intention of the framers to include children as
among those whose conduct is protected under the provisions of the amendments.
And, harking back to Justice Black’s dissent in Tinker, with reference to the use of
substantive due process in Meyer, there is no evidence that the authors of the due
process clause of the Fifth and Fourteenth Amendments intended any more than that
accused persons should have all the protections of a fair trial when their case is
being tried in a court of law. None of the framers intended that the due process
clause implied standards of “reasonableness” to guide state legislatures when they
create laws affecting individual liberty, especially including the liberty of children.
The theory of Framers’ Intent says that the courts should always apply the
intended, not the literal meaning of the framers when interpreting the provisions of
74 4  Constitutional Interpretation

the Constitution and its amendments. The fact that women were not regarded as
legal persons in common law at the time when the Constitution was written is proof
that the framers did not intend to include women in the category of persons who had
the right to vote. And the fact that laws prohibiting the disclosure of military secrets
were never affected by passage of the First Amendment shows that the framers
never intended nor expected them to be rescinded. Hence, it could not have been
their intention that the First Amendment’s protection of freedom of speech would
apply to these prohibitions. The intentions of the framers, not their literal words,
should guide the courts in how they interpret the Constitution.
There are some intentions that the framers could not have had because they
lacked knowledge of technologies that had yet been invented or even imagined. We
can use the Fourth Amendment to illustrate this point. The amendment declares that
there is a “right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” It seems safe to conjecture that
those who wrote and approved this language were thinking only about searches and
seizures involving physical intrusions and confiscations. They did not intend it to
apply to wiretapping of a suspected criminal’s telephone by the government without
a warrant (Olmstead v United States, 1928). They could not have intended this
because they had no knowledge of telephones and wiretapping. On the basis of
these facts, the Olmstead court had to make a choice between declaring that the
Fourth Amendment does not apply (because there was no physical intrusion and
confiscation) or declaring that the Fourth Amendment does apply. The theory of
Framers’ Intent requires the former choice, and this is exactly what the Court
affirmed: “the use of evidence of private telephone conversations between the
defendants and others, intercepted by means of wiretapping [is not] a violation of
the Fourth Amendment” (277 U.S. 455). Critics of the theory would consider this
result to be a counter-example and would urge that we discard Framers’ Intent in
favor of a theory of interpretation that allow considerations other than the intent of
the framers (see section “Original understanding: Robert Bork” below).
Whether or not we take Olmstead as a destructive counter-example (see section
“The democracy argument for originalism”), there are serious epistemological
problems with the Framers’ Intent theory, among them the implication that we can
somehow discover the intentions of each of the men who signed and ratified the
original document in 1787. “Different framers undoubtedly had very different and
even conflicting intentions with respect to many of the provisions that require inter-
pretation” (Altman, 98). Some of the framers may even have intended to protect
individual privacy when they voted on the ratification of the Fourth Amendment.
Second, it is not obvious that we can identify all of the authors of the Constitution.
Who should we include and who should we exclude? For example, the Constitution
was ratified by the men attending the conventions held in each of the early colonies.
Even if these men carefully read the entire document, we cannot say with any cer-
tainty that they attached the same meanings to its provisions as those who wrote the
document in Philadelphia.
Finally, there is an important normative question to add to the previous epistemo-
logical concerns. Why should the intent of the framers, an elite group of wealthy
property owners, not elected by anyone, be given the privilege of determining the
4.4  Theories of Constitutional Interpretation 75

final meaning of the Constitution? It is the assumption that they have this privilege
that drives the attempts of scholars to determine their intentions. If we deny that
there exists a plausible basis for giving them this privilege, then perhaps we can find
a better standard to use for constitutional interpretation.
The originalist response to this criticism is to remind the critic that the only
option to interpreting the Constitution with reference to the origins of this document
is for the Court to use non-originalist criteria, for example the moral ideas or sub-
stantive values held by the justices. This is response made by Stewart and Black in
Griswold (Sect. 4.2.3), and each declares that the judicial use of moral ideas that
happen to appeal to them is illegitimate.

Original Understanding: Robert Bork

Constitutional law scholar Robert Bork posited that the only relevant interpretive
question the courts should ask is “How was the Constitution and its amendments
understood by the people at the time of adoption?” He argued that there is no need
to make guesses about what the framers were thinking or intending at the time of
adoption. It is far easier to examine social history with its many reports about how
common people understood the written words of the relevant documents. In The
Tempting of America, Bork emphasized that originalists should not “search…for a
subjective intention,” but rather for “what the public of that time would have under-
stood the words to mean” (1990, 7).
Based on this approach Bork contends that the Equal Protection Clause of the
Fourteenth Amendment ensured newly freed blacks the same legal rights and privi-
leges that were accorded to whites “because the Amendment was enacted after the
Civil War and was understood as ensuring that newly freed blacks would not be
discriminated against by state laws” (Altman, 99).
Bork gives the same interpretive analysis of the Cruel and Unusual Punishment
clause of the Eighth Amendment. At the time the amendment was ratified (1791),
few citizens thought that the death penalty was either cruel or unusual. But most
persons did believe that ancient practices of torture such as tar and feathering, whip-
pings, and the rack and screw constituted cruel and unusual punishment. Hence, on
the basis of original understanding, although capital punishment is constitutional,
torture is not.
We should add that no one in the late eighteenth century understood that women
were to be accorded the same rights as men under the new Constitution (Sect. 4.1).
They did not have the right to vote, and discrimination on the basis of gender was
not affected by the adoption of any of the first ten amendments. We can add the
observation that there was no general understanding during that time that parents
had a right to teach their children a non-English language, nor that children had a
right to either explicit or symbolic freedom of expression while attending public
schools.
Bork’s main target was the right to privacy. He argued passionately and at length
that there is no historical evidence for the claim that ordinary people in the late
76 4  Constitutional Interpretation

eighteenth and early nineteenth centuries understood the amendments to the

Constitution to include a right that would void all state laws prohibiting ­contraception
or abortion. And since this was not a common understanding of the people during
the time of the adoption of the constitutional amendments, Bork concludes that
there is no constitutional right to contraception or abortion: “The original under-
standing of the Constitution’s provisions did not include any right to privacy more
general than the specific rights enumerated in the document” (Altman, 100).
Does Bork’s switch from “intent of the framers” to “understanding of the people”
allow him to avoid the central criticism made of the theory of Framers’ Intent? That
criticism was that no good reason has been provided to tell us why we should defer
to the intent of the framers when interpreting the Constitution (section “Framers’
intent”). We can ask the same question here. What good reason is there for deferring
to the understanding of Americans alive in the early days of the Republic? Why
should their understanding of the constitutional provisions put them in a privileged
position? Why not defer to the understanding of contemporary U.S. citizens?
Bork’s response to this line of criticism is to remind the critic that the only option
to interpreting the Constitution with reference to the origins of this document is for
the Court to use non-originalist criteria, for example the moral ideas or substantive
values held by the justices and (perhaps) shared by the majority of the populace at the
time they are considering the case. This is also the response made by Stewart and
Black in Griswold (Sect. 4.2.3). They both declare that the judicial use of moral ideas
in reaching a conclusion about constitutionality is illegitimate. Bork goes even fur-
ther and contends that when this happens the Court becomes a “naked power organ,”
exercising might without right and illegitimately imposing its own moral views on
society. The only views that the Court can legitimately impose on society through
constitutional interpretation are those to be found during the time of its origins.

Informed Understanding: Antonin Scalia

The late Supreme Court justice Antonin Scalia gave a succinct description of origi-
nalism and “its warts” in a lecture delivered in 1988.
[Originalism’s] greatest defect, in my view, is the difficulty of applying it correctly…But
what is true is that it is often exceedingly difficult to plumb the original understanding of an
ancient text. Properly done, the task requires the consideration of an enormous mass of
material–in the case of the Constitution and its Amendments, for example, to mention only
one element, the records of the ratifying debates in all the states. Even beyond that, it
requires an evaluation of the reliability of that material–many of the reports of the ratifying
debates, for example, are thought to be quite unreliable. And further still, it requires immers-
ing oneself in the political and intellectual atmosphere of the time–somehow placing out of
mind knowledge that we have which an earlier age did not, and putting on beliefs, attitudes,
philosophies, prejudices and loyalties that are not those of our day. It is, in short, a task
sometimes better suited to the historian than the lawyer…. (Scalia 1988).

We should first note that this description is not identical to Robert Bork’s variety
of originalism. Scalia calls on the originalist to do much more than discover the
understanding of the people living at the time the Constitution and its amendments
4.4  Theories of Constitutional Interpretation 77

were ratified. It is just as important (for a Supreme Court justice and a constitutional
scholar) “to immerse oneself in the political and intellectual atmosphere of the
time.” We can assume that this atmosphere was not available to most citizens. Many
were either illiterate or did not have the intelligence, education, time or energy to
engage in the political debates of the time. Their understanding of the Constitution
and its amendments, unaffected by this heady atmosphere, might not have been the
same as the understandings of the educated who participated in the public discus-
sions of the time.
There is ample evidence of Justice Scalia’s diligent inquiry into both the under-
standing of common folk and the political and intellectual culture of the eighteenth
century in the decision he wrote for the majority in District of Columbia v Heller
(2008) – the case that held that the Second Amendment protects an individual right
to possess firearms.7 This approach to constitutional interpretation is also evident in
cases involving or touching upon family law. Here is part of Scalia’s dissent in the
recent decision to extend the right of marriage to same-sex persons:
When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one
man and one woman, and no one doubted the constitutionality of doing so. That resolves
these cases. When it comes to determining the meaning of a vague constitutional provi-
sion—such as “due process of law” or “equal protection of the laws”—it is unquestionable
that the People who ratified that provision did not understand it to prohibit a practice that
remained both universal and uncontroversial in the years after ratification. We have no basis
for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s
text, and that bears the endorsement of a long tradition of open, widespread, and unchal-
lenged use dating back to the Amendment’s ratification (Obergefell v Hodges, 2015).

And in an earlier dissent to a majority decision that struck down a Texas law
criminalizing sodomy, Scalia wrote:
Our opinions applying the doctrine known as “substantive due process” hold that the Due
Process Clause prohibits States from infringing fundamental liberty interests, unless the
infringement is narrowly tailored to serve a compelling state interest. We have held repeat-
edly, in cases the Court today does not overrule, that only fundamental rights qualify for this
so-called “heightened scrutiny” protection—that is, rights which are “deeply rooted in this
Nation’s history and tradition.” [W] e have insisted not merely that the interest denominated
as a ‘liberty’ be ‘fundamental’…but also that it be an interest traditionally protected by our
society. (Lawrence v Kansas 2003)

In Obergefell v Hodges (2015) Justice Scalia writes of the “understanding” of

those who ratified the Fourteenth Amendment, and refers to a “long tradition” of the
unchallenged use of the text of the Fourteenth Amendment. He repeats these words
in the last sentence of the preceding quote from Lawrence v Texas. “The Fourteenth
Amendment protects “those privileges long recognized at common law as essential

7
 For example, Justice Scalia quotes from a 1794 thesaurus, and two other eighteenth century dic-
tionaries in order to assure readers that the word “arms” in the Second Amendment meant “fire-
arms” or “weapons of offense or armaments of defense.” He also traced the individual right to bear
arms to 1689 England as the result of the abuses of the Stuart kings Charles II and James II when
they used select militias loyal only to them “to suppress political dissidents, in part by disarming
their opponents” (Scalia in Heller, 59).
78 4  Constitutional Interpretation

to the orderly pursuit of happiness by free men.” The original understanding to

which he refers is the understanding that the founders have of the common law of
England and its American colonies and which served as the basis of much of the
early law of the states.

The Democracy Argument for Originalism

Several arguments have been produced in favor of originalism.8 One of the most
popular is “the democracy argument.”9 This argument begins with a statement of the
democracy principle: only the people or their elected representatives shall legislate,
that is, create new law or change existing law. It is assumed that it is always wrong
to violate this basic principle. But the democracy principle is necessarily violated
when one uses non-originalist considerations. This is because any use by the
Supreme Court of non-originalist considerations when interpreting the Constitution
would be an act of legislation. This cannot be said of originalist considerations.
Strict adherence to the text of a constitutional provision, the intention of those who
created it, or the understanding of the law by those to whom the law applied or by
those who were part of the “political and intellectual culture” at the time of enact-
ment is perfectly consistent with the democracy principle.
In assessing this argument, we must first determine what constitutes strict adher-
ence to originalist criteria and what does not. In our previous mention of the
Olmstead decision that wiretapping did not violate the Fourth Amendment’s prohi-
bition of unreasonable searches, the stated reason was that the intention of the
Framers could only have been to prohibit physical intrusions (section “Framers’
intent”). The Framers had no knowledge of wiretapping or any other electronic
intrusions. Moreover, the original understanding by the people of the Fourth
Amendment at the time it was ratified would have been identical to the original
intent of the Framers. Suppose, however, that we add a new category of “people” to

8
 Douglas Lindner (2011) has organized the following list of pro-originalist arguments: (1)
Originalism reduces the likelihood that unelected judges will seize the reins of power from elected
representatives. (2) Originalism in the long run better preserves the authority of the Court. (3) Non-
originalism allows too much room for judges to impose their own subjective and elitist values.
Judges need neutral, objective criteria to make legitimate decisions. The understanding of the
framers and ratifiers of a constitutional clause provide those neutral criteria. (4) Lochner v New York
(widely considered to be a bad non-originalist decision). (5) Leaving it to the people to amend their
Constitution when needed promotes serious public debate about government and its limitations.
(6) Originalism better respects the notion of the Constitution as a binding contract. (7) If a consti-
tutional amendment passed today, we would expect a court five years from now to ask what we
intended to adopt. [Can the same be said for a court 100 or 200 years from now?] (8) Originalism
more often forces legislatures to reconsider and possibly repeal or amend their own bad laws,
rather than to leave it to the courts to get rid of them.
9
 This is the author’s name for the argument.
4.4  Theories of Constitutional Interpretation 79

the larger group whose understanding we wish to consult. The new category is “con-
temporary people.” These are the competent adults who were living at the time that
Olmstead was being considered by the Supreme Court. Let us suppose that a major-
ity of these people, when consulted, would know about the existence of wiretap-
ping. Let us also assume that a majority of these (contemporary) people would say
that their understanding of an unreasonable search does include wiretapping. On the
basis of this information the Court reverses and decides that wiretapping without a
warrant is an unreasonable search.10
This prompts the question: why does consideration of the people’s contemporary
understanding of what constitutes an unreasonable search constitute an act of judi-
cial legislation (a change in existing law), but consideration of original understand-
ing does not? The originalist has no reply to this question. If an appeal to original
understanding is consistent with the democratic principle, then so is an appeal to
contemporary understanding. In both cases, the Court can argue that it is affirming
the right of the people, original or contemporary, to make or change the law.

4.4.2  Non-originalism

As stated at Sect. 4.4, the word “non-originalism” refers to any theory of constitu-
tional interpretation that does not view the meaning of words and phrases in the
Constitution and its amendments as fixed at the time of their origin. This broad defi-
nition of non-originalism can be applied to several theories of interpretation that
have been offered by both judges and scholars of constitutional law.11 In this section
we will discuss two non-originalist theories, beginning with a theory recently pre-
sented by Supreme Court Associate Justice Stephen Breyer.

10
 Olmstead was reversed in 1967 by Katz v. U.S.
11
 Lindner (2011) provides a helpful list of some of the arguments in favor of non-originalism: (1)
The framers at the Convention in Philadelphia indicated that they did not want their specific inten-
tions to control interpretation. (2) No written Constitution can anticipate all the means that govern-
ment might in the future use to oppress people, so it is sometimes necessary for judges to fill in the
gaps. (3) Intentions of framers are various, sometimes transient, and often impossible to determine.
Text is often ambiguous and judicial precedents can be found to support either side. In such cases,
why not produce the result that will best promote the public good? It’s better than flipping a coin.
(4) Non-originalism allows judges to head off the crises that could result from the inflexible inter-
pretation of a provision in the Constitution that no longer serves its original purpose. (The amend-
ment process is too difficult and cannot be relied upon to save us.) (5) Non-originalism allows the
Constitution to evolve to match more enlightened understandings on matters such as the equal
treatment of blacks, women, and other minorities. (6) Brown vs Board of Education (on originalist
grounds, it was decided incorrectly). (7) Originalists lose sight of the forest because they pay too
much attention to trees. The larger purpose–the animating spirit–of the Constitution was the pro-
tection of liberty, and we ought to focus on that. (8) Nazi Germany: Originalist German judges did
not exercise the power they might have to prevent or slow down inhumane programs.
80 4  Constitutional Interpretation

Active Liberty: Stephen Breyer

Stephen Breyer defines democracy as “a form of government in which all citizens

share the government’s authority, participating in the creation of public policy.” This
democratic participation is what Breyer means by “active liberty.” This fits well
with the previously mentioned “democracy principle” used to justify originalist
theories (section “The democracy argument for originalism”). Both Breyer and his
originalist friend and colleague Antonin Scalia take seriously the admonition of the
seventeeth century English philosopher John Locke not to put anyone under the
political power of another “without his own consent” (Locke, VIII), and Thomas
Jefferson’s reminder in the Declaration of Independence 100 years later that govern-
ments must derive “their just powers from the consent of the governed.” Why then
does Breyer get classified as a non-originalist?
Breyer veers away from Scalia when he introduces a familiar distinction between
ancient and modern liberty. Modern liberty is negative. It is the liberty of the indi-
vidual to be free from tyranny, including the tyranny of a majority of citizens in a
democracy who would impose their will on a minority unless restrained by law. In
the United States it is the freedom guaranteed by the Bill of Rights. Ancient liberty
is positive. It is the freedom to actively participate in the democratic process.
It consisted of a sharing of a nation’s sovereign authority among that nation’s citizens. From
the citizen’s perspective it meant “an active and constant participation in collective power”;
it included the citizen’s right to “deliberate in the public place,” to “vote for war or peace,”
to “make treaties,” to “enact laws,” to examine the actions and accounts of those who
administer government, and to hold them responsible for their misdeeds (Breyer 2004:3).

Breyer writes that while taking account of the importance of modern liberty, his
aim is to call increased attention to active liberty, the principle of participatory self-­
government that is found in ancient discussions of liberty (13). His thesis is that
courts should take greater account of the constitution’s democratic nature when they
interpret constitutional and statutory texts. Breyer’s thesis
…finds in the constitution’s democratic objective not simply restraint on judicial power or
an ancient counterpart of more modern protection but also a source of judicial power and an
interpretive aid to more effective protection of ancient and modern liberty alike. It finds a
basic perspective that helps make sense of our constitution’s structure, illuminating aspects
that otherwise seem less coherent (5).

Breyer offers several examples of Supreme Court cases to illustrate his thesis.
The examples are drawn from the areas of free speech, federalism, privacy, equal
protection, statutory interpretation, and review of administrative action.
Each example considers modern government-related problems that call for a democrati-
cally based response. and each raises difficult questions of constitutional or statutory inter-
pretation. In each instance I shall explain why I believe that increased recognition of the
constitution’s democratic objectives (along with an appreciation of the role courts have to
play in securing those objectives) can help judges deal more effectively with the interpretive
issues, thereby helping communities deal better with the problems that have called those
issues into being (21).
4.4  Theories of Constitutional Interpretation 81

In order to see how this applies to family law cases, we will restrict discussion to
the area of free speech, and in particular, children’s speech in public schools, as
illustrated earlier by Tinker v Des Moines School District (Sect. 4.2). How does
Breyer’s “increased recognition of the constitution’s democratic objectives” help us
interpret and apply the First Amendment in this case?
Breyer’s first instruction is to read the First amendment, not in isolation, but as
seeking to maintain a system of free expression itself designed to further a basic
constitutional purpose: creating and maintaining democratic decision-making insti-
tutions. Second, Breyer would attempt to classify children’s speech. Is it political
speech or is it more like some other type of speech, for example commercial speech
or economic regulation. This is important because political speech, unlike other
types calls for a strong pro-speech presumption. Third, these presumptions are
needed so we do not put “active liberty” at risk. Fourth, “That special risk … also
justifies careful review where the speech in question seeks to shape public opinion,
particularly where that opinion in turn will affect the political process and the kind
of society in which we live” (23).
To understand the First amendment as seeking in significant part to protect active liberty,
“participatory self-government,” is to understand it as protecting more than the individual’s
“negative” freedom. It is to understand the amendment as seeking to facilitate a conversa-
tion among ordinary citizens that will encourage their informed participation in the elec-
toral process. It is to suggest a constitutional purpose that goes beyond protecting the
individual from government restriction of information about matters that the constitution
commits to individual, not collective, decision-making. It is to understand the First amend-
ment as seeking primarily to encourage the exchange of information and ideas necessary for
citizens themselves to shape that public opinion which is the final source of government in
a democratic state. In these ways the amendment helps to maintain a form of government
open to participation (in Constant’s words) “by all citizens without exception” (26–27).

The obvious question to ask is whether the purpose of protecting active liberty
applies to the speech of school children? Does a guarantee of free speech while at
school, represented symbolically by the Tinker children’s black arm bands, “facili-
tate a conversation among ordinary citizens that will encourage their informed par-
ticipation in the electoral process”? Will it “encourage the exchange of information
and ideas” necessary to shape public opinion? Children in the school who saw the
armbands and asked the Tinker children about their symbolic meaning were not old
enough to qualify as participants in the electoral process, although the armbands
might have encouraged an exchange of information and ideas among the children
and their parents about the Vietnam war and the justification for a U.S. military
presence in that country.
“Basic democratic objectives, including some of a kind that the First amendment
seeks to further, lie on both sides of the constitutional equation” (27). Seen in terms
of “modern liberty,” Breyer points out, these objectives would include protection of
the citizen’s speech from government interference. But seen in terms of “active
liberty,” they include promotion of a democratic conversation. The Tinker court
appears to be interested only modern liberty – protecting children’s speech from the
interference of their school and the school district. This led the Court majority to
almost automatically find that the decision to suspend the children from school to
82 4  Constitutional Interpretation

be an unconstitutional violation of the children’s free speech rights. (“All persons

have the constitutional right to freedom of speech. School children are persons.
Therefore, school children have the constitutional right to freedom of speech.”). But
a “Breyer court,” I believe, would not reach an easy conclusion. Seen in terms of
active liberty, this hypothetical court would ask whether a “democratic conversa-
tion” would be promoted by giving school children the same speech rights enjoyed
by university students or by the general adult population. The answer would prob-
ably be “no” because until they come of age, there is no electoral process in which
children can participate (other than school elections). Hence, a Breyer court would
be much less inclined than is the majority in Tinker to extend full free speech rights
to school children.
If the purpose of the First Amendment is “first and foremost” to facilitate demo-
cratic self-government, then the speech of school children while in school fails to
advance this purpose. It might even be said that this speech is not political at all,
even while pretending to be such. The Tinker children were practicing political
speech, no doubt imitating the speech of their parents. This is not to deny that imita-
tion has value, especially if we want our children to actively engage in the political
process as adults. It is the kind of speech-related activity that calls for a “totally
relaxed presumption of unconstitutionality,” rather than the strict presumption of
unconstitutionality that we give to political speech (22).
If the Tinker children’s speech is not political, their speech did convey to some of
the other children in their school that they had strong negative feelings about the
U.S. military presence in Vietnam. But in conveying this they were not contributing
to the public debate outside of the school about the relative merits of the war.
Symbolic displays of their beliefs, while important, are not so important that they
justify striking down school district rules that regulate children’s speech for sound
reasons related to the traditional community regulation of public schools. Breyer
might even join the Tinker dissenters and argue that a contrary view of the First
amendment standard fails to further, indeed it impedes, the workings of a demo-
cratically determined school regulatory system. It restricts the Des Moines school
district’s regulatory powers, preventing the local schools from achieving related
objectives that the community democratically determines to be important.
This does not mean that the First amendment leaves the public schools free to
enact any rule it wishes to regulate children’s speech. “Traditional, ‘modern lib-
erty’—the individual’s freedom from government restriction—remains important”
even though ancient liberty—the freedom to participate in democratic govern-
ment—is not. Children need information in order to make decisions about their own
lives, and, irrespective of context, “a particular rule affecting their speech might, in
a particular instance, require them to act against conscience” (for example, a rule
that prohibits them from saying a prayer important to their religion). Other rules
might threaten a child’s artistic expression, censor views in ways unrelated to the
school’s basic objectives, or create other risks of abuse. In each of these cases, those
who wish to restrict children’s speech must override the soft presumption in favor
of freedom of speech. The burden is on those who would write and apply the rules.
4.4  Theories of Constitutional Interpretation 83

Natural Law: Ronald Dworkin

In his dissent in Griswold Justice Black accuses justices who wrote the majority
opinions of injecting “formulas based on natural justice” into their concurring deci-
sions. This is a serious charge. It implies that these justices used moral principles
that are not found in the Constitution. Black forcefully reminds the court that there
is no provision in the Constitution that gives the Supreme Court the power to mea-
sure the constitutionality of a state law based on the “belief that legislation is arbi-
trary, capricious or unreasonable, or accomplishes no justifiable purpose, or is
offensive to our own notions of ‘civilized standards of conduct.” The use of these
standards to appraise legislation “is an attribute of the power to make laws, not of the
power to interpret them.” The Supreme Court has only the power to interpret laws.
Justice Black quotes passages from the opposing opinions of several of his col-
leagues on the Court: Douglas, Goldberg, Harlan and White. I have italicized the
suspect phrases:
Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those
guarantees that help give them life and substance… Various guarantees create zones of
privacy… The present case, then, concerns a relationship lying within the zone of privacy
created by several fundamental constitutional guarantees. (Douglas, opinion of Court, 381)

In determining which rights are fundamental, judges are not left at large to decide cases in
light of their personal and private notions. Rather, they must look to the “traditions and
[collective] conscience of our people” to determine whether a principle is “so rooted [there]
… as to be ranked as fundamental.” Snyder v. Massachusetts. The inquiry is whether a right
involved is of such a character that it cannot be denied without violating those “fundamental
principles of liberty and justice which lie at the base of all our civil and political institu-
tions.” … (Goldberg, concurring, 493)

In my view, the proper constitutional inquiry in this case is whether this Connecticut statute
infringes the Due Process Clause of the Fourteenth Amendment because the enactment
violates basic values “implicit in the concept of ordered liberty,”… While the relevant
inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is
not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth
Amendment stands, in my opinion, on its own bottom. (Harlan, concurring, 500)

It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this
statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capri-
cious denials or on the nature of this liberty. Suffice it to say that this is not the first time this
Court has had occasion to articulate that the liberty entitled to protection under the
Fourteenth Amendment includes the right “to marry, establish a home and bring up chil-
dren,” …and that these are among “the basic civil rights of man.” …These decisions affirm
that there is a “realm of family life which the state cannot enter” without substantial justifi-
cation… Surely the right invoked in this case, to be free of regulation of the intimacies of
the marriage relationship come [s] to this Court with a momentum for respect lacking when
appeal is made to liberties which derive merely from shifting economic arrangements.
(White, concurring, 503).

Justice Black does not dispute either the objectivity or the truth of the moral
principles, values and rights enunciated above by justices Douglas, Goldberg,
84 4  Constitutional Interpretation

Harlan and White. Instead, his claims are: (1) that these “natural justice” principles
are not explicit in the Constitution, and therefore (2) although it is certainly justifi-
able for a state legislature to use them when creating or changing a law regulating
“the intimacies of the marriage relationship,” (3) it is not justifiable for members of
the Court to refer to such principles, rights and values when constructing a decision
about the constitutionality of a state law.
There is one legal philosopher in the twentieth century who mounted a vigorous
defense of his own unique version of the natural law approach to interpreting the
provisions of the Constitution and its amendments. I have discussed some of his
ideas about the relationship between law and morals in earlier chapters (Sects. 2.5
and 3.5.4). Ronald Dworkin there maintained that it is impossible to construct an
adequate theory about the nature of law and legal systems without mentioning the
moral principles that were used by their authors to construct them. This also applies
to the Constitution. We need to know the content of the moral principles that were
not only explicitly used by the framers to justify its provisions, but the implicit prin-
ciples that could justify the provisions if we were called upon to do this. And since
the justices of the Supreme Court are the only persons authorized to interpret and
apply the Constitution in deciding cases, it is not only appropriate but necessary to
discover and apply these underlying principles.
Dworkin’s “interpretive” version of natural law theory can serve as a philosophi-
cal defense of the approach taken by the Court majority in Griswold. In deciding a
difficult constitutional case Dworkin would counsel the justices to think about the
Constitution as the expression of an underlying “philosophy of government.” The
task is to identify the “strongest” philosophy of government that could justify the
provisions of the Constitution and its amendments. The standard to determine
whether one philosophy of government P is stronger than another Q is “true moral-
ity.” P is stronger than Q if P reflects more of the true morality than Q. Of course this
prompts the question “How are the justices to identify true morality?”
Dworkin’s answer to this question begins with his distinction between moral
concepts and moral conceptions. The Fourteenth Amendment is a good example of
this distinction. It contains the concept of equality. As a formal concept the idea of
equal treatment simply means treating like cases alike and different cases differ-
ently. However, the formal concept does not help resolve disputes about equal treat-
ment because it does not tell us when two or more cases are relevantly alike or
different. If it is decided that blue-eyed people will no longer be allowed to vote in
federal elections, the formal definition of equality is of no help to those who think
this is a violation of equality. It could be argued that blue-eyed people are in fact
treated as equals because they are receiving different treatment as a response to their
difference in eye color. What is needed is a standard of relevant differences that will
exclude eye-color. Dworkin refers to this supplementary standard as a conception.
In the mid-nineteenth century the concept of equality was not understood by
most people to include race, gender or sexual preference. Differences between per-
sons in these respects were not part of their conception of equality. Everyone
assumed that segregation of the races, prohibiting women from voting, and restrict-
ing marriage to one man and one woman did not constitute unequal treatment under
4.4  Theories of Constitutional Interpretation 85

the Fourteenth Amendment. In the late twentieth and early twentieth century, how-
ever, the conception of equality has radically changed. Race and gender are now
largely seen as irrelevant differences between persons when legal burdens or bene-
fits are distributed. And many U.S. states have made the same moral judgement
about the way they legally treat same-sex persons under their marriage laws.
We can incorporate this into Dworkin’s idea of “true morality.” A morality is true
when it contains the best conception of a concept. Hence, the true morality that
makes one philosophy of government stronger than another is the one that has
developed the best conception of the moral concepts explicitly espoused by those
who wrote and ratified the Constitution. We have a “better understanding” of the
conception of equality than people generally had in the mid-nineteenth century
because our conception treats race, gender and sexual preference as irrelevant when
making decisions about equal treatment.
Dworkin’s theory of constitutional interpretation can be used to support Justice
Douglas’ finding in Griswold that the Constitution can be interpreted as containing
a general right to privacy that goes beyond those rights explicitly mentioned in the
text. Dworkin does not use the colorful language of “penumbras,” “halos,” or “ema-
nations.” Instead he uses the word “underlying” to characterize the relationship of
the best philosophy of government to the enumerated provisions of the Bill of
Rights. The particular philosophy of government Dworkin employs is the liberal
conception of treating persons with equal concern and respect (Dworkin 1977,
262–3).
Respect is of particular significance here. To treat persons with equal respect is to treat them
as equally capable of forming and acting on intelligent conceptions of how their lives
should be lived. An individual’s right to equal respect is violated when his liberty is limited
on the grounds that his conception of the good is less worthy than that of others, or when he
is not treated as an equal, that is, when his concerns and wishes are not accorded equal
weight with those of others in political decisions (Schopp, 98).

In Griswold the Connecticut statute that was struck down by the Court does not
treat persons “as equally capable of forming and acting on intelligent conceptions
of how their lives should be lived.” By limiting the liberty of married couples to
make their own decisions about contraception the state has done so in a way that
fails to respect their conception of what constitutes a good marital relationship and
family, substituting for it a religious conception disguised as a state prohibition.
The criticisms of Dworkin’s interpretive theory are similar to those made earlier
about his general theory of law (Sect. 2.5.3). The argument that the strongest phi-
losophy of government is the one that best represents true morality looks suspi-
ciously circular when we analyze true morality in terms of the best conceptions of
the Constitution’s moral concepts. In order to escape the circle Dworkin needs an
independent argument proving that the conceptions used in cases like Griswold are
better than the conceptions used in the mid-nineteenth century. Second, there may
be some other philosophy of government represented by the Constitution than the
one enunciated by Dworkin. It may prove to have the same kind of fit and perform
the same task of justification. This possibility should alert us that there is not one
and only one legitimate philosophy of government. Third, “we still need to know
86 4  Constitutional Interpretation

why the best conception of the Constitution’s moral concepts should dictate the
meaning of the document” (Altman, 105). Why not the conceptions of liberty and
equality generally accepted in society at the current time, whether or not some phi-
losophers have better ones? Fourth, there is the criticism of Justices Black and
Stewart that philosophical questions about the true morality and the strongest phi-
losophy of government are questions to be answered by the legislature, not by the
judiciary. It is not the business of the Supreme Court to answer these or other moral
and political questions as part of a judicial decision.
Questions for Thought and Discussion 
1. Describe how Breyer’s approach to constitutional interpretation might be used to
decide the constitutionality of the Meyer v Nebraska case.
2. Describe how an originalist theory might be used to decide the constitutionality
of the Griswold v Connecticut case.
3. Describe how Dworkin’s Interpretive theory might be used to decide the consti-
tutionality of the Tinker v Des Moines School District case.
4. Can you think of any good reason why we should prefer one of the several theo-
ries of constitutional interpretation to any of the others? Is there a good reason to
prefer Original Understanding (for example) to Dworkin’s Interpretative theory?
Explain.
5. How would an originalist like Justice Scalia respond to the criticism that his
theory of interpretation makes it impossible for the Constitution “to evolve to
match more enlightened understandings on matters such as the equal treatment
of blacks, women, and other minorities”? (Lindner 2011)
6. How would a non-originalist like Justice Breyer respond to the criticism that his
theory of constitutional interpretation “allows too much room for judges to
impose their own subjective and elitist values”? (Lindner 2011).

References

Altman, Andrew. 2001. Arguing About Law: An Introduction to Legal Philosophy. Belmont:
Wadsworth.
Black, Hugo. 1960, April. The Bill of Rights. New York University Law Review, Vol. 35.
Bork, Robert. 1990. The Tempting of America. New York: Free Press.
Breyer, Stephen. 2004. Active Liberty: Interpreting Our Democratic Constitution. The Tanner
Lectures on Human Values.http://tannerlectures.utah.edu/_documents/a-to-z/b/Breyer_2006.
pdf. Accessed 21 Sept 2016.
———. 2005. Active Liberty: Interpreting Our Democratic Constitution. New  York: Random
House.
Chisholm v Georgia 2 US 419 (1793).
Dworkin, R. 1988. Law’s Empire. Harvard University Press.
———., eds. 1997. The Philosophy of Law. New York: Oxford University Press.
Fallon, Richard H. 1999. How to Choose a Constitutional Theory. 87 California Law Review 535.
Ferguson v. Skrupa, 372 U.S. 726 (1963).
Griswold v Connecticut, 381 U. S. 479 (1965).
References 87

Lewis, Jone Johnson. 2014. Women in U.S.  Constitutional History: Sex Discrimination. http://
womenshistory.about.com/od/laws/a/Constitution-Sex-Discrimination.htm. Accessed 8 Apr
2016.
Lindner, Douglas. 2011. Theories of Constitutional Interpretation. http://law2.umkc.edu/faculty/
projects/ftrials/conlaw/interp.html
Marbury v. Madison, 5 U.S. 137 (1803).
Meyer v Nebraska, 262 U.S. 390 (1923).
Pierce v Society of Sisters, 268 U.S. 510 (1924).
Planned Parenthood of Southeastern Pennsylvania v Casey, 505 U.S. 833 (1992).
Post, Robert C. 1990. Theories of Constitutional Interpretation. Faculty Scholarship Series. Paper
209. http://digitalcommons.law.yale.edu/fss_papers/209/. Accessed 8 Apr 2016.
Scalia, Antonin. 1988. Originalism: The Lesser Evil. 57 University of Cincinnati L. Rev. 849.
———. 1997. A Matter of Interpretation: Federal Courts and the Law. Princeton: Princeton
University Press.
Schopp, R.F. 2016. Education and Contraception Make Strange Bedfellows: Brown, Griswold,
Lochner and the Putative Dilemma of Liberalism. College of Law, Faculty Publications Paper
98. http://digitalcommons.unl.edu/lawfacpub/98/. Accessed 8 Apr 2016.
Smith v. California, 361 U.S. 147 (1959).
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
West’s Encyclopedia of American Law, 2nd edn. 2008. New York: The Gale Group, Inc.
 Part II
State Intervention in the Family
Chapter 5
The Moral Limits of Family Law

“The only part of conduct of any one, for which he is amenable

to society, is that which concerns others. In the part which
merely concerns himself, his independence is, of right, absolute.
Over himself, over his own body and mind, the individual is
sovereign.” 
John Stuart Mill, On Liberty (1860)

Abstract  Questions about the moral limits of state intervention have usually been
asked about intervention in the actions of individuals, and only rarely asked about
intervention in the behavior of families. In this chapter we will discuss these ques-
tions as they pertain to families by using the same normative principles employed in
familiar discussions about the limits of state intervention in the conduct of individu-
als: harm-to-others, legal paternalism, and moralism. In this discussion we will
introduce and critically examine the doctrine of family privacy which says that the
state has no business intervening in internal family conduct which does not harm the
interests of anyone outside the family. Using the language of J.S. Mill (quoted in the
epigraph), we will ask whether it is true to say “Over itself, over its own members,
the family is sovereign.” Before we attempt to answer this question we need to
respond to the objection that questions about the limits of state intervention wrongly
assume that there is a concept of the family that is pre-political or pre-legal. It has
been argued that this assumption is false because the family, like the personal, is
essentially political. Is the assumption false? Or is there a concept of family that
allows us to refer meaningfully to unjust or wrongful legal interventions in family
life?

5.1  Legal Intervention in the Family

In Chap. 4 we examined three normative theories of interpretation, each informing

us of the best way to determine the constitutional limits of family law: the limits set
by the U.S.  Constitution regarding the amount and kind of control that parents
should have over their children’s education, that married couples should have over

© Springer International Publishing AG 2017 91

L.D. Houlgate, Philosophy, Law and the Family, AMINTAPHIL: The
Philosophical Foundations of Law and Justice 7,
DOI 10.1007/978-3-319-51121-4_5
92 5  The Moral Limits of Family Law

their family planning choices, and that children should have over the amount and
kind of freedom of expression they can exercise as students. In this chapter we will
look generally at the moral limits of family law. To what extent is the state justified
in creating legal rules allowing the state to intervene in the family? Although this
question is yet to be clarified, it is a question that thoughtful legislators attempt to
answer when they consider whether a proposed statute requiring intervention in
marriage or family is or is not justifiable. Typical questions include rules on access
to marriage (“Should same-sex persons be allowed to marry?”), family planning
(“Should a married couple be allowed to abort a pregnancy?”), child-rearing deci-
sions (“Should child abuse standards be modified to prohibit parents from using
corporal punishment as a means of disciplining their children?”), and access to legal
remedies for injuries caused by a spouse or parent (“Should a person be immunized
from liability when their negligent conduct has caused injury to their spouse?”
“Should parents be similarly immunized when the person they have injured is their
child?”).
Questions about the moral limits of family law are similar, but not identical to
questions about the nature of the relationship between law and morals asked in
Chaps. 2 and 3. We were there concerned with the debate between natural law the-
ory and legal positivism about the possible existence of a necessary connection
between law and morality. If natural law theory “wins” that debate, then this would
provide a natural law answer to the question about limits: the positive law can
demand no more of us than what is demanded under the natural law.1 Any positive
law that fails to prohibit immoral conduct, as determined by the law of nature, is to
be declared invalid. However, if the legal positivists are correct about their claim
that there is no necessary relationship between legal validity and the moral content
of a law, then questions about the justifiable limits of positive law still remain. To
quote John Austin again, “The existence of law is one thing; its merit or demerit is
another. Whether it be or be not is one enquiry; whether it be or be not conformable
to an assumed standard, is a different enquiry” (Austin, Lecture V). Having settled
the question of existence (validity), a legal positivist can now raise a question about
the standard we should apply to determine whether a valid law exceeds the justifi-
able limits of state intervention.
Questions in philosophy of law textbooks about the limits of the law are almost
always asked in the context of the criminal law. This is undoubtedly because the
criminal law imposes mandatory rules prohibiting what most would regard as “seri-
ous” or “important” kinds of wrongdoing: for example, murder, manslaughter,
assault, rape, arson, kidnapping, robbery, burglary. Violations of these rules are
responded to with various kind of punishment: loss of liberty (imprisonment), loss
of property (fines and confiscation), and in some cases death by execution. It is
largely because of the kinds of punishment imposed on those found guilty of a

1
 “[The legislative] power, in the utmost bounds of it, is limited to the public good of the society. It
is a power, that hath no other end but preservation, and therefore can never have a right to destroy,
enslave, or designedly to impoverish the subjects.... Thus, the law of nature stands as an eternal
rule to all men, legislators as well as others” (Locke, XI, 135).
5.1  Legal Intervention in the Family 93

crime that the question about the limits of the criminal law arises: What is the divid-
ing line between those behaviors that we regard as suitable for criminal prohibition
and punishment and those behaviors that we believe cannot justifiably be prohibited
by the criminal law?
Family law is not as amenable as is the criminal law to questions about its “lim-
its.” As explained in Chap. 1, this is partly because most of the laws affecting the
family, unlike criminal and tort laws, have functions that are not mandatory (Sect.
1.2). For example, the rules governing marriage have the function of empowering
people to change their status from “unmarried” to “married,” thereby voluntarily
imposing upon themselves new obligations and rights. It is not clear that a question
about the “limits” of marriage law would have any meaning. And yet legislators and
voters historically have had contentious debates about limiting the qualifications of
those who will be granted the legal right to enter into the marital relationship, as
seen in the debates over miscegenation (Sect. 2.2) and as will later be illustrated in
contemporary debates about same-sex marriage (Sect. 9.4). There is also a long his-
tory of legal intervention in the marital relationship itself, for example, laws prohib-
iting the use of artificial methods of contraception,2 restrictions on abortion,3 and
punishment for adultery.4 Perhaps this is where we can find some commonality
between the limits of criminal and family law. The limits of criminal law are about
the kinds of behavior that are justifiably prohibited by mandatory law. The limits of
marriage law are about the restrictions justifiably imposed by the state to prevent
some persons from marrying, and about the kinds of behavior that can justifiably be
practiced within the confines of the marital relationship.
There is a preliminary question that needs to be answered before we can begin a
search about the limits of family law. There are some who argue that there is no line
between the area in which society may legitimately use family law to regulate and
control conduct and the area in which family law may not legitimately be used.
They contend that this is because “family” is essentially a political concept. It is
defined by the law. Hence, by definition, the law always and necessarily intervenes
in the family. But if this is true, then it is impossible to ask about the extent to which
the state ought to intervene in the family. To ask whether the state ought to intervene
in the family would be as empty a question as one that asks whether bachelors ought
to be unmarried. We need to respond to this conceptual challenge before we can
begin to inquire (in Sect. 5.3) about the justifiable limits of family law.

2
 “Beginning in the 1800s, laws in the United States prohibited birth control, when temperance and
anti-vice groups advocated outlawing birth control devices and information about birth control
devices. These groups considered birth control information to be obscene, a belief that was popular
enough that in 1873 Congress passed the Comstock Act outlawing the dissemination of birth con-
trol devices or information through the mail. Most states followed suit by passing their own laws
outlawing the advertising, sale, and distribution, of contraception.” (Anon., Find Law,2016b).
3
 Until 1967 abortion was classified as a felony in 49 states (Anon., Chicago Tribune, 2016a).
4
 “Under the law of many states, a single act of adultery constitutes a crime, whereas in others,
there must be an ongoing and notorious relationship. The punishment set by statute may be greater
for an individual who engages in repeated acts of adultery than for one who commits an isolated
act” (West’s Encyclopedia of American Law, 2nd edition. 2008).
94 5  The Moral Limits of Family Law

5.2  Is “Family” a Political Concept?

There is a position within the philosophy of family law which holds that the family
and the moral obligations of family life are one thing and the legal obligations created
by family law are quite another. Let us call this the traditional position.5 For example,
in his description of the pre-political state of nature (Sect. 2.3.2), John Locke writes
that a family is created when a man and a woman make a “voluntary compact”
between them, which “consist chiefly in such a communication and right in one
another’s bodies as is necessary to its chief end, procreation (Locke, 1980, Ch. VII).
When children are born, the parents are, “by the law of nature, under an obligation
to preserve, nourish, and educate the children they had begotten” (Ch. VI). Although
Locke believes that legal obligations created by political or civil society should gen-
erally imitate the obligations of “conjugal society” (marriage) and parenthood, he
makes it clear that these family obligations are moral, existing entirely in the state of
nature prior to the existence of civil society. Neither the family nor the moral obliga-
tions of family membership logically depend on the existence of positive law.
The traditional position separating moral and legal family obligations is not to be
confused with Locke’s natural law theory of the relationship between positive and
natural family law. It is one thing to say that a positive family law is not valid unless
it conforms to the natural law. It is quite another to say that the family and the moral
obligations in family relationships can exist independently (in the state of nature) of
a civil society with a legal system that creates positive family laws.
Second, the distinction made by the traditionalist between moral and legal familial
obligation is not to be confused with some of the versions of the distinction often
made between the public and private spheres of family life and behavior. One of the
several uses of the public/private distinction6 is to mark off those areas of family life
into which the law ought to intervene from those into which it ought not to intervene.
But for the traditionalist there is no necessary correlation between this use of the pri-
vate/public distinction, on the one hand, and the moral and legal obligations of family
life, on the other. Some traditionalists argue that there are important moral obligations
of family life that ought to be public, that is, enforced by positive family law (for
example, the obligations of parents not to injure, torture, sell, or kill their children).
But there are other less important obligations, which some traditionalists believe
ought to be private, that is, they are not the law’s business (for example, the obligation
of parents to teach their children about sexual behavior and its consequences).

5
 Some of those whose writings imply some version of the traditionalist position include Jean-
Jacques Rousseau  On the Social Contract, 1769; John Locke, Second Treatise of Government,
1690,  Ch. VI and VII; and William James, A Review of Women’s Suffrage, 1869, 362. More
recently, traditionalist views have been espoused by Blustein, Parents and Children,
1982; Schoeman, Rights of Children, 1980; and Mohr, The Case for Gay Marriage, 1995.
6
 The public/private distinction has been variously used to distinguish (1) the unknown and unob-
served from that which is known or observed; (2) the sphere of the “free” in which others do not
or ought not interfere from the sphere in which others do or ought to interfere; and (3) individuals
and perhaps small, voluntary groups from larger, more anonymous and non-voluntary groups. (See
Gavison 1992).
5.2  Is “Family” a Political Concept? 95

When characterizing the public/private distinction the traditionalist typically

uses the terms “intervention” and “non-intervention”. That is, when an area of fam-
ily life is believed to be public, this is expressed by saying that the law ought to
intervene and/or enforce the corresponding moral obligation. If an area of life is
believed to be private, this is expressed by saying that the law ought not to intervene
and/or enforce the corresponding moral obligation.7
In recent years, the meaningfulness of the distinction between legal intervention
and non-intervention in the family has been questioned, as has the corresponding
distinction between public and private spheres of family life. We will call this the
radical position.8 The radical argues there is no such thing as the family as a sepa-
rate and distinct entity into which the state sometimes legally intervenes. This view
is sometimes expressed in a maxim that sums up the radical’s position on the rela-
tionships between the family and family law. The maxim, now famous, is: “The
personal is political.” In the present context this is taken to mean that the family
itself is political, that is, law and social policy together determine which groups of
persons count as a family and which do not, and what rights and duties people have
within family groups. It follows that the notion of a private sphere of family life that
is immune from state intervention is “incoherent” (Olsen 1985, 383). The terms
“intervention” and “nonintervention” are meaningless. There is “no logical basis for
considering any particular set of policies nonintervention” (id.). A legislative deci-
sion not to legally enforce parental duties is a political choice as much as is the
decision to enforce them. Both choices can be characterized as examples of inter-
vention in the family. “As long as the state exists and enforces any laws at all, it
makes political choices” (id.). Since the state constantly defines and redefines the
family and adjusts and readjusts roles within the family, there can be no such thing
as non-intervention. The legal system must intervene in the family.
What would satisfy the claim of the traditionalist that the moral obligations of
family life are one thing but the obligations of family law are quite another? What
would count as a case of legal intervention in the family? Why does the radical
reject these cases? Is legal intervention in the family only a myth? The object of this
chapter is to clarify the relationship between family morality and family law in a
variety of legal situations so that we have a better grasp of the kind of case to be
included in the traditionalist claim that the idea of legal intervention in the family is
a coherent notion. This analysis will provide the groundwork for a critical examina-

7
 A contemporary example of the traditionalist position is in Ferdinand Schoeman’s influential
essay. He defines the family as “an intense continuing and intimate organization of at least one
adult and child, wherein the child is extensively and profoundly dependent on the adult, in which
the adult supplies the child with its emotional and material needs, and in which the parent is depen-
dent on the child for a certain kind of intimacy.” (1980, pp. 9–10). Schoeman concludes this pas-
sage with the remark that “this relationship is to be understood as moral, not biological.” He then
argues that because the family is an intimate organization, it must be accorded privacy and auton-
omy, that is, legislators have an obligation to enact legislation that guarantees that others (including
the state itself) will be excluded “from scrutinizing obtrusions into family occurrences.” (p. 10).
8
 Some of those who hold some version of the radical position include Dworkin 1987, pp. 97, 122,
155–159; MacKinnon 1987, p. 100; Minow 1985; Olsen 1984, 1985.
96 5  The Moral Limits of Family Law

tion of the radical claim that the very ideas of family and family law are somehow
essentially related. Unless we clarify the idea of legal intervention itself we will not
be in a position to assess this important second part of the radical thesis that the
personal is political.

5.2.1  Relationship of Family Law to the Concept of Family

Is the radical correct in her claim that there is an essential relationship between fam-
ily law and the concept of family? There are several possible interpretations of this
claim.
First, the radical may have in mind no more than the empirical point that legal
systems provide definitions of marriage and family and establish rules that set roles
within the family. When confronted with a case in which there is something that we
would call a family or a marriage the definition of which is not provided by the rules
of a legal system she may simply limit her generalization and admit that there are
exceptions to her claim.
Second, the radical may wish to put forward a moral demand. The claim might
be construed as “it is morally undesirable for the state to refrain from intervention;
it ought to define the family and roles within the family.” The person who holds this
view reacts to instances where the state does not intervene by regulating or defining
the family in this way: (1) she doesn’t withdraw her statement or claim, even when
we provide examples of societies that refuse to intervene in the family; and (2) she
is not necessarily inclined to say such things as “these are not really families.”
Third, the claim that the state must intervene in the family may be understood as
a conceptual remark. Something is being said about the concept of the family. This,
I think, is the most favored interpretation of “the family is political.” But exactly
what is it that is being said? Let us look at three quite different analyses of the con-
ceptual relationship between law and the concept of family.
(a) Some philosophers believe that all concepts of right and wrong, duty and obli-
gation, justice and injustice are essentially linked to the law.9 For them a neces-
sary condition for the existence of rights or obligations is that there is a legal
rule conferring such rights and obligations. Such philosophers may also believe
that the family is defined in terms of rights and obligations. They might, then,
conclude that there could not be families that exist independently of legal sys-
tems. They would reach this conclusion because they believe there exists some
necessary connection between rights and obligations and the law. This is one
possible line of argument, but it has all the limitations associated with the view
that there are no obligations and rights independently of legal systems, that is,
it has all the limitations associated with a failure to retain the distinction between
what is and what ought to be law (Sect. 3.3.2).

 See, for example Hobbes Chap. 13.

9
5.2  Is “Family” a Political Concept? 97

(b) The connection between a group of persons being a family in a particular soci-
ety S and S having laws defining the family and regulating conduct within the
family might be like the connection between being a bachelor and being unmar-
ried. That is, if S had no laws defining the family and regulating conduct within
the family, then there would be no families in S. If there were any groups in S of
two persons of the opposite sex who mated, procreated and resided permanently
with their children, this philosopher would say, “Such groups are not really
families.” The radical might further object that since zones of privacy are
defined and created by the legal system, this must be regarded as a kind of legal
intervention. If so, this would make it conceptually impossible for there to be a
“private” sphere of family life from which government should be barred. The
state intervenes by virtue of the fact that it has created by law the very area that
it makes private.
In reply, we should notice that the radical assumes that a state decision not to
legally intervene in the family is to be construed as a kind of intervention. Although
this assumption guarantees the conclusion that a sphere of family privacy does not
exist, it gets to this conclusion at too dear a price. For the radical has now made her
hypothesis that the state always intervenes in the family completely untestable, and
therefore immune from refutation. On her view, the state could never fail to inter-
vene in the family. For not only does the state intervene when it prohibits or requires
conduct of family members, but it also intervenes when it does not prohibit or
require conduct of family members! In other words, she has so defined the concept
of legal non-intervention that no example of non-intervention that we choose to
submit could possibly count as evidence against her hypothesis. It follows that her
conclusion that there is no such thing as non-intervention is logically empty.
I think that what might have led the radical to this unfortunate result is that she
correctly notices that the family is something more than a group of genetically
related persons. Although a biologist might use the word “family” to indicate a
group of genetically related individuals, the primary use of “family” is normative.
That is, it is used to refer to a group of persons (not all of whom may be genetically
related) who have rights and obligations with respect to each other (for example, the
obligation of parents to satisfy the needs of their young children, and the correlative
right of young children to have their needs satisfied by their parents [Macklin
1988]). Since legal systems define and enforce rights and obligations, the radical
wrongly concludes that the concept of family must be connected in meaning with
the concept of a legal system. But it seems clear that the concepts of family and law
are not connected in this way. Not all rights and obligations are legal. Some are
moral; others are derived from the (quasi-legal) proscriptions of religion and cul-
tural mores.
(c) There is a third way in which the concepts of family and family law might be
conceptually connected. It might be argued that these concepts stand to each
other in the way that the legs of a chair stand to the idea of a chair. “Neither the
absence nor the presence of such a feature is determinative of a thing being of a
certain kind though it is relevant to a thing’s being of a certain kind” (Morris,
98 5  The Moral Limits of Family Law

1976). One can imagine a chair without legs, and the presence of legs is not suf-
ficient to make something a chair. However, the absence or presence of legs is
certainly relevant to (evidence for) a thing being (or not being) a chair.
In order to decide whether the concepts of family and family law stand to each
other in this way let us imagine two different types of legal system both of which
lack family law (that is, neither system contains laws that affect or concern persons
by virtue of their status as a family member): (1) A system in which all laws are the
result of either formal legislative enactment or precedent-setting decisions of the
courts. (2) A legal system that in all relevant respects is like the preceding system
with the single exception that in this system customary (moral) rules are regarded as
an important source of law.
With respect to system (1), the question before us is not whether the presence of
family law is a necessary condition for the existence of a normative concept of fam-
ily, but whether its absence in a legal system is relevant to a determination that
persons in that society lacked a normative concept of family. To put it another way,
if family laws were entirely absent, would this weigh against our saying that persons
in that society possessed a normative concept of family?
I have said that a normative concept is one the definition of which employs such
ethical terms as “obligation,” and “rights.” Accordingly, a normative concept of
“family” would be one in which the family is defined as a social group made up of
persons who are related to each other by particular obligations and rights. One way
to discover whether members of a social group possess this concept is to ask whether
they have a critical reflective attitude about the rules governing family relation-
ships.10 For example, do they generally regard violations of the rules as lapses or
faults open to criticism? Do they meet threatened lapses with pressure for confor-
mity? Is the fact that a rule has been violated regarded as a good reason for making
the criticism?
Since the only source of law in (1) is legislative enactment and judicial prece-
dent, we need much more information about the beliefs and attitudes of those who
are subject to the law if we are to answer these questions. Suppose, for example, that
there is only one person (a monarch) who decides what law in the society is and that
person has no interest in legislating rules pertaining to the family. It is doubtful that
we would take the absence of family law in this society as at all relevant to the ques-
tion whether its members had a normative concept of family. That the monarch does
not enact any family law might show that he or she does not regard family relation-
ships as important, but we can draw no conclusions from this either about what his
or her subjects might think about the importance of family relationships or (conse-
quently) whether they have a normative concept of family.
If we turn now to a consideration of legal system (2) described above, there is a
much stronger pull toward the conclusion that persons in this system lack a norma-

 Hart refers to this feature as the “internal aspect” of rules. If a social rule is to exist, then some
10

persons must look upon the behavior in question as a general standard to be followed by the group
as a whole. (Hart 1961, p. 55).
5.2  Is “Family” a Political Concept? 99

tive concept of family. Since customary rules are a regarded as a source of family
law, the complete absence of family law can certainly be regarded as a relevant sign
that this society lacks a normative concept of family. Without customary rules to
guide their behavior, it is likely that members of this society would not have a criti-
cal reflective attitude toward their own behavior or that of others within families.
However, because a system of religious laws governing family relationships might
take the place of custom in some societies, we cannot claim with certainty that the
absence of customary rules is determinative of the absence of a normative concept
of family.11

5.2.2  R
 esolving the Dispute Between Traditionalists
and Radicals

The dispute between traditionalists and radicals is about the relationship of the con-
cepts of family and law. Traditionalists emphasize an essential difference between
the two, whereas some radical answers emphasize an essential likeness. According
to the traditionalist, the family and the rights and obligations of family membership
can and do exist independently of the legal system. They accept that the law estab-
lishes its own definition of the family and legal systems structure family relation-
ships, but the family is not logically dependent on legal definitions. Moreover, when
some traditionalists speak of an essential difference between the family and family
law, they often imply a moral ideal of marriage, family and particular rights and
obligations within the family that (they believe) the state should enforce through
one or more of the various functions of law. These are the natural law traditionalists.
However, as stated earlier, the traditionalism which we are discussing here confines
its theory to the simple proposition that the family and relationships within the fam-
ily exist independently of the rules of a legal system.
The analysis in the preceding section shows that the traditionalist position is
consistent with only one of the various versions of the radical claim that there is an
essential likeness between the family and family law (“the personal is political”).
Although this version is plausible, it is the relatively weak position that when a
society fails to use its legal system to enforce customary moral rules pertaining to
the family, this is relevant (though not determinative) to establishing that it lacks a
normative concept of the family. Although this may be a far cry from the strong ver-
sion of the radical position that says we can have no concept of the family
­independent of a legal system containing family laws, the weak version is consistent
with traditionalism. Indeed, I believe that the two positions are complementary. For
if one agrees with the thesis that legal intervention in the family is a sign of the com-
mitment of a society to morally ideal types of family relationships, then it is a short

11
 Of course the system of religious laws might be identical with the customary rules of the society,
for example Islamic law on the family appears to be identical with custom in many mid-Eastern
countries.
100 5  The Moral Limits of Family Law

step to the thesis that where a normative concept of family exists, there you are
likely to find a legal system that supports it through one or more of the techniques of
family law.12

5.3  T
 heories of Legal Intervention and Their Application
to Family Law

In the previous section we examined and rejected the radical claim that the very
ideas of family and family law are essentially related. Hence, legal intervention in
the family is a logical possibility. The family is not (or not entirely) a political/legal
invention. There is such a thing as “the family” and relationships within the family
that (logically) can exist apart from legal definition. This puts us in a position to re-­
examine the public-private distinction. How are we to draw the line between the
private realm of the family where the law may not legitimately (legally) interfere
with the choices of family members, and the public realm where it may so interfere?
To put the question another way: Is there a limit to what is or ought to be private
conduct within the family?
In the philosophy of criminal law several theories or principles have been recom-
mended as candidates for setting a limit to the liberty of the individual. We shall
discuss three of these principles below, while keeping in mind the diverse functions
of the laws that concern the family. Principles that were developed within the con-
text of criminal law may not easily apply to those family laws that do not have a
mandatory function. Second, we should be aware that these principles pertain to the
liberty of the individual, not to the family, conceived as a distinct type of social
group of individuals. It is one thing to ask for conditions under which the state is
justified in legally restricting the behavior of a person; it may be quite another to ask
this about the behavior of a family.

5.3.1  Utilitarianism and the Harm Principle

In his 1860 essay On Liberty, the philosopher John Stuart Mill set out to answer a
general question which is relevant to our question about the limits of family law.
Mill’s primary interest was in the extent of individual liberty, or (as Mill put it) “the
nature and limits of the power which can legitimately be exercised by society over
the individual” (On Liberty, Ch. I). If it is the case that at least some of the rules of
family law can interfere with the liberty of the individual, then Mill provides a prin-
ciple that tells us when this is legitimate and when it is not.

 Okin advocates the “just” family in which social roles are distributed between husband and wife
12

without regard to gender as the ideal that should be promoted by a legal system (Okin 1989).
5.3  Theories of Legal Intervention and Their Application to Family Law 101

That principle is, that the sole end for which mankind are warranted individually or col-
lectively, in interfering with the liberty of action of any of their number, is self-protection.
That the only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others.

This is called the “harm principle” or (more accurately) the “harm-to-others

principle.” Mill next explains the purposes for which power cannot be rightfully
exercised:
His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be
compelled to do or forbear because it will be better for him to do so, because it will make
him happier, because, in the opinions of others, to do so would be wise, or even right. These
are good reasons for remonstrating with him, or reasoning with him, or persuading him, but
not for compelling him, or visiting him with any evil in case he does otherwise. To justify
that, the conduct from which it is desired to deter him, must be calculated to produce evil to
someone else.

Mill concludes by re-stating the harm-to-others principle:

The only part of conduct of any one, for which he is amenable to society, is that which
concerns others. In the part which merely concerns himself, his independence is, of right,
absolute. Over himself, over his own body and mind, the individual is sovereign.

The harm-to-others principle is derived from the moral principle of utility which
says that our fundamental obligation is to promote the greatest happiness for the
greatest number. Mill believed that the greatest happiness can only be achieved by
providing opportunities for intellectual and emotional development. This develop-
ment is in turn dependent on maximizing individual liberty. Liberty should only be
restricted in those situations where there is harm or the threat of harm to the interests
of others. In all other cases, the liberty of the individual to do as he or she wishes
must not be restricted either by the law or by social opinion.

Other-Regarding and Self-Regarding Harms

Mill refers to conduct that causes or threatens to cause harm to others as “other-­
regarding.” He places this conduct in the public realm as suitable for legal interven-
tion. Conduct that harms only oneself, but does no harm to others is called
“self-regarding.” This conduct is placed in the private realm, and society ought not
to intervene to prevent such behavior, even if what the person is voluntarily doing
risks his own injury or death.
Although Mill does not define “harm,” we can make a few remarks about this
concept. First, not all harms hurt. If my house burns down when I am out of town
for two weeks and I do not learn about this until I return, then although I was not
hurt (in pain) during the two-week period, I was certainly harmed. If the house had
a market value of $250,000 and I had no insurance, then I suffered an immediate
financial setback during the period before I learned that my house burned down. The
point is that we have interests other than avoiding physical or emotional pain (“hurt-
ing”). We also have economic interests, interests in our reputation, interests in our
102 5  The Moral Limits of Family Law

attachments and relationships to others, and many other interests, all of which can
be harmed by others.
Second, harm can be caused by an omission, that is, by failing to do what one has
a “distinct and assignable obligation”13 to do. If a child is malnourished because her
drug-addicted parents neglect to feed her (they have the resources to do this), then
this would constitute harm as much as if they had intentionally injured her.

Intrafamily Harm and the Family Privacy Principle

I have alluded to a question about the identification of those who are responsible for
causing harm. As individuals who are members of families as husbands, wives,
parents, children, siblings, etc. there are many ways in which family members can
be harmed by the behavior of others in the family. The obvious cases are those
involving physical pain: child abuse, child neglect, spousal abuse, and marital rape.
The limits of legitimate liberty are exceeded when a parent abuses or neglects her
child, or a husband hits or rapes his wife. All of these types of acts and omissions
are prohibited by law (usually under the heading of “domestic violence”) and the
justification of this can easily be found in the harm-to-others principle.
Let us use the phrase “internal family harm” to refer to those harms caused by
one family member to another member of the same family. Consider a proposal that
the legal system should treat internal family harm in the same way that Mill sug-
gests the system treat harm that an individual does to oneself. The proposal is that
we adopt Mill’s sovereignty principle (quoted earlier) but make a slight change of
wording in order to apply it to intrafamily harm. Instead of “Over himself, over his
own body and mind, the individual is sovereign,” we substitute “Over itself, over its
own members, the family is sovereign.” We can make similar changes to the rest of
Mill’s famous words: “The only part of a family’s conduct, for which it is amenable
to society, is that which concerns those individuals who are not part of the family. In
the part which merely concerns itself, the independence of the family is, of right,
absolute.” Harms that are strictly internal, harms that occur within the family and
affect only members of the same family are to be treated as self-regarding harms in
which the “self” is the family.
We will refer to this as the Family Privacy Principle (FPP). In its strong version
it recommends absolute prohibitions of state or legal intervention whenever there is
internal family harm. By extension FPP also prohibits attempts of non-family mem-
bers (including those acting in an official capacity) to detect or discover instances of

13
 This is extracted from the following quote in Ch. IV: “When, by conduct of this sort [for exam-
ple, drug addiction], a person is led to violate a distinct and assignable obligation to any other
person or persons, the case is taken out of the self-regarding class, and becomes amenable to moral
disapprobation in the proper sense of the term. If, for example, a man, through intemperance or
extravagance, becomes unable to pay his debts, or, having undertaken the moral responsibility of a
family, becomes from the same cause incapable of supporting or educating them, he is deservedly
reprobated, and might be justly punished; but it is for the breach of duty to his family or creditors,
not for the extravagance [nor for the intemperance].” The words in brackets are by this author.
5.3  Theories of Legal Intervention and Their Application to Family Law 103

such harm without the invitation or express permission of the family. Hence, when
a child is seriously harmed by a parent, or a woman is raped by her husband, the
harm may never be discovered by a non-family person or by state authorities. If it
should be accidentally discovered (for example, during an emergency room visit),
FPP says that such harms should provide no justifiable ground for state or legal
intervention.
There is a weak version of FPP which has historically been invoked to prevent
the state from intervening in parental decisions about the content of a child’s educa-
tion (for example, sex education in the public schools), or the use of some types of
corporal punishment in the home. By way of contrast, the strong version extends the
scope of family privacy to include injurious behavior that might otherwise be pros-
ecuted as a felony (for example, child sexual abuse and spousal rape) or would be
treated in family court as a case suitable for termination of parental rights (for exam-
ple, chronic child neglect).
There is one exception to both the weak and the strong versions of FPP. It is simi-
lar to the exception Mill makes to accommodate temporary forcible interventions in
the behavior of a person who we believe may not know that what she is about to do
will cause her to suffer harm. Mill’s example is of someone forcibly, but temporarily
preventing a person from crossing a decrepit foot bridge in order to determine
whether they are aware that the bridge might collapse. The intervenor does so on the
reasonable belief that this person would not walk across the bridge if she knew
about its poor condition. But once she has received and understands the warning,
further intervention is no longer justifiable. By analogy, if the internal harm-causing
behavior in a family is reasonably believed to be such that it would not occur if the
family member who caused the harm was aware of the detrimental consequences of
his behavior, or if his behavior was not voluntary (for example, he was under the
influence of drugs or alcohol or he was mentally ill) then a temporary intervention
is permissible. And, to continue the analogy, once we are assured that internal con-
ditions have been corrected, then further intervention in the family is not
justifiable.
Why should we adopt FPP? Why should society treat intrafamily harm in the
same way Mill recommends it treat cases of an individual’s self-regarding harm? An
appeal to the principle of utility would surely result in a complete rejection of the
strong version of FPP. The probable bad consequences of adopting strong FPP (an
increased rate of domestic violence, including the rates of child and spousal abuse
and deaths due to abuse) would certainly outweigh any good consequences of non-­
intervention. There may be some relief felt by those family members that comes
from knowing that they will not be prosecuted for the battery or sexual abuse of
their children, but the pleasure of this relief hardly outweighs the enormous pain
they cause.
The problem is that FPP is based on a flawed analogy in which the family is said
to be relevantly similar to an individual. If the analogy is true, then (it is argued) the
principle of non-interference in the self-regarding conduct of individual persons
should be extended to the family. This places the burden on the proponent of FPP to
104 5  The Moral Limits of Family Law

prove that there are sufficient similarities between an individual person and an indi-
vidual family to support the analogy.
One attempt to draw an analogy can be found in political philosophy. There is a
type of utilitarianism that is organic or, corporatist. It views the individual as con-
stituted by, rather than as constituting, society in that the individual is basically
incomplete apart from society. It is the idea expressed by Aristotle in his famous
assertion that “man is by nature a political animal, and that “the state is by nature
prior to the individual.” Now if we replace the word “family” for the word “society,”
then we get an organic notion of the relationship between the family and its indi-
vidual members. This notion says that the individual is constituted by the family to
which he or she belongs. The human being is by nature a member of a family. It
follows that the goods enjoyed by individuals are “inherently social ones, that is,
goods whose every enjoyment... directly involves a communal relationship,” for
example the goods of family love, caring relationships, and of participation in fam-
ily life.
I doubt that this way of conceiving the relationship between a person and the
family to which he or she is a member will give much utilitarian support to FPP. Even
if utilitarians accept the idea that social goods should be counted when making our
utility calculations about the consequences of FPP, these goods are heavily miti-
gated or non-existent in families suffering from domestic violence. Second, utilitar-
ians like Bentham and Mill would hardly be counted among the ranks of organicists.
If pressed they would probably classify their type of utilitarianism as individualis-
tic. This means that they would view the family as composed of individual persons,
of whom the adult members are basically complete apart from the family to which
they belong. Adults use the family to fulfill their needs and desires, but most of these
needs and desires can be specified independently of family membership, and that
membership is at most a useful instrument for their satisfaction. Hence, most of the
goods stressed by the individualistic utilitarian are those that can conceivably be
enjoyed independently of the family, for example the goods of food, drink, satisfac-
tion of sexual desire, clothing, health, safety and security. Children also have these
basic needs, but they must depend on the family to provide them. I suspect that Mill
would modify individualistic utilitarianism to accommodate the social goods that
can only be fulfilled through family membership, as noted above: the goods of lov-
ing and being loved and cared for by a parent or spouse.
If we use either the individualistic or modified individualistic conception of the
relationship between the family and its individual members, then we can derive a
complete rejection of the strong version of FPP. Both of these conceptions stress
health, safety and security as among the goods that are satisfied by family member-
ship. FPP fails to guarantee the satisfaction of these goods. In fact, it worsens the
family environment by making family members much more vulnerable to domestic
violence (internal family harm) than they would be under contemporary legal
­prohibitions.14 Utilitarian defenders of the organic conception of family relation-

 The statistics for child abuse are staggering. During the year 2013, a nationally estimated 3.2
14

million children received either an investigation or alternative response at a national disposition

5.3  Theories of Legal Intervention and Their Application to Family Law 105

ships point might counter by claiming that FPP promotes the social goods of “fam-
ily unity and harmony among its members.” They might support this claim by
submitting evidence that family unity is best achieved when members are left to
their own devices are allowed to work through internal family problems without
outside interference. Even if this is true (and there is little evidence for this claim),
it seems clear that the bad consequences of FPP would far outweigh the good. It is
highly improbable that family harmony would improve to such an extent that
the amount of instances of internal family harm would drop if there was no social
intervention to help victims of child abuse, spousal abuse or intimate partner sexual
violence. Our conclusion is that utilitarians would not endorse the Family Privacy
Principle, preferring instead to treat each family member as a distinct individual for
purposes of applying the harm-to-others principle to specify the conditions under
which it is legitimate for the state to intervene in family affairs.

5.3.2  Paternalism

The principle of paternalism says that an additional reason for restricting individual
liberty is the individual’s own good, either physical or moral. This principle can also
be derived from the general utilitarian principle. If we restrict individual liberty to
those actions that promote an individual’s own good while at the same time ensuring
that they do not act in ways that are harmful to themselves, then this is perfectly
consistent with the higher aim of promoting the greatest happiness for the greatest
number, despite Mill’s protestation that such interventions inhibit intellectual and
moral development.
People often do not know what is for their own good, or they may sometimes
know this but do not know how to achieve it, or how to avoid consequences that are
not in their own best interests. Legislators believe they are well justified in making
certain behaviors illegal on paternalistic grounds. We require automobile drivers
and passengers to wear seat belts, motorcyclists to wear helmets, and everyone to
have a valid prescription from a physician in order to purchase certain drugs at the
pharmacy. But the justification for these paternalistic laws has more to do with pre-
venting them from causing themselves physical harm than it does with promoting
their intellectual and emotional development. It might be true that my development
is best achieved if I carefully think through the risks of taking one medication rather
than another for my arthritis instead of leaving this to my physician and the
­pharmacist, but the risk of not getting it right would probably far exceed the benefit
of my having achieved a relatively small development of my intellectual
capabilities.

rate of 42.9 children per 1000 in the population (U.S. Department of Health and Human Services
2015). The statistics on spousal or intimate partner violence in the U.S. is just as alarming. In 2013
there were 10,512,000 victims of physical violence by a spouse or intimate partner in the United
States. That works out to 20 people each minute. (Centers for Disease Control and Prevention
2014).
106 5  The Moral Limits of Family Law

How does the principle of paternalism apply to family law? The family is fertile
territory for the paternalist. Paternalistic intervention in internal family affairs
receives its most obvious iteration in the public policy called parens patriae. In law
this Latin phrase refers to the power of the state to act as the parent of any child or
individual who is in need of protection. The state is the ultimate parent of the child,
and in theory, the state can use its police power to intervene whenever it determines
that a child is in danger of causing harm to herself.
In addition to the parens patriae policy, most of the laws restricting the liberty
of children are justified by an argument based on the child’s own best interests. For
example, the specific purpose of child labor laws is to safeguard children against
harms such as exposure to hazardous, unsanitary, or immoral conditions, and over-
work. Children are not consulted about whether they want to work under such
conditions. The assumption is that children do not know their own interests, and
thus are incapable of making a rational choice about where and when to work.
Hence, under paternalism it is perfectly justifiable that the state enacts child labor
laws in order to promote the child’s own good, despite what the child or her
parents want.15
But paternalism has also been used to justify treating married women as chil-
dren. Under the doctrine of coverture that was not abandoned in England until the
19th century, “the husband and wife are one person in law: that is, the very being or
legal existence of the woman is suspended during the marriage, or at least incorpo-
rated and consolidated into that of the husband” (Blackstone, Commentaries, Bk. 1,
Ch. 15, sec.3). The doctrine was justified on the same paternalistic principle used to
justify the legal treatment of children: a woman does not have the mental and emo-
tional capacities sufficient to make rational decisions about many matters that con-
cern her own best interests. Caroline Norton wrote about the extent to which
paternalism affected the lives of married women in England:
[She] has no legal existence: her being is absorbed in that of her husband. Years of separa-
tion or desertion cannot alter this position... She has no possessions, unless by special settle-
ment: her property is his property... An English wife has no legal right even to her clothes
or ornaments...An English wife cannot make a will...cannot legally claim her own earn-
ings...may not leave her husband’s house. Not only can he sue her for “restitution of conju-
gal rights,” but he has a right to enter the house of any friend or relation with whom she may
take refuge...and carry her away by force, with or without the aid of police...She cannot
prosecute for a libel....cannot sign a lease, or transact responsible business...cannot claim
support, as a matter of personal right, from her husband...She cannot bind her husband by
any agreement...as her husband, he has a right to all that is hers; as his wife, she has no right
to anything that is his (Norton, E. 8-13, as edited by Brake, 112).

The problem with paternalism is that it does not draw a line between those who
do not possess knowledge of their own best interests sufficient to avoid causing
harm to themselves, and those who have this capacity. Mill exempts children from

 Mill implicitly accepts paternalism for children when he writes that his “doctrine is meant to
15

apply only to human beings in the maturity of their faculties. We are not speaking of children, or
of young persons below the age which the law may fix as that of manhood or womanhood. Those
who are still in a state to require being taken care of by others, must be protected against their own
actions as well as against external injury” (Ch. 1).
5.3  Theories of Legal Intervention and Their Application to Family Law 107

the recommendation that everyone should have as much liberty as they want up to
the point where they attempt to use it to cause harm to others. Because they are not
“in the maturity of their faculties,” they “must be protected against their own actions,
as well as against external injury.” Hence, paternalism is a justifiable reason for
interfering with the liberty of children.
But the same cannot be said for women. There is no factual basis for the claim
that women are not in the maturity of their faculties, or possess faculties which
make them naturally inferior to men in any of the ways relevant to their intellectual
capacities. Hence, there is no basis for one person to use his freedom to do as he
likes in acting for another, “under the pretext” that her affairs are his own affairs.
Mill uses this observation to maintain that “the State” should “maintain a vigilant
control over his exercise of any power which it allows him to possess over others.”
He applies this to “the almost despotic power of husbands over wives”:
[N]nothing more is needed for the complete removal of the evil, than that wives should have
the same rights, and should receive the protection of the law in the same manner, as all other
persons; and because, on this subject, the defenders of established injustice do not avail
themselves of the plea of liberty, but stand forth openly as the champions of power (Ch. V)

Since the central argument for liberty (constrained only by acts causing harm to
others) and against paternalism applies to women as well as to men, there is no
moral basis for application of the doctrine of coverture.16 There is no justification
for denying married women the same legal rights as those of their husbands.

5.3.3  Moralism

Moralism, as defined by Mill, is the practice of society exercising its power over the
individual for the purpose of preventing immoral conduct, “regardless of whether
the conduct harms or victimizes any other specific person” (Altman, 159). All acts
that cause harm to others are regarded as immoral by the moralist, and therefore can
justifiably be prohibited by law. But the moralist also argues that there are other
actions which do not cause harm to others which are justifiably punished. This cat-
egory of actions would include consensual conduct between adults in which there is
no victim, for example, sexual activities such as homosexuality and prostitution.
Examples of the use of moralism in the formation of family law would include
not only laws prohibiting violence (child abuse, marital rape), but any kind of con-
duct in the family that violates an established moral code. Procreative activities are
often the target of advocates of moralism. The use of artificial forms of contracep-
tion and early term abortion as methods of family planning have been prohibited
through the application of moralism, as are restrictions on the number of persons
who can marry (two persons only) and restrictions on gender (one man and one
woman). A reason often (but not always) given for these prohibitions and restric-

16
 Mill would later expand on this argument in his book The Subjection of Women (1869).
108 5  The Moral Limits of Family Law

tions is that the dominant moral code of the society or culture should be enforced by
law even if it could be shown that contraception, abortion, polygamy and gay mar-
riage would cause no internal harm to the family or external harm to others.
But the moral rules to which the moralist appeals are often relative to the culture
in which the rules have majority support. For example, in Middle East countries in
which Islam is the dominant religion, male and female circumcision is morally
obligatory. In boys and men circumcision is done “by cutting off the piece of skin
on the glans of the penis.” Circumcision of the female is accomplished by cutting
out the clitoris.”17 In non-Muslim countries, especially in the Americas and in
Western Europe, female circumcision is referred to as female genital mutilation.
The morally charged word “mutilation” is used because the procedure is believed to
be a serious moral wrong. Many girls bleed to death or die of infection and those
who survive can suffer adverse health effects during marriage and pregnancy (von
der Stocken and Uwer 2007). Perhaps the most serious objection of Western human
rights advocates is based on the fact that the procedure, even when done under safe
conditions, will result in a significant reduction in sexual desire when the young girl
becomes an adult. Hence, she is permanently deprived of the future opportunity to
make her own informed decision as an adult about whether she wants to be
circumcised.18,19
There are two versions of moralism, each version agreeing that immorality
includes not only acts that cause harm to individuals, but also acts in which there are
no victims. The difference between these versions is in the way in which each justi-
fies legal intervention. (1) Legal intervention is justified by the immorality of the act
itself, not by its consequences; and (2) The justification for prohibiting immoral acts
is to be found in the harm that is done to society by a failure to legally enforce its
moral code. Let us examine whether either of these versions might be used to justify
the genital circumcision of young girls.
1. The argument for the first version is that “immoral conduct is the sort of conduct
that calls for punishment, just as morally upstanding conduct calls for reward of
some sort” (Altman, 159). If it is obligatory for the Muslim parents of a young
girl to have her circumcised, and they refuse to do this, then they are liable to

17
 Keller, Reliance of the Travelerhttp://wikiislam.net/wiki/%27an,_Hadith_and_Scholars:
Female_Genital_Mutilation
18
 Performing female genital circumcision on anyone under the age of 18 became illegal in the U.S.
in 1997 with the Federal Prohibition of Female Genital Mutilation Act. As of 2015, 23 US states
have specific laws against FGM. States that do not have such laws may use other general statutes,
such as assault, battery or child abuse. The Transport for Female Genital Mutilation Act was passed
in January 2013, and prohibits knowingly transporting a girl out of the U.S. for the purpose of under-
going FGM. https://en.wikipedia.org/wiki/Female_Genital_Mutilation_in_the_United_States.
19
 Another example of this type of deprivation was the ancient Chinese custom of foot binding in
which the feet of young girls was tightly and painfully bound to prevent further growth. Although
believed to be a mark of beauty, it resulted in lifelong disabilities for most of its subjects.
5.3  Theories of Legal Intervention and Their Application to Family Law 109

various types of punishment (beatings, fines, punitive forced labor20). If they

conform, then the honor of the family is preserved.
But the question asked by Western human rights advocates is not whether the
concept of immorality implies punishment but whether parental refusal to have their
girls circumcised is morally wrong. According to the first version of the theory, this
question is not relevant. The principle makes no recommendations about what
actions are moral obligatory and what actions are morally wrong. If the practice of
female genital circumcision conforms to an existing moral code, then this satisfies
the demands of the principle. But this also identifies the flaw in the theory. Since the
theory provides no objective criteria for determining when an act is morally obliga-
tory, leaving the determination up to the pronouncements of a culture or religion,
then the limits placed on individual liberty are arbitrary. It is theoretically possible
that the theory could also be used to justify the sacrifice of virgins and the slavery
of people believed to be inferior.
2. The argument for the second version of moralism is a harm-based argument
developed by Patrick Devlin.21 The argument has three steps. First, society has
the right to pass judgment on matters of morals, that is, morals are not always a
matter of private judgment. “What makes a society of any sort is a community of
ideas, not only political ideas but also ideas about the way its members behave
and govern their lives; these latter ideas are its morals. ... The structure of every
society is made up both of politics and morals” (131). Devlin uses the Christian
idea of marriage as an example, noting that Christians “adopt monogamy as a
moral principle.”22

Consequently, the Christian institution of marriage has become the basis of family life and
so part of the structure of our society. It is there not because it is Christian. It has got there
because it is Christian, but it remains there because it is built into the house in which we live
and could not be removed without bringing it down.

Christianity is also “the basis of a moral code which condemns behaviors like
fornication and adultery.” This moral code would be “gravely threatened” if indi-
vidual judgments were permitted about the morality of these behaviors. If it is
accepted that (a) there is a public morality, and (b) society could not exist without
shared ideas on what types of acts are immoral, then the public morality must be
protected if society is to be kept from disintegration.
This leads to the second step of Devlin’s argument. He argues that society has the
right to protect its moral code because it has the right to do whatever is necessary to
guarantee its own survival. One way to exercise this right is to use the weapon of the
criminal law. And here Devlin uses another analogy: the law of treason. “The justi-

20
 Shell-Duncan et al. 2000, 143–145.
21
 Devlin 1959, 129–151.
22
 If Devlin was writing his essay today, he would undoubtedly also stress the fact that most
Christians believe that marriage is between one man and one woman. (The prospect of gay mar-
riage was not anticipated by anyone in 1959.)
110 5  The Moral Limits of Family Law

fication for this [law] is that established government is necessary for the existence
of society and therefore its safety against violent overthrow must be secured.” By
analogy, society is also justified in enforcing its moral code. “The suppression of
vice is as much the law’s business as the suppression of subversive activities”
Third, Devlin concedes that the rights and interests of the individual should be
balanced with those of society’s right to enforce its moral code. One consideration
is privacy. [W]hen all who are involved in the [immoral] deed are consenting par-
ties..., the public interest in the moral order can be balanced against the claims of
privacy.“ But this is not a “definite limitation“ of all private immoral acts such as
homosexual encounters, but “a matter to be taken into account” before charges are
brought against the participants in the crime.
Returning to the case of female circumcision, all we need to do is to replace the
word “Christianity” with the word “Islamic” in the preceding argument and we get
the conclusion that there should be no legal prohibition of this practice in Islamic
countries. Moreover, Devlin’s theory could be used to argue for no relaxation of any
of the family laws in Islamic countries that support patriarchy and inequality, for
example polygamy, sexual segregation, prohibitions of women from driving a car,
voting, political activity, going out in public without a head scarf or veil or unac-
companied by a male member of her family, and making her own decision about
when and with whom to marry. Devlin’s version of moralism would argue that if
proscribing female genital circumcision is part of the Islamic moral code, then rules
requiring or forbidding acts proscribed by the code cannot be removed without
“bringing down” the societies in which the code is dominant. Since these societies
have the right to self-preservation, then they have the right to use the criminal law
as a means to enforce whatever might threaten their existence. Immoral conduct,
even if not harmful to others, is as threatening to the existence of society as acts of
treason. Hence, with the possible exception of “lesser acts of indecency” committed
in private, all immoral acts should be prosecuted, including parental refusal to have
their 5-year old female child circumcised.
Devlin’s emphasis is on consequences, “on repairing the damage done to the
social order, on avoiding the chaos that can result from puncturing the social fabric
of relationships, obligations and expectations.”23 This is what makes his brand of
moralism compatible with the moral code of any society, including those dominated
by Islamic morality. The emphasis of his liberal critics is on the freedom to choose
how we will lead our lives: “morality is objective, persons have human rights, indi-
viduals are sacred, and none of this has anything to do with the social or religious
setting in which persons happen to find themselves” (Simmons, 59). This is why the
choice of a Muslim parent to have her female child circumcised is justified as a mat-
ter of family honor in Islamic cultures, but is condemned as a violation of a child’s
right not to be “mutilated” by Westerners. The child has objective, fundamental
rights that are independent of the social setting in which she resides.
If Devlin is not swayed by the counter-example of female genital circumcision/
mutilation, then we should look more closely at his argument for moralistic inter-

23
 Simmons 1999, p. 54.
5.4  Testing the Limits of Intrafamily Sexual Behavior 111

vention in the family. Although it may be true that society needs a moral code to
exist, it does not follow from this that it needs the exact moral code it has at any
given time. Moral codes change over time, and there is no evidence that when this
happens society itself will disintegrate. The change may be at the peripheries of the
code, for example, the recent changes in beliefs about the morality of homosexual
conduct between consenting adults in private. Devlin offers no proof that these
changes would have the same detrimental consequences to society as would a
change in belief and attitude about the immorality of killing or injuring others with
impunity.
The only defense that Devlin can put up at this point is to fall back on what
H.L.A.  Hart refers to as Devlin’s “seamless web” characterization of a society’s
moral code.24 In the same way that a seamless web can crumble if a part of the web
is damaged, so society itself could disintegrate if the moral code that holds it
together is weakened. Although a single act of victimless immoral conduct that goes
unpunished might not damage the social fabric, the decriminalization of all victim-
less immoral conduct would put so much stress on the fabric that it could pose an
irretrievable danger to society.
But again, the burden is on Devlin to prove this. It is an empirical claim for which
there is no credible evidence. His argument seems to assume, without proof, that
“people will not abandon morality, will not think any better of murder, cruelty, and
dishonesty, merely because some private sexual practice which they abominate is
not punished by the law.” What disintegrates when victimless immoral conduct is
decriminalized is not the rest of society’s moral code, but the analogy of society’s
moral code to a “seamless web.”

5.4  Testing the Limits of Intrafamily Sexual Behavior

The following kinds of intrafamily sexual conduct defined here are either punish-
able or have been punishable in most states of the United States as either felonies or
misdemeanors:
Bigamy is the crime of marrying while still in a valid, undissolved marriage with
someone else.
Incest is the offense of having sexual contact with a blood relative, usually a par-
ent, child, sibling, grandparent or grandchild. In the United States the District of
Columbia and every state and inhabited territory have some form of codified incest
prohibition (felony or misdemeanor).
Adultery is voluntary sexual intercourse of a married person with a person other
than the offender’s husband or wife. Adultery is a crime in two states (Michigan and
Wisconsin), and a misdemeanor in most of states having laws prohibiting it.

24
 Hart 1963. 50–51. Although it is commonly thought that the “seamless web” metaphor was
invented by Devlin, it was first used by Hart in his criticism of Devlin.
112 5  The Moral Limits of Family Law

Polygamy is the condition or practice of having more than one spouse at the same
time. Since bigamy is a crime, polygamy would also be a crime if the man in the
relationship married a second woman while still in a valid marriage with the first.
However, most people in polygamous relationships (one man and two or more
women) are either not legally married or the man is legally married to only one of
the women with whom he cohabits. Most polygamists who have a first marriage
have a “spiritual” or religious ceremony when they cohabit with new “brides.” The
relationship of cohabitation was made illegal in the state of Utah under a part of its
bigamy law that prohibited this practice (defined as “a living arrangement in which
an unmarried couple lives together in a long-term relationship that resembles a mar-
riage”). This part of the law was recently struck down by a U.S. federal judge as an
unconstitutional violation of the First Amendment (freedom of religion). The Utah
attorney general has entered an appeal in the 10th U.S.  District Court (Brown v
Buhman).
The problem in this chapter was set by John Stuart Mill: “What is the nature and
limits of the power which can legitimately be exercised by society over the indi-
vidual.” Our concern is with society’s use of its legal system to restrain the liberty
of its members. Is it justifiable to prevent any or all of the aforementioned types of
conduct?
In order to answer Mill’s question within the context of some of the theories
outlined in the section on liberty-limiting principles (harm-to-others, paternalism
and moralism), we need clear definitions of key concepts as well as factual informa-
tion consistent with the demands of each principle. For example, in asking whether
the state can legally prohibit incest under the principle of paternalism, we need to
know what constitutes informed consent when there is sexual contact between (for
example) father and daughter, and if there is consent, the paternalist will inquire
whether the contact is potentially harmful to one or both of the participants. We also
need to know what kind of harm is predicted. Is it emotional or psychological harm,
for example, and how is this to be determined?
If we approach incest from the utilitarian harm-to-others principle, we will want
to know what would count as an “other” who is harmed by the incest of two con-
senting adults. If genetic research supports the notion that inbreeding has untoward
genetic consequences, then the harm of incest resulting in pregnancy is harm that
presumably is done to future persons and to social groups that do not exist. If a child
is born with severe defects due to inbreeding should this constitute a crime on the
ground that it causes a public harm? Should the child be allowed to sue her incestu-
ous parents for damages on the ground they negligently caused the child’s defects?
To put the question another way, should the legal system recognize a right not to be
born?
The principle of moralism in its simplest form would condemn incest on the
grounds that it is regarded as immoral in almost all cultures, especially incest
between fathers and daughters, mothers and sons. The question whether incest is
harmful to the participants who engage in it is irrelevant, as is the question whether
those who engage in incestuous behavior do this voluntarily. Incest is immoral-in-­
itself and this judgment does not depend on harm or on fault. However, Devlin’s
References 113

version of moralism is concerned with the consequences of a society’s failure to

criminalize immoral conduct. Therefore, it is as important for Devlin to produce
empirical data to prove societal damage as it is for the paternalist to produce data
that shows that incest.
The above remarks are only intended to provide a guide to further investigation
of the limits of state power over intrafamily conduct. I will leave it to the reader to
apply these recommendations when using the principles of harm-to-others, pater-
nalism and moralism in order to determine whether rational, informed adults in
consensual relationships should be legally prohibited from engaging in incest, big-
amy, adultery and polygamy and other types of intrafamily sexual behaviors.
Questions for Thought and Discussion
1. What does it mean to say “the personal is political?” Is the family political? How
would you go about proving that this is either true or false?
2. Explain the relevance of the three liberty-limiting principles discussed in this
chapter to justify instances of state intervention in the family. For example, how
does the harm-to-others principle limit the liberty of parents in interactions with
their own children?
3. Is the state justified in prohibiting the kind of conduct described in the definition
of incest in Sect. 5.4? Answer this question with specific reference to the liberty-­
limiting principle you would use in giving either an affirmative or negative reply
to the question. What principles would you not use in answering this question?
Explain.
4. Since bigamy is a crime, polygamy would also be a crime if the man in the rela-
tionship married a second woman while still in a valid marriage with the first. Is
the state justified in prohibiting the kind of conduct described in the definition of
polygamy? Answer this question with specific reference to the liberty-limiting
principle you would use in giving either an affirmative or negative reply to the
question. What principles would you not use in answering this question? Explain.

References

Anon. 2016a. Timeline of Abortion Law and Events. http://www.chicagotribune.com/sns-­abortion-­

timeline-story.html. Accessed 27 Mar 2016.
———. 2016b. Birth Control and the Law: Basics. FindLaw.com. http://family.findlaw.com/
reproductive-­rights/birth-control-and-the-law-basics.html. Accessed 27 Mar 2016.
Blustein, Jeffrey. 1982. Parents and Children: The Ethics of the Family. New  York: Oxford
University Press.
Centers for Disease Control and Prevention. 2014. Prevalence and Characteristics of Sexual
Violence, Stalking, and Intimate Partner Violence Victimization – National Intimate Partner
and Sexual Violence Survey, United States, 2011. ­http://www.cdc.gov/mmwr/prview/
mmwrhtml/ss6308a1.htm?s_cid=ss6308a1_e
Devlin, Patrick. 1959. The Enforcement of Morals. In Proceedings of the British Academy, XIV,
129–151. London: The British Academy.
Dworkin, Andrea. 1987. Intercourse. New York: Free Press.
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Find-Law. 2015. Birth Control and the Law: Basics. http://family.findlaw.com/reproductive-rights/

birth-control-and-the-law-basics.html#sthash.WWV6eVcb.dpuf
Gavison, Ruth. 1992. Feminism and the Public/Private Distinction. Stanford Law Review 45: 1–45.
Hart, H.L.A. 1961. The Concept of Law. Oxford: Clarendon Press.
———. 1963. Law, Liberty and Morality. Stanford: Stanford University Press.
———. 1983. Positivism and the Separation of Law and Morals. In Essays in Jurisprudence and
Philosophy. Oxford: Clarendon Press.
Hobbes, Thomas. 1651. All editions.
James, William. 1983. A Review of Women’s Suffrage, the Reform against Nature by Harold
Bushnell and Subjection of Women by John Stuart Mill. In Visions of Women, ed. Linda A. Bell.
Clifton: Humana Press.
Keller, Nuh Ha Mim, (ed. and trans). 1987. Reliance of the Traveler, The Classic Manual of Islamic
Sacred Law ‘Umdat al-Salik by Ahmad ibn Naqib al-Misri (d. 769/1368) in Arabic with Facing
English Text, Commentary, and Appendices. Beltsville: Amana Publications. http://wikiislam.
net/wiki/%27an,_Hadith_and_Scholars:Female_Genital_Mutilation
Locke, John. 1980. Second Treatise of Government, ed. C.B. Macpherson. Indianapolis: Hackett.
First published in 1690.
MacKinnon, Catherine. 1987. Feminism Unmodified: Discourses on Life and Law. Cambridge:
Harvard University Press.
Macklin, Ruth. 1988. Changing Conceptions of Motherhood. Law, Medicine and Health Care 16:
35.
Mill, John Stuart. 1979. On Liberty. Indianapolis: Hackett. First published in 1860.
Minow, Martha. 1985. Forming Underneath Everything That Grows: Toward a History of Family
Law. Wisconsin Law Review 4: 819.
Mohr, Richard. 1995. The Case for Gay Marriage. Notre Dame Journal of Law, Ethics and Public
Policy 9: 216–229.
Morris, Herbert. 1976. On Guilt and Innocence: Essays in Legal Philosophy and Moral Psychology.
Berkeley: University of California Press.
Norton, Caroline S. 2010. A Letter to the Queen on Lord Chancellor Cranworth’s Marriage and
Divorce Bill. Cambridge University Press.
Okin, Susan Moller. 1989. Justice, Gender and the Family. New York: Basic Books.
Olsen, Frances E. 1984. The Family and the Market: The Politics of Family Law. Law and
Inequality 2(1).
———. 1985. The Myth of State Intervention in the Family. University of Michigan Journal of
Law Reform 18(4).
Rousseau, Jean-Jacques. 1983. On the Social Contract. Indianapolis: Hackett. First published in
1762.
Schoeman, Ferdinand. 1980. Rights of Children, Rights of Parents, and the Moral Basis of the
Family. Ethics 91: 6–19.
Shell-Duncan, Bettina, and Ylva Hernlund. 2000. Female “circumcision” in Africa: Culture,
Controversy, and Change. Boulder: Rienner.
Simmons, A.  John. 1999. Fault, Objectivity, and Classical Islamic Justice. In Perspectives on
Islamic Law, Justice and Society, ed. Ravindra S. Khare. Lanham: Rowman and Littlefield.
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Administration on Children, Youth and Families, Children’s Bureau. Child maltreatment
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maltreatment. Accessed 26 March 2016.
Von der Osten-Sacken, Thomas and Thomas Uwer. 2007. Is Female Genital Mutilation an Islamic
Problem? Middle East Quarterly, Winter: 29–36. ­http://www.meforum.org/1629/
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Chapter 6
Family Crime and Punishment

“Each transgression may be punished to that degree, and with

so much severity, as will suffice to make it an ill bargain to the
offender, give him cause to repent, and terrify others from doing
the like.”
 John Locke, Second Treatise of Government (1690)

Abstract  What response should the legal system make to intrafamily harm? Should
these harms be classified as crimes and punished in the same amount and manner as
other criminal acts? Or should there be some other type of response focusing not on
the individuals who caused the harm but on the family to which they belong?
Questions about the general justification of punishment, the amount and manner of
punishment, and alternatives to punishment are central to the philosophy of law. In
this chapter we discuss the debate between utilitarians who look to the future by
justifying punishment on the grounds of deterrence and retributivists who look to
the past by justifying punishment on the grounds of moral blame and desert. We
examine this debate through the lens of the crime of sexual abuse of a child by its
parent. We then turn to a discussion of therapy as an alternative to punishment in
cases of intrafamily crime. Our question is whether there is something about intra-
family harm that would make therapy a more just response to those who cause such
harms than the response of punishment.

6.1  Public and Private Harms

Crimes are traditionally classified as public harms. This means that the harm is done
to an interest of the public (society), as represented by the state. Officials of the state
seek out and prosecute (in criminal court) those who commit such harms. If the
prosecution is successful, other officials will execute any punishment that is ordered
by the court. Crimes are usually classified by their degree of “seriousness.” The
more serious crimes are called felonies: for example, murder, assault, rape,

© Springer International Publishing AG 2017 115

L.D. Houlgate, Philosophy, Law and the Family, AMINTAPHIL: The
Philosophical Foundations of Law and Justice 7,
DOI 10.1007/978-3-319-51121-4_6
116 6  Family Crime and Punishment

kidnapping and armed robbery. The less serious crimes are referred to as misde-
meanors: for example, shoplifting and driving under the influence.
Torts are private harms. Although a function of tort law, similar to that of crimi-
nal law, is the prevention of undesirable conduct, a tort is a private harm in the sense
that the response to the harm is left up to the person who has suffered the harm. The
state participates by providing a neutral forum (civil court) to which the injured
person can bring a lawsuit to gain compensation. Torts are often classified by refer-
ence to the mental state of the defendant: intentional (for example, wrongful death),
negligent (for example, most auto accidents), and strict liability (for example, dog
bites1).
In some cases, one and the same harm can be both a crime and a tort. In one of
the most sensational trials of the late twentieth century the star football player
O.J. Simpson was found not guilty of the crime of murder (of his ex-wife and her
friend). However, in a subsequent trial in civil court Simpson was successfully sued
by the victim’s families for the intentional tort of wrongful death, for which Simpson
was made to pay millions of dollars in damages.
In this and the next two chapters we will identify and discuss some of the philo-
sophical problems of deciding how society should respond to situations in which
intrafamily harm occurs. The typical public response to crime is punishment, and
the justification of this response is either deterrence or retribution. One question in
this chapter is whether either of these theories provide a satisfactory justification for
intrafamily crimes, for example, domestic violence (including spousal rape and
child abuse), incest, or bigamy. We will also discuss an alternative theory that ther-
apy or rehabilitation (not punishment) is the only justifiable response to crimes that
occur within the family.
A second public response to intrafamily harm is illustrated by how cases of child
abuse and neglect are treated in family or juvenile court. The response to most forms
of child abuse and neglect is not to declare these acts or omissions as criminal, but
to transfer them to a family or juvenile court for a child protection disposition (for
example, in-home supervision of the child by a child protective services team, trans-
fer of the child to foster care, or severance of parental rights). We will defer discus-
sion of this type of response until Chap. 7.

6.2  Intrafamily Crimes: Justifications for Punishment

An intrafamily crime is a crime committed by one or more family members against

another member of the same family. Examples of intrafamily crimes include domes-
tic or family violence, bigamy and incest. Domestic violence is a relatively large
category that includes spousal abuse, spousal rape, child abuse, child sexual abuse,

1
 Strict liability means that the defendant is liable for damages even if he or she was not negligent
(for example, your dog gets out of your fenced yard and bites your next-door neighbor).
6.2  Intrafamily Crimes: Justifications for Punishment 117

and elder abuse.2 The words “violence” and “abuse” include many different kinds of
harm. Here is a quote from the U.S. Department of Justice:
Intimate partner and family violence, including physical, sexual, and financial abuse,
neglect and maltreatment of children, and elder abuse, occurs throughout the country every
day. Unlike most other crimes, intimate partner or domestic violence is usually not a sud-
den, isolated, and unexpected incident. It may involve years of emotional and psychological
trauma as well as physical injuries which may become increasingly more severe and occur
frequently over time. Exposure to such violence has a devastating impact on all involved,
including children living with and experiencing it as witnesses and not direct victims.
(DOJ: Office for Victims of Crime)

Although historically it was difficult to prosecute crimes against members of the

same family, especially those in which a married woman was the victim of her hus-
band’s rape, violence inside the family unit is now taken as seriously as is violence
perpetrated by a stranger. Our question is whether this is justified. Should intrafam-
ily violence be regarded as criminal and therefore punishable? If we believe it
should be punished, should the kind and amount of punishment be the same as that
meted out to nonfamily members who are convicted of the same acts of violence?
There are two traditional approaches to providing a rationale or justification for
the practice of responding to crime with punishment: utilitarian and retributive.
Both of these approaches or theories provide not only a general justification of pun-
ishment, but they set standards for determining the manner and amount of punish-
ment for particular crimes.

6.2.1  Punishment as Deterrence

All versions of utilitarianism start from the premise that our basic moral obligation
is to promote the good and prevent the bad, where “good” means happiness or plea-
sure and “bad” means unhappiness or pain. The good referred to by the utilitarian is
not the individual’s own good, but the greatest amount of good altogether. If a
choice is believed to produce both good and bad consequences, then our obligation
is to choose the course of action that produces the greatest balance of good over bad
consequences, making sure to calculate long-term as well as short-term conse-
quences and the number of persons who might be affected by our action.
The idea of punishment implies the intentional causing of pain to the criminal,
whether the pain is in the form of community service, a fine, a jail term, forced
labor, or execution. Because it involves pain to a designated individual, punishment

2
 The state of Texas has a family code [§71.004 (1) – (3) (2005)] that defines all of these instances
of domestic violence: An act by a member of a family or household against another member of the
family or household that is intended to result in physical harm, bodily injury, assault, or sexual
assault or that is a threat that reasonably places the member in fear of imminent physical harm,
bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;
Abuse, as that term is defined by Sections 261.001(1) (C), (E), and (G), by a member of a family
or household toward a child of the family or household.
118 6  Family Crime and Punishment

requires justification. According to the utilitarian rationale, the burden is on those

who cause the pain to show that this produces more pleasure or happiness than the
amount of pain suffered by the wrongdoer. That burden of proof is met by the utili-
tarian when she proves that punishment of the criminal will at least reduce and at
most entirely prevent future crime. It will reduce it either through deterrence (of the
criminal or those in others who might succumb to the threat of punishment), inca-
pacitation (if imprisoned or put to death, the criminal will not have the ability to
repeat the offending conduct), and in rare cases, moral rehabilitation (the criminal
might undergo a change of character and vow never to misbehave again).
According to the utilitarian, the amount of punishment should produce no more
and no less pain than the amount necessary to achieve its end: the prevention of
future crime through deterrence, incapacitation and rehabilitation. Capital punish-
ment for shoplifting would produce far more pain to a shoplifter than is necessary
to prevent future cases of shoplifting, and a few days in jail would produce far less
pain to a person who has committed armed robbery than would be necessary to
deter future crimes of the same kind.
How does the utilitarian justification of punishment and of amounts of punish-
ment apply to intrafamily crime? The example we will use is intrafamily child sex-
ual abuse, defined as sexual conduct with a child that occurs as the result of force by
a family member or in a relationship that is exploitative because of age difference
and family membership. Of the nearly 63,000 children who were sexually abused in
the U.S. in 2012, about 30% of the perpetrators were family members (American
Humane Association 2012). The punishment for this crime can range from a felony
lifetime sentence to gross misdemeanor with no jail time, lifetime registration as a
sex offender, and termination of parental rights. Here is a typical case:
Rob and his sister Margaret were sexually abused in childhood. Rob’s father abused him on
camping trips in the summers when Rob was between the ages of eight and thirteen. The
abuse consisted of Rob’s father masturbating him and showing him pictures from Playboy
magazine. Rob hated these episodes and came to hate his father who beat him and made fun
of him as gay because he did not get erections when looking at Playboy while his father
masturbated him until his penis was sore. Margaret was abused in toddlerhood by her father
a few times and by two other men one time each. Both men were family acquaintances. She
hardly remembers her father’s sexual abuse, but she recalls the smell of beer on his breath,
his sense of urgency and fear, his breathing, and the pressure of his penis against her vulva
(University of Minnesota 2014, 1–2).

Rob and Margaret’s father was eventually convicted of felonious child sexual
abuse and spent time in state prison. The general question about whether a utilitar-
ian would recommend that intrafamily child sexual abuse should be punished was
answered in the previous chapter. Individual liberty is justifiably restricted by the
law when conduct causes harm to others. There is little doubt that children like Rob
and Margaret are harmed by a parent who involves their children in sexual activities,
whether this is done by force or by exploiting their relationship to the child. There
is ample evidence of the physical harm and psychological damage suffered by the
child victim: sexually transmitted disease and pregnancy in older female children,
and a myriad of psychological disturbances in both younger and older children,
6.2  Intrafamily Crimes: Justifications for Punishment 119

ranging from fear of particular people, places or activities to nightmares or sleep

disturbances, eating disturbances, and withdrawal from family and friends.
Adolescents may suffer from depression, be promiscuous, abuse drugs, run away
from home, be suicidal, and have early pregnancies. Hence, the freedom of a parent
to direct their child’s life is justifiably limited by criminal laws prohibiting the sex-
ual abuse of a child.
How much and what kind of punishment is justifiable? We have seen that this
question is about balancing the pain caused to the offender by punishing him against
the beneficial consequences of a reduced future incidence of child abuse that we can
predict will occur as a result. But how much pain is too little and how much is too
much to achieve this benefit? In answer to this question, there are some who would
gladly execute all child abusers and others who would charge the offending parent
with a misdemeanor and order either  a relatively short jail sentence, community
service, or payment of a fine. The problem with all of these recommendations is that
we have no empirical evidence of how they have affected or will affect future behav-
ior of either the perpetrator or other potential sexual abusers of children. If it is true
that highly publicized executions of parents who sexually abuse their own children
would bring a significant reduction in future cases, thereby eliminating large
amounts of physical and psychological distress, then we would have a convincing
argument for making child sexual abuse a capital crime. But these statistics are not
now and probably will never be available.3
Apart from the empirical problem of determining the amount of punishment suf-
ficient to achieve deterrence, there is the moral problem of possibly sanctioning
punishments that are unjust. This is one of the central criticisms of the utilitarian
theory of punishment. Here is the kind of counter-example used by the critics.
Suppose that a woman wants to divorce her unfaithful husband in order to marry
another man. A friend of hers who is a social worker is disturbed about the rising
rate of child sexual abuse incidents in the county in which they both live. They hatch
a plan that they believe will achieve both of their goals: to rid the woman of her
husband and also reduce the rate of child sexual abuse. They contrive to falsely
charge the woman’s husband with the sexual abuse of their teenage child. The teen-
ager says that she will go along with the scheme (she hates her father because he has
confiscated her cell phone). The social worker says she will stand as a witness. They
contact the police, the husband and father is arrested, charged with and convicted of
sexual abuse of his daughter. His punishment is 30 years in state prison. The trial

3
 The reason that the death penalty for child sexual abuse will never be an option is to be found in
the Supreme Court ruling in Kennedy v Louisiana, No. 07–343, June 25, 2008. The court declared
unconstitutional a Louisiana statute that made it permissible to impose the death penalty for the
rape of a child. (La. Stat. Ann. §14:42, West 1997 and Supp. 1998): Writing for the court majority,
Justice Anthony Kennedy said “the Eighth Amendment bars Louisiana from imposing the death
penalty for the rape of a child where the crime did not result, and was not intended to result, in the
victim’s death.” Kennedy did not use utilitarian reasoning in reaching this decision. Instead, he
used the language of retribution when he wrote that the severity of the punishment was not “pro-
portional” to the seriousness of the crime.
120 6  Family Crime and Punishment

and the conviction are heavily publicized in the media. As a result, there is a signifi-
cant drop in the rate of sexual child abuse allegations in the county.
The critic uses this and like cases to argue that if any theory of punishment could
conceivably justify the punishment of an innocent person, then the theory must be
rejected. No innocent person should ever be punished, no matter the beneficial con-
sequences that might result from his or her punishment. Because there are possible
cases in which punishing an innocent person would produce a greater balance of
good over bad consequences than the alternative of not punishing an innocent per-
son, then the utilitarian theory must argue that not only is it permissible to punish an
innocent person, but it is obligatory. In sum, the injustice of punishing an innocent
person trumps any amount of social benefit that might be achieved by doing this.
Utilitarians have several responses to this critique. First, they admit that the theory
could justify some cases of punishing the innocent, but contend that this is accept-
able. They might say “Far better that we imprison one or two innocent people than
that we fail to seize the opportunity to prevent the future sexual abuse of hundreds of
innocent children.” Second, using the same reasoning, utilitarians might argue that it
is not unjust to punish the husband in the example above. The concept of justice is so
vague and flexible in its every day application that it can be used to achieve this result
in the present case.4 And it could also be said that there is an injustice done to all
children if we fail to use every opportunity to protect them from their abusers, includ-
ing (if necessary) the prosecution of an innocent person. Third, under some versions
of utilitarianism, it would be argued that the counter-example of the innocent father
is irrelevant. These are the “rule utilitarians” who contend that the theory should be
seen as a justification of rules, not as a justification of particular acts (“act utilitari-
anism”). One of the rules that would be justified as part of a system of rules is “Only
the guilty shall be punished.” If asked whether it is justifiable to punish the father for
a crime he did not commit, the rule utilitarian would say “No, for the reason given in
your question -- he did not commit the crime.” Whether it produces net utility to pun-
ish the innocent man is as irrelevant as telling an umpire at a baseball game that it
would produce net utility to give an underdog team four strikes instead of three when
they are at bat. Questions about utility are only legitimately raised when we are
evaluating rules and practices, not when we are making a judgment about whether a
particular person accused of violating a criminal law is innocent.

6.2.2  Punishment as Retribution

Retributivism is the main alternative to the utilitarian theory of deterrence.

Retributivist theory argues that the justification of punishment is to be found in its
emphasis on the essential nature of the criminal act, not its consequences. If the act

4
 “Not only have different nations and individuals different notions of justice, but in the mind of
one and the same individual, justice is not some one rule, principle, or maxim, but many which do
not always coincide in their dictates, and, in choosing between which, he is guided either by some
extraneous standard or by his own personal predilections.” (Mill, Utilitarianism, V)
6.2  Intrafamily Crimes: Justifications for Punishment 121

is a moral wrong, then this constitutes a complete justification for punishing the
person who performed the act. The utilitarian looks forward to the consequences of
punishment in order to justify it. The retributivist looks backwards in order to deter-
mine guilt. If she finds that the person is guilty, then this is logically sufficient for
the conclusion that the agent deserves punishment. When the guilty person, the
criminal, gets the punishment that he or she deserves, then justice is done.
Suppose that the father in the previous case was guilty of sexually abusing his
teenage daughter. The retributivist would argue that the father naturally deserves
punishment, not because his punishment would deter others, or because punishment
will incapacitate him, or because he might undergo a change of character while in
prison. Instead, he deserves punishment because of the immorality of what he did,
and only because of this. A failure to punish would cancel the presumption that what
he did was morally wrong. It is logically impossible to be morally guilty of sexually
abusing one’s child and at the same time not be liable to punishment.
How much punishment to administer depends on the seriousness of the immoral
act. The severity of the punishment should be proportional to this. This does not
mean that the punishment should be identical to the crime, even though the principle
of “an eye for an eye” is deeply etched into the reactive desire of persons when a
serious crime is committed. But although capital punishment for the crime of mur-
der nicely fits the demands of the retributive principle, it does not easily transfer to
other crimes. How are we to punish the homeless arsonist or the childless kidnap-
per? It is because of the impossibility of finding a punishment that will serve as the
metaphorical “eye for an eye” that led retributivists to the principle of proportional-
ity. This principle states that, “the amount of punishment should be proportionate to
the moral seriousness or moral gravity of offenses…” (Ten, 154).
Setting aside questions about what it is that makes one offense more or less mor-
ally grave or serious than another, let us assume that the sexual abuse of a child is
relatively high on the scale of moral seriousness. What standard of severity are we
to use in deciding among the various kinds and amounts of punishment, and how are
we to know when we have achieved a “fit” with the gravity of the crime? 10 years
seems more severe than 5 years in prison because it is a longer period of time. How
do we match this to an entirely different standard used for the moral seriousness of
an offense, whatever that standard may be? I will leave this question to be answered
by the reader, while cautioning her or him not to let their primitive desire for revenge
dictate the kind and amount punishment they choose, nor revert to utilitarian calcu-
lations about deterrence.
The retributivist thinks it obvious that a parent who sexually abuses his child
deserves punishment. But some critics dispute this. They do not see a natural con-
nection between wrongdoing and criminal punishment because punishment is a
legal response to wrongdoing. Legal responses imply the existence of an elaborate
system of police, courts of law, prisons, and formal rules of both substance and
procedure. The critic demands to know how a moral wrong could logically imply
not only the existence of a complex and organized system of punishment, but its
application in the instance case.
122 6  Family Crime and Punishment

This question is reminiscent of a similar question asked about the relationship

between morality and law in Chap. 2. The traditional theory of natural law proposes
a natural or necessary connection between morality and positive law when it pro-
claims that “an unjust law is not a law.” Retributivist theory also argues for a neces-
sary connection between morality and positive law when it proclaims that a failure
to punish wrongdoing violates the moral obligation to respond to the demand that
the wrongdoer should be given the punishment he or she “deserves.” And the same
type of criticism made of natural law theory applies to retributivism. The retributiv-
ist cannot explain how it is that some morally neutral conduct is justifiably punished
by law (for example, carrying a concealed weapon on a university campus), or how
it is that there is immoral conduct that some believe should not be legally punished
at all (for example, turning down an invitation to dinner with someone you do not
like by telling the lie that you will be out of town).
One possible way to avoid these criticisms is to propose another version of retrib-
utivism that locates the justification of punishment in the unfair advantage gained
by the criminal when he or she violates rules that others follow (Altman, 140). Here
is an analogy to clarify this approach.5 Suppose you are driving your car on a four
lane highway and you see a sign directing all traffic to merge into a single lane on
the right. You and most other drivers dutifully merge into single file, but you notice
that a few cars are using the advantage of the slowed traffic to speed up in order to
jump to the front of the line. By analogy, a criminal takes advantage of the restraint
of others when she violates the law. The criminal and the driver are cheaters. The
driver cheats by taking advantage of other drivers who dutifully merge at the end of
the line of cars. The criminal cheats by taking advantage of behavior of those who
obey the law.
This version of the retributivist theory answers the critic of the traditional ver-
sion. It is justifiable to punish morally neutral conduct because such conduct
amounts to cheating. The person who carries a concealed weapon on campus takes
advantage of the restraint of those who obey the “no guns on campus” law in the
same way that a cheater in a game of poker takes advantage of the rule-following
behavior of others with whom she is playing.
But the analogy is flawed. Although the restraint of other drivers in the “merge to
the right” example makes it possible for some drivers to take advantage of the obe-
dience of others and get to the front of the line, it is not because of the restraint of
others that makes it possible for a parent to sexually abuse his own child. There is
no unfair advantage he has that helps him to sexually abuse his child. Unlike the
“merge to the right” example, there is no causal relationship between the obedience
of others to the child abuse laws and him having an opportunity to abuse his child.
The analogy between criminal conduct and cheating is also flawed. If I hide a
card during a game of poker I have violated the rules of the game. This is properly
called “cheating.” When I cheat I am no longer playing the game of poker, although
I disguise this fact from other players. I expect that others will not cheat because this
would greatly reduce the chance I have of winning the game. I am in a better posi-

 This is a thought experiment shared with me many years ago by Professor Herbert Morris.
5
6.3  Therapy, Not Punishment 123

tion to win if I am the only cheater. But the rules of law and morals are not like the
rules of a game. The persons in society to whom the rules of law and morals apply
are not in a competition with each other, as if there were prizes to be won at the end
of the day. When a parent sexually abuses his child he has not impaired the chance
of others to win a perverse game he is playing with them, nor do other child abusers
reduce his chance of winning this alleged game.
A more general criticism is that it is needlessly redundant to justify the punish-
ment of child sexual abuse by deriving it from the immorality of “taking advantage
of the restraint of others” or the immorality of “cheating.” Surely the abuse of a
child can stand on its own as seriously immoral behavior whether or not it can suc-
cessfully be explained as violating some other moral rule (such as the rule prohibit-
ing cheating). Moreover, this reductive attempt seems to diminish the seriousness of
child sexual abuse. If we are to see child sexual abuse as a kind of cheating, then
parental sexual abuse of a child would be seen as no more serious as cheating while
playing a card game with her. The only way to avoid this criticism is to grade differ-
ent instances of cheating from less to more serious. If the alleged cheating of a child
sexual abuser is said to be more serious than cheating at cards and we explain this
by the greater amount of suffering experienced by the victim of sexual abuse, then
we are back to traditional retributivism. It is the suffering of the victim that justifies
both the punishment and the amount of punishment meted out to the offender, and
this has nothing to do with cheating.

6.3  Therapy, Not Punishment

There are some who believe that punishment is not a morally justified response to
criminal conduct. They believe this because they believe that persons who commit
crimes could not have helped what they did. They say that the persons accused of
crime are suffering from a mental disease and the criminal conduct is a symptom of
this disease. A criminal can no more have helped committing the crime than a child
with measles can help displaying the familiar symptoms: body rash, high fever,
muscle aches, sore throat, and runny nose. For the same reason that it would be mor-
ally wrong to punish the child for his symptoms, so it is immoral to punish an
offender for actions that are symptomatic of a mental disease. Both are helpless
victims of their disease and are not responsible for the symptoms they display.
An objection to this analogy is that an adult person with measles, though not
responsible for her symptoms, is nonetheless responsible for infecting others. It was
her choice to go out in public if she knew she was ill. But this objection does not
apply to most cases of mental illness. Mental illness is not an infectious disease, and
most persons who are mentally ill are unable to restrain themselves from a display
of their symptoms, even if the display involves harming others.
124 6  Family Crime and Punishment

Therefore, on this theory the only morally appropriate response of the legal sys-
tem to crime is therapy, not punishment. This is how we respond to measles, head-
aches and heart murmurs, and this is how we should respond to criminal acts. Here
are two quotes from leading proponents of this approach:
Basically, criminality is but a symptom of insanity, using the term in its widest generic
sense to express unacceptable social behavior based on unconscious motivation flowing
from a disturbed instinctive and emotional life, whether this appears in frank psychoses, or
in less obvious form in neuroses and unrecognized psychoses. ... If criminals are products
of early environmental influences in the same sense that psychotics and neurotics are, then
it should be possible to reach them psychotherapeutically. (Karpman, 9).

We, the agents of society, must move to end the game of tit-for-tat and blow for-blow in
which the offender has foolishly and futilely engaged himself and us. We are not driven, as
he is, to wild and impulsive actions. With knowledge comes power, and with power there is
no need for the frightened vengeance of the old penology. In its place should go a quiet,
dignified, therapeutic program for the rehabilitation of the disorganized one, if possible, the
protection of society during the treatment period, and his guided return to useful citizen-
ship, as soon as this can be effected (Menninger, 63–64).

In Chap. 5 we looked at and rejected an organic model of the family and its
implied recommendation that domestic violence should be treated as a sign of fam-
ily dysfunction (section “Intrafamily harm and the family privacy principle”). We
there rejected the organic model because of its disutility. Our main concern is that it
could be used to justify a strong version of the Family Privacy Principle which
might be used to block coercive state interventions on behalf of thousands if not
millions of abused children and adults who have suffered from the violence of a
family member. However, if we assume an individualistic model of the family and
accordingly see domestic violence as a symptom of individual dysfunction to be
responded to with therapy instead of punishment, then quite different problems
emerge. Let us look first at the implications of a therapy system.
“The logic of sickness implies the logic of therapy, and therapy and punishment
differ widely in their implications” (Morris, 482). The implications of a system that
responds with therapy for those who have sexually abused their own children are
these: First, the response to the abusive parent is not for what the parent has done to
his child, but for the condition from which the therapist believes the abusive parent
is suffering. The emphasis of a therapeutic response is not on the past suffering of
the child but on something that is going on in the present: the abusive parent’s men-
tal disease. Second, unlike punishment, the aim of therapy is to help the abusive
parent, not to harm him or deprive him of something we regard as good (for exam-
ple, his liberty). Third, with punishment, we speak of proportioning the punishment
to the crime. But with therapy, “attempts at proportionality make no sense.” It is
perfectly plausible to give someone who sexually abuses a child one week of coun-
seling, but “treating for a lifetime within an institution one who has broken a dish
and manifested accident proneness” (Morris, 484). All that matters is whether he is
cured of what we believe to be the inner condition that caused the aberrant behavior,
and this might take one day or a lifetime of therapy. Finally, in a punishment system
there is no intervention until a person attempts or commits the criminal act. We do
6.3  Therapy, Not Punishment 125

not want to visit the deprivations of punishment on a parent who might only be
thinking of having sexual contact with her child but who has not yet taken the first
steps toward doing this. We do not punish a person who only has immoral thoughts,
and we want to allow for a possible change of mind. But in a therapy system there
is no reason to wait until the diseased person manifests the symptoms of her disease.
If we believe that a parent is suffering from a mental illness that inclines her to sexu-
ally abuse her child, then we would be justified in restraining and treating her now
rather than wait for her to commit her first act of child abuse.
Should we treat all individuals who commit intrafamily harm as candidates for
therapy instead of punishment? First, there is the empirical problem of proof. What
evidence do the proponents of a therapy system have that all criminals, including all
those who harm members of their own family, are “insane” in the generic meaning
of this word given by Karpman in the quote above? And what evidence do we have
that there are therapies that would change the relevant criminal behaviors? In light
of the fact that there is little or no evidence to answer these two questions it would
be presumptuous to discard the punishment system for a system of psychological
rehabilitation. (It would be as presumptuous as it would be to propose that all certifi-
ably insane people should be punished for the harms they cause while insane.) This
is not to deny that there are individual cases in which the person who commits an
act of family violence is mentally ill, and confinement for the purpose of therapy is
an appropriate response. But there is no evidence to back up the claim that all or
even a majority of those who commit such acts are mentally ill to the extent that
they cannot help what they do.
Second, it is important for the proponent of therapy to concede that there are at
least a few cases where the criminal act is an act the criminal chooses to commit. If
the proponent does not concede this, then his claim that all criminal acts are symp-
tomatic of mental disease should be taken as a conceptual claim about the notion of
“criminality,” But this is clearly not how the concept of criminality is used in either
legal or non-legal language. The concept of a criminal act implies nothing about the
mental health, reasoning or motivation of the criminal. It is true that a common reac-
tion upon hearing about a parent who sexually abuses his child is to say “That man
must have been very sick to have done such a thing.” But it is just as common for
one to say “That man must be very evil,” implying in the latter case that he had a
choice to refrain but refused to do this.
If the point about choice is conceded and yet the system is one that responds to
all instances of domestic violence as suitable for therapy of the perpetrator, then the
system is forcing the offender to change “so that he functions in a way regarded as
normal by the current therapeutic community.”
We have to change him and his judgments of value. In doing this we display a lack of
respect for the moral status of individuals, that is, a lack of respect for the reasoning and
choices of individuals. They are but animals who must be conditioned. I think we can
understand and, indeed, sympathize with a man’s preferring death to being forcibly turned
into what he is not. (Morris, 487)
126 6  Family Crime and Punishment

There are many who will not sympathize with the man who freely chooses to
sexually abuse his children. They would see no good reason to respect either his
reasoning or his choices. But this is to misunderstand Morris’s point in the quoted
passage. He does not mean that we should show respect for what he chooses.
Instead, he means that the morally appropriate response of the legal system should
be of a kind that displays respect for his choosing to do it. The system ought to treat
the offender as a person (not as an animal), and this is done only by responding to
his free choice with punishment, not with therapy.
Questions for Thought and Discussion
1. Suppose it is recommended that all intrafamily harms (child abuse, child sexual
abuse, spousal rape) should be responded to with therapy, not punishment. Would
you support this recommendation? Explain.
2. “The logic of sickness implies the logic of therapy” (Herbert Morris). What does
this mean?
3. How should we decide on the manner and amount of punishment for particular
intrafamily crimes (incest, bigamy, polygamy, adultery, child sexual abuse, spou-
sal rape)? Compare utilitarian and retributive responses to this question.
4. What justifies the common practice of excusing persons from criminal liability
(punishment) if the harm they caused was unintentional or involuntary? Compare
and contrast a utilitarian to a retributivist answer to this question.

References

American Humane Association. 2012. Stop Child Abuse. http://www.americanhumane.org/chil-

dren/stop-child-abuse/fact-sheets/child-sexual-abuse.html. Accessed 28 March 2016.
Bentham, Jeremy. 1931. The Theory of Legislation. New York: Routledge and Kegan Paul.
Davis, Michael. 1992. To Make the Punishment Fit the Crime. Westview.
Devlin, Patrick. 1965. The Enforcement of Morals. New York/London: Oxford University Press.
Feinberg, Joel. 1984. Harm to Others. New York/London: Oxford University Press.
Hart, H.L.A. 1963. Law, Liberty and Morality. Stanford: Stanford University Press.
———. 1973. Punishment and Responsibility. New York/London: Oxford University Press.
Kant, Immanuel. 1965. Metaphysical Elements of Justice. Trans. J.  Ladd. Indianapolis:
Bobbs-Merrill.
Karpman, Benjamin. 1956. Criminal Psychodynamics. The Journal of Criminal Law and
Criminology 47: 9.
Kennedy v Louisiana, 554 US 407 (2008).
Menninger, Karl. 1959. Therapy, Not Punishment. Harper’s Magazine (August).
Mill, John Stuart. 1979. On Liberty. Indianapolis: Hackett.
Morris, Herbert. 1968. Persons and Punishment. The Monist 52: 475–501.
Ten, C.L. 1987. Crime, Guilt and Punishment. New York/London: Oxford University Press.
Texas Constitution and Statutes. 2016. http://www.statutes.legis.state.tx.us/?link=FA. Accessed 27
Mar 2016.
University of Minnesota. 2014. Case Studies. Center for Advanced Studies in Child Welfare. http://
cascw.umn.edu/. Accessed 28 Mar 2016.
U.S. Department of Justice. 2014. Raising Awareness about Sexual Abuse: Facts and Statistics.http://
www.nsopw.gov/en/Education/FactsStatistics. Accessed 28 Mar 2016.
———. 2016. Office for Victims of Crime. www.ovc.gov. Accessed 27 Mar 2016.
Chapter 7
Child Abuse and Neglect

“It is time to abandon the myth that ‘the best foster family is
not as good as a marginal biological family.’ The ability to make
a baby does not ensure that a couple have, or ever will have,
the ability to be adequate parents.”
 Richard Gelles (1996)

Abstract  A familiar public response to intrafamily harm is child protection. It is a

response that occurs when cases of child abuse or neglect are given over to a family
or juvenile court. The court orders a disposition primarily aimed at protecting the
child from further harm. The disposition may consist of court ordered home ser-
vices for the family, temporary transfer of the child to a foster family, or permanent
severance of the parent-child relationship. In creating the disposition, a judge will
first attempt to determine what is in the child’s best interest. This is where philo-
sophical questions arise. What is an interest? How does an interest relate to the
concept of a harm? What should count as a child’s interests? What interests are best
or better than other interests? The answer to these questions often depends on one’s
conception of the relationship of a child to the family. We look at a distinction
between different models or ideals of the family, each of which generates different
answers. These answers are closely related to a debate between social welfare pro-
fessionals over whether it is more important to protect the child or to preserve the
family, and to a related debate between those who want to criminalize abusive con-
duct and those who want to take a therapeutic approach to domestic violence by
searching for and correcting its underlying causes.

7.1  Protecting the Child: The Family Court Option

There are three major categories of court cases that result from child abuse and child
neglect: criminal, tort and family or juvenile court. In a criminal case, “the alleged
perpetrator of child maltreatment is charged with a crime (for example, sexual

© Springer International Publishing AG 2017 127

L.D. Houlgate, Philosophy, Law and the Family, AMINTAPHIL: The
Philosophical Foundations of Law and Justice 7,
DOI 10.1007/978-3-319-51121-4_7
128 7  Child Abuse and Neglect

assault), and the case proceeds through the criminal courts.” In a tort case, “the vic-
tim, or a representative of the victim, may be able to sue the perpetrator in a civil
action for damages.” In Chap. 6 we looked at the justification for responding to
intrafamily crime with punishment (Sect. 6.2) and with therapy (Sect. 6.3) But the
most common judicial response to child abuse and neglect, whether caused by a
person who is or is not a family member, is a family court intervention to protect the
child from further harm. This is the legal response we shall examine in this chapter.
When the family court option is taken by the state, a two-stage procedure usually
occurs: jurisdictional and dispositional. In the jurisdictional stage, “the court deter-
mines if it has subject-matter jurisdiction by deciding whether the facts of the case
come within the definition of abuse, neglect, or dependency used in the state as
established by statute and court opinion” (id.). If the family (or juvenile) court has
jurisdiction, then it must decide what child protective disposition it should make:
The court’s judgment is sometimes called a dispositional order. A number of options are
available. Examples: (a) Leave the child with the current parent or other caregiver under the
supervision of the child protective services or a child welfare agency and require counseling
or other conditions designed to prevent future maltreatment; (b) Place the child in foster
care or in an institution. (c) Begin proceedings to terminate the parental rights of the parent
so that the child can be adopted (Statsky 2015).

A family court judge will usually ask for the recommendation of Child Protective
Services (CPS) prior to making a dispositional choice for an abused or neglected
child. CPS will then organize a Child Protective Team (CPT) and assign it to the
requested case. Our concern here will be with the dispositional stage of the
process

7.2  Two Cases

Let us begin with brief descriptions of two cases, drawn from the extensive social
sciences literature on domestic violence.1 The first is a case of child abuse. The
second is a case of child neglect. The difference between the two is that child abuse
involves harmful acts of commission, specifically “serious physical, emotional or
sexual mistreatment of a child that is not the result of accident or circumstances
beyond the control of the parent or guardian.” Child neglect involves harmful

1
 “Children are suffering from a hidden epidemic of child abuse and neglect. Last year 3.6 million
reports of child abuse and neglect were reported to state and local agencies in the United States
involving 6.6 million children (reports can include multiple children). The United States has one
of the worst records among industrialized nations  – losing more than four children on average
every day to child abuse and neglect” (American Society for the Positive Care of Children 2016).
The overwhelming number of children who die from abuse or neglect are under the age of four;
roughly half are less than a year old. Across the U.S. “about one in three children who die from
maltreatment belongs to a family that had previously drawn attention from the attention of child-
protective services” (Lepore 2016). See also fn. 22 at 5.3.3.
7.3  The Standard of “Best Interests of the Child” 129

omissions, specifically “the failure of a parent or guardian to provide the basic needs
of a child, including physical needs (e.g. food and shelter), emotional needs, medi-
cal needs, and educational needs” (Statsky, 746).
Denise: A Case of Child Abuse. Denise is a recently adopted nine-year-old girl who had
been subjected to 226 lashes with a belt for failure to bring home her homework papers.
Denise’s mother, in addition to doing most of the beating, had attempted to breast feed the
nine-year-old, checked her genitals daily for signs of masturbation, and engaged her in
games of Sorry whenever Denise confessed the impulse to masturbate. The dispositional
order was to place the child in foster care, under the supervision of CPS until such time that
her mother could be cured of the condition that prompted her abnormal behavior (Newberger
and Rosenfeld, 1977: 2087).

Jason: A Case of Child Neglect. Jason was originally removed from his home, at the age
of 4 months, following a report of life threatening medical neglect. No relatives were avail-
able to take Jason so he was placed in foster care …. Four months after Jason was removed,
he began partially supervised overnight and weekend visits [with his mother]. Following
these visits the foster parent expressed concerns that the child was being overfed, that he
was returning to the foster home with a very dirty diaper area and that there was concern
that the child was not receiving medicine… [The agency worker] was also concerned about
mother’s relationship with Jason. She wrote, “Many times the mother will not initiate any
contact with Jason…Most visits, Jason can be found in his walker, with [the mother] sitting,
talking on the phone or watching T.V. She rarely, if ever, picks Jason up and even then it is
for very short periods. Despite these reports, Jason was returned to his mother. Five months
later Jason and his siblings were found in the hall playing with a lighter and gasoline. They
were unsupervised and burned themselves. This incident was reported on TV news. A
report followed which read, “mother leaves the children alone and will lock them in their
room for hours . . . the mother leaves the children in the care of a 12-year-old who drinks
and smokes.” All of the children, including Jason were permanently removed from their
mother on grounds of chronic child neglect, specifically for maintaining a life endangering
environment and lack of supervision (Indiana University School of Social Work).

7.3  The Standard of “Best Interests of the Child”

It is not clear how the family court judges in the preceding cases reached their dispo-
sitional decision, although we can assume they employed the universally recom-
mended standard of the best interests of the child. This phrase implies that the judge
is to regard as secondary whatever interests the parents or other legal guardians of the
child might have – unless the satisfaction of their interests can be shown to promote
the interests of the child. Judges are given great discretion in making dispositional
decisions based on the best interests standard, so much so that critics claim that their
decisions are often unpredictable and sometimes arbitrary. This is largely because
the terms “best” and interests” in the standard is so vague. In deciding what disposi-
tion is in the best interests of the child the judge must not only decide what counts as
a child’s interest but she must also decide which of the many possible interests is
“best.” It is difficult to see how a judge is going to prevent herself from injecting her
own personal views in making this determination in order to avoid the criticism that
she is (consciously or unconsciously) promoting the values of her own life
130 7  Child Abuse and Neglect

experiences, culture and upbringing. Hence, our next question is whether there are
any objective criteria that would help the court to make a “best interests” decision.
What was once subjective is believed to be objective if there is a list of interests
that have been either codified, or frequently used by a majority of family and juve-
nile courts over a long period of time2. The list of interests will then serve as a
precedent and therefore immune to the charge of arbitrariness on the part of the
court. For example, 28 states refer to “family integrity and preference for avoiding
removal of the child from his/her home” as one of the most important interests of a
child (Child Welfare Information Gateway 2013).3 A second interest is “the health,
safety, and/or protection of the child” mentioned in the codes of 19 states. 12 states
want assurances that a child removed from his/her home “will be given care, treat-
ment, and guidance that will assist the child in developing into a self-sufficient
adult.” The statutes of 21 states include more specific interests of the child:
“Emotional ties and relationships between the child and his or her parents, siblings,
family and household members, or other caregivers” (15 states); “The capacity of
the parents to provide a safe home and adequate food, clothing, and medical care”
(9 states); “The mental and physical health needs of the child” (8 states); “The men-

2
 The Revised Code of the State of Ohio attempts to clarify the meaning of “best interests of the
child” as follows: (1) In determining the best interest of a child …the court shall consider all rel-
evant factors, including, but not limited to, the following: (a) The interaction and interrelationship
of the child with the child’s parents, siblings, relatives, foster caregivers and out-of-home provid-
ers, and any other person who may significantly affect the child; (b) The wishes of the child, as
expressed directly by the child or through the child’s guardian ad litem, with due regard for the
maturity of the child; (c) The custodial history of the child, including whether the child has been
in the temporary custody of one or more public children services agencies or private child placing
agencies for twelve or more months of a consecutive twenty-two-month period, or the child has
been in the temporary custody of one or more public children services agencies or private child
placing agencies for twelve or more months of a consecutive twenty-two-month period and, as
described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in
the temporary custody of an equivalent agency in another state; (d) The child’s need for a legally
secure permanent placement and whether that type of placement can be achieved without a grant
of permanent custody to the agency; (e) Whether any of the factors in divisions (E)(7) to (11) of
this section apply in relation to the parents and child. For the purposes of division (D)(1) of this
section, a child shall be considered to have entered the temporary custody of an agency on the
earlier of the date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the
date that is sixty days after the removal of the child from home. (2) If all of the following apply,
permanent custody is in the best interest of the child, and the court shall commit the child to the
permanent custody of a public children services agency or private child placing agency: (a) The
court determines by clear and convincing evidence that one or more of the factors in division (E)
of this section exist and the child cannot be placed with one of the child’s parents within a reason-
able time or should not be placed with either parent. (b) The child has been in an agency’s custody
for two years or longer, and no longer qualifies for temporary custody pursuant to division (D) of
section 2151.415 of the Revised Code. (c) The child does not meet the requirements for a planned
permanent living arrangement pursuant to division (A)(5) of section 2151.353 of the Revised
Code. (d) Prior to the dispositional hearing, no relative or other interested person as filed, or has
been identified in, a motion for legal custody of the child (section 2151.414)
3
 All of the data in this paragraph about how the best interest’s standard is interpreted by the states
is taken from this source.
7.3  The Standard of “Best Interests of the Child” 131

tal and physical health of the parents” (8 states); “[Protection from] domestic
­violence in the home” (8 states).
What is an interest? Both the opponents and proponents of the best interests
standard would probably agree with Joel Feinberg’s definition of an interest as
something which a person has a stake in because that person stands to gain or lose
depending on what happens to it (Feinberg 1973). Thus, an infant has a stake in
being frequently picked up and held by her parents or other caretakers because she
stands to suffer psychologically and physically depending on whether or not this
simple act is done. Second, an interest is not a preference. A newborn has no prefer-
ences, but it makes perfectly good sense to say that she has an interest in being fre-
quently held, as well as being fed, clothed and sheltered. An 8-year-old child may
not prefer to eat the vegetables on her dinner plate, but she has an interest in con-
suming them. The child makes it known to her parents what she prefers, but her
parents reasonably claim to know what foods she needs to consume.
As argued in Chap. 5, harm involves more than being physically hurt (Sect.
5.3.1). When my uninsured house burns down while I am on vacation and I do not
know this until I return home weeks later, I was harmed at the very moment my
house burnt down, not at the moment that I found this out. The harm is to my finan-
cial status and probably to my emotional state as well (I lost all my family photos).
The point is that we have interests other than an interest in being free from physical
and emotional pain. Feinberg concludes from examples like this that harm is best
defined as a setback to an interest, that is, a setback to something in which one has
a stake. I have an interest in my financial status, and this interest can suffer a setback
whether or not I feel am hurt. A woman whose husband is having an ongoing adul-
terous affair may not know about this for many years. Because she is unaware, she
is not hurt by her husband’s behavior, but he is certainly harming her interest in
(what she believes to be) his loyalty, devotion and faithfulness to his marital vows.
Returning to the “best interests of the child” standard, if we are to call some
interests “best” in the sense of being better than others, then we need to rank inter-
ests. In addition to the interests mentioned above (family integrity, emotional ties,
safe home, security, adequate food, clothing and shelter), other interests of the child
might include stability (in living arrangements, schooling, access to relatives and
friends), availability of a parent to spend time with the child, equal access to educa-
tional opportunities, being raised in a religious or “moral” environment, not being
exposed to incidents of domestic violence.
In order to rank these interests, we might take a clue from H.L.A. Hart’s mini-
mum content theory of natural law (Sect. 3.7.3). Humans are vulnerable creatures,
and human children are especially vulnerable to physical and emotional harm while
they are young. This natural fact plus the fact that some parents lack either the will,
knowledge or intelligence to respond adequately to childhood suffering (as in the
cases of Denise and Jason) explains why a just legal system must not only contain
rules prohibiting child abuse and neglect but the standards governing the court
ordered disposition of an abused child must have content specifying a physically
and emotionally safe environment for the child, protection from accidental injury,
and adequate provision of food, clothing and medical care. Without health and secu-
132 7  Child Abuse and Neglect

rity little else matters for a child. Hence, physical and emotional health should count
as fundamental (or best) interests of a child, while an alleged interest in being raised
by a parent who is a theist or a heterosexual would be at the bottom of the ranking
scale, each of these having little or no relevance to the goal of child protection.

7.4  U
 sing Family Models to Determine the Best Interests
of a Child

We earlier distinguished between two models or conceptions of the family: indi-

vidualistic and organic (section “Intrafamily harm and the family privacy princi-
ple”). Let us now expand on this distinction in order to see how they might be used
to influence an interpretation of a child’s interests that can be used to make deci-
sions at the dispositional stage in a child abuse or neglect case.
In the individualistic model of the family the central concepts are the individual
and the rights of the individual family member. In this model, the family is viewed
in much the same way that one might view a business partnership. When one person
forms a partnership with another we see it composed of individual persons who are
basically complete outside the partnership. They use the partnership to fulfill their
individual needs and desires, and the partnership is at most a useful instrument for
the satisfaction of these needs and desires, to be abandoned whenever it fails to
achieve this end. And so it is, or should be, within the family, according to the indi-
vidualistic model. A family is a coming together and creation of independent indi-
viduals, each of whom has his own interests, desires, plans, and standards of
judgment. The family combines the efforts of its members, but it does not merge the
members into a single entity, and the purpose of the family is to see that the inter-
ests, needs, and desires of each family member are advanced. Hence, the goods
stressed by those who think of the family on this model are individualistic: goods
the enjoyment of which do not necessarily involve the participation of others, for
example, the goods of food, shelter, clothing, health, security, and aesthetic and
intellectual goods.
In the organic model the central concepts are the family and the autonomy of the
family. This model of the family is called organic because the family is literally
compared to a living organism. In an organism, the parts exist for the whole. Thus,
the heart, liver, and lungs of the human body may be conceived as subservient to the
interests of the total living organism. Indeed, these bodily parts are viewed as con-
stituted by, rather than constituting the body  – for they are basically incomplete
apart from the body. Finally, in an organism, we speak of a “proper subordination”
of the parts, not “equality,” and we certainly do not speak of the separate interests,
plans, or purposes of the parts. Each part exists for the whole, not for itself. Parents
and children take their existence and their purpose from their participation in the
family. In the patriarchal organic model, the father gives the orders that the subordi-
nate family members, wife and children, obey. Yet all family members, including
7.4  Using Family Models to Determine the Best Interests of a Child 133

the father, submit to the interests of the unified whole that is the family. Each family
member exists for the family, not for itself. The fundamental duty of the family, on
the organic conception, is that of taking care of the needs of the family, and far less
the satisfying simply of one’s own needs. The type of good for children stressed by
those who promote the organic conception of the family are the inherently social
goods, goods whose very enjoyment directly involves relationships with others – for
example, the goods of love, friendship, trust, devotion, community, and participa-
tion in the life of the family. In general, relationships involving intimacy are goods
the pursuit of which are central to the organic conception of the family.
Let’s consider some implications of these two models for disposition decisions
regarding abused or endangered children. First, if the child protection team (CPT)
advising the family court judge assumes an individualistic model of the family as the
ideal to be followed, then disposition decisions will be largely based on the notion
of rights. This is because the idea of a contract is essential to the model. All family
members, as parties to the contract, have rights. These rights are rights against some-
one, and the persons against whom the rights are asserted have a reciprocal duty or
obligation. Moreover, these rights necessarily require third parties to enforce them.4
Since the child is viewed as an individual whose good is something that (logically)
can be attained independently of his participation in the life of the family and since
the contract guarantees the child a right to the enjoyment of this good, then the team
will not hesitate to intrude into the child-family relationship when necessary to aid
the child in the pursuance of this good. That is, the two features of the individualistic
model of the family  – goods the enjoyment of which are essentially localized in
individuals and contract rights to the enjoyment of these goods – suggest a disposi-
tional approach that would have the CPT aggressively intervene when necessary to
secure the child’s right to physical and psychological health.
Second, dispositional decisions employing an organic model of the family will be
based on a consideration of the interests of the entire family when it uses the best
interest standard. This is because the child’s good or interest is believed to be primar-
ily social. The child’s best interests cannot be separated from the interests of the
family. If her interests are to be achieved, they can only be achieved by promoting the
good of the family. Hence, it is important for the CPT to respect the integrity of the
family in making treatment decisions. The child is seen as a mere part of an organic
whole – a whole in which the natural “ruling” part of the family are the parents. The
parents are presumed to know what is best for the child, since the child’s good cannot
be separated from that of the family and only the parent can know the latter good.
However, this presumption can be overridden if it is believed that the harm suffered
by an abused or neglected child is not something that the parents or other caregivers
can control. In that case, the role of the CPT is to recommend services and family
therapy sufficient to cure the underlying condition that led to the abuse of the child.
The tension between organic and individualistic models of the family can be seen
in policies recommended by child welfare organizations and pediatricians for the

4
 For example, the right of a child not to be abused or neglected is a claim against society that it
intervene to protect it against those who would commit these acts or omissions.  The three parties
are: the child, the state, and those who would injure the child.
134 7  Child Abuse and Neglect

disposition of abused and neglected children. There are two sets of policies we
examine below, each containing opposing recommendations: Family Preservation
vs Child Protection, and Compassion vs Control.

7.4.1  Family Preservation vs Child Protection

The term family preservation (sometimes referred to as family integrity) has been
used since the 1970s to describe a variety of social welfare programs that are
intended to provide services to children and families experiencing serious problems
that may eventually lead to the placement of children in foster care or otherwise
result in the dissolution of the family unit. These programs “shared a common phi-
losophy of family centered services including focusing on family strengths, involv-
ing families in determining their case plan goals, serving the entire family, and
treating family members with respect” (U.S.  Department of Health and Human
Services 1995). When applied to family court disposition decisions in cases of child
abuse and neglect, the family preservation approach attempts to change the way in
which the family functions as a whole.
Under the original program in Iowa, teams of workers carried a caseload of 10 to 12 fami-
lies whom they saw in the families’ homes for an average of four and one-half months. Both
concrete and therapeutic services were provided and the principles of working with families
in a respectful and positive manner were emphasized… In Oregon, a family treatment
model was used. It relied less on the provision of concrete and supportive services and more
on family therapy. Services were provided in an office as well as in the home… Workers
carried a caseload of approximately 11 families. Services were provided for 90 days with
weekly follow-up services provided for an average of three to five and one-half months.

The family preservation approach to family court dispositions stands in contrast

to child protection (also referred to as child removal) dispositions that emphasize
the health and safety of the abused or neglected child. This approach gets its impetus
from a number of family preservation attempts which have led to more abuse and,
in some cases, the death of a child. One of the early critics of family preservation
was Richard Gelles.
The essential first step in creating a safe world for children is to abandon the fantasy that
child welfare agencies can balance the goals of protecting children and preserving families,
adopting instead a child-centered policy of family services. This [child protection] is not a
new policy, but rather a return to the policy of the 1960s that established child safety as the
overriding goal of the child protection system. It is time to abandon the myth that “the best
foster family is not as good as a marginal biological family.” The ability to make a baby
does not ensure that a couple have, or ever will have, the ability to be adequate parents. The
policy of family reunification and family preservation fails because it assumes that all bio-
logical parents can become fit and acceptable parents if only appropriate and sufficient
support is provided (Gelles 1996).

Gelles’ criticism is utilitarian and empirical. It is utilitarian in that he bases his

rejection on the consequences of using family preservation as a dispositional policy.
Family preservation should always be seen as a means to an end, not an end in itself.
7.4  Using Family Models to Determine the Best Interests of a Child 135

The end of any policy governing family court dispositions should be the health and
safety of the abused or neglected child. Second, it is empirical in that the facts do
not support family preservation policy as a means to this end. Instead (Gelles claims)
it has frequently had the opposite effect of continued abuse and neglect.5

7.4.2  Compassion vs Control

Closely related to the policies of family prevention and child protection are two
approaches to family court dispositions that might be recommended to the court by
the CPT. These approaches are referred to as compassion and control. To take the
compassionate approach is to try to form a helpful professional-parent relationship
in order “to understand and to improve the functioning of the abusing family”
(Bittner and Newberg, 1981: 205). By way of contrast, the control approach to child
abuse cases “refers to the aggressive uses of intervention to limit, and if necessary
to punish deviant behavior. It assumes that an individual must take full responsibil-
ity for his actions and the State will hold him accountable” (Newberger and
Rosenfeld, 1977: 2087). If the advice to the court is to limit the deviant behavior,
then the recommended disposition would probably be to remove the child from the
home and place her in foster care and/or to terminate parental rights. If the recom-
mendation is to “punish deviant behavior,” then abuse of the child would be treated
as a criminal case.
The control approach to creating a family court disposition is consistent with the
child protection policy. Both would make protection of the child their first priority,
and both appear to assume a version of the individualistic model of family relation-
ships. In the case of Denise (Sect. 7.4.1), her case would either be referred to the
criminal court to be adjudicated as felonious child sexual abuse, or it would receive
a family court disposition order to remove the child from her mother. Some would
say that Denise’s mother should be treated no differently than the way she would be
treated if she had done such things to the child of a stranger, or to an adult. She
should be charged with a crime and the case should proceed through the criminal
court. If the case remains in family court, removal would probably be the disposi-
tion ordered. Since Denise’s interests or good can be defined independently of her
participation in the life of her family and since her interest in bodily security cannot
be guaranteed if she remains in the home, then she should be removed until the court
is assured that she will no longer be harmed.

5
 Lepore discusses a continuing cycle of scandal and reform in state child welfare departments. The
result is a “policy pendulum” between “family preservation (keeping kids with their family of
origin) and removal (removing kids from their homes and severing parental rights so that the kids
can be adopted). If a child dies while under the watch of the child welfare department, the pendu-
lum will swing toward removal. If the number of deaths goes down as the result of this policy, then
complaints are made about the department “breaking up the family” and the pendulum will swing
back to a policy of family preservationDOUBLEHYPHEN until there is another child death
(Lepore, 49).
136 7  Child Abuse and Neglect

The policy of family preservation, based on an organic conception of family

relationships, would take a compassionate approach in recommending a disposition
in cases of child abuse and neglect. The organic model implies that treatment deci-
sions regarding children are based on a consideration of the interests of the entire
family. This is because of the assumption that the child’s good or interest cannot be
separated from that of the family. If her good is to be achieved, it can only be
achieved by promoting the good of the family.
As some experts on child abuse dispositions have stressed, “with child abuse the
whole family is disturbed and not each needy member alone” (Terr and Watson,
119). That is, if we assume the organic model of the family, when a parent abuses a
child the parent’s conduct is to be regarded as a symptom of some pathological
condition of the family in the way that high fever, listlessness and spots on the body
are symptoms of a pathological condition (e.g. as in measles) of the organic body.
Abusive parental behavior toward children diverges from what we regard as normal
behavior. Such divergent behavior is viewed as a manifestation of family disease.
Parental behavior toward children conforming to what is normal is assimilated to
the normal and healthy functioning of bodily organs.
We previously discussed (Sect. 6.3) the analogy of child abuse to symptoms of a
disease. First, as just noted, there is something abnormal in both the case of parental
abuse of children and a symptom of an organic disease. Second, there are causes for
this abnormality such that once we know of them we can explain the abnormality as
we can now explain the symptoms of many organic diseases. Parental abuse of their
children is looked upon as a happening with a causal explanation rather than an
action for which the abusing parent had reasons. Thus, commentators who take the
organic approach to understanding child abuse commonly attribute abusive parental
behavior to a variety of causes, for example stresses produced by the child (e.g. the
child is handicapped, retarded, hyperactive), stresses produced by the parent (low
self-esteem, depression, abused as a child, alcoholism, drug addiction, psychiatric
illness), and social situational stresses (poverty, unemployment, excess or unwanted
children). Underlying these causes are “the social and cultural factors that guide
individual behavior” (the acceptability of corporal punishment as a mode of paren-
tal discipline of children, violent entertainment in the cinema and on television, or
an inequitable, alienating economic system).
If we conceive of parental abuse of children as a symptom of family disease, in
the manner just specified, then the child protection team and the court is to respond
to a case of abuse, not with the approach of “control,” but with that of “compassion,”
not with punishment, but with therapy. “The logic of sickness implies the logic of
therapy” (Morris, 31). And therapy suggests compassion for what the family is
undergoing, not resentment for what the parent has illegitimately done to the child.
The approach of therapy is not like an approach to an individual who is at fault. The
response that the clinician is to make to the family is based not on what the parent
has done to the child but is to be directed to the condition, the disease, from which
the entire family is suffering. And since the disease is quite complex, with “multi-
variate origins,” the response will tax the abilities of the clinician. Not only must the
abused child’s injuries be treated, but also such community resources as child care
7.5  An Alternative Dispositional Standard 137

homemaker services and psychological counseling must be utilized in the multidis-

ciplinary treatment of the family. Family preservation becomes the priority of the
social worker, not because the family is to be preserved for its own sake, but because
the child’s best interests cannot be separated from the best interests of the family.
An example of how the organic model influences a clinical approach is the case
of an 8-month-old child suffering from a condition called failure to thrive. “The
child was tiny, emaciated and did not respond to play. There were moderate hip and
elbow contractures. Her weight and length were below the third percentile” (Bittner
and Newberger 1981, 205). The cause of the child’s failure to thrive was the neglect
of the mother to provide adequate care. The clinician does not presume that the
child’s neglect is the fault of the mother. Instead, it is to be seen as symptomatic of
family crisis. In the instant case, the crisis was that the mother was unmarried, and
her infant was the fourth child of the fourth father. The mother had moved to an
alien large city with her children, but she could not get child care, dental care,
decent employment or health care, including contraceptive services. She subse-
quently fell into a state of extreme depression. The disposition ordered by the court
reflected and responded to the particular facts of family crisis. A compassionately
conducted family assessment permitted identifying a management program, which
enabled the child to thrive in her care. On discharge from the hospital, a homemaker
came three days a week, a visiting nurse on alternate days. Weekly clinic visits were
scheduled. Preschool services were found for her two older children. A social
worker gave weekly counseling, which was associated with an increase in the moth-
er’s self-esteem. Dental and medical treatment, along with the other elements in the
management plan, was coordinated by the social worker. The disposition of this
case was quite successful, “At a 5-year follow-up the patient was physically and
psychologically normal. Her family, including a new younger brother, was happy
and healthy” (Id.)

7.5  An Alternative Dispositional Standard

Decisions on whether a child should be removed from the home or whether sup-
portive in-home services should be ordered are the most important ones confronting
the family court and the child protection team when making disposition recommen-
dations to the court. Hence, it is important to have clear standards on which to base
one’s recommendations. My argument has been that the “best interests of the child”
standard fails to provide the requisite clarity. The notion of an “interest” employed
in the standard is susceptible of wide variation depending especially on whether a
child’s good or interest is seen as one the enjoyment of which is essentially local-
ized in individuals or whether it is one the enjoyment of which directly involves a
communal (organic) relationship. Hence, one and the same case may receive two
different, opposed recommendations for disposition depending on which notion of
the “child’s best interests” one adopts.
138 7  Child Abuse and Neglect

We can resolve this difficulty in one of two ways. First, we can choose to retain
the “best interests of the child” standard, but rule that only certain kinds of things
will count as interests of the child. For example, we might side with the individual-
istic account and rule that only those things the enjoyment of which does not require
relationships with other persons are genuine interests. But this seems arbitrary,
especially in light of examples like the “failure to thrive” case discussed above
(Sect. 7.4.2) which argues for a broader, organic view of a child’s interests. Second,
we can abandon the “best interests of the child” standard altogether and search for
a test to be used in disposition proceedings that does not permit such wide variation
in dispositional recommendations.
An alternative standard was suggested many years ago by the National Institute
for Juvenile Justice and Delinquency Prevention (Flicker 1982: 156). The standard
recommends that a child should not be removed from the home unless the court
finds that:
(a) The child has been adjudicated as abused or neglected; and,
(b) The court finds that removal is necessary in order to protect the child from fur-
ther harm of the type precipitating adjudication; and,
(c) The court finds that there is a placement available in which the child will not be
harmed in a manner which would constitute the same or another basis for fam-
ily court jurisdiction.
I will call this the jurisdictional interests (JI) standard. The major difference
between this and the best interests (BI) standard is that JI attempts to protect those
interests and only those interests (or prevent those harms and only those harms) over
which the court has jurisdiction. Thus, suppose that emotional or psychological
harm is a basis for family court jurisdiction under the laws prohibiting child abuse.
Consider again the case of Denise. Under most state codes, a sufficient condition for
calling her case one of child abuse is that Denise is the victim of “sexual conduct
harmful to her mental, emotional, or physical welfare, including conduct that con-
stitutes the offense of continuous sexual abuse” (Texas Family Code, 261.001).6

6
 (1) Under the Texas Family Code, “abuse” includes the following acts or omissions by a person:
(A) mental or emotional injury to a child that results in an observable and material impairment in
the child’s growth, development, or psychological functioning; (B) causing or permitting the child
to be in a situation in which the child sustains a mental or emotional injury that results in an observ-
able and material impairment in the child’s growth, development, or psychological functioning;
(C) physical injury that results in substantial harm to the child, or the genuine threat of substantial
harm from physical injury to the child, including an injury that is at variance with the history or
explanation given and excluding an accident or reasonable discipline by a parent, guardian, or
managing or possessory conservator that does not expose the child to a substantial risk of harm;
(D) failure to make a reasonable effort to prevent an action by another person that results in physi-
cal injury or that results in substantial harm to the child; (E) sexual conduct harmful to a child’s
mental, emotional, or physical welfare, including conduct that constitutes the offense of continu-
ous sexual abuse of a young child or children, indecency with a child, sexual assault, or aggravated
sexual assault; (F) failure to make a reasonable effort to prevent sexual conduct harmful to a child;
(G) compelling or encouraging the child to engage in sexual conduct, including compelling or
encouraging the child in a manner that constitutes an offense of trafficking of persons, prostitution,
7.5  An Alternative Dispositional Standard 139

Now once having decided in (a) that there is a basis for family court jurisdiction,
then the court must decide (b) whether removal of Denise from the home is neces-
sary to prevent recurrence of the sexual abuse. If the child protection team finds that
this is likely, then under part (c) a dispositional order of the court should be one that
aims at preventing a recurrence of the specific harm for which it intervened in the
first place. If it fails to design a disposition that is likely to prevent recurrence of the
sexual and emotional harm, then one wonders why the court had jurisdiction to
intervene in the first place. Finally, there is no need to make further inquiries about
Denise’s “best interests.” The only relevant interest is her emotional and psycho-
logical well-being, that is, the very interest that was violated and which prompted
the adjudication under the child abuse statute. This is what will guide and should
guide the court in creating a dispositional order.
This is not to deny that there are a number of types of disposition that the court
might design to prevent recurrence, including both court ordered services as well as
temporary removal. If it is clear from the evidence that there is a probability of
recurrence of the abusive incident, then the family court disposition might require
the abused child’s parent(s) to accept certain services (day care, homemaker ser-
vices, psychiatric counseling, case worker visits) before it takes the next step of
ordering removal from the home. Many child protective service professionals are
inclined to accept the preference for the home and the family, but only because “a
child is most apt to thrive in the custody of those who have cared for her since birth”
(Goldstein, Freud and Solnit, 32-34). I would caution against basing this preference
on an original right of the parents to the care and custody of their children. Parents
have the legal right to make decisions regarding child management only because
child development research has established that children are more likely to achieve
proper growth and development through continuous relationships with a “psycho-
logical” parent. Hence, the preference for leaving the child in the home while order-
ing services for the family is based on concern for the well-being of the child, not
on any right to well-being of the family.
Finally, before any child is removed from his home, the court must find that there
is a placement in fact available in which the child will not suffer further (legally
defined) abuse (Mnookin, 615). Thus, there would be little point in removing a child
from a home in which, say, she has been sexually abused if, as a result of removal
she might be harmed again in a way that causes her to display one of those symp-
toms of emotional harm that would normally serve as a basis for intervention, e.g.
untoward aggressive behavior, severe anxiety, depression, or withdrawal.
In closing, it should be noted that we have not touched on a question that some
might regard as the most important: what harms to the child should constitute a
basis for family court jurisdiction? In attempting to construct a standard to guide the
court in making post-adjudicatory removal decisions, it is assumed that the court
has a clear standard for the scope of its jurisdiction. Where the standard for family

or compelling prostitution; (H) causing, permitting, encouraging, engaging in, or allowing the
photographing, filming, or depicting of the child if the person knew or should have known that the
resulting photograph, film, or depiction of the child is obscene, or pornographic.
140 7  Child Abuse and Neglect

court jurisdiction is couched in such vague language as “parental immorality” or

“lack of proper parental care”, then using the standard for removal I have suggested
above, the court is allowed to order removal in cases in which some might argue the
child has suffered no specific physical or psychological damage, and might be much
worse off through being separated from his parents. The way to guard against this
unhappy result is to review the standards for family court jurisdiction, a review in
which we should be quite clear about the moral principles guiding us in a determi-
nation of the kinds of interests of the child the juvenile court thinks that it would
protect. These principles were critically discussed in a previous chapter (Sect. 5.3).
It seems clear from that discussion that any standard we might suggest for the dis-
positional phase of a juvenile court proceeding are defensible only if we can also
defend, on moral grounds, clear standards for determining what is to count as child
abuse.
Questions for Thought and Discussion 
1. Explain the difference between family preservation and child protection policies
of child welfare agencies. How would you defend these policies? Is it possible to
find a compromise between these two approaches to family intervention?
2. What is the difference between the approaches of compassion and control when
a CPT responds to a case of child abuse or neglect? What problems arise in rec-
ommending either of these approaches in a dispositional order to a child protec-
tion team?
3. What is the difference between an individualistic and an organic model of family
relationships? How does the choice of a model influence an interpretation of the
best interests of the child standard in fashioning a dispositional order for a child
who is found to be abused or neglected?

References

American Society for the Positive Care of Children. 2016. Statistics and Facts about Child Abuse
in the U.S.http://americanspcc.org/child-abuse-statistics/. Accessed 7 Apr 2016.
Bittner, S., and E.  Newberger. 1981. Pediatric Understanding of Child Abuse and Neglect.
Pediatrics in Review 2: 7.
Child Welfare Information Gateway. 2013. Determining the Best Interests of the Child. Washington,
DC: U.S.  Department of Health and Human Services, Children’s Bureau. https://www.
childwelfare.gov/topics/systemwide/laws-policies/statutes/best-interest/. Accessed 28 Mar
2016.
Feinberg, Joel. 1973. Social philosophy. New Jersey: Prentice-Hall.
Flicker, Barbara Danziger. 1982. Standards for Juvenile Justice: A Summary and Analysis, 2nd
edn. American Bar Association. Institute for Judicial Administration. Cambridge, MA:
Ballinger.
Gelles, Richard J. 1996. The Book of David: How Preserving Families Can Cost Children’s Lives.
New York: Basic Books.
Lepore, Jill. 2016. Baby Doe: A Political History of Tragedy. The New Yorker. 1 February, 46–57.
References 141

Mnookin, Robert. 1973. Foster Care—In Whose Best Interest? Harvard Educational Review 43:
613.
Morris, Herbert. 1968. Persons and Punishment. The Monist 52: 475.
Newberger, E., and A. Rosenfeld. 1977. Compassion vs Control: Conceptual and Practical Pitfalls
in the Broadened Definition of Child Abuse. Journal of the American Medical Association 237:
19.
Ohio Revised Code, Title 21, XXI, Chapter 2151, Juvenile Court.
Statsky, William P. 2015. Family law: The essentials, 3rd ed. Stamford: Cengage.
Terr, V., and B.  Watson. 1968. The Battered Child Rebrutalized: Ten Cases of Medical Legal
Confusion. American Journal of Psychiatry 124: 10.
Texas Family Code, Title 6, Subtitle E, Chapter 261, Subchapter A.
U.S. Department of Health and Human Services. 1995. Review of Family Preservation and Family
Reunification Programs. https://aspe.hhs.gov/basic-report/review-family-preservation-and-
family-­reunification-programs. Accessed on 31 Jan 2016.
Chapter 8
Family Torts and Remedies

"The flames which [tort] litigation would kindle on the domestic

hearth would consume in an instant the conjugal bond, and
bring on a new era – indeed an era of universal discord, of
unchastity, of bastardy, of dissoluteness, of violence, cruelty,
and murders." 
J. Woodward (1858)

Abstract  In this chapter we define the concept of a tort and explain the distinction
between tort and criminal liability. We introduce the doctrines of parental and spou-
sal immunity that are still used in some jurisdictions to shield parents and spouses
from lawsuits brought against them by a child or spouse. We begin the chapter by
asking general and particular questions about tort law and its application to injuries
occurring in the family. The general questions are: What is the general aim of tort
law? Why are certain types of conduct classified as torts and other kinds of conduct
are not torts? Responses to these questions refer to principles governing the just
allocation of costs when a person has suffered an injury. In the section on intrafam-
ily immunities we distinguish between several variations of the extent to which
parents and spouses have historically been immunized, and we will determine
whether any of these immunities can be morally justified. Finally, in those cases in
which a parent or spouse has no immunity and is a defendant in a tort action for
negligence, then they must prove that their act or omission that led to the tort was
not a violation of legal duty. This raises the final normative question of the chapter.
Under what standard of care should a jury be instructed to decide whether the defen-
dant is or is not negligent? Should the defendant’s conduct be judged by an objec-
tive standard (for example,“the reasonable parent”) or should the jury use a
subjective standard and inquire only about what the defendant honestly believed?

© Springer International Publishing AG 2017 143

L.D. Houlgate, Philosophy, Law and the Family, AMINTAPHIL: The
Philosophical Foundations of Law and Justice 7,
DOI 10.1007/978-3-319-51121-4_8
144 8  Family Torts and Remedies

8.1  Tort Liability and Remedies

In his 1690 work Second Treatise of Government, John Locke distinguished between
“the crime which consists in violating the law,” and “injury done to some person or
other, and some other man receives damage by his transgression: in which case he
who hath received any damage, has, besides the right of punishment common to him
with other men, a particular right to seek reparation from him that has done it”
(§10). Locke was referring to violations of the law of nature, but the distinction he
makes between a crime and the “injury done to some person or other,” which gives
the injured person the right to seek reparation for the harm, is what we today refer
to as the distinction between crimes and torts.
Crimes and torts are both types of prohibited harm. Criminal laws prohibit public
harms and tort laws prohibit private harms. The word “public” means that the harms
are seen as harms to society. The word “private” refers to harm suffered by the par-
ticular person or persons who have been injured. If the criminal court finds the
accused wrongdoer to be guilty, then the response is punishment. If a civil court
finds that the defendant (the tortfeasor) has violated a legal duty (a tort), then the
response of the court is an award for the plaintiff (the person who has brought the
lawsuit) in the form of a judgment of liability, usually requiring the defendant to
compensate the plaintiff financially.1
Tort law is a small but growing part of family law. Family torts can be divided
into two main categories: intrafamily torts in which spouses and other family mem-
bers bring tort actions against each other and extrafamily torts in which one or both
spouses sue a non-family member for a tort that has seriously harmed one of them
or their child (Statsky, 417). In this chapter our main concern is with intrafamily
torts.
There are two ways in which liability is distributed by intrafamily tort law: vicar-
ious liability and fault liability. Vicarious liability is liability that is “imposed on a
person because of the conduct of another, based solely on the status of the relation-
ship between the two. The person liable is not the person whose conduct led to the
liability” (Statsky, 424–425). Most states have parental liability laws that make
parents vicariously liable for the torts of their children. If a 10-year-old child throw
a baseball through the neighbor’s window, then the parents of the child are (vicari-
ously) liable for the damage.2 If a teenager using the family car for a family purpose

1
 “On rare occasions, a plaintiff may also be awarded punitive damages, defined as damages in
excess of compensatory relief. In other cases, a plaintiff may obtain an injunction: a court order
preventing the defendant from injuring her or from invading one of her property rights (perhaps
harmlessly” (Coleman and Mendlow).
2
 In California, the relevant statute says: “Any act of willful misconduct of a minor that results in
injury or death to another person, or in any injury to the property of another, shall be imputed to
the parent or guardian having custody and control of the minor for all purposes of civil damages.”
The statute goes on to state that the custodial parent or guardian is jointly liable, along with the
minor, for any damages resulting from the minor’s willful misconduct, for an amount not to exceed
$25,000 for each wrongful act. (California Civil Code section 1714.1)
8.1  Tort Liability and Remedies 145

(rather than a business purpose) and negligently injures someone, then the parent
who owns the car is vicariously liable.
Fault liability is liability imposed on a person because of a violation of a legal
duty not to injure negligently, recklessly, or intentionally. For example, in some
states one spouse can sue the other for negligently or recklessly failing to disclose
the existence of a venereal disease, which was passed on to the victimized spouse.
Another example of fault based intrafamily liability is for an injury to a child caused
by the parent’s negligent operation of a motor vehicle. An example of an intentional
intrafamily tort would be a case of marital rape in which the offending spouse is
sued for the tort of battery or the tort of intentional infliction of emotional distress.
Fault liability is significantly different from criminal liability. Criminal liability
can be defeated by an excuse, for example, “I was not at fault: I did it by mistake.”
But in tort, you can be held liable “even if you are morally faultless, that is, even if
your conduct is not morally blameworthy, even if you have a complete excuse for
what you did” (Coleman and Mendenhall, 2010). But there is still a way to avoid
fault liability. You can justify the act or omission that led to the harm by showing that
you took the precautions that any reasonable person would have taken under the
same circumstances. For example, A, while exhibiting his new handgun to B, not
realizing that the gun is loaded, pulls the trigger of the gun. The gun goes off, killing
B. A is not criminally liable – he did not know the gun was loaded. But A can still
be held liable in tort for the death of B – unless he can justify his failure to check the
gun prior to displaying it to his friend.
Not all harms committed within the family are allowed as the basis of a claim in
tort. If a teenager is disciplined by a parent who “grounds” her for one week for poor
grades at school, she may be harmed by this, but she has no claim in tort to repair
her frustration at not being able to go out at night with her boyfriend. This is because
parents have no legal duty to refrain from using discipline in raising their children,
including the use of nonexcessive corporal punishment.
Second, in some states intrafamily torts cannot be brought because an immunity
exists for those who have caused the injury. An immunity is “an exemption from
what a person enjoys from the normal operation of the law such as a legal duty or
liability, either criminal or civil” (Duhaime 2016). In the history of American tort
law there have been two kinds of immunity extended to families: interspousal and
parental. The names of these immunities are sufficiently descriptive: a person is
immune to liability for injuries negligently caused to a spouse, and parents are not
liable for injuries negligently caused to their children. If John drives a car while
inebriated and crashes the car, injuring his wife, his child, a friend and the friend’s
child, he is liable for injuries caused to the friend and her child. But under early ver-
sions of the parental immunity doctrine he is exempt from liability for injuries
caused to his wife and their child.
“I have an immunity” is only one of two possible responses a defendant might
make to a suit for liability. In the immunity cases the parent who injured his child or
spouse means by this “Even if I was at fault for what I did I have no legal duty to act
otherwise.” Another different but common response a parent or spouse might make
is “I have a legal duty to act faultlessly, but I was not in violation of the duty – I was
146 8  Family Torts and Remedies

not at fault.” This is the response of justification mentioned above: “I was not at fault
(negligent) because my act or omission met the standard of care required by the
court under the circumstances.”
In the remainder of this chapter we will begin by asking general philosophical
questions about tort law. If an injury is a tort only if it violates a legal duty, then how
should we determine what injuries to protect? Under what conditions should an
immunity be granted to a class of persons who would otherwise be liable? What
principles ought to govern the allocation of costs when a person has suffered an
injury? We will then turn to specific questions about parental and spousal immunity
and the more general question about the limits of legislating intrafamily torts: Is
there sufficient justification for the tort laws of some states that immunize spouses
and parents from liability when these persons have negligently injured their spouse
or child? Finally, we will ask about the “reasonable person” standard used in deter-
mining whether behavior in the family has been negligent. Should these standards
be objective (using a “reasonable parent” as a standard of care), or subjective (using
only the subjective beliefs of the parent at the time of conduct as the standard)?

8.2  Philosophical Questions About Torts and Tort Remedies

When a legislative body is considering whether to enact a statute making a particu-

lar kind of conduct tortious, part of their aim is identical to the aim of creating a
criminal statute: to reduce the incidence of undesirable conduct. The difference is
that the aim of a tort statute is accomplished by treating certain individual interests
as rights. These rights are reciprocal with a legal duty that is created by the statute.
For example, if Betty is removing shingles from her roof and throws them on to the
public sidewalk below, Betty has a legal duty to take reasonable precautions before
she discards the old shingles. Everyone passing underneath the roof has a right that
she takes these precautions. The second way that the aim is accomplished is by giv-
ing the right-holder the power to protect his rights and obtain compensation if his
rights are infringed by undesirable conduct that has been marked as a violation of a
legal duty.3 Third, the power of the right-holder to protect his rights and obtain com-
pensation can only be achieved by the state maintaining, and probably subsidizing
a tort system and an institutional framework, including courts, to give effect to it
(Honore, 94).
Is the state justified in marking conduct as tortious and attaching to it the right of
the injured person to compensation? In support of this answer Honore provides an
argument having a hypothetical for its first premise: “If the state is justified in mak-
ing conduct criminal and attaching to it penalties that may include prison, it must
also be justified in marking conduct as tortious and attaching to it the lesser sanction

3
 Locke traces this power to the natural right of self-preservation. If I have this right, then I must
also have the power to appropriate from the person who has caused my loss whatever is needed to
restore myself to the position I was in prior the loss.
8.2  Philosophical Questions About Torts and Tort Remedies 147

of compensation” (77). If we affirm the antecedent of this premise, then we get the
conclusion that the state is justified in maintaining a tort system. But we should
notice that we could rewrite the consequent (in italics) of the premise as follows: “If
the state is justified in making conduct criminal and attaching to it penalties that
may include prison, then it must also be justified in reclassifying all tortious conduct
as criminal and attaching to it lesser criminal penalties.” In other words, we can all
agree that the state must have the right and duty to minimize undesirable conduct,
but this does not imply making some conduct criminal and other conduct tortious.
Nor does it imply that the “lesser sanction” must be compensation. We need another
argument to establish these conclusions.
Honore writes that the state is probably justified in subsidizing a tort system with
an institutional framework. He uses this qualifier because of sensitivity to the politi-
cal objection that it may not be a proper use of state resources to subsidize private
rights in this way. The answer to the objection is that the alternatives are even worse.
If the state charges a fee for the cost of judicial enforcement or closes the courts to
all tort claims, then it would weaken or give up an important technique for lessening
undesirable conduct. Fees for the cost of judicial enforcement may be out of reach
for all but the well-to-do, thereby raising moral questions about the fairness of the
tort system. Closing the courts to tort claims would leave it up to the individual to
pursue his own claims against alleged wrongdoer without judicial support. John
Locke endorsed such pursuits, but only in his imagined “state of nature.” He also
had a warning about it. If you seek reparation from someone who you believe has
harmed you, then this person may not share your belief, or she may not want to
provide a remedy. If you decide to secure a remedy by “force, or the declared design
of force” (Locke, III, §19), then she may interpret this as a threat to cause her harm.
She may respond in kind. Since there is no common authority to whom you and she
can appeal to settle your differences, you are both in a “state of war.” The only way
to avoid this unfortunate result is for all persons to subject themselves “to the fair
determination of the law; because then there lies open the remedy of appeal for the
past injury and to prevent future harm” (§20).
If the aim of a statute creating a tort is (in part) to reduce the incidence of unde-
sirable conduct, then we are left with the question “What constitutes undesirable
conduct for the purposes of making it tortious?” The answers to this question are as
diverse as some of the answers given to a similar question about criminal conduct:
“What constitutes undesirable conduct for the purposes of making it criminal?” We
could call conduct undesirable for the purposes of making it a tort because the tor-
tious conduct causes harm to others, it is non-harmfully offensive to others, or it is
non-harmfully immoral.4 There are few who would dispute a proposal to make only
harmful conduct tortious, especially if the damage is obvious to any observer.
Proposals to make non-harmful offensive conduct tortious meets more resistance

4
 The conduct that could not qualify as a tort is conduct that is harmful to oneself. If the use of
heroin is prohibited only because it might cause harm to the user, then the user can be made liable
to criminal punishment, but the conduct could not constitute a tort because those who violate the
law cannot sue themselves for damages.
148 8  Family Torts and Remedies

because of skepticism about the existence of damage, whether permanent or tempo-

rary. The usual cases are those involving emotional distress. If it rises to the level of
trauma, then recovery may be available. In this case, offensiveness, as emotional
trauma, would fall under the harm-to-others principle (Sect. 5.3.1).
Proposals to make immoral conduct tortious are quite rare. Common law cases
in England include conduct relating to prostitution and extra-marital cohabitation.
However, in these cases the injury was not considered a tort. Instead, relief for an
injury was denied to the plaintiff because the conduct in which he was injured was
considered immoral (Dyson 2014). This consideration is relevant to the question
“What are acceptable grounds for exempting conduct from tort liability?” but it has
no bearing on the question “What are acceptable grounds for placing conduct under
rules of tort liability?”
In our discussion in Chap. 5 about the grounds for making immoral-but-non-­
harmful conduct criminal we considered Patrick Devlin’s recommendation that
enacting such laws might have the beneficial effect of rescuing society from disin-
tegration. Devlin argued that (a) there is a public morality, and (b) society could not
exist without shared ideas on what types of acts are immoral, and (c) these shared
ideas must be protected by making immoral behavior prohibited by law. Although
Devlin’s remarks were intended to apply to criminality, there is no reason why they
should not also be applied to tort. If tort laws share with criminal laws the aim of
deterring undesirable conduct, and some of the conduct is believed to be undesirable
because it is immoral, then the immorality of conduct would constitute sufficient
grounds for making it tortious. The problem with this proposal is locating plaintiffs
who could convincingly argue that certain kinds of immoral conduct causes damage
for which they ought to be compensated. If the conduct is of a kind mentioned by
Devlin (homosexual behavior, prostitution), then it would be presumed to damage
the social fabric of society itself, of which the plaintiffs and all others who wish to
join in the lawsuit are a part. In that case, a successful suit for damages could con-
ceivably bankrupt the relatively small population of tortfeasors by bringing com-
pensatory relief for damages to all citizens. Other problems with Devlin’s proposal
have already been critiqued in Chap. 5 (Sect. 5.3.3).

8.3  Theories of Justification for Tort Remedies

What justifies the person whose rights have been infringed in claiming compensa-
tion from the wrongdoer? According to Tony Honore,
It is not enough to show that the state is entitled to take steps to minimize undesirable
behavior and to give individuals the power to protect their rights and obtain compensation
if they are violated. It must also be shown that some principle or principles of justice entitle
the right-holders (tort-plaintiffs) to sue the wrongdoers (tort-defendants) for compensation.
For though the state may be entitled to designate certain interests as rights and certain sorts
of conduct as wrongs, it cannot thereby make it just for the right-holders to sue the
8.3  Theories of Justification for Tort Remedies 149

­ rongdoers for compensation. It cannot by fiat create a principle of justice linking the two
w
(Honore, 1997, my emphasis).

The problem is whether we can find independent principles of justice that ade-
quately justify tort claims against tort-defendants. Three of the most discussed prin-
ciples in tort theory are: Corrective justice, retributive justice and distributive
justice. We will discuss these principles in the context of the torts of intentional or
negligent interference by a parent with her child’s personal or real property. The
relevant law directs that the child is to be treated as a person with a right to property,
and he has the consequent right to protect his property and get compensation if the
right is infringed.5 Let us imagine a case in which a ten-year-old child inherits own-
ership of a valuable painting that is to be kept in his mother’s house until he reaches
the age of 18 years, at which point the boy might choose to sell the painting to pay
for his college tuition. The child’s mother loans the painting to a friend. The friend’s
house catches fire, destroying all of its contents, including the boy’s painting. The
child sues his mother for compensatory damages of $100,000.

8.3.1  Corrective Justice

Corrective justice requires that those who have violated the legal duty not to injure
(harm) must repair the wrongful losses caused by their conduct. The duty to repair
arises from a violation of the duty not to injure.6 Any concern about whether or not
one is morally to blame for the loss one has caused is irrelevant. It is only the out-
come of the defendant’s conduct that is relevant. Is the outcome a loss “incident to
the violation of the victim’s right not to be injured–a right correlative to the wrong-
doer’s first-order duty not to injure”? (Coleman and Mendenhall). If the reply to this
question is affirmative, then the wrongdoer must put the matter right, even if she is
not at fault.
Putting the matter right... is a concept that may (according to the circumstances) require the
harm-doer to restore something to the person harmed, or to repair a damaged object, or
(when the unharmed position cannot be restored, as it usually cannot) to compensate the
harm-sufferer. Compensating in turn means doing something conventionally regarded as

5
 “At common law a parent (unlike a husband in the case of his wife) has no right to or in (or even
a right to use) property of any kind of his minor child.” McCurdy (1960), citing Pollard v. Pollard,
207 Ala. 270-272, 2 So. 488 (1922). Under certain circumstances a parent might apply the child’s
property toward the child’s support. Linton v. Walker, 8 Fla. 144 (1858) 8. Estate of Tetsubumi
Yano, 188 Cal. 645, 206 Pac. 995 (1922) 9. Edmunds v. Mister, 58 Miss. 765 (1881).
6
 Corrective justice appears to be Locke’s position when he writes that “he who has suffered the
damage has…this power of appropriating to himself the goods or service of the offender, by right
of self-preservation...” (Locke, §11). The right that one has to preserve his own life justifies a right
to do what is necessary to achieve this, including the power to “appropriate” from the one who
caused the harm whatever “goods or services” are necessary to put the sufferer in the same position
he was in prior to the loss.
150 8  Family Torts and Remedies

restoring the harm-sufferer to his unharmed position. “Compensate” is used to cover what-
ever may be done to make good the loss when reparation is not literally possible... (Honore)

In the case of the minor child cited above, the child’s mother has a legal duty not
to loan her child’s painting to anyone. She may not have known that she had this
duty, and she may plead that she had no intention of putting the painting at risk of
damage. Under the principle of corrective justice, this appeal is pointless. Her duty
to repair the loss is a direct result of the loss itself, not her ignorance of the law, her
negligence in loaning the painting, or even her lack of any intention to put the paint-
ing at risk of damage. She cannot replace the painting, but she can be required to
provide sufficient compensation to make good on the loss.

8.3.2  Retributive Justice

The principle of retributive justice says that the blameworthy deserve to suffer.
When one person intentionally, recklessly or negligently causes harm to another,
they are blameworthy. It is because of the blameworthiness of tortfeasors that they
deserve the pain of retribution by being forced to pay (to “make up”) for the damage
they have caused.
Retributive justice differs from corrective justice in this important respect. It asks
whether the harm or injury caused by the plaintiff is something for which he is mor-
ally to blame. Corrective justice concentrated entirely on causal responsibility for
the outcome, the actual loss, not the defendant’s moral responsibility (blameworthi-
ness). Second, according to retributive justice the first order duty in tort (as it is in
crime) is to do harm to the wrongdoer. In criminal cases, this is done for the purpose
of restraint. In tort, it is done for the purpose of reparation. In both cases, the harm
done to the criminal or tortfeasor must be “proportionate” to the transgression.7 The
second order duty in tort is to adjust the harm done to the wrongdoer so that it com-
pletely repairs the loss suffered by the victim. The sanction should not be dispropor-
tionate to the harm or damage caused to the plaintiff for which the sanction is
imposed.
By way of contrast, the duty of repair in corrective justice is like a debt payment.
As a debt payment it can be paid by third parties. For example, you can purchase
insurance to guard against the burdens of tort liability (Coleman and Mendenhall).
Retributive justice does not characterize the harm to the tortfeasor as payment of a
debt. It is a sanction that involves reparation and this burden can only be borne by

7
 In the state of nature, when one person violates the law of nature (for example, by damaging his
property), then “one man comes by a power over another; but yet no absolute or arbitrary power,
to use a criminal, when he has got him in his hands, according to the passionate heats, or boundless
extravagancy of his own will; but only to retribute to him, so far as calm reason and conscience
dictate, what is proportionate to his transgression, which is so much as may serve for reparation
and restraint; for these two are the only reasons, why one man may lawfully do harm to another,
which is that we call punishment” (Locke, §8).
8.3  Theories of Justification for Tort Remedies 151

the wrongdoer as a public acknowledgement of his moral responsibility. It is his

burden and only his burden. Hence, it cannot be transferred to a third party. This
would mitigate or perhaps even eliminate the harm to the tortfeasor that is an essen-
tial part of the process of retribution.
Let’s see how retributive justice deals with the example of the minor child and
his painting. First, although the mother is responsible for the loss of the painting,
she may not be entirely blameworthy. Blameworthiness has much to do with the
mental state of the person prior to or during the time at which the injury, harm or
damage was caused. Her ignorance of the law regarding her duty not to loan, give
away or sell her child’s property may not get her much sympathy, but she may be
able to show that she was not in violation of a legal duty – because she was not
negligent when she loaned the painting to her friend – after all, no reasonable person
could have predicted that the painting was at risk of being lost in a house fire.
Hence, the degree of her moral blame for the loss of her child’s painting is less than
it would be if she had intentionally destroyed the painting.
It is at this point that we see the weakness of the retributive principle. It appears
to justify an unjust distribution of the cost of a loss by linking it to the degree of
blame of the person who caused the loss. In the instant case this principle seems to
justify the conclusion that the mother need only pay part of the cost of the damage
because she did not intend nor was she negligent about the outcome of loaning it to
her friend. This result, based as it is on her degree of blame, is an injustice to her
child. Second, because of the punitive element of retributive justice, the mother can-
not shift the cost of compensation to a third party. She must bear the cost alone. If
she cannot afford to pay the cost, then this result is an even greater injustice to her
child. Third, her legal duty is to not loan the painting. It is not her property. It is her
child’s property. She has violated this legal duty. The duty is not “Don’t loan the
painting negligently.” It is “Don’t loan the painting – it is not yours to loan.” Hence,
it is irrelevant that she did not intend, nor was negligent or reckless about the out-
come of loaning the painting to her friend.

8.3.3  Distributive Justice

Distributive justice is justice in the distribution of resources. For example, if we

notice that children living in wealthy communities have far more educational
resources than children living in poor communities we might say that this distribu-
tion of resources is unjust. Similarly, if a judge declares that the burden of paying
for losses after an accident should be borne entirely by the injured person and not
by the person who injured her, then we might also say that this distribution (of bur-
den) is unjust. The question begged in both cases is: What constitutes an unjust
distribution? Should desert play a role, that is, should the losses be distributed
entirely on the basis of who deserves to shoulder the cost of the loss? Egalitarians
propose that participants in the distribution of burdens should do so according to the
concept of equality. This prompts questions about what equality demands. Should it
152 8  Family Torts and Remedies

diminish existing disparities in holdings? Should it respond to the needs of both the
plaintiff and defendant? In sum, the distributive approach sees tort law as “the locus
for distributing burdens (and benefits) caused in the process of involuntary interac-
tion in a private setting, and considerations of desert (both positive and negative),
merit, needs, and equality all serve to help decide how the loss should be allocated,
and to whom” (Keren-Paz. 2007, 17)
For example, in the case of the mother who is sued by her child for the damage
caused to his painting, the principle of distributive justice is not of much help until
we know the considerations that will guide us in the distribution of the burden of
loss that the mother has caused by loaning her child’s painting. If we use desert as
the sole consideration, then it would seem that the child deserves to have his loss
compensated because his mother is at fault for the damage. If we use equality to
decide how the loss should be allocated, then we need information about such mat-
ters as the financial circumstances of both the plaintiff and defendant. Suppose that
the child not only inherited the painting, but he also inherited several million dollars
that are in a trust for his use when he reaches the age of majority. His mother inher-
ited nothing and as his guardian and custodian she has no resources for compensat-
ing her child for the loss of the painting. An egalitarian version of distributive justice
would tell us not to add to the mother’s burden by requiring her to give compensa-
tion to her child. Corrective justice, on the other hand, ignores this disparity and
requires only that the person who suffered the harm (the child) be restored to his
unharmed position. The balance that existed prior to the damage must be restored,
even if we are convinced that the distribution of benefits and burdens between
mother and child prior to the damage is unjust.

8.4  Intrafamily Torts and Immunities

There are two categories of harms to family members caused by the commissions or
omissions of another member from which the latter have historically been immu-
nized from liability: parental and spousal. Each category has gone through different
stages from the earliest cases when both parents and spouses had extreme (full)
immunity until contemporary stages when most states have abrogated (eliminated)
these immunities. We will describe these stages while considering typical cases
before turning to possible justifications for granting full or partial immunity.

8.4.1  Parental Tort Immunity

The doctrine of parental and spousal immunity has gone through several phases. I
will follow legal tradition and label these phases as extreme, moderate, and
abrogated.
8.4  Intrafamily Torts and Immunities 153

Stages of Parental Tort Immunity

In the extreme cases, the exemption from liability for a parent who has injured his
child is absolute in the sense that the fault from which the parent is exempt from
liability includes intentional, reckless and negligently caused injuries. In the first
case that created the doctrine in the United States a married, but unemancipated
minor tried to sue her mother for wrongful confinement in an insane asylum (Hewlett
v Hewlett). The Mississippi Supreme Court refused to recognize the daughter’s
cause of action against her mother, reasoning that
[t]he peace of society, and of the families composing society, and a sound public policy,
designed to subserve the repose of families and the best interests of society, forbid to the
minor child a right to appear in court in the assertion of a claim to civil redress for personal
injuries suffered at the hands of the parent. The state, through its criminal laws, will give the
minor child protection from parental violence and wrong-doing, and this is all the child can
be heard to demand.

Later cases involving intentional parental torts also fall into the “extreme” cate-
gory. In Roller v. Roller the Supreme Court dismissed a suit for civil damages
brought by a fifteen-year-old girl against her father, who had been convicted of rap-
ing her. The Roller court asserted two reasons for adopting the parent-child immu-
nity doctrine. First, the court indicated that if a child were to recover a judgment
from his or her parent, such parent could inherit the “very property which had been
wrested by the law from him” in the event of the child’s death. Second, the court
emphasized the injustice that could occur if an injured child recovered damages
from his or her parents and imperiled the financial welfare of other family
members.
In cases of moderate parental immunity, a child is allowed to bring a lawsuit
against a parent if the tort is intentional, but not if it is negligent. The immunity
doctrine is revised to include only negligence and recklessness in the definition of
“fault.” For example, in a Connecticut case, a parent was sued by his child for inju-
ries caused when he jumped from a burning building with her in his arms. Here are
the background facts: The defendant (Farricelli) and his former wife (Ascuitto)
divorced in 1990 when their daughter Ariana was less than two years old. The par-
ents shared legal custody. The mother had sole physical custody, but the father’s
visitation rights increased as the child grew older. (The closeness of the relationship
between father and daughter was not in dispute.) In August 1994, a fire broke out in
the father’s home when Ariana was visiting. To escape the fire in his home he
jumped from a second story window carrying his daughter Ariana in his arms. Both
suffered injuries when they fell to the ground below. The mother filed an action on
Ariana’s behalf, alleging that her injuries resulted from her former husband’s negli-
gence concerning electrical wiring, smoke detectors, and handling of a burning
cigarette in his home. She made no allegation as to his leap from the burning build-
ing (Hardy 1999). According to the court majority, the parental immunity doctrine
barred the daughter Ariana’s negligence action. In reaching its ruling, the court
majority the Court held: (1) The alleged negligent acts did not constitute breach of
a duty owed the general public; (2) They involved the father’s exercise of parental
154 8  Family Torts and Remedies

discretion as part of his supervisory duties. These are deserving of protection from
court interference; (3) An element of family harmony survived the divorce, and (4)
The availability of insurance did not support abrogating the doctrine of parental
immunity.
Another kind of moderate parental immunity includes supervisory duties but
excludes injuries caused to a child in automobile accidents. For example, in 1987
the North Carolina Court of Appeals refused to apply parental immunity when they
ruled that an unemancipated minor child who sustains injuries due to a parent’s
negligent operation of a motor vehicle can maintain a cause of action against the
parent for damages (Falk 1457). The court’s reasoning was that transporting a child
was not within the ambit of the normal supervisory duties of a parent. Hence, in
North Carolina and many other states negligent driving is no longer included as a
fault from which a parent can escape liability in a lawsuit for compensation.
The legal concept of abrogation means “abolished” or “revoked.” Hence, the
third and final phase of parental immunity is its demise. Here is one of many late
20th century cases announcing abrogation. In April of 1980 Al Shearer and the pas-
senger in his car, Mary Shearer, were involved in a motor vehicle accident in
Cuyahoga County, Ohio. Mary Shearer was pregnant at the time of the accident
and in July, 1980 she gave birth to Al’s daughter, Cynthia Shearer. One month later,
Al and Mary became husband and wife. However, the marriage did not prevent
Mary and her daughter Cynthia from filing suit against husband and father Al for
personal injuries they allegedly sustained in the April accident. Both claims were
dismissed by the county civil court. Mary’s was dismissed on the ground of inter-
spousal immunity (“A spouse cannot sue his or her spouse for designated torts”).
Her daughter Cynthia’s suit was dismissed on the grounds of parental immunity
(“Children and parents cannot sue each other for designated torts”). The Appeals
Court for the county affirmed the lower court ruling, but on a motion to the Ohio
Supreme Court to certify the record, the rulings were reversed and remanded. Both
the parental and interspousal immunity doctrines were abolished in Ohio (Shearer v
Shearer 1985).
Instead of refuting the traditional policy reasons for upholding that doctrine, the
Shearer court adopted an empirical analysis by examining the current experience in
states without the parental immunity doctrine. The court noted that “states without
parental immunity showed that those states reported no greater incidence of family
disharmony than did states which retained the doctrine.” The court concluded that
“to sustain the parental immunity doctrine, in the face of overwhelming evidence
that no empirical justification exists for it, would be a violation of due process for
those it barred from bringing suit” (Vardiman, 30).

Justifications of Parental Tort Immunity

The philosophical question to ask is normative. What is the moral justification for
giving immunity to a parent whose intentional or negligent conduct has caused
injury to her child in circumstances in which immunity would not be extended to a
person who is not the parent of the child?
8.4  Intrafamily Torts and Immunities 155

The first point to make is that most of the principles of justice (Sect. 8.3) offered
in support of tort remediation apply to parental torts. When there is a loss (harm to
the child) caused by the parent, then under the principle of corrective justice (Sect.
8.3.1) the wrongdoer (the parent) must “put the matter right,” even if she is not at
fault. If there is a degree of moral blameworthiness for the harm caused by the par-
ent, then under the principle of retributive justice (Sect. 8.3.2) the child deserves
reparation and the parent owes this moral debt in proportion to the degree of moral
blame. The principle of distributive justice (Sect. 8.3.3) will also apply if desert is
used as the standard for distributing the cost of the loss suffered by the child. Under
this standard the parent deserves to pay for the loss (she owes a moral debt) and the
child deserves to be paid. But if we use equality to decide how the loss should be
allocated between parent and child, then we need information about such matters as
the financial circumstances of both parent and child.
The second point is that the usual justifications for parental tort immunity are
traceable to the discredited Family Privacy Principle discussed at (Sect. 5.3.1).
Utilitarian defenders of an organic conception of family relationships claim that
granting immunity to parents promotes the social goods of “family unity and har-
mony among its members.” They might support this claim by submitting evidence
that family unity is best achieved when members are left to their own devices and are
allowed to work through internal family problems without outside interference.
Hence, extending an immunity to an injured child’s parent will achieve this purpose.
Even if this is factually true (and there is little evidence for this claim), it seems
clear that the bad consequences of a child bearing the full cost of his or her loss by
granting tort immunity to parents would far outweigh good consequences secured
thereby. It is highly improbable that family harmony would improve to such an
extent that the amount of instances of internal family harm would drop if there was
no social intervention to help victims of child abuse, spousal abuse or intimate part-
ner sexual violence. Our conclusion (at Sect. 5.3.1) was that there is no utilitarian
rationale for endorsing the Family Privacy Principle. When we ask questions about
harm to others we must concentrate our attention on the individual members of the
family who are harmed, not harm to the family (where “family” is a term applied to
an independent organic entity).

8.4.2  Interspousal Tort Immunity

The origins of interspousal tort immunity are quite different from that of parental
tort immunity. At common law women who married suffered an extraordinary
change in their legal status. Their husbands acquired the right to any property they
brought into the marriage, including the right to earnings. Married women could not
enter into contracts, file claims, be sued, or transfer any real property. The reason for
this was partly Biblical (the man and woman become “one flesh” upon marriage),
but it was also legal. As previously noted (Sect. 5.3.2), William Blackstone enunci-
ated it in the eighteenth century as the doctrine of coverture: “By marriage, the
156 8  Family Torts and Remedies

husband and wife are one person in law; that is, the very being and legal existence
of the woman is suspended during the marriage, or at least is incorporated and con-
solidated into that of her husband, under whose wing, protection, and cover, she
performs everything” (Commentaries, 442). The idea of a single identity (coverture)
formed the basis for preventing one spouse from acquiring a tort cause of action
against the other. (Tobias, 364). If the married man and his wife were one, then she
could no more sue him than she could sue herself for damages. Hence, potential
interspousal personal injury suits “were unknown at common law” (Tobias). The
lack of adjudication did not change until the 25-year period of 1840–1875 when the
Married Women’s Property Acts were enacted in every jurisdiction.
The Married Women’s statutes were important because they provided a basis for recogniz-
ing personal injury actions between husband and wives. The typical legislation authorized
a married woman to “maintain an action in her own name, for damages, against any per-
son...for any injury to her person and character the same as if she were sole.” The statutes,
therefore, made it plausible to contend that coverture had been destroyed and independent
legal status bestowed or, at least, that common-law disabilities had been removed or indicia
of legal personality provided, so that interspousal tort litigation should be permitted.
(Tobias, 373 citing N.Y. Laws of 1862, Ch. 172, § 3)

We will use the same classification scheme of distinguishing phases of tort

immunity as employed in the previous section “Stages of parental tort immunity”.

Stages of Interspousal Tort Immunity

The cases decided in the first stage of interspousal tort immunity, like the first stage
of intrafamily tort immunity, were extreme. After passage of the Married Women’s
Property Acts the earliest cases to test the willingness of civil courts to rule favor-
ably on interspousal torts involved intentional harms inflicted by the defendant. In
the first case a wife was not allowed to maintain an action for assault and battery
inflicted by her husband upon her (Longendyke v Longendyke 1863), and in a sec-
ond case a wife could not maintain an action against her husband for a slander
uttered by him (Freethy v Freethy1865). Courts espoused many policy reasons for
these decisions. One familiar justification was “fear that allowing personal injury
claims would create, or exacerbate preexisting, marital disharmony” (Tobias, 390).
One mid-19th century jurist (quoted in the epigraph) went further when he color-
fully predicted that “the flames which litigation would kindle on the domestic hearth
would consume in an instant the conjugal bond, and bring on a new era – indeed an
era of universal discord, of unchastity, of bastardy, of dissoluteness, of violence,
cruelty, and murders” (Ritter v Ritter1858). A second justification was legislative
intent. When legislatures passed the Married Women’s Property Acts, it was argued
that there was no intention to permit tort actions between spouses. Privacy consid-
erations were also at the forefront of their concern. By allowing domestic disputes
to be fought in the courtroom would reveal to the public the reality of the patriarchal
family and “a husband’s control over his wife’s body.” One can understand why
jurists would conclude that such intervention in “the most delicate area of the
8.4  Intrafamily Torts and Immunities 157

sacrosanct institution of marriage” could not have been what state legislators
intended (Tobias, 396).
The moderate stage of interspousal tort immunity began in the early part of the
twentieth century when intentional torts were brought as a cause of action (Tobias,
409, fn. 245).8 For example, in Florida interspousal tort claims were statutorily
authorized for battery. “The common law doctrine of interspousal tort immunity is
hereby abrogated with regard to the intentional tort of battery, and the ability of a
person to sue another person for the intentional tort of battery shall not be affected
by any marital relationship between the persons” (Laws of Florida, Ch. 85–328).
The Florida legislature was responding to a shocking 1984 case in which Joyce
Waite and other members of her family were attacked by her husband with a
machete, inflicting substantial injuries upon them. He subsequently was convicted
of several crimes, including attempted murder. Joyce Waite divorced him. Later, she
filed suit seeking a recovery of damages against a home-owner’s insurance policy.
On the husband’s motion, the trial court dismissed the cause as being barred by the
doctrine of interspousal immunity (Raisin v Raisin1979). The decision was reversed
on appeal. The Appeals Court reasonably held that “the doctrine of interspousal
immunity no longer is applicable when the public policy reasons for applying it do
not exist” (Waite v Waite).
The policy reasons included “disruption of marital harmony.” But it was clear to
any reasonable jurist that marital harmony will not be decreased merely because of
the addition of a lawsuit for the various types of personal injury at issue. Another
reason for changing the immunity doctrine is that successful lawsuits for intentional
interspousal torts could serve as a form of punishment and thus could have a deter-
rence effect on future interspousal behavior (Tobias, 411). And to the recommenda-
tion of earlier courts that had upheld the immunity doctrine on the ground that the
more serious torts (such as battery) would best be pursued as crimes and/or as
grounds for divorce, it was replied that “criminal prosecution and marital ­dissolution
provided little redress to injured wives” (see, for example, Louisville & N.R. Co. v
Johnson1920 and cases cited therein).

Justifications of Interspousal Tort Immunity

In the final stage a majority of states had abrogated (eliminated) the doctrine of
interspousal tort immunity. This was accomplished by the end of the twentieth cen-
tury. When the Supreme Court of Florida began its case review with the question:
“Does the doctrine of interspousal immunity remain a part of Florida’s common

8
 Citing Johnson v. Johnson, 201 Ala. 41, 44, 77 So. 335, 338 (1917); Fitzpatrick v Owens, 124 Ark.
167, 177, 186 S.W. 832, 836 (1916); Brown v. Brown, 88 Conn. 42, 49, 89 A. 889, 892 (1914);
Gilman v. Gilman, 78 N.H. 4, 5, 95 A. 657, 657 (1915); Crowell v. Crowell, 180 N.C. 516, 524, 105
S.E. 206, 210 (1920); Fiedler v. Fiedler, 42 Okla. 124, 129-30, 140 P. 1022, 1025 (1914) (styled as
Fiedeer v. Fiedeer in 140 P. 1022); Prosser v. Prosser, 114 S.C. 45, 47, 102 S.E. 787, 788 (1920).
158 8  Family Torts and Remedies

law?” the answer was a resounding “No.” Here is a portion of Justice Harding’s
concurrence with the majority decision in the Court’s review of Waite v Waite (1992):
The abrogation of the doctrine of interspousal immunity will not damage what the marital
relationship is designed to be — a special relationship between partners who share love,
common interests, concerns, hopes, and endeavors. As the majority notes, if one of those
partners commits a wrong against the other, the injured party should not be foreclosed from
bringing an otherwise meritorious claim just because he or she is married to the
wrongdoer....

The Legislature has already statutorily abrogated the doctrine with regard to the intentional
tort of battery. Section 741.235, Fla. Stat. (1991). Florida law also permits a spouse to file a
criminal complaint against a spouse, to seek an injunction for protection from that spouse’s
violence, and to sue in equity over property interests. If the preservation of marital harmony
is the compelling reason for maintaining interspousal immunity as to other personal tort
actions, then that rationale should apply with equal force to these legal actions that the law
permits one spouse to maintain against the other. Certainly, it is difficult to make any ratio-
nal argument for interspousal immunity as to these permitted legal actions. Yet, such actions
are just as likely, if not even more likely, to foster marital discord than are the personal tort
actions that are barred by the doctrine of interspousal immunity.

Moreover, if the overriding concern is to prevent fraud or collusion by spouses in bringing

such an action, then the remedy should be to expose the fraud rather than to discard all the
honest claims along with the bad ones. As the majority notes, legal devices exist to detect
possible collusion or fraud whether the parties are married or not. Thus, this policy does not
warrant the continuation of the interspousal immunity doctrine.

Although the doctrine of interspousal immunity is one of long standing in Florida, fourteen
of the thirty-two states that have completely abrogated the doctrine did so before 1970. ...In
fact, Connecticut abandoned the doctrine nearly eighty years ago. The thirty-two states that
have abrogated the doctrine have not suffered any adverse effects from that decision. Nor
have they found any credible evidence that marital relationships have been negatively
impacted in those states, or that the insurance industry has been brought to its knees by a
proliferation of fraudulent suits.

Central to the Florida court’s justification for eliminating the interspousal tort
immunity is that it fails to bring about any good consequences that would outweigh
the bad. When the court says that there is no “rational argument” for this immunity
it means that there is no sound argument based on utility. We can add to this that
there is also no sound argument based on an appeal to justice. If we believe that the
principles of justice (Sect. 8.3) apply to those cases in which a person injures his or
her child, then we will get a similar result when we apply these principles to inter-
spousal torts.

8.5  Summary: Limits of Tort Intervention

We have earlier defined an immunity as “an exemption that a person enjoys from the
normal operation of the law such as a legal duty or liability, either criminal or civil”
(Duhaime 2016). The civil legal duty in this case is that of all persons to refrain from
8.5  Summary: Limits of Tort Intervention 159

intentionally, recklessly or negligently causing harm or injury to one another. The

early immunity doctrines traditionally called for the release of parents and spouses
from this duty when their conduct is within the context of the parent-child or marital
relationship.
In the court’s decision in Ascuitto (above), the ruling was that liability for the loss
suffered by the child due to the negligent conduct of the parent shall be borne by the
child and shall not be transferred to the parent. Recall that liability in tort is fault
liability. Liability is imposed on a person because of a violation of a legal duty not
to injure negligently, recklessly, or intentionally. Unlike the rules of criminal law,
liability in tort law is built into the definition of the legal duty. The principle of cor-
rective justice requires those who without justification violate this legal duty “to put
the matter right” by assuming liability for what they have done. There is no question
that the father’s conduct harmed his child when he jumped from the window with
her in his arms. His negligence was not the leap from the burning building, but his
failure to repair the electrical wiring, install smoke detectors, and safely handle
burning cigarettes in his home. These are the omissions that constitute a violation of
legal duty.
This leaves us with the question whether the father’s conduct was “without justi-
fication.” According to the court’s interpretation of the parental immunity doctrine,
the father was justified in failing to take the preventive steps noted above. Although
he might have been negligent in not making his home environment safe from fire,
this is part of his “discretion” in carrying out his “supervisory duties” as a parent.
As a parent he has no legal duty to make his house fire proof. How he maintains the
home environment is a private matter and immune from state intervention. Therefore
(using the reasoning of the court), the parental immunity doctrine does not violate
the principle of corrective justice. The cost of reparation for the loss of her injuries
shall remain with the child and will not transfer to the child’s father.
Why should injuries due to a parent’s negligent operation of a motor vehicle
maintain a child’s cause of action against the parent for damages (as in Shearer
above), but not a parent’s negligence to provide a fire safe home environment? The
standard answer is that negligent operation of a motor vehicle is not a discretionary
part of a parent’s supervisory duties.9 Another answer is that allowing a child to suc-
cessfully sue her parent for a negligent tort disturbs the peace, repose and harmony
of the family.
[T]he peace of society, and of the families composing society, and a sound public policy,
designed to subserve the repose of families and the best interests of society, forbid to the

9
 Other courts using the Ascuitto rationale to justify parent-child immunity include e.g. Barlow v.
Iblings, 261 Iowa 713, 718, 156 N.W.2d 105, 107-08 (1968); Luster v. Luster, 299 Mass. 480, 481,
13 N.E.2d 438, 439 (1938), overruled in Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907
(1975); Small v. Morrison, 185 N.C. 577, 584, 118 S.E. 12, 15 (1923).
160 8  Family Torts and Remedies

minor child a right to appear in court in the assertion of a claim to civil redress for personal
injuries suffered at the hands of the parent (Hewlett v George1891).10

These answers beg the questions “What should count as justification for parental
conduct that would otherwise be classified as a tort?” “What should determine the
dividing line between private and public in intrafamily matters?” and specifically
“Why should maintenance of parental discipline and promotion of family harmony
take precedence over and trump the moral principle of corrective justice?”
Putting aside the factual questions about the truth of the claim that allowing chil-
dren to sue their parents for negligent torts will endanger parental discipline or the
harmony of the family, the moral claim that precedence should be given to the twin
values of parental discipline and family harmony has no foundation. We can
acknowledge that the ability of a parent to supervise the conduct of her child and the
maintenance of peace and harmony in the family are desirable goals, but there is no
evidence that the greater good for families or for society will be achieved by pursu-
ing these goals at the expense of denying corrective justice for the injured child.
Moreover, the burden of proof for this is not on those who advocate for corrective
justice. It is on those who argue that it is more important (has greater social utility)
to support parental supervisory control over the child or to maintain family har-
mony. No evidence has been presented to show they have met this burden. Until this
burden is met we can conclude that the parental immunity doctrine should be abol-
ished. No child should bear the cost of her own injury when she is injured by the
conduct of a parent.
Arguments for retaining the interspousal immunity doctrine that are still being
used in twenty-first century cases are preservation of marital harmony and the fear
that married couples would engage in fraud and collusion in order to cheat insur-
ance companies. Let us look at both of these in light of the principles of justice
outlined earlier. First, corrective justice states very simply that those who have vio-
lated the legal duty not to injure or otherwise harm must repair the wrongful losses
caused by their conduct. The legal duty has fault built into its definition. The duty is
to not to faultily (that is, intentionally, recklessly or negligently) harm or injure oth-
ers, and if one does so, then one has an obligation to repair the loss one has caused.
There is nothing in the principle that explicitly or implicitly says that it does not
apply to those who are in a marital relationship. Let us assume the facts in Waite v
Waite. The husband has intentionally and seriously injured his wife. It is safe to
assume that the peace and tranquility of their marital relationship has been disrupted
by this heinous act. In fact, we can go further and maintain that there is not even the

 Hewlett involved a married, but unemancipated minor daughter who tried to sue her mother for
10

wrongful confinement in an insane asylum. The court refused to recognize plaintiff’s cause of
action against her mother. Other courts have used the Hewlett rationale to justify parent-child
immunity. See Thomas v. Inmon, 268 Ark. 221, 223, 594 S.W.2d 853, 854 (1980); Pedigo v.
Rowley, 101 Idaho 201, 202, 610 P.2d 560, 561 (1980); Barlow v. Iblings, 261 Iowa 713, 722, 156
N.W.2d 105, 107-08 (1968); Small v. Morrison, 185 N.C. 577, 579-80, 118 S.E. 12, 13 (1923);
Chaffin v. Chaffin, 239 Or. 374, 382, 397 P.2d 771, 775 (1964).
8.6  Standards of Care in Intrafamily Negligence Torts 161

vestige of harmony that remains in the relationship. Nor could anyone reasonably
expect that the relationship could be repaired by making the husband immune to
liability. The important point is that the immunity doctrine implies that maintenance
of the marital relationship is more valuable than the value of corrective justice for
the individuals in the relationship. The idea seems to be that a marital relationship
should be protected by the courts regardless of the quality of particular relation-
ships, and regardless of the existence of a suit for remedy by a plaintiff whose case
would be allowed to proceed if she were not married to the defendant. This is not
only hypocritical in light of liberal rules regarding no-fault suits for divorce, but no
arguments are presented to show why a marital relationship, no matter how poison-
ous it is, should provide immunity to the wrongdoing spouse in situations in which
other kinds of intimate relationships (friendship, cohabitation) would never be
allowed to qualify for the same treatment.

8.6  Standards of Care in Intrafamily Negligence Torts

In the introduction to this chapter I mentioned a second response that a parent or

spouse might make as a defense to a charge of negligence. If immunity to tort liabil-
ity is not available in their jurisdiction, then the defendant parent or spouse might
argue “I was not in violation of the legal duty not to act negligently because I was
not negligent.” In such cases the defendant must show to the court’s satisfaction that
the act or omission that led to the harm met the standard of care required by the
court.
In tort law the duty is “ordinary care” under all circumstances, and this duty var-
ies with changing circumstances. The standard is that of the “ordinarily prudent or
reasonable person.” In order to help members of a jury to discover what a reasonable
person would have done if in the same circumstances as the defendant, in many
early cases the court said that a reasonable person might be what the persons on the
jury believe they would have done if they were in the defendant’s place (Duxbury,
42). The difficulty with this instruction is that it begs the question “Why should a
member of the jury use his or her own conduct as a standard for what an ordinary
prudent and reasonable person would do?” The answer is (probably) that jury mem-
bers would not be on the jury unless the judge and attorneys for the defendant and
plaintiff believed they were paradigms of reasonableness and prudence.
However, the substitution of an ordinary member of the jury for the reasonable
and prudent person does give us some idea of what the standard of care would be
like. The word “prudence” connotes that such a person cannot be mentally defec-
tive. And yet even this presents problems. If mentally defective persons do their
best, then this would be legally irrelevant. Their conduct will not be held to the
standard of what a mentally defective person would do, but what a prudent and
reasonable person would do. This raises a question of fairness. Is it fair that the legal
consequence of the fool’s folly should be visited upon the fool? After all, we do not
162 8  Family Torts and Remedies

blame a mentally defective person for their aberrant conduct as we do those who are
of average intelligence.11
Similar difficulties arise when we examine the question of the physical charac-
teristics and capabilities of the prudent and reasonable person. If the defendant has
one leg, is blind, experienced a blow on the head, suffered a heart attack or paraly-
sis, then these are all facts which are considered relevant to a question of negligence
under current law. We do not require that a blind or deaf defendant should have
taken the precautions that a person of normal or average physical capacity would
have taken in the same circumstances.

8.6.1  Objective and Subjective Standards of Care

The underlying problem is whether the court should be using an objective standard
to determine what constitutes the duty to use due care. An objective standard is one
that requires that the defendant’s behavior should be evaluated against a standard of
what care an imagined prudent or reasonable person would have taken in the indi-
vidual defendant's situation. A subjective approach, on the other hand, would argue
that the defendant’s’s honest beliefs about the amount and kind of care he or she
should take are all that should count.
Consider the example of a parent who leaves a loaded handgun in her bedroom
in a drawer of her bedside table. Her 7-year-old child finds the gun while playing in
the bedroom. The gun goes off while in his hand and the bullet strikes his 5-year-old
sister who is sitting nearby. The sister dies.
The subjective standard for determining negligence requires only that the parent
honestly believed that her 7-year-old child would not play with the gun (for exam-
ple, because she had ordered him not to enter her bedroom when she was not there
and he had always obeyed her orders). The objective standard would counter that
the parent’s honest beliefs are irrelevant. The law should examine only what a rea-
sonable person would have believed about the danger of keeping a hand gun in a
place accessible to a young child.
Those who defend the subjective approach “claim that it is fairer to individuals
than the reasonable-person approach. Its fairness stems from the fact that it better
reflects the actual blameworthiness or culpability of the individual.” (Altman, 125).
If the parent honestly believed that a loaded handgun kept out of sight in a bedroom
drawer does not pose a hazard to her children, then she cannot be justifiably blamed
for the death of her daughter. “[Her] perspective thus determines the extent to which
[she] is to blame and so should determine how the law imposes its duties and liabili-
ties on [her]” (Altman, 125).

11
 Nor do we blame young children for behavior that we find negligent if done by an adult. In a
recent incident in California a 2-year-old toddler pulled a gun from his mother’s purse while the
mother was shopping. The gun went off, and the bullet struck his mother, killing her. This is a
tragic but perfect case of avoidable ignorance (Washington Post 2014).
8.6  Standards of Care in Intrafamily Negligence Torts 163

The problem with this defense of the subjective approach is in the premise that
“it better reflects the actual blameworthiness or culpability of the individual.” This
defense can be challenged. The actual blameworthiness of the child’s mother is that
she did not take reasonable steps to confirm the false belief that led to the harm.
Even if it is true that she had an honest belief that the handgun did not constitute a
hazard, the belief itself was false and she could have taken steps to discover this. It
is the reasonable avoidability of her false belief that constitutes her blame, not the
possibility that she might not be honest in saying that she had this belief.
There have been several revisions suggested by theorists designed to accommo-
date the concerns of the subjective approach to negligence. One suggestion is that
we pitch the standard of care very low so that only certain very elementary precau-
tions need be taken in order to qualify those who (like the parent in the handgun
example) might have very different experiences and very different perspectives aris-
ing from those experiences than what we would expect from the reasonable and
prudent person. However, even then it may well be the case that there will still be
some individuals who, through lack of intelligence, powers of concentration, poor
memory, or even sheer physical clumsiness, will not be able to meet even a minimal
objective standard of care (Hart 1961, 29–49).
Perhaps a more serious difficulty with individualizing the reasonable person
standard is that it may require us to excuse certain individuals of average intelli-
gence and physical ability (like our parent) who we usually would not consider to
be exempt from blame. Suppose that the parent is a person of relatively low intelli-
gence who has grown up in a rural area where almost all families have guns in the
home. She and others from that area have a long experience and ingrained habit of
safe handling of guns. The experience dates from childhood. This parent subse-
quently moves to the suburbs where she buys a home. She buys a handgun for pro-
tection, and places it in the drawer of the table next to bed so she will have quick
access to it. She does not give much thought to where she has placed the gun except
to tell her children not to enter the bedroom. If the objective standard of the reason-
able and prudent person becomes so broad as to include the kind of low level of
intelligence, care and precaution that this person takes with her handgun, then it
would be a defense for almost anyone to show that they have taken sufficient care to
prevent childhood accidents and deaths by gunshot.
Another way of individualizing the objective reasonable person standard is to
render such incapacitating factors as low intelligence, infancy, blindness, suscepti-
bility to heart attacks or stroke, as part of the “circumstances” or situation in which
the reasonable and prudent person might find himself. Suppose that your car,
stopped in traffic at a stop light is struck in the rear by my car. I testify that I suffered
a heart attack and, although I did not lose consciousness, the pain was so great that
I forgot to press the brake. Under the suggestion that we should consider such inca-
pacitating factors as a heart attack as part of the circumstances in which the reason-
able and prudent person may find herself, the question directed to the jury would be:
“What would a reasonable or prudent person have done if, like the defendant, that
person had suffered a heart attack?” The problem with this question, of course, is
that members of the jury with no experience of what happens during a heart attack
could only guess at what a reasonable person would do in these circumstances.
164 8  Family Torts and Remedies

Their confusion would only be compounded by expert witnesses testifying on both

sides of the question, some saying that a reasonable person would not be distracted,
and others saying the opposite.
The suggestion that incapacitating factors be made part of the circumstances has
absurd consequences when being a child, being of low intelligence or mental defec-
tiveness are included among the circumstances in which a reasonable person might
find herself. The nonsensical question directed to the jury would be: “What would a
reasonable and prudent person have done (what precautions would such a person
take) if, like the defendant, he or she is a child (or is an adult with the IQ of a
5-year-old)?”

8.6.2  H
 .L.A. Hart’s Two-Question Proposal for Determinations
of Negligence

It is the desire to accommodate the subjectivist insistence that we treat all persons
in a fair and just manner that gives rise to the preceding variations of the reasonable
person standard of care. Another attempt to accommodate the fairness objection is
H.L.A. Hart’s recommendation that the jury should be instructed to distinguish two
questions when attempting to determine whether a defendant should be made liable
for negligence: (D1) What would a reasonable person with normal capacities have
done in these circumstances? (D2) Could the defendant with his or her capacities
have done that? Hart writes that “reference to such factors as lunacy or disease
should be made in answering only the second of these questions” (Hart 1961) If the
answer to the second question is negative, then there is no liability for negligent
behavior. Suppose a small child drowns in a private swimming pool at his home
because his father was watching a football game on television instead of watching
out for his child. After the tragedy he explains “I did not pause to think about what
I was doing. I should have not have been watching television.” If we apply Hart’s
dual question proposal to this case, the first question (D1) is answered by saying “A
reasonable parent in similar circumstances would have taken the simple precaution
of shutting off his phone while his child was in or near the swimming pool.” The
answer to the second question is affirmative: “The defendant could have (had the
ability to) take this precaution.”

8.6.3  O
 bjections to Hart’s Proposal: Standards of Care
for Children

In American law, the standard of reasonable conduct for a parent is measured against
the standard of the reasonable and prudent person. But the precautions expected of
a child are determined by a standard that takes into account “subjective factors such
as intelligence and experience.”
8.6  Standards of Care in Intrafamily Negligence Torts 165

In this sense the standard is less strict than for adults, because children normally do not
engage in the high-risk activities of adults and adults dealing with children are expected to
anticipate their “childish” behavior. In many states children are presumed incapable of neg-
ligence below a certain age, usually seven years. In some states children between the ages
of seven and fourteen years are presumed to be incapable of negligence, although this pre-
sumption can be rebutted. Once a person reaches the age of majority, usually eighteen
years, she is held to adult standards of conduct. One major exception to the rules of negli-
gence exists with regard to children. If a child is engaging in what is considered an “adult
activity,” such as driving an automobile or flying an airplane, the child will be held to an
adult standard of care. The higher standard of care imposed for these types of activities is
justified by the special skills required to engage in them and the danger they pose to the
public (Legal Dictionary entry for “Negligence”).

Hart’s two question approach would lead to the exculpation of most children for
their torts of negligence (except those engaging in adult activity). It is thus consis-
tent with rulings in U.S., English and Canadian courts regarding the liability of
children. But there are exceptions. Consider the case of a 13-year-old boy who
“playfully” threw nitric acid at a young girl who was innocently passing by, causing
lifelong scars (Pollock v Lipkowitz 17 DLR 3d 766 [1970, MBQB]). Hart’s first
question (D1) is about the behavior expected of a reasonable adult, not a reasonable
child of the same age and experience. Assuming that a reasonable and prudent per-
son with normal capacities can be expected to know enough about nitric acid not to
throw it at anyone, Hart’s second question (D2) would be whether a child of 13
could have known about the effects of nitric acid and restrained himself from throw-
ing it at the innocent girl. If children of this age can reasonably be thought to have
some knowledge and experience of chemistry and chemical reactions, then we
might give an affirmative answer to D2. But it seems clear that children of this age
and experience cannot be expected to have this knowledge. Although the ruling in
this case was to find for the plaintiff, Hart’s affirmative answer to D2 would find for
the defendant.

8.6.4  An Alternative Approach: Sub-categorization

To summarize the previous discussion: (1) an objective standard of negligence dis-

regards the particular physical and mental abilities of the defendant. It does this by
imposing the abilities of a hypothetical reasonable person who is placed in the same
circumstances as the defendant. The conduct of the defendant is compared to the
imagined conduct of the reasonable person in order to determine liability. (2) The
problem with the objective standard is that liability is sometimes imposed where
there is no fault on the part of the defendant. (3) Because the subjective standard
uses only the honest beliefs of the defendant about the circumstances that existed at
the time of their alleged wrongful conduct, liability is sometimes not imposed when
there is fault on the part of the defendant. (4) H.L.A. Hart’s solution to the stand-off
between the champions of the objective and subjective standards for determining
negligence is to retain the reasonable person standard while at the same time
166 8  Family Torts and Remedies

making an accommodation for actual fault by requiring the court to ask and answer
a second question: “Could the defendant with his or her capacities have done what
a reasonable person would have done in these circumstances?” The advantage of
Hart’s solution is that it would relieve young children and many of those with men-
tal disabilities of any liability because they are without fault.
The solution is to repair Hart’s two-question approach by making a change in the
first question that he requires the jury to answer. The change is to make the category
of “reasonable person” less broad by “taking account of the differences in experi-
ence and perspective to which the law should be responsive” (Altman 2001, 127).
This can be done by adding more specific categories. In fact, there is ample prece-
dence for this in such legal subcategories as age (children) and physical disability
(deafness, blindness). We do not hold children, the deaf or the blind to the “reason-
able person with normal abilities” standard when determining negligence. It is a
small step from this to adding other subcategories, for example, mental illness,
mental retardation, certain other developmental disabilities, cognitive impairments,
and traumatic brain injury.12
Some have argued that the problem with this proposal is that it would open up “a
host of irresolvable controversies over what subcategories to use” (Altman 2001,
128). How would we avoid a slippery slope that leads us to adopt such categories as
gender, race or economic class? Should we adopt a special category for parents of
young children? Would this category include any precautionary measures that we
would not expect any reasonable person to know? Would the controversies over new
categories lead us all the way back to the original subjectivist proposal that blame
or fault in determinations of negligence should be predicated only on what the
defendant honestly believed at the time of the (alleged) wrongful conduct?
What is needed is an account of what subcategories to use and why. But we have
already found this account in the argument for creating subcategories for children,
and the physically disabled. A 13-year-old child is held to the standard of what a
child of the same age would do when in the same circumstances, because it is not

12
 Mental illness and other types of mental disability would present different problems for my pro-
posal, but none that are impossible to resolve. The main problem is how to frame the two questions
that we want to put to the jury. Consider the example of a woman with the paranoid delusion that
God is controlling her automobile. She crashes into another car, causing injury to its occupant. If
schizophrenia and acute paranoia are within the legally approved subcategory of mental disability,
then the question (E1) that the court should ask the jury to answer would be “What precautions
should we require of schizophrenics and acute paranoiacs about driving automobiles?” Suppose
that the jury’s answer to this question is: “Don’t drive.” The next question (E2) is whether the
defendant could have restrained herself from driving a car. The answer to this question begs
another: “Was her mental illness foreseeable?” If the answer to this question is negative, then she
could not have restrained herself from driving her car. But if there is no forewarning of an onset of
a delusion, then while she is in the hallucinatory state of believing that God is controlling the
vehicle, then the answer to E2 is negative. If these mental aberrations were not constant, the jury
could infer she had knowledge of her condition and the likelihood of a hallucinationDOUBLEHY-
PHENjust as one who has knowledge of a heart condition knows the possibility of an attack. In that
case, the answer to E2 would be affirmative and she would be liable. In both of these possible
answers to E2 the guiding moral principle is “no liability without fault.”
8.6  Standards of Care in Intrafamily Negligence Torts 167

fair to hold the 13-year-old to an adult standard of reasonableness. A blind person is

held to the standard of what persons with the same disability would do in the same
circumstances, because it is not fair to hold the blind to a standard of what a sighted
person would do. And “fairness” in these cases is based on fault. In order to insure
that fault is the guiding concern the court should also require that the defendant
must show that she could not have conformed her conduct to the precautionary
behavior required of persons in the sub-category. In order to make this clear, con-
sider the following changes I would make in Hart’s two question formula. In place
of D1 and D2, we will require the court to ask the following questions of the jury:
(E1) What would a person in the legally approved subcategory [for example, a child,
a deaf person] have done in these circumstances?
(E2) Could the defendant with his or her capacities have done that?
In an example discussed earlier we imagined a deaf person struck by a train
while crossing the railroad tracks in his car (Sect. 8.4.1). Assuming that deafness is
in a legally approved subcategory, then in order to determine contributory negli-
gence of the defendant, the jury will be asked to answer E1: what precautions should
we require of a deaf person in these circumstances? Let us assume that the jury
would answer this question by requiring that a deaf person should take the precau-
tion of taking a careful look up and down the tracks before she ventures across. If it
is determined that the defendant did not do this, then we must ask the second ques-
tion E2: Could the defendant have done that? That is, was there any impediment
other than her deafness that prevented her from taking the necessary precautions? If
the answer is negative, then we can attribute at least partial fault to her for the inju-
ries she suffered, and the jury should find for the plaintiff.
Lastly, the phrase “legally approved subcategories” mentioned in E1 are those
subcategories that are approved for use by the courts in the jurisdiction in which tort
case decisions are made. Whether gender, race or economic class should also be
adopted as subcategories depends upon whether it can be successfully argued that
there are clear standards of care for persons in these categories that significantly
differ from the reasonable person standard. I have serious doubts that an argument
can be successfully made for this proposition, but I will defer an analysis and criti-
cism of these arguments until Chap. 11.13
Questions for Thought and Discussion
1. What is the distinction between a crime and a tort? Describe an example of both,
and explain how they compare and how they differ.
2. How would you choose between the principles of justice (corrective, retributive,
distributive) discussed in Sect. 8.3?
3. What immunities have existed in tort law for parents and spouses? What argu-
ments have been or might be given to justify these immunities? How would you
assess these arguments?

 “Extensive sub-categorizing would entangle the law in a thicket of controversies that could not
13

be settled except by the greater political might of one side or the other” (Altman, 128).
168 8  Family Torts and Remedies

4. What is the difference between objective and subjective standards of care in

determining whether a defendant should be made liable for a tort? Give an exam-
ple of an objective standard of care and explain what it is that makes it objective
rather than subjective. Does H.L.A.  Hart’s two-question approach resolve the
debate between objectivists and subjectivists?

References

Coleman, Jules and Mendlow, Gabriel. 2010. Theories of Tort Law. In The Stanford Encyclopedia
of Philosophy, ed. Edward N.  Zalta.http://plato.stanford.edu/archives/fall2010/entries/
tort-theories/.
Dumaine. 2016. Legal Dictionary. http://www.duhaime.org/LegalDictionary/.
Duxbury, Neil. 1995. Patterns of American Jurisprudence. Oxford: Clarendon Press.
Dyson, Matthew. 2014. Unravelling Tort and Crime. Cambridge: Cambridge University Press.
Falk, Beth Ann. 1987. Survey of Developments in North Carolina Law, 1986: North Carolina
Retains Its Partial Parent-Child Immunity Doctrine. 65 North Carolina Law Review 1457.
Florida, Laws. 1993. Twitle XLIII. Chapter 741. Marriage, Domestic Violence. http://www.leg.state.
fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-­0799/0741/0741ContentsIndex.
html. Accessed 28 Mar 2016.
Freethy v Freethy (1865) 42 Barb. 641  Hardy, Benjamin H. 1999. Parental Immunity. ORL
Research Report. 99-R-0667 June 4, 1999. http://www.cga.ct.gov/ps99/rpt/olr/htm/99-R-0667.
htm.
Hewlett v Hewlett 68 Miss. 703, 9 So. 885 (1891).
Honore, Tony. 1997. The Morality of Tort Law: Questions and Answers. In The Philosophical
Foundations of Tort Law, ed. David G. Owen. Oxford: Oxford University Press.
Locke, John. 1980. Second Treatise of Government, ed. C.B. Macpherson. Indianapolis: Hackett.
First published in 1690.
Louisville & N.R. Co. v Johnson, 201 Ala. 611 (1920).
Raisen v. Raisen, 379 So.2d 352 (Fla. 1979), modified, Sturiano v. Brooks, 523 So.2d 1126 (Fla.
1988).
Ritter v. Ritter, 31 Pa. 396, 398 (1858). Tobias (supra) notes that Ritter was not a tort case (442, fn
419).
Roller v Roller 37 Wash. 242, 79 P. 788 (1905).
Tobias, Carl. 1989. Interspousal Tort Immunity in America. 23 Georgia Law Review 359.
Vardiman, Martha. 1986. Case Note: Ohio Abolishes Intrafamily Immunity:Shearer V. Shearer, 18
Ohio St. 3d 94, 480 N.E.2d 388 (1985). University of Cincinnati Law Review 55.
Washington Post. 2014, December 30. Toddler Accidentally Shoots and Kills His Mother. http://
www.washingtonpost.com/news/post-nation/wp/2014/12/30/toddler-accidentally-
shots-and-kills-his-mother-in-idaho-wal-mart-police-say/
 Part III
Marriage, Children and the State
Chapter 9
Family Contracts: Marriage and Divorce

“Marriage is a coming together for better or for worse,

hopefully enduring and intimate to the degree of being sacred.
It is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not
commercial or social projects. Yet it is an association for as
noble a purpose as any involved in our prior decisions.”
 J. Wm. O. Douglas Griswold v Connecticut (1965)

Abstract  Legal marriage is a type of contract that confers a status on those indi-
viduals who marry. In this respect it substantially differs from the traditional idea
that legal duties arising under contract law should be self-imposed by individuals,
not dictated by the public in the form of a contract which everyone is required to
enter if they wish to achieve the status of “married person.” This status consists of
non-changeable terms about the indefinite duration of the contract, support obliga-
tions of spouses, the distribution of property, and the amount of taxes paid to fed-
eral, state and local government. One reason that unmarried persons might see this
status as a desirable choice is that marriage has considerable economic benefits that
are not enjoyed by unmarried co-habiting couples. One of the central questions of
this chapter is whether this distribution of benefits between married and unmarried
couples is justifiable. We look at several principles of just distribution in an attempt
to answer this question. Another important part of this chapter is about the descrip-
tion and evaluation of gendered marriages in which laws in earlier times dictated
specific roles for husband and wife. Third, and perhaps of most relevance in con-
temporary family law are questions about access to marriage. In this context, we
examine both the 2015 Supreme Court decision overturning state laws prohibiting
same-sex marriage, and the arguments given in the public debate about same-sex
marriage prior to this decision. We will next look at some of the alternatives to tra-
ditional marriage such as private contracts and a recent proposal called “minimal
marriage” which uses state regulation only to recognize and promote caring rela-
tionships between the parties to the marriage, regardless of number and gender. Our
concluding discussion is about the exit rules enabling divorce or dissolution of a
marriage in which we ask whether the rules for dissolution should be neutral with
respect to moral and religious beliefs.

© Springer International Publishing AG 2017 171

L.D. Houlgate, Philosophy, Law and the Family, AMINTAPHIL: The
Philosophical Foundations of Law and Justice 7,
DOI 10.1007/978-3-319-51121-4_9
172 9  Family Contracts: Marriage and Divorce

9.1  A Conversation About Marriage: Past and Present

A friend once told me that he and his cohabiting partner did not want to get married
because “we do not want the government to regulate our relationship.” Their reason
for this was the fear that government regulation would result in the depersonaliza-
tion of their relationship. They were afraid that they might come to look on each
other as persons bound by a business contract instead of seeing each other as friends
and lovers. He said “It is more likely that legal marriage will damage our relation-
ship than help it.”
I explained to my friend that for most of Western history, neither the state nor the
church interfered with marriage. But I added that this would probably not change
his fears about depersonalization. Marriage in those times was a private contract
between two families. “The parents’ agreement to the match, not the approval of
church of state, was what confirmed its validity” (Coontz, A27). If my friend had
been born in the tenth century, he and his partner would certainly have objected to
the parental approval requirement on the grounds that neither he nor his partner had
a right to refuse the match. If he had been born in the thirteenth century when the
Catholic Church decreed that a “licit” marriage must take place in church, then his
objection would have been that marital rights and obligations of husband and wife
were determined not by him and his partner but by the Church. If they had children
out of wedlock, then the children would be declared illegitimate. If they were to
wed, then the wife would have inheritance rights only if their marriage was approved
by the Church. And because marriage under Canon Law was considered a sacra-
ment and an indissoluble bond, the Church could not grant a divorce.
It was not until the sixteenth century that the secular courts of European states
intervened and began to require that marriages be performed under auspices set by
the legal system. At first this “was an attempt to prevent unions between young
adults whose parents opposed their match” (Coontz, A27). In the early history of the
United States, marriage law was used to exert control over those allowed to marry
(for example, laws prohibiting interracial marriage), and those allowed to end a
marriage (for example, by setting “fault” conditions for those who wanted to divorce
a non-consenting spouse).
If we jump forward to the twentieth century we begin to see the marriage license
as a pathway to special benefits that were not extended to the unmarried. For exam-
ple, the newly enacted Social Security Act of 1935 provided survivors’ benefits with
proof of marriage. “Employers used marital status to determine whether they would
provide health insurance or pension benefits to employees’ dependents. Courts and
hospitals required a marriage license before granting couples the privilege of inher-
iting from each other or receiving medical information” (Coontz, A27). These were
seen as considerable benefits available only to married couples.
One year after my friend had announced that he and his cohabiting partner would
never marry I ran into him at the grocery store. He told me that they were recently
married. When I asked what brought about this change of mind, he replied: “Health
insurance. The health benefits that we could obtain just by being married were much
9.2 Traditional Marriage: Rights, Duties and Benefits 173

less expensive than the insurance we could obtain as unmarried persons.” The pros-
pect of realizing these economic benefits of marriage trumped his earlier concern
about possible damage to a valued personal relationship.

9.2  Traditional Marriage: Rights, Duties and Benefits

The phrase “marriage law” refers to the complex set of rules that comprise the legal
union of two persons as spouses with designated rights and obligations to each
other. The basic elements of a marriage are: (1) the parties’ legal ability to marry
each other. For example, if a person is under the minimum age required for marriage
in the state in which they reside, then they cannot marry. (2) Mutual consent of the
parties, as determined (for example) by the absence of compulsion; and (3) A mar-
riage contract as required by law.
The marriage contract differs from other contracts in that it confers a legal status
(“married” and “spouse”) on the persons who enter into this union in much the same
way that birth of a child confers the legal status of “parent” on the biological mother
and father. The word “status” means that the rights and duties are set by the state and
cannot be altered by the individuals in the legal relationship. For example, the term
of the marriage contract is indefinite. Persons who legally marry cannot insert a
clause that their marriage will terminate at a particular time in the future (“in 10
years, with an option to renew”). Any such stipulation would not be recognized as
legally valid. And (to give a second example) a marriage contract cannot stipulate
that one of the spouses will have no obligation to support the other spouse or to pay
child support. These obligations are unalterable components of legal marriage.
The Family Code of the state of California says this about the duties and recipro-
cal rights of support:
Upon marriage, each spouse enters into an agreement to support the other. Each spouse is
committed to using whatever resources are available for this purpose. If there is not ade-
quate community property to provide support for your spouse, you are expected to expend
your own separate property to support your spouse. (Fam. Code, § 4301.)

California also has rules for married persons regarding the distribution of
property:
If you lived in California during your marriage, everything you or your spouse own is either
“community” or “separate” property. Unless you and your spouse agree otherwise, all prop-
erty in or out of the state that is acquired by you and your spouse through either of your
labor or skills during the marriage is community property. Each spouse owns one-half of all
community property. This is true even if only one spouse worked outside the home during
the marriage and/or the property is held in the name of only one spouse. (Fam. Code, §
125.)1

1
 Common-law states now allow the divorce court to distribute the spouse’s property between them
on a doctrine known as “equitable distribution.” This is not equivalent to equal distribution, but it
is still regarded as just and fair (in times past common-law property was property owned by the
spouse who earned or had title to it).
174 9  Family Contracts: Marriage and Divorce

And there are complex federal and state rules regarding taxation when married:
When you are married, you may file a “joint” tax return with your spouse, or a “married
filing separate” tax return. State and federal tax laws are complicated. Various tax decisions
will be of special importance to you because you are married. Tax issues of particular con-
cern to married couples include “joint” and “separate” filing (Rev. & Tax Code, §§ 17045
and 18521), inheritance and estate tax planning, homestead rights, and your possible liabil-
ity for tax fraud committed by your spouse. (Rev. & Tax Code, § 18531.)

If a person is told that they need to establish that they are or have been legally
married, they might be trying to obtain some other objective such as: pension ben-
efits or social security benefits as the surviving spouse; assets as the spouse of a
deceased person who has died without leaving a valid will; recovery for the wrong-
ful death of a spouse; entrance into the United States or avoidance of deportation as
a result of being married to a U.S. citizen. Each of these objectives signals a benefit
that comes from being married.
There are several philosophical (normative) questions to ask about the rules of
marriage. In this chapter we will discuss (a) whether married couples ought to be
entitled to benefits not provided to unmarried single or cohabiting adults, or be sub-
jected to burdens they did not have prior to marriage; (b) whether marriage ought to
be “gendered” by practices such as coverture (in which a woman’s legal identity
disappears into that of her husband upon marriage), and male “head of family”
rules; (c) whether marriage law ought to be structured in such a way that some per-
sons are allowed to marry (for example, two persons of the opposite sex) and others
are not (for example, two persons of the same sex or three persons of the same or
opposite sex); and (d) whether the so-called “exit rules” for dissolving a marriage
should be conditioned on anything other than the desire of one spouse to terminate
the marriage.

9.3  J ustice and the Distribution of Marital Benefits

and Burdens

In its 2004 report, the U.S. General Accounting Office wrote that there are 1,138
benefits, rights and protections provided on the basis of marital status in Federal law
(Defense of Marriage Act, GAO-04-353R). The report does not mention any bur-
dens or loss of rights and protections by virtue of one’s marital status. However, the
burdens are relatively few in number, pertaining largely to the assumption of a por-
tion of debts that one of the spouses might bring into the marriage, and to other
obligations that are reciprocal to some of the rights of the marital relationship, for
example, the duty to support the other spouse by using “whatever resources are
available for this purpose.”
Our question is about the justice of this distribution of rights and obligations in
the population of married and unmarried cohabiting couples. In answering this
question there is no need to look at each and every benefit and burden. That would
9.3 Justice and the Distribution of Marital Benefits and Burdens 175

not only be tiresome but unnecessary. Our task is to enunciate a general principle of
distribution that will satisfy the demands of justice and then apply it to a few cases
for illustration.
The focus will be on principles designed to cover the distribution of benefits and
burdens of economic activity among married and unmarried cohabiting individuals
in society. Government has the primary role in the distribution of economic benefits
and burdens by virtue of creating, changing and revoking laws and policies. These
changes have distributive effects. To quote Lamont and Favor
Almost all changes, whether they regard tax, industry, education, health, etc. have distribu-
tive effects. As a result, every society has a different distribution at any point in time and we
are becoming increasingly more adept at measuring that distribution. More importantly, at
every point in time now, each society is faced with a choice about whether to stay with cur-
rent laws, policies, etc. or to modify them. The practical contribution of distributive justice
theory is to provide moral guidance for these constant choices. (Lamont and Favor, 2014)

As previously noted in  our discussion about the distribution of losses in tort
law (Sect. 8.3), there are several moral principles that have been defended in the
literature as the best principles to guide the state in the distribution of benefits and
burdens. We shall examine three of the most prominent principles, using marriage
rules on tax policy as our illustrative case: Egalitarian,  Difference and Utilitarian.

9.3.1  Egalitarian Principles

Egalitarianism makes the dual assumption that (a) all persons are morally equal and
(2) the best way to give effect to this ideal is to create laws and policies that give
every person, married or unmarried, the same level of material goods and services.
Money is an index for the value of material goods and services. Therefore, any
policy that confers tax breaks on married persons that it does not give to the unmar-
ried (or vice versa)2 would seem to violate the egalitarian principle of distribution.
Some policies involve burdens, for example, making a married person liable for tax
fraud committed by a spouse but not making that same person liable for the tax
fraud of a cohabiting person to whom she is not married.
One of the problems with the egalitarian principle is in the word level. How do
we specify and measure levels when distributing material goods and services? Are
amounts of money the best index? If you prefer apples and I prefer oranges, but
apples are three times the cost of oranges, then an income tax policy that taxes us
equally, whether married or not, would put you in a worse financial position than
you would be under an alternative system in which we would swap apples and
oranges.

2
 In the current U.S. system, single-income married couples usually benefit from filing as a married
couple because of income splitting, while dual-income married couples are often penalized in
comparison. This is commonly referred to as “The Marriage Penalty.”
176 9  Family Contracts: Marriage and Divorce

This criticism of egalitarianism does not seem relevant to the moral question
about whether married couples should be put in an advantageous or disadvanta-
geous position relative to similarly situated cohabiting unmarried couples through
discriminatory tax policy. Even if we had the same set of preferences for apples and
oranges the injustice of distributing these goods on the basis of marital status would
be as obvious as it would be if we did this distribution on the basis of race, gender
or ethnicity. By the same line of reasoning, if we adopt a system of taxation that is
progressive or regressive while at the same time giving special preference to persons
on the basis of marital status, then the injustice of this form of discrimination would
still be apparent.
“Why should the mere performance of a marriage ceremony provide a tax break
for the persons getting married?” According to the egalitarian principle, the answer
is that it should not.3 If we want to promote equality, then it would seem that a sys-
tem of taxation would be neutral with respect to marital status. It would also strive
to achieve equality in its treatment of taxpayers, irrespective of marital status, and it
would correlate tax liability with the taxpayer’s ability to pay. A system of taxation
that uses one tax rate schedule and also uses the individual as the basic tax unit
would satisfy these criteria. One advocate of an egalitarian tax structure argues that
this system would also remove
The built-in-bias towards the single income married taxpayer by applying the same rate
structure to income earners, whether married or single. Adopting a single rate structure also
adheres to the principle of progressivity since individual taxpayers with the same taxable
income would be taxed in the same rate bracket regardless of their marital status. (Mess,
1979)

9.3.2  The Difference Principle

In A Theory of Justice John Rawls proposes the following two principles of

justice:
1. Each person has an equal claim to a fully adequate scheme of equal basic rights
and liberties, which scheme is compatible with the same scheme for all; and in
this scheme the equal political liberties, and only those liberties, are to be guar-
anteed their fair value.

3
 A common justification for the tax benefit provided to married taxpayers is that “marriage
increases family responsibility and necessitates the lower tax liability” (Oldman and Temple
1960). The problem with this rationale, however, is that the benefit is given to all married taxpay-
ers, irrespective of any actual increase in responsibilities, such as the existence of children. Rather,
the mere performance of a marriage ceremony provides the tax break. (Mess, 87) “A woman mar-
ried to a man for just 9 months gets Social Security survivor’s benefits when he dies. But a woman
living for 19 years with a man to whom she isn’t married is left without government support, even
if her presence helped him hold down a full-time job and pay Social Security taxes. A newly mar-
ried wife or husband can take leave from work to care for a spouse, or sue for a partner’s wrongful
death. But unmarried couples typically cannot, no matter how long they have pooled their resources
and how faithfully they have kept their commitments.” (Coontz, A27, quoting Kotlikoff).
9.3 Justice and the Distribution of Marital Benefits and Burdens 177

2. Social and economic inequalities are to satisfy two conditions: (a) They are to be
attached to positions and offices open to all under conditions of fair equality of
opportunity; and (b), they are to be to the greatest benefit of the least advantaged
members of society.
The Difference Principle is stated in part 2(b). Because it deals with possible
economic inequalities, this is the principle on which we should focus in determining
what would constitute a just system of taxation. Economic inequalities produced
through a system of taxation can be justified but only if they can be shown to “to be
to the greatest benefit of the least advantaged members of society.” The Difference
Principle prescribes economic inequality up to that point where the absolute posi-
tion of the least advantaged can no longer be raised. Hence, those who believe that
the tax system should give preference to married couples have the burden of proving
that this provides the greatest benefit to the least advantaged members of society.
There is no evidence that this burden has been met.
To take this discussion in another direction, it has been argued that the Difference
Principle does not require commitment to any particular tax system at all.
The Difference Principle, which demands that economic inequalities are justifiable only if
they benefit the least advantaged, can be satisfied through the combination of a wide variety
of institutions, of which the tax system is only one. Inequalities in taxation that fail to ben-
efit the most disadvantaged may be outweighed by other economic arrangements and provi-
sions that benefit those who are worst-off. Only a tax system that burdens exclusively the
poorest group would be foreclosed on account of the difference principle, because that
scheme of public finance would necessarily entail some redistribution, in the form of public
goods at least, from the worst-off to the better-off. (Surging, 2004)

If the state raises sufficient resources to provide a social minimum for the least
advantaged members of society, then this is consistent with any number of tax
schemes, including those that give reduced tax rates to married persons, giving
reduced taxes rates to unmarried couples, or giving the same rates to both — as long
as this has no detrimental effect on the least advantaged. In sum, the difference
principle says nothing about taxation schemes that benefit one group rather than
another unless that scheme “would necessarily entail some redistribution, in the
form of public goods at least, from the worst-off to the better-off” (Surging).

9.3.3  Utility-Based Principles

Traditional utility-based principles are motivated by the idea that what is of primary
moral importance is the level of happiness of people, where “happiness” is defined
as pleasure and the absence of pain (Mill). Happiness is the only thing that has
intrinsic value and all other things are good or desirable only because they are a
means to happiness. The goods mentioned in previously discussed theories (mate-
rial equality and the level of good for the least advantaged) have only instrumental
value, that is, they are only valuable insofar as they affect utility.
178 9  Family Contracts: Marriage and Divorce

Hence, all distributive questions are ultimately settled by how the distribution
affects utility. The principle for distributing economic benefits for utilitarians is to
distribute them so as to maximize the greatest amount of happiness for the greatest
number of people. The utility function for such a principle has a relatively simple
theoretical form which requires choosing the distribution which maximizes the
arithmetic sum of pleasure over pain, adjusted for the intensity of these experiences.
To accommodate uncertainty with respect to outcomes the function can be modified
so that expected utility is maximized.
How does this apply to a proposed taxation scheme that benefits married cou-
ples? In order to answer this question one would have to show that such preferential
treatment would increase the happiness not only of those who are married but of all
persons in the general population, including unmarried cohabiting couples, unmar-
ried single adults, and children. This is first of all an empirical problem, involving
an enormous amount of data collection. But there are preliminary questions that
must be answered. Presumably a long-term longitudinal study would be required
where data is gathered for the same subjects repeatedly over a period of time. How
would the study be set up? What kind of data is relevant? How would we know
whether an increase or decrease in overall happiness had been specifically caused
by the taxation scheme? To make things even worse for utilitarians, each taxation
scheme would have to be examined in order to determine the distribution of benefits
and burdens yielded by the scheme. Three other factors would be involved in this
process: “the identity of each person in the distribution (if individuals’ utility func-
tions differ); the utility of each person from the goods and services distributed to
them; the utility of each person from the policy itself.” The size of the information
requirements makes this task almost impossible to achieve the desired goal (Lamont
and Favor).
In addition to the empirical problem, the standard normative criticism of utilitar-
ian distributive principles is that they could be used to justify distributions that com-
monsense morality would regard as unjust. For example, it might be argued that
utilitarianism could conceivably justify a taxation system based on race in which a
racial minority is taxed at twice the rate of all others in the population. It is logically
possible to imagine a scenario in which this scheme would maximize overall utility,
but it does so by requiring (not asking) individuals who are in the minority to sacri-
fice their happiness for the happiness of others. It is immoral to make some people
suffer or be sacrificed so that others may gain.
Utilitarians reply to this criticism by defending the rules of common-sense
morality, arguing that such rules maximize utility. The rule that prohibits non-­
consensual sacrifice would be among this set of rules. Hence, the counter-example
fails. Utilitarians would not justify the enactment of a taxation scheme that discrimi-
nates on the basis of race. However, this reply does not satisfy the objectors. They
will counter with the argument that it is logically possible to imagine a system, justi-
fied by utility, that would contain a rule that prohibit non-consensual sacrifice, but
also containing an exception permitting such sacrifices “when the circumstances
require it”. The circumstances, of course, would be those in which utility is maxi-
mized by these non-consensual sacrifices.
9.4 Legally Gendered Marriage 179

None of the preceding distributive principles (egalitarian, difference, utility) pro-

vide a justification for the common practice of distributing taxes in a manner that
gives tax benefits (breaks) to married couples while denying the same benefits to the
unmarried. However, this has not been an exhaustive analysis of all distributive
principles. We have not discussed libertarian or desert-based or feminist principles.
It is doubtful that these principles would provide the desired justification.
Libertarians would be critical of any governmental tax scheme other than one that
protects property rights. This would disqualify any taxation system that benefits any
individual on the basis of marital status. Desert-based theories distribute economic
benefits on the basis of what persons deserve. These theories differ primarily accord-
ing to what they identify as the basis for desert. Aristotle proposed virtue or moral
character. Locke proposed labor as the best basis deserving a reward. Locke’s pro-
posal prompts the question whether marriage is a form of labor or work activity
deserving compensation in the form of tax benefits, or is marriage its own reward?
Liberal feminists believe that a proper recognition of the position of women in soci-
ety requires that women be given the same rights as men, and that these rights
should primarily protect their liberty and their status as equal persons under the law.
“Thus, government regulation should not prevent women from competing on equal
terms with men in educational, professional, marketplace and political institutions”
(Lamont and Favor). The same principle applies to taxation schemes. If a liberal
feminist were to endorse any scheme it would be one that used the individual not the
married couple as the basic tax unit in order to better protect equal rights.

9.4  Legally Gendered Marriage

A gendered marriage is one in which the legal system defines family roles and most
property rights on the basis of gender. For example, there was a time in U.S. history
in which a married woman could not make her own will, own property, make a
contract in her own name, be a juror, vote, sue someone (and be sued), execute a
deed, or keep her own earnings (Sects. 4.1, 5.3.2). “The legal status of a woman was
called coverture, whereby her legal existence for many purposes merged with (was
covered up by) that of her husband.” (Statsky 2015). The married woman disap-
peared from the legal landscape. Of course, this situation could be reversed. A mar-
riage could be gendered to disadvantage the husband in such a way that he could not
perform any of the aforementioned actions and have his legal existence covered up
by that of his wife.
Is there an argument for gendered marriage that would favor the wife over the
husband or the husband over the wife? On what factual and moral basis would one
construct such an argument? The moral basis would involve constructing a justifica-
tion for unequal treatment under the law. Everyone can agree with the formal prin-
ciple that persons who are similar should be treated the same and those who are
different should be treated differently. What we want to know about is the material
principle of relevance that would be used. People are justifiably treated differently
180 9  Family Contracts: Marriage and Divorce

when the differences between them are relevant to the purpose of the law. If the
purpose of serving as a juror in a criminal trial is to determine guilt or innocence,
then it is justifiable to exclude minor children from the juror pool on the ground that
they are relevantly different from adults pursuant to the purpose of serving as a
juror. They lack the degree of intelligence and understanding required for making a
rational decision about guilt or innocence. Is there an equally relevant basis for
excluding married women or any adult women from some family or public roles?
It was once thought that women were by nature unsuited not only for jury duty,
but also for all of the other activities noted above. This idea was clearly pronounced
by Justice Bradley of the U.S. Supreme Court when he concurred with the majority
decision that the State of Illinois did not violate the U.S. Constitution by prohibiting
women from the practice of law.
Man is, or should be, woman’s protector and defender. The natural and proper timidity and
delicacy which belongs to the female sex evidently unfits it for many of the occupations of
civil life. The Constitution of the family organization, which is founded in the divine ordi-
nance as well as in the nature of things, indicates the domestic sphere as that which properly
belongs to the domain and functions of womanhood. The harmony, not to say identity, of
interest and views which belong, or should belong, to the family institution is repugnant to
the idea of a woman adopting a distinct and independent career from that of her husband.
So firmly fixed was this sentiment in the founders of the common law that it became a
maxim of that system of jurisprudence that a woman had no legal existence separate from
her husband, who was regarded as her head and representative in the social state, and, not-
withstanding some recent modifications of this civil status, many of the special rules of law
flowing from and dependent upon this cardinal principle still exist in full force in most
states. One of these is that a married woman is incapable, without her husband’s consent, of
making contracts which shall be binding on her or him. This very incapacity was one cir-
cumstance which the Supreme Court of Illinois deemed important in rendering a married
woman incompetent fully to perform the duties and trusts that belong to the office of an
attorney and counselor. It is true that many women are unmarried and not affected by any
of the duties, complications, and incapacities arising out of the married state, but these are
exceptions to the general rule. The paramount destiny and mission of woman are to fulfill
the noble and benign offices of wife and mother. This is the law of the Creator. And the rules
of civil society must be adapted to the general constitution of things, and cannot be based
upon exceptional cases. (Bradwell v. State of Illinois1873)

It was not until 1971, nearly 100 years after Bradwell that the Court would use
the Equal Protection Clause of the Fourteenth Amendment to overturn this decision
by rejecting gender-based distinctions (Reed v. Reed, 1971). This and a later deci-
sion (Craig v Boren, 1976) contradicted the factual basis of Justice Bradley that “a
married woman [is] incompetent fully to perform the duties and trusts that belong
to the office of attorney and counselor.” The de-genderization of family law in the
twenty-first century is a testament to the almost universal acknowledgement that
there are no differences between women and men relevant to the purpose of any of
the legally protected tasks of everyday life (making a will, owning property, make a
contract in one’s own name, serving as a juror, voting, suing someone (and being
sued), executing a deed, and keeping one’s own earnings).
9.5 Access to Marriage 181

9.5  Access to Marriage

Not everyone can marry. A man who is married to one person (man or woman) can-
not concurrently marry a second person. That would be bigamy. Children under a
certain age cannot marry (eligible persons must be 18 years or older unless a judge
or parent consents to the union). Polygamous marriages are illegal (under bigamy
law). People who lack the mental capacity to enter into a contract cannot marry.
Blood relatives closer than third cousins cannot marry (first and second cousins can
marry if they are elderly or cannot conceive).
Disputes about access to marriage have been argued at two levels. For most of
the nation’s history arguments about whether same-sex couples should be allowed
to marry have been confined to public debate. The debate has been essentially over
the morality of granting one group of competent, consenting adults access to mar-
riage while denying it to other equally competent and consenting adults. As the late
Justice Scalia wrote, this public debate, although often loud and contentious, was a
good thing. It “displayed American democracy at its best”:
Individuals on both sides of the issue passionately, but respectfully, attempted to persuade
their fellow citizens to accept their views. Americans considered the arguments and put the
question to a vote. The electorates of 11 States, either directly or through their representa-
tives, chose to expand the traditional definition of marriage. Many more decided not to. Win
or lose, advocates for both sides continued pressing their cases, secure in the knowledge
that an electoral loss can be negated by a later electoral win.

The second and more recent level of the debate about same-sex marriage has
been waged in the courts over the question whether the Constitution might require
the States to license and recognize marriages between two people of the same sex.
The U.S. Supreme Court answered this question in the affirmative on June 25, 2015
when it invalidated all state laws prohibiting same-sex marriages (Obergefell v
Hodges, 2015).
Before we look at the majority and minority arguments in arriving at this historic
decision, let us examine some of the reasons why legislators, scholars and many
citizens have resisted making any change in their state laws prohibiting same-sex
marriages.

9.5.1  The Public Debate

Let us assume for purposes of argument that the dissenting voices on the Supreme
Court had prevailed in the Obergefell decision. We shall suppose that a majority of
justices agreed with the late Justice Scalia that a decision to declare all state prohibi-
tions on same-sex marriage “robs the people of the liberty to govern themselves.”
The hypothetical question we shall instead ask is this: If the democratic process in
the state houses had not been halted by the decision in Obergefell, what would be
adequate moral grounds that an individual citizen or legislator might give in support
of the position that same sex couples should not be given access to legal marriage?
182 9  Family Contracts: Marriage and Divorce

Not surprisingly some of the grounds for denial are quite similar to the grounds
once used to justify denying interracial couples the right to marry (Sect. 2.2.2). It
has long been argued that there are relevant differences between same-sex couples
and opposite-sex couples that would disqualify the former from consideration for
marriage. The same kind of argument about relevant differences was found in ear-
lier debates about interracial marriages. In both sets of cases we are told that as long
as we understand that the differences are relevant, then the demands of justice have
been met.
Is this true? Have the demands of justice been met when access to marriage is
denied to same-sex couples? The principle of justice is a combination of a formal
and a material principle. The formal principle simply says “Treat like cases alike
and treat different cases differently.” Unfortunately, this principle gives us very little
direction when our task is to distribute burdens and benefits among a population. If
I decide to give high grades only to students with blue eyes, then I have met the
demands of the formal principle — all blue eyed people are being treated alike and
all non-blue-eyed people are treated differently — but the use of eye color as a basis
for grading student performance is (quite obviously) unjust. Why? The answer is
that the color of a student’s eyes is not relevant to determining his or her final grade.
Hence, we need to supplement the formal principle of justice with a material prin-
ciple that tells us what factors make two or more cases relevantly alike or relevantly
different. In the grading case, the relevant factors most teachers employ are student
performance on examinations, term papers, and in-class participation. The relevance
of these factors is to the purpose of the course: learning the material or skills that are
being taught, whether it is moral philosophy, the history of Ireland, or riding a
bicycle.
Skin color, race and ethnicity are now believed to be as irrelevant to the purposes
of marriage as is eye color, height and weight. Can the same argument be made for
same-sex couples? Is there an argument that would convince us that gender is rele-
vant to the purpose of marriage in a way that race is not?
The word “relevant” applies to purposes, goals and aims. Several types of pur-
pose have been mentioned for the institution of marriage: legitimizing fornication
and lust, procreation, rearing children, exploiting tax breaks and other governmental
benefits provided to married persons, eligibility for naturalization, beneficiary of
spouse’s health insurance, and of course achieving “equal dignity in the eyes of the
law.” The first purpose (legitimizing fornication) makes the dual assumption that (a)
sexual intercourse between consenting, adult unmarried persons is immoral, and (b)
immoral behavior can be made moral by making it lawful. Both assumptions are
suspect. The former assumption requires an argument to show what it is about extra-
marital sex that makes it morally wrong, and the second assumption cuts too wide a
swath: it implies the absurdity that we can make it morally permissible to assault,
rape or kill by making these acts legally permissible. Finally, even if we are con-
vinced that an important purpose of marriage is to legitimize fornication, then surely
this purpose would also apply to same-sex couples. What was previously immoral
(extramarital intercourse of unmarried same-sex couples) could be made moral by
giving them access to legal marriage.
9.5 Access to Marriage 183

Of course this result will be resisted by those opposed to same-sex marriage.

Their resistance is due to the age-old claim, enunciated earlier by Thomas Aquinas,
John Locke and other natural law philosophers that the natural purposes of “conju-
gal society” (marriage) are procreation and child-rearing (section “Natural law and
paternal power”). This has been challenged by those who argue that procreation and
child-rearing can be and has been done just as well by same-sex couples as it is by
opposite-sex couples. And if it is replied that same-sex couples do not have the bio-
logical resources to procreate solely from their own bodies, it only needs to be
pointed out that this can also be said of infertile couples and elderly couples beyond
the age of successful procreation. If the sole purpose of marriage is procreation,
then we should either withdraw the opportunity to marry from all of these groups or
withdraw it from none. Finally, Locke correctly points out that there are other pur-
poses of marriage than procreation. Locke maintained that an important purpose is
the opportunity marriage provides for giving and receiving the “care and affection”
to each other necessary for their “mutual support and assistance” (VII, 78). Although
he limited his discussion to opposite-sex couples, and although this purpose can just
as well be achieved outside of marriage, it is a justification that easily extends to
same-sex marriages.
It follows that there is no sound argument for the conclusion that the gender of
the persons who wish to marry is relevant to any of the announced purposes of mar-
riage, whether that purpose be to legitimize sexual conduct by bringing it within the
umbrella of marriage, procreation for the purpose of bearing and raising children, or
providing persons with the opportunity to engage in a caring relationship. Hence, it
is an injustice to deny same-sex couples access to marriage and to the economic and
social benefits that are conferred on those who are legally married.
It is often pointed out that if the preceding arguments justify same-sex marriage,
then they also justify polygamy. A group of three or more persons of the same or
different sexual preferences can and do procreate and rear the children they bear.
They also are capable of long-term loving and caring relationships with one another.
Why, then, shouldn’t these groups also have access to legal marriage, provided that
their relationships are consensual? This argument is usually presented as a counter-­
example, forcing us to see what is believed to be an unwelcome consequence of the
claim that marriage should permitted for same-sex couples. It is unwelcome partly
because polygamy is believed to be unnatural, and partly because of the fear that
women might be exploited and that children born into the marriage would be
neglected. But exploitation assumes vulnerability and a lack of options. If this
assumption can be defeated, then there seems to be no justification for prohibiting
such arrangements. Child neglect has to do with the lack of resources rather than a
lack of will, and this could be corrected in serious cases by the government help to
which they would be eligible as a result of legal recognition of polygamous
marriage.
The other factor justifying unequal treatment of those who might want access to
marriage is actual or potential harm-to-others. If there is the probability that the
consequence of allowing a particular group of people’s access to legal marriage
would be harmful to others, then it would not be unjust to deny the access. Denial
184 9  Family Contracts: Marriage and Divorce

of access on grounds of consanguinity is an example. Marriages of blood relatives

in some populations have a higher probability of defective births than marriages of
persons who are not blood related in the same populations who are not blood relat-
ed.4 The “other” who is harmed in these cases would be the defective newborns who
suffer from nervous system and heart problems. Another kind of harm is largely
economic. The health and welfare system and the taxpayers who fund the system
would bear the costs of treating the defective infants whose births could have been
avoided were it not for the cultural practice of consanguinity. However, since there
are many other “avoidable” practices leading to financial burdens on the community
(obesity, smoking), it would be unfair to choose between denying treatment to
defective infants while providing it to persons suffering from the consequences of
bad and avoidable habits.

9.5.2  The Constitutional Debate

The cases that prompted Supreme Court review in Obergefell v. Hodges were from
four states that defined marriage as “a union between one man and one woman.”
Fourteen same-sex couple and two men whose same-sex partners had died peti-
tioned the Court with the claim that the relevant laws of these states “violate the
Fourteenth Amendment by denying them the right to marry or to have their mar-
riages lawfully performed in another State, given full recognition.”
Justice Kennedy wrote the majority decision ruling that the State laws are consti-
tutionally invalid “to the extent they exclude same-sex couples from civil marriage
on the same terms and conditions as opposite-sex couples.” In reaching this conclu-
sion Justice Kennedy demonstrated that the reasons why marriage is regarded as a
fundamental right under the Constitution applies “with equal force to same-sex
couples” (B III). He derives this conclusion from “the Court’s relevant precedents,”
each of which points to “a principle in the Court’s jurisprudence.” The first principle
is inherent in “the concept of individual autonomy.” Decisions concerning marriage
are like choices concerning contraception, family relationships, procreation and
child-rearing, “all of which are protected by the Constitution” (id.) The second prin-
ciple is the protection of a two-person union “unlike any other in its importance to
the committed individuals.” Only the right to marry can “dignify couples who wish
to define themselves by their commitment to one another.” Third, the right to marry
“safeguards children and families, and thus draws meaning from related rights of
childrearing, procreation, and education.” Finally, marriage is “a keystone of our
social order,” recognized long ago in Court decisions stating that marriage is “the
foundation of the family and of society, without which there would be neither
­civilization nor progress … a great public institution giving character to our whole
civil polity” (Maynard v. Hill, 1888).

4
 Marriage to a blood relative accounted for nearly a third (31%) of all birth defects in babies of
Pakistani origin in Bradford, England. The study involved 13,500 babies delivered in the Bradford
Royal Infirmary between 2007 and 2011. (Bosely 2013).
9.5 Access to Marriage 185

All of these principles taken together give us “a better informed understanding of

how constitutional imperatives define a liberty that remains urgent in our own era”
(Obergefell, B III). Same-sex couples seek in marriage the same legal treatment as
opposite-sex couples, “and it would disparage their choices and diminish their per-
sonhood to deny them this right.” Hence, the right of same-sex couples to marry is
part of the liberty promised and guaranteed to all by the Fourteenth Amendment.
Justice Kennedy also argued that the right of same-sex couples to marry is
derived from the Fourteenth Amendment’s guarantee of the equal protection of the
laws. Marriage is a contractual relationship between persons which creates rights
and duties with respect to one another, as defined in most state laws. It is a contract
that once entered into, provides for mutual support, property, taxes, and inheritance
and many other economic benefits. Justice Kennedy described these benefits at
length in his decision for the Obergefell majority.
Just as a couple vows to support each other, so does society pledge to support the couple,
offering symbolic recognition and material benefits to protect and nourish the union.
Indeed, while the States are in general free to vary the benefits they confer on all married
couples, they have throughout our history made marriage the basis for an expanding list of
governmental rights, benefits, and responsibilities. These aspects of marital status include:
taxation; inheritance and property rights; rules of intestate succession; spousal privilege in
the law of evidence; hospital access; medical decision-making authority; adoption rights;
the rights and benefits of survivors; birth and death certificates; professional ethics rules;
campaign finance restrictions; workers’ compensation benefits; health insurance; and child
custody, support, and visitation rules. (Obergefell v Hodges, 16)

The central benefit denied to same-sex couples by laws that deny them access to
marriage is the loss of “equal dignity in the eyes of the law”:
No union is more profound than marriage, for it embodies the highest ideals of love, fidel-
ity, devotion, sacrifice, and family. In forming a marital union, two people become some-
thing greater than they once were. As some of the petitioners in these cases demonstrate,
marriage embodies a love that may endure even past death. It would misunderstand these
men and women to say they disrespect the idea of marriage. Their plea is that they do
respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their
hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest
institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them
that right. (Obergefell v Hodges, 33)

There is no doubt that laws prohibiting same-sex marriage are “in essence
unequal” because they deny “all the benefits afforded to opposite-sex couples.” This
denial “works a grave and continuing harm” by depriving them of the opportunity
to enter into the only kind of relationship that would afford them such substantial
benefits.
These two considerations, one based on the Fourteenth Amendment’s promise of
liberty and the other of equal protection, leads Kennedy to the conclusion that the
right to marry is a fundamental right, “and under the Due Process and the Equal
Protection Clauses of the Fourteenth Amendment couples of the same sex may not
be deprived of that right and that liberty.”
Justice Scalia’s dissent to the majority decision was both blistering and predict-
able. In arguments reminiscent of the textualist approach to interpreting the
186 9  Family Contracts: Marriage and Divorce

Constitution (Sect. 4.1) Scalia wrote that the Court has “no basis for striking down
a practice that is not expressly prohibited by the Fourteenth Amendment’s text” (I).
He next used an originalist theory of constitutional interpretation (Sect. 4.4.1) by
arguing that “the People’s understanding of ‘liberty’ — at the time of ratification or
even today” was ignored by the majority, who instead chose to focus on four prin-
ciples and traditions in order to reach the conclusion that the states should be pro-
hibited from defining marriage as an institution consisting of one man and woman.
This is a naked judicial claim to legislative—indeed super-legislative—power; a claim fun-
damentally at odds with our system of government. Except as limited by a constitutional
prohibition agreed to by the People, the States are free to adopt whatever laws they like …
A system of government that makes the People subordinate to a committee of nine unelected
lawyers does not deserve to be called a democracy.

Justice Roberts in a separate dissent said that none of the precedents cited by the
Court majority were relevant to this case. For example, in Loving v. Virginia (388
U.S. at 12) the constitutional challenge was to racial restrictions on the right to
marry. The Loving decision that struck down these restrictions left intact the defini-
tion of marriage as a union of one man and one woman. The decision says “nothing
at all about a right to make a State change its definition of marriage.” Roberts also
questioned the relevance of the majority opinion that expanding marriage to include
same sex couples would “pose no risk of harm to themselves or third parties.” This
observation about the harm principle “may or may not be attractive moral philoso-
phy,” but it has no place in the courtroom: The Court should be “guided by law, not
any particular school of social thought” (Roberts, dissent, II, B, 4).
Although the Supreme Court decision satisfied a steadily increasing majority of
Americans who thought that same-sex marriages should be valid,5 there were many
who continued to resist the decision on religious grounds by declaring either that the
decision was itself invalid (the decision contravened the laws of God) and/or that
individual state officials had no moral duty to comply.6

9.6  Alternatives to Traditional Marriage

In a 2007 New York Times op-ed, Stephanie Coontz recommended that “it’s time to
revert to a much older marital tradition. Let churches decide which marriages they
deem ‘licit.’ But let couples — gay or straight — decide if they want the legal pro-
tections and obligations of a committed relationship” (Coontz A27). The churches
can set their own rules about who can marry, but the state should not set any barriers

5
 60% of those polled in 2015 said that same-sex marriages should be valid, a 33% increase from
polls taken in 1996. http://www.gallup.com/poll/117328/marriage.aspx
6
 A county clerk in Kentucky recently denied a marriage license to a same-sex couple on the day
after she lost an appeal to have the Supreme Court delay its decision in Obergefell v Hodges. The
reason she gave for denying the license was that she was “acting under the authority of God’s law.”
http://www.nytimes.com/2015/09/02/us/same-sex-marriage-kentucky-kim-davis.html
9.6 Alternatives to Traditional Marriage 187

for competent adults who wish to marry. Marriages both in and out of church would
be recognized as legal marriages. The only difference is that the state can no longer
set requirements prohibiting marriage between (for example) persons of the same
sex.
Coontz offers one solution to the problem of setting marriage requirements but
she does not resolve the problem about the injustice of a system of benefit distribu-
tion in which married couples are given preferential treatment. Nor does Coontz
answer the complaint of my unmarried friend who proclaims he will never marry
because he does not want a third party (the state or an employer) to regulate his
personal relationships (Sect. 9.1). Although he eventually married in order to receive
the benefits offered to married couples, he remains convinced that he was unjustly
“forced” to do this by a legal and commercial system that manipulates the rules in
favor of those who are married.
There are several solutions other than removing existing barriers to same-sex
marriage. The state could completely abolish legal marriage, replace legal marriage
with private contracts, or offer a form of legal marriage that would support caring
relationships between two or more persons of any gender or sexual preference
(“minimal marriage”).

9.6.1  Contract Law and the Abolition of Legal Marriage

One recommendation is to get the state entirely out of the marriage business by
leaving marriage to the church and to private arrangement. When the state con-
structs the rights and obligations of marriage it inevitably does so in order to pro-
mote its own ideas about what is appropriate for love, intimacy and sex. These ideas
may not be shared by every member of a diverse society. If we believe that the state
should not promote particular religious, philosophical, or moral views in its laws
and policies, then it should practice complete neutrality about how people behave in
intimate relationships. This can only be accomplished when the state ceases to regu-
late such relationships. It should allow consenting adults who wish to cohabit to
choose those arrangements they prefer. If they are religious, then they may prefer to
be bound by the precepts of their religion. But their religious marriage will have no
legal consequences and the state will not intervene in any future dispute the couple
might have.

9.6.2  Marital Contracts as Private Contracts

This leads to a second, related solution: private contracts. The traditional view of
private contracts between individuals is that the duties arising under contract law
should be self-imposed, not imposed by society “through the judges who fashion
and enforce the common law of contracts” (Altman, 120). Courts have long recog-
nized that the traditional marriage contract is “unlike any other contract” (Okin,
188 9  Family Contracts: Marriage and Divorce

122–123) because it creates a status, that is, relationship which cannot be changed
by the persons in the relationship. But “all other contracts may be modified,
restricted, or enlarged, or entirely released upon the consent of the parties”
(Weisbrod, 779–780). The solution is to “allow marriage to be regulated like any
other legal relationship between adults—by freedom of contract” (Brake, 154). The
state will no longer define the terms of marital contracts, nor place burdensome
qualifications on who shall be allowed to create them. They can be created by same-­
sex couples or polygamous groups of any number. Private contracts impose no stan-
dards of behavior on individuals other than those they wish to impose on themselves
and no one has any obligations that they did not accept for themselves. The marital
contract as a private contract may contain terms that look like the terms of tradi-
tional marriage but which, unlike traditional marriage can be modified and can-
celled at any time upon the consent of the “married” couple.

9.6.3  Minimal Marriage

A third solution, recently offered by Professor Elizabeth Brake, retains the role of
the state in marriage, but it does so by giving marriage a legal framework that does
not endorse or promote any controversial moral or religious norms. She calls this
framework “minimal marriage.”
Minimal marriage allows individuals to select from rights and responsibilities exchanged
within marriage and exchange them with whomever they want, rather than exchanging a
predefined bundle of rights and responsibilities with only one amatory partner … The cen-
tral idea is that individuals can have legal marital relationships with more than one person,
reciprocally or asymmetrically, themselves determining the sex and number of parties, the
type of relationship involved, and which rights and responsibilities to exchange with each.
(156–157)

Brake calls it minimal because it has “far fewer state-determined restrictions

than current marriage” (157). For example, as with private contracts, minimal mar-
riage contains no legal barriers to same-sex or polygamous marriages. It is minimal
in a second sense. Any restrictions on marriage “are the most extensive that can be
justified within political liberalism” (134). Political liberalism “prohibits policy and
legislation, at least in important matters of justice, from being based solely on con-
troversial moral or religious norms—they must also be justifiable by public reason”
(135).
Public reason requires that in deciding public matters citizens must give reasons which they
could reasonably expect those with different conceptions of the good (views of what is good
or valuable) drawn from different comprehensive moral, philosophical or religious doctrine
to accept.... In the political sphere, public reason allows the giving of reasons from within
comprehensive religious, philosophical, or moral doctrines only if a justification that
respects public reason is also available7 (Brake, 136, my italics)

7
 “Thus, Martin Luther King’s use of Christian themes in his speeches met this standard because
his calls for racial equality could also be justified through public reason,” but “legislation such as
the Marital Rape Exemption or laws or private policies requiring female schoolteachers to resign
on marriage is ruled out” (Brake, 136 and 139).
9.6 Alternatives to Traditional Marriage 189

Under the constraints of public reason, Brake argues, “the reasons given for mar-
riage law or policy on the basis of comprehensive religious, philosophical, or moral
views” are precluded. This means that the legal definition of marriage must be justi-
fied without appeal to these comprehensive doctrines. Minimal marriage meets this
requirement. “No more extensive or restrictive law than minimal marriage is consis-
tent with political liberalism” (Brake, 167).
We still don’t have an answer to my friend’s question: Why does the state need
to get involved in any personal (or caring) relationships? Why won’t private con-
tracts between those who want to cohabit give them all of the assurances about
property division and other matters that anyone would want or need?
Brake’s answer to the first question is that in an ideal liberal egalitarian society,
minimal marriage would consist only in rights that recognize and support caring
relationships.
Caring relationships may include friendships, urban tribes, and care networks as well as
polyamorous or monogamous different-sex relationships. Care, broadly construed, may
involve physical or emotional care-taking or simply a caring attitude (an attitude of concern
for a particular other). Parties to such a relationship know and are known to one another,
have ongoing direct contact, and share a history (160).

Minimal marriage recognizes caring relationships (for example) by giving status

designation for third parties, burial rights and bereavement leave, and it supports
caring relationships by creating immigration rights (eligibility for spousal immigra-
tion) and spousal care-taking leave. The rationale for all of these is determined by
their essential support of caring relationships.
Not only is minimal marriage of benefit to those who are either in or intend to be
a part of a caring relationship, but (Brake argues) “a liberal state is required to pro-
vide legal supports for caring relationships” (Brake, 160).
These supports, or minimal marriage rights, are juridical rights designed to support caring
relationships. They protect such relationships through entitlements facilitating relationship
maintenance and by giving their members a way to signal to the institutions shaping their
lives (employers, government, hospitals, states, and so on) which relationships should
receive these protections (Brake, 160).

Hence, the answer to my friend’s question is that he may want state involvement
in his personal (caring) relationship with his cohabiting partner because this could
be to the benefit of both of them. Minimal marriage will create no conflict between
his desire to maintain a personal relationship with his spouse and the rights he and
his spouse will gain.
However, those who wish to enter a minimal marriage should be forewarned that
they will not receive many of the current traditional marriage rights such as health
care and basic income.
Law should not assume dependency between spouses, because this presumes that they
order their relationship according to a particular comprehensive doctrine, so most marital
entitlements to direct financial assistance would be eliminated (except for those, such as
in-state tuition eligibility, whose primary purpose is to enable relationship maintenance).
Because the state would not assume dependency, property arrangements would be contrac-
tualized, allowing parties to decide property division, alimony, and inheritance, and to set
190 9  Family Contracts: Marriage and Divorce

conditional terms and specify penalties for default. Some “insurance” provisions—particu-
larly those that reflect the significant relationship between the spouses in the case of
death—would be maintained” (Brake 162).

Glaringly absent in this discussion of private contracts and minimal marriage is

any mention of the rights and welfare of children or the legal duties and rights of
their parents. This is because such rights and duties have largely been separated
from marriage. Whether married or unmarried the legal parent of a child has a duty
to support that child. A parent can divorce his spouse but not his child. Thus, whether
or not a parent is involved in a traditional marriage, has a private co-habitation con-
tract with another person or multiple persons, or is in a minimal marriage with state
benefits, none of this is relevant to a determination of their legal duties as parents.
There are several reasons for this. First, parenting obligations are between parent
and child, not between parent and parent. Securing parental obligations independent
of marriage “protects children in high-conflict marriages and marriages that end in
divorce.” Second, separating parenting and marriage frameworks allows providing
benefits associated with marriage to children of single parents living outside of mar-
riage. (Brake, 149). Third, the valuable political goal of getting society to recognize
their direct responsibility to vulnerable children is best achieved by separating it
from marriage than by having such help mediated through marriage.

9.6.4  Assessing the Alternatives to Traditional Marriage

The proposal that state-sponsored (traditional) marriage should be abolished is sup-

ported by the argument that it “cultivates injustice and discrimination through pro-
moting divisions between men and women, different racial groups and different
socio-economic classes” (N. McKeever, 9210). However, as Brake points out, that
marriage has had this consequence is a contingent fact about it. There is no reason
why it could not be reformed in a way that eliminates any injustice. Second, if mar-
riage were abolished it would leave the process of marriage in the hands of institu-
tions, mainly religious, who could deny entry to certain groups of people, thus
fostering discrimination (Brake, 123).
The second proposal that argues for both abolition of traditional marriage and
replacement of it with private contracts eliminates a key feature of legal marriage. A
private contract could not be used to require public authorities to recognize the for-
eign marriage of a U.S. citizen to a non-U.S. citizen and thus to allow immigration
of the non-citizen. Nor can a private contract between a couples require an employer
to give leave-time to care for a sick or dying spouse.
Finally, Brake’s proposal for minimal marriage does not entirely avoid the criti-
cism that it unjustly distributes benefits to (minimally) married persons while not
providing the same benefits to those who are not married. Brake’s main justification
for preferential treatment is that caring relationships are a “primary good.” This
means that ‘they are all-purpose goods that people are assumed to want whatever
9.7 The Exit Rules 191

their plans’ and are ‘essential to the development and exercise of the moral powers
and to the pursuit of varied conceptions of the good’ (173–174). Hence, state sup-
port for them is justifiable within a Rawlsian politically liberal framework. However,
if care is the basis of state support, then, if the politically liberal state supports some
caring relationships, it must support them all, including the caring relationships of
cohabiting but unmarried individuals (those who want to avoid even a minimal mar-
riage). “Distributing health care and other benefits through marriage … unjustly
excludes the unmarried and subsidizes the married at their expense… Why should
single taxpayers and employees subsidize spousal health insurance and other bene-
fits?” (Card, 192). To deny unmarried couples and single persons the benefits given
to those who are minimally married is an obvious injustice.
Second, the recommendation that all personal or caring relationships should be
treated the same under marriage law seems to cut too wide a swath. Most people
have friends that they see once or twice a year and they may not have any commu-
nication with some of their closest friends for several years. None of this diminishes
their friendship or the fact that they would respond to any requests for help if the
situation demanded it. But there is no commitment with our friends that we “share
a life” with them, nor are we expected to organize our life plans around our friend-
ships. This is quite different from how we behave in romantic relationships.
Your partner has a right to be involved in any of your life decisions that will affect the qual-
ity of your shared life. For example, if you are in a long-term romantic relationship it would
be unreasonable of you to decide to move to Australia without consulting your partner, but
you need not (typically) consult your friends. This is true even if you are in a serious roman-
tic relationship with someone you do not care for, such as in an arranged marriage… Unless
you have made an explicit commitment to share a life with your friend, it would generally
seem unreasonable for her to expect to spend a considerable amount of time with you and
for you not to move to a different city in order to stay near her. This is because our concept
of friendship only includes a shared life in a very minimal way, if at all. Indeed, sometimes
one of the things we value about friendship is its relative lack of burdensome obligations
(McKeever).

The point is that it is important to distinguish between caring relationships, espe-

cially for the purpose of marriage. Serious romantic relationships have a distinctive
feature which may make them more suitable candidates for marriage in general than
friendships. They typically involve greater commitment to sharing a life than
­friendships do. Perhaps it is this commitment to a shared life within the broader
context of a caring relationship that should be legally recognized, not the mere fact
that two or more people consider themselves to be friends.

9.7  The Exit Rules

If college roommates in the United States in the year 1950 decided that they no
longer wanted to room together, then there were no legal barriers to the termination
of their relationship. It was their joint decision to room together and it was up to
192 9  Family Contracts: Marriage and Divorce

them to go their separate ways. They did not have to go to court and file papers
requesting that their roommate relationship be put to an end. If one of the room-
mates wanted the relationship to continue and the other did not, then there is nothing
he or she could legally do to force the other to stay. He could try to persuade, cajole,
even beg the other to continue on as his roommate, but he could not require this.
But if the relationship of a man and a woman in the same year (1950) was mar-
riage then their joint decision to exit the marriage was decidedly not “up to them.”
The prevailing law required that some kind of fault on the part of one of the partners
had to be established. “Marriages could not be terminated unless there was evidence
of serious wrongdoing by one of the spouses” (Statsky, 127). The fact that they no
longer wanted to be married was not a sufficient reason for a court to grant a divorce.
One court in the 1950s said this: “Testimony which proves merely an unhappy
union, the parties being high strung temperamentally and unsuited to each other and
neither being wholly innocent of the causes which resulted in the failure of their
marriage, is insufficient to sustain a judgment”  (Statsky, 243, citing Rankin v
Rankin, Pennsylvania 1956).
It is no wonder that the Latin phrase for divorce is divorce a vincula martimo-
nii — “divorce from the chains of marriage.” The usual response of couples who
wanted to break the chain tying them together was for both spouses to lie to the
court in order to make it appear that fault grounds for divorce existed.8
If one spouse wanted to divorce and the other did not, then the prospects of
obtaining a judgment for divorce were even worse. The only way that one had a
chance at divorce was to prove fault on the part of the unwilling partner, for exam-
ple, adultery, cruelty or desertion. If there was no evidence of fault or evidence
could not be manufactured, then the unhappy partner had to remain married.
The lies and deceit that characterized much of the divorce proceedings in the
United States came to a halt in 1969 when California enacted the first system of
­no-­fault divorce. The words “no fault” mean that there is no requirement to prove
any marital wrongs that might have precipitated the divorce. Other states soon fol-
lowed, and at this writing no-fault grounds exist in every state. One result of this
revolution in marriage law was not only that people seeking divorce no longer had
to lie about their wrongdoing, but the divorce rate dramatically increased. “In the
years between 1970 and 1996, the number of divorced people living in the country
more than quadrupled, from 4.3 million to 18.3 million” due at least in part to the
fact that the large number of couples who had been trapped in unhappy marriages
could now obtain a relatively easy divorce.
The transition to no-fault divorce has not diminished the influence of the legal
system. Although most divorce cases are uncontested, there is still great deal to

8
 Statsky quotes one attorney who commented that for decades New York’s divorce system was
“built on a foundation of winks and falsehoods. If you wanted to split quickly, you and our spouse
had to give one of the limited number of allowable reasons–including adultery, cruelty, imprison-
ment or abandonment–so there was a tendency to pick one out of a hat ... One legendary ploy
involved listing the filing lawyer’s secretary as the partner in adultery (which may even have been
true in a few cases)” (Statsky, 127–128, citing Elizabeth Gilbert, Eat, Pray, Love, 2006:30).
9.7 The Exit Rules 193

adjudicate in the contested cases, including alimony (spousal support), property

division, child custody, and child support.
Moral philosophers and philosophers of law have not had much to say about
divorce and its legal consequences. This may be due to the fact that they do not
detect a moral problem about either the act of divorce or contemporary divorce law.
In this section we will (briefly) correct some of these omissions by asking the fol-
lowing two normative questions: Is there a justification for state involvement in
divorce? In particular, why should the state intervene in divorce but not intervene
when persons choose to terminate other close relationships (for example, private
roommate contracts)? Second, if we want to embrace the liberal principle that the
rules of both marriage and divorce should be perfectly neutral and not promote
controversial moral and religious norms, then we need to ask whether there are any
neutral liberal principles that are being ignored. For example, if there is evidence
that divorce rules might allow some individuals to take advantage of their spouse’s
economic vulnerability or rules that fail to prevent divorcing couples from ignoring
probable emotional harm caused to their young children by the divorce, then we
need to ask how a just legal system should respond to these harms.

9.7.1  Divorce and the Vulnerability of Women

To return to the roommate example (Sect. 9.7), the state does not intervene in either
the entrance into or the exit from their relationship. They are free to create a contract
that sets a date for termination of their relationship and to share the expenses of rent,
furniture, and groceries. They are also free to alter the contract at any time by mutual
consent, or (as in most cases) to may choose to have no formal contract at all.
Those who support private contracts in lieu of marriage (Sect. 9.6.1) argue that
this is how it should be with suits for divorce. There is no need or justification for
the state to intervene and set special requirements and regulations for exiting from
(dissolving) a private marriage agreement  — as long as each person is treated
equally. Spouses should be free to set a termination date for their marital relation-
ship as well as set their own rules of support for each other during their marriage.
They should also be free to decide how their property will be divided, whether one
of them will receive alimony payments from the other, and who shall have custody
of their children in the event of a divorce. Because consent is of primary consider-
ation in a contract, the husband or wife must make a full and accurate disclosure of
assets during negotiations for the agreement, and not lie about assets. They must
also refrain from any fraud or duress.
There is some support for this position from the traditional view of private law.
That view promotes the basic idea that a contract is a self-imposed obligation which
leaves individuals free to decide the terms of their agreement and to determine the
conditions under which either or both shall be released from these terms. The role
of the state should only be to enforce the terms of the contract in case of a conflict
194 9  Family Contracts: Marriage and Divorce

about its interpretation or application. The state has no business imposing any non-­
contractual duties based on the public good or social need in their relevant statutes.
All contracts, including contracts-in-lieu-of-marriage, as part of private law should
be kept separate from politics and public law.
One objection to spouses determining their own property division upon divorce
through individual contract is that some women bargain with their husbands from a
disadvantageous position. Many women become economically vulnerable during
marriage. They “subordinate their economic independence to child care and house-
hold work” (Brake 193, citing Okin). This puts them at a disadvantage post-divorce
and “this is compounded by the greater likelihood that children will remain with the
mother after the divorce, bringing her greater financial costs.” If the wife has limited
job skills and she signs a separation agreement with a property division giving her
husband marital assets that provide her with far less than she needs to avoid becom-
ing a public charge, this would be an unjust outcome. By contrast, just outcomes are
guaranteed through current state-mandated divorce laws regulating division of
property. “Insofar as women are likely to become economically vulnerable in mar-
riage, they will be better protected economically by mandatory property division
and alimony than by contractualization” (Brake, 194, citing Minow and Shanley).
A response to this objection can be found in the practices of some courts when
they consider the validity of separation agreements.9 Suppose that a naive woman
with little business acumen signs an agreement that gives her $15,000 cash and her
husband gets marital assets totaling $500.000. The terms of this agreement could be
declared unconscionable by the court (“shocking the conscience by heavily favor-
ing one side due to the absence of meaningful choice and the highly unequal bar-
gaining positions of the parties” Statsky 176). The agreement will be declared
invalid. By analogy, contractualization of marriage should not end in an unjust set-
tlement in the event of a dissolution. A process is available to protect those who
might have entered into a divorce settlement from an unequal bargaining position.
Another way to establish the invalidity of a private contract is to show that there
was overreaching on the part of one of the spouses, that is, he or she took advantage
of the other’s vulnerability, “especially by deception” (Statsky 176). In both this and
the previous case, the court protects the spouse in a way that ensures that he or she
gives full and voluntary consent to the final divorce agreement. At the same time, if
there has been full disclosure of assets and debts, no fraud, no unconscionable
agreement and both parties had the opportunity to seek independent advice before
they signed, most courts will presume that the separation agreement is valid and
enforceable, even if one of the parties has regrets or if the contract appears to others
to be a bad bargain. In such cases it can no longer be argued that the distribution of
property was the result of an unjust procedure or that the outcome itself was unjust.

9
 These are pre-divorce agreements by married persons who have separated. They can cover sup-
port, custody, property division and other terms of their impending divorce. The divorce court must
approve the terms of the separation agreement if the spouses want a divorce based on the separa-
tion agreement. (Statsky, 168).
9.7 The Exit Rules 195

9.7.2  Divorce and the Vulnerability of Young Children

A second and more serious objection to both types of divorce (those regulated by
mandatory rules of the state and those governed only by the terms of a private
contract-­in-lieu of marriage) is that both appear to ignore the emotional harm caused
to young children by the separation and divorce of their parents. If we are serious
about the role of the harm-to-others principle (Sect. 5.3.1) in resolving normative
debates about the limits of the law, then we should certainly be concerned about the
potential harmful effects of marital dissolution on non-consenting others, especially
if the “others” are young children.
The concern about possible harm suffered by the children of divorce was first
mentioned in the West by the philosopher Bertrand Russell and the author and jour-
nalist Rebecca West. In his bestselling and controversial book Marriage and Morals
(1929) Russell commented on the high rate of divorce in America which he attrib-
uted primarily to “extremely weak” family feeling. He regarded easy divorce “as a
transitional stage on the way from the bi-parental to the purely maternal family,”
and he observed that this is “a stage involving considerable hardship for children,
since, in the world as it is, children expect to have two parents, and may become
attached to their father before divorce takes place.” In characteristically strong lan-
guage, Russell concluded that  “parents who divorce each other, except for grave
cause, appear to me to be failing in their parental duty” (Russell, 239).
Russell’s concern was echoed by Rebecca West in an article she wrote in 1930
for The London Daily Express. West wrote “the divorce of married people with
children is nearly always an unspeakable calamity.” She gave several reasons for
this:
It is only just being understood, in the light of modern psychological research, how much a
child depends for its healthy growth on the presence in the home of both its parents … If a
child is deprived of either its father or its mother, it feels that it has been cheated out of a
right. It cannot be reasoned out of this attitude, for children are illogical, especially where
their affections are concerned, to an even greater degree than ourselves. A child who suffers
from this resentment suffers much more than grief: he is liable to an obscuring of his vision,
to a warping of his character. He may turn against the parent to whom the courts have given
him, and regard him or her as responsible for the expulsion of the other from the home. He
may try to compensate himself for what he misses by snatching everything else he can get
out of life, and become selfish, and even thievish. He may, through yearning for the unat-
tainable parent, get himself into a permanent mood of discontent, which will last his life-
long and make him waste every opportunity of love and happiness that comes to him later
(West, 1930).10

Let us assume that (1) there is ample evidence that children whose parents
divorce while they are young are more at risk of suffering short-term and/or long-­
term psychological distress and social harm (for example, anxiety, depression, with-
drawal, difficulties in school achievements, peer relationships, and handling of

10
 Rebecca West, “Divorce,” The London Daily Express, 1930.
196 9  Family Contracts: Marriage and Divorce

aggression) than are children who grow up in intact marriages.11 If we couple this
fact with the following premise, (2) Parents have a duty to behave in ways that do
not cause harm to their children, then we derive this conclusion: (3) it is morally
wrong for the parents of young children to divorce.
I will call this the Harm-to-Children Argument or HCA. HCA is similar in struc-
ture to moral arguments used to condemn child abandonment and various forms of
child abuse. When we think of child abuse, we usually think of cases in which chil-
dren have suffered severe physical injury or death as a result of parental behavior.
But some child abuse statutes recognize emotional or psychological harm. Thus, the
New York Family Court Act defines “impairment of emotional health” as
a state of substantially limited psychological or intellectual functioning in relation to, but
not limited to such factors as failure to thrive, control of aggressiveness or self-destructive
impulses, ability to think and reason, or acting out or misbehavior, including incorrigibility,
ungovernability or habitual truancy…

If we think that parental behavior that causes or is likely to cause the kind of
emotional or psychological harm specified in the preceding statute is morally
wrong, and if we think that some children have been harmed by the divorce of their
parents, then it would appear that divorce is wrong for the same reason that parental
behaviors causing the psychological and behavioral conditions noted in the
New York statute are wrong.
Faced with the conclusion of HCA, there are a number of ways in which divorced
parents of young children might attempt to defend themselves against the charge
that it was morally wrong for them to divorce.

Divorce and Emotional Abuse

First, it may be objected that the preceding analogy between divorce and child abuse
is misplaced. Some boys whose parents divorce while they are young may very well
suffer, but their suffering never rises to the minimum level of suffering required by
legal standards for determining emotional abuse.
The response to this objection is that HCA does not argue that divorce is child
abuse. Legal definitions of child abuse and neglect are formulated solely to deal
with the problem of the conditions under which the state may justifiably intervene
in the family to protect the child. HCA says nothing about state intervention, nor
does it recommend any change in the laws regulating divorce. Instead, HCA is an

11
 “Boys suffer more from divorce than girls because they understandably identify with their father,
and in most cases of divorce it is fathers who leave the family home. When fathers leave they have
much less contact with their children than they had with them prior to the divorce. “One large
survey in the late 1980s found that about one in five divorced fathers had not seen his children in
the past year, and less than half of divorced fathers saw their children more than several times a
year. A 1981 survey of adolescents who were living apart from their fathers found that 52% had not
seen them at all in more than a year; only 16% saw their fathers as often as once a week. Moreover,
the survey showed fathers’ contact with their children dropping off sharply with the passage of
time after the marital breakup” (Popenoe 1996).
9.7 The Exit Rules 197

argument about the morality of divorce. It argues that some divorces arc wrong for
the same reason that child abuse is wrong. The reason that some divorces are wrong
is that they cause or are likely to cause emotional harm to the children of the divorc-
ing parents. Whether the emotional harm suffered by children whose parents divorce
rises to the level of severity required by the child abuse standards of some states is
beside the point. The point is whether some children whose parents divorce suffer
emotional harm, not whether they suffer the kind or amount required by the courts
to recognize a child abuse petition for purposes of court-ordered intervention.

Treating Symptoms of Emotional Distress

The second objection to HCA is that so long as parents aggressively treat any symp-
toms of emotional harm that their children may suffer post-divorce in order to mini-
mize the deleterious effects of the divorce, then they have done nothing wrong by
obtaining the divorce. What would be wrong would be to ignore the symptoms and
to leave them untreated.
This argument has the following structure: It is not wrong to divorce; it is only
wrong to divorce and do nothing to minimize its bad effects on children. But con-
sider the following counterexample: so long as I secure medical treatment for my
child after 1 have engaged in risky behavior that resulted in his leg getting broken,
then I have done nothing wrong in putting my child at risk. The reason that we resist
this conclusion is that we do not think it justifiable to engage in behavior that puts
the lives and health of our children at risk in the first place. This is why we think it
morally incumbent on us not to smoke when children are in the house, to put them
in restraining seats when we have them in the car with us, and do countless other
things to minimize their chances of injury in and out of the home. It is simply not
enough to announce that one is prepared to treat a child’s injuries after they occur.
We demand that parents take steps to prevent the harm before it occurs.

Hostile Family Environments

The third objection to HCA takes advantage of a “loophole” suggested by the

Bertrand Russell. He proposed it as an exception to his general claim that parents
who divorce violate their parental duty. Russell’s loophole is that the divorce might
be justified if it was done for “grave cause.” A grave cause exists when it is estab-
lished that (a) the children will suffer less post-divorce emotional distress than they
will suffer if the marriage of their parents remains intact; and (b) during the mar-
riage, the parents could not control those behaviors that cause their children to suf-
fer emotional harm. For example, Russell mentions insanity or alcoholism as
possible candidates for grave cause justifications for divorce because in both cases
the affected parent may be unable to prevent himself from engaging in behavior
detrimental to his child’s welfare.
198 9  Family Contracts: Marriage and Divorce

“Grave cause” is probably the most common of the rationales that parents will
offer to justify their divorce. Some of the studies of the psychological effects of
divorce show that the adverse effects observed in children were often seen prior to
the divorce as a result of a hostile family environment. One commentator has con-
cluded from this that the transition, through divorce, from an intact two-parent fam-
ily to a single-parent family can no longer be objected to on the grounds that divorce
is bad for children.
However, the preceding data only establishes the first of the two conditions that
are together sufficient for a grave cause justification for divorce. That is, although a
hostile family environment may cause a child to suffer as much or more than he or
she would suffer from the divorce of her parents, it does not follow that the divorce
is justifiable. In order to establish the existence of a grave cause, the parents must
also prove that they could not control the “hostile family environment” that caused
their children to suffer. Russell has the best rejoinder to those parents who claim that
they were helpless to control the marital behavior that caused emotional distress in
their children:
The husband and wife, if they have any love for their children, will regulate their conduct
so as to give their children the best chance of a happy and healthy development… To coop-
erate in rearing children, even after passionate love has decayed, is by no means a superhu-
man task for sensible people who are capable of natural affections … As soon as there are
children it is the duty of both parties to a marriage to do everything that they can to preserve
harmonious relations, even if this requires considerable self-control (Russell, 236).

In other words, to say that one had no choice but to obtain a divorce in order not
to expose one’s children to marital discord is to make the extraordinary assumption
that one could not control one’s behavior. It is analogous to the contention of a ciga-
rette smoker that he had to abandon his child in order to save her from the physical
effects of his second hand smoke. The point is that we are as capable of controlling
the behavior toward our spouse that causes distress in our young children as we are
capable of not smoking in their presence.

The Primacy of Children’s Interests

Finally, it may be objected that HCA puts far too much stress on the rights and
interests of children, ignoring the legitimate needs of the parents. Surely, it might be
said, the desires, projects, and commitments of each parent which give them reasons
to divorce in the pursuit of ends that are their own may sometimes outweigh those
reasons not to divorce that stem from the special non-contractual obligations that
they have to nurture their young children.
This objection assumes a version of the Family Privacy Principle (section
“Intrafamily harm and the family privacy principle”) by recommending that a bar-
rier be established between the decisions of the divorcing parents and the parens
patriae duty of the state to prevent harm to children. FPP recommends that parents
9.7 The Exit Rules 199

should be left alone to make their own decisions about whether their family should
be left intact or dissolved. Parens patriae invokes the harm principle and the power
of the state to protect the best interests of children.
To the objection that parental desires to be free to pursue their own interests,
regardless of the deleterious effects on the health of their children it can be replied
that if it is permissible for parents to divorce for these reasons, then one wonders
what it would mean to say that they have an obligation to protect and nurture their
children. How can one be said to have an obligation to protect and nurture her
young child if it is permissible for her to perform an act that risks harming the child
for no other reason than that she wants to pursue her own projects? This empties the
concept of parental obligation of most of its content. Parents of young children who
divorce for no other reason than that they find their marriage unfulfilling and believe
that this is justifiable seem to me to be parents who lack an understanding of what it
is to have an obligation to their children. They must believe that they can treat their
own children as they would treat any other child. In the case of children other than
our own, most of us would acknowledge that the effect on these children of what we
do counts for something. But even if it were proved to me and my spouse that (e.g.)
the children of our next-door neighbor will suffer emotionally as result of our
divorce, we would not think that this puts us under an obligation to cancel or delay
our separation. If we did delay it, this would be an act of charity, not an obligation.
But with our own children, things are otherwise. Our children exert an “ethical pull”
on us not exerted by the children of others. Benevolent acts toward our children
become perfect duties within the context of the family, and as such they outweigh
parental desires to pursue their own projects when these come into conflict. This is
surely part of what it means to become a parent.
Let us assume that Russell is correct in contending that many of the divorces of
parents who have young children are morally unjustifiable when the reason for the
divorce is similar to one or more of the reasons commonly given by parents, for
example “We have grown apart,” “We have become different persons than we were
when we first married,” “We are profoundly unhappy with one another,” “We want
to pursue a single lifestyle again,” or “I found someone else with whom I would
much rather live.” For those parents who are capable of exercising self-control over
their negative emotions (spite, anger, jealousy), Russell’s argument is that none of
these reasons rises to the level of a grave cause.
Now it may be objected that even if these considerations establish that parents
who divorce for such reasons are wrongfully violating a moral duty to their children,
this does not establish that the state should place a legal burden on the parents of
young children to prove that their divorce will not cause them emotional harm. We
have yet to provide empirical evidence that the children of divorce suffer the kind or
amount of harm required to establish a violation of the harm principle. We do not
know with any certainty that all or even most of the children of divorce suffer from
the emotional damage indicated in the New  York statute mentioned above (Sect.
9.7.2). But even if the evidence does not establish this, it might be sufficient to at
200 9  Family Contracts: Marriage and Divorce

least put a temporary brake on a divorce action, at least to give parents pause to
reflect on the effect that their divorce might have on their children and how they can
alleviate potential future emotional impairments.
Questions for Thought and Discussion
1. Is the distribution of rights and obligations in the population of married and
unmarried cohabiting couples a just or fair distribution? What principles of just
distribution should would you use in answering this question?
2. Is there any substantial difference in the arguments given by the majority in
Obergefell v Hodges than those arguments given by the majority in Loving v.
Virginia? Explain.
3. What do you think Elizabeth Brake means when she says that traditional mar-
riage encourages and even promotes controversial moral and religious views?
Can you give some examples of this? Should marriage laws be neutral with
regards to moral and religious views or should it promote some of them and not
others? Explain.
4. What should be the “exit rules” for those couples who want to dissolve their mar-
riage? Should they include the rule that no one should be allowed to divorce a
non-consenting spouse unless they can show that the spouse is somehow “at
fault” (for example, that the spouse is an adulterer, or has been physically or
emotionally abusive)? Should they include a rule that parents of young children
cannot separate or divorce until their children are old enough not to be emotion-
ally damaged?

References

Aquinas, Thomas. Summa Theologica. I–II. q. 94.

Bosely, Sarah. 2013. Marriages of First Cousins Doubles Risk of Birth Defects. The Guardian,
U.S. Edition.http://www.theguardian.com/science/2013/jul/04/marriage-first-cousins-birth-
defects
Bradwell v. State of Illinois, 83 U.S. 141–142 (1873)
Brake, Elizabeth. 2012. Minimizing Marriage: Marriage, Morality and the Law. New  York:
Oxford University Press.
Coontz, Stephanie. 2007. Taking Marriage Private. New York Times. 26 November. A27. http://
www.nytimes.com/2007/11/26/opinion/26coontz.html?_r=1&
Craig v Boren, 429 U.S. 190 (1976)
Lamont, Julian and Favor, Christi. 2014. Distributive Justice. The Stanford Encyclopedia of
Philosophy, ed. Edward N. Zalta.
Locke, John. 1980. In Second Treatise of Government, ed. C.B. Macpherson. Indianapolis: Hackett.
McKeever, N. 2012. Review of Elizabeth Brake: Minimizing Marriage: Marriage, Morality and
the Law in Res Publica: A Journal of Moral, Legal and Social Philosophy. 19:9210.
Mess, Michael A. 1979. For Richer for Poorer: Federal Taxation and Marriage. Cath U L Review
28: 87.
Obergefell v Hodges, 576 U.S. __ 2015.
Oldman and Temple. 1960. Comparative Analysis of the Taxation of Married Persons. Stanford
Law Review. 12: 585.
References 201

Popenoe, David. 1996. The Vanishing Father. The Wilson Quarterly. 14.
Russell, Bertrand. 1929. Marriage and Morals. London: George Allen & Unwin.
Statsky, William P. 2015. Family Law: The Essentials. 3rd ed. Stamford: Cengage Learning.
Surging, Linda. 2004. Theories of Distributive Justice and Limitations on Taxation: What Rawls
Demands from Tax Systems. Fordham Law Review 72: 5.
West, Rebecca. 1926. Divorce. Forum. 76: 161–170.
———. 1930. Divorce. The London Daily Express.
Chapter 10
Children, Parents and the State

“Students in school as well as out of school are “persons”

under our Constitution. They are possessed of fundamental
rights which the State must respect, just as they themselves must
respect their obligations to the State.”
J. Abraham Fortas, Tinker v Des Moines School District (1969)
“Juveniles, unlike adults, are always in some form of custody …
Children, by definition, are not assumed to have the capacity to
take care of themselves.” 
J. William Rehnquist Schall v Martin (1984)

Abstract  In this chapter we discuss both the moral and constitutional conception
of children’s rights. The moral conception has been debated since the seventeenth
century by Thomas Hobbes, John Locke, John Stuart Mill and Herbert Spencer. All
except Spencer accept the idea that children have none of the so-called “liberty
rights” possessed by adults. This idea is reflected in state laws denying such rights
to children, including the right to freedom of expression when at school. But in a
series of Supreme Court cases beginning in 1967, the U.S. Supreme Court declared
that children are persons who are possessed of fundamental rights that the state must
respect. Included among these rights is the right to freedom of expression. In this
chapter we consider several Supreme Court cases introducing this right and later
restricting its scope because of its inevitable conflict with another idea: children are
human beings who are always in custody of their parents, of the school they attend,
or ultimately of the State. We conclude the chapter by discussing several theories
that attempt to resolve the dilemma of conceiving children as both persons with
fundamental rights and as human beings who are always in some form of custody.

© Springer International Publishing AG 2017 203

L.D. Houlgate, Philosophy, Law and the Family, AMINTAPHIL: The
Philosophical Foundations of Law and Justice 7,
DOI 10.1007/978-3-319-51121-4_10
204 10  Children, Parents and the State

10.1  The Custodial Status of Children

In the context of family law, the word “child,” is equivalent in meaning to “minor,”
or “juvenile,” that is, a person who is younger than the legal age of majority (18
years in most U.S. states). As a minor, the law imposes on the child a certain status
or bundle of rights and obligations. It is this status to which Rehnquist refers (in the
epitaph above) when he says that “juveniles, unlike adults, are always in some form
of custody.” There are several types of custody, but the type to which Justice
Rehnquist undoubtedly refers is legal custody. Legal custody gives a parent the right
to make long-term decisions about the raising of a child, and about key aspects of
the child’s welfare  — including the child’s name, place of residence, education,
medical care, dental care, nutrition, and religious instruction. These rights are recip-
rocal with a parental obligation to do most of these things, under threat of child
neglect laws. For example, although parents have no duty to provide their children
with a religious education or fashionable clothing, they must provide them with
adequate food, shelter and clothing, and the child has the reciprocal right to receive
these benefits.
Because of their legal status as children, their rights and obligations are imposed
by law, not by consent or contract. When children attain the age of majority, they
will be able to decide for themselves where they shall live, what food they shall eat,
whether or not to seek medical care, and when and where to attend school But as
children, these options are not available. Why is this? Is there a justification for the
legal concept of a child as someone who is (by definition) always in custody? What
is it about children (in the non-legal sense of this word) that leads us to conclude
that all persons under the age of 18 should be in custody and (therefore) legally
incapable of making adult decisions? Second, what is the constitutional basis for the
unequal treatment of children under the law? How is it possible for the Supreme
Court to stipulate both that children are “persons with constitutional rights” (Sect.
4.3.1) and also assert that children are persons who are always in custody?

10.2  P
 hilosophical Theories on the Status and Rights
of Children

Modern philosophers have given a wide variety of answers to the first of these ques-
tions. There are some who would discard the word “custody” and replace it with the
word “ownership.” Others have swung to the opposite pole, agreeing not only that
the word “custody” should be discarded, but urging that it be replaced by the word
“freedom,” arguing that children should be free to make the long-term decisions that
are now possessed by adults. There is a third group of philosophers who take the
middle-ground by promoting the idea that although children are not property, any
rights granted to them should not conflict with the basic custodial duties of their
10.2  Philosophical Theories on the Status and Rights of Children 205

parents. We begin our analysis by clarifying the legal concept of a “right” before we
look at each of the preceding proposals.

10.2.1  A Typology of Rights

W.N. Hohfeld (1920, 60) distinguished differing kinds or types of rights in terms of

the relationship between right-holders and right-regarders. These relationships are
signified by the words “claim,” “liberty,” (or  “privilege”) “power,” and
“immunity.”
First, a right “in the strictest sense” of this word is a claim that one individual
(the right holder) has on another (the duty bearer) to do or forbear from some act.
Should the claim be in force or exercised, and the act or forbearance is not done, it
would be moral or legal, other things being equal, “to use coercive measures to
extract either the specific performance … or compensation in lieu of it.” For exam-
ple, to say that children have a right to be provided with food, clothing and shelter,
is to say that the child has a claim on others (the duty bearers) to provide him with
these things, and if they do not do this, then the child can use coercive measures to
achieve this end. The class of mandatory rules mentioned in Chap. 1 create rights
understood as claims (Sect. 1.2).
Second, some rights are privileges or liberties. Thus, if it is said that an adult, but
not a child under the age of 16 years, has a right to obtain a driver’s license from the
Department of Motor Vehicles, this means that she is at liberty (or has the privilege)
to obtain a license. To have a privilege, then, is to be excluded from the claims of
another that you do or refrain from doing some act that others are required to do or
refrain from doing.
Third, some rights are powers. To say that an adult, but not a child has the right
to marry is to assert that she lacks the power to alter her legal relationship with
another from unmarried to married. The power-conferring rules mentioned in 1.2
create rights that have this function.
Fourth, we sometimes say, using the language of rights, that children have an
immunity from having certain of their rights or claims (such as the right to an inheri-
tance after the death of a parent) subject to willful alteration by others who say they
have the power to do this. We might express this by saying that the child has a right
that not to have her legal relationship with her parent altered (as stated in the will).
Examination of these rights-relationships indicates the following contrasts and
comparisons. A privilege is a freedom from the claim of another. If you have the
privilege to drive an automobile, then no one has a right [claim] to prevent you from
doing this. An immunity is one’s freedom from the power or control of another as
regards some legal relationship. If you have an immunity not to testify against your
spouse in a court of law, then you are free from the power of the court to command
said testimony.
206 10  Children, Parents and the State

10.2.2  Parents as Owners of Children: Thomas Hobbes

The seventeenth century philosopher Thomas Hobbes would have been astounded
at any proposal that would grant legal rights (of any type) to children, including the
right to life (the claim not to be killed by another). According to Hobbes, children
have only duties of obedience to their parents and no rights at all.
Children, therefore, whether they be brought up and preserved by the father, or by the
mother, or by whomsoever, are in most absolute subjection to him or her, that so bringeth
them up, or preserveth them. And they may alienate them, that is, assign his or her domin-
ion, by selling, or giving them, in adoption or servitude to others, or may pawn them for
hostages, kill them for rebellion, or sacrifice them for peace, by the law of nature, when he
or she, in his or her conscience, think it to be necessary. (The Elements of Law 23.8).

The idea that parents have absolute authority over their children did not originate
with Hobbes. It is to be found in Roman law under the ancient principle of patria
potestas (“rule of the father”), which originally gave to the male head of the Roman
family the right to punish by death any family member, including his children of any
age.
This is a far cry from the parent-child relationship of custodianship or caretaker.
Hobbes recommends a relationship that is akin to that of master and slave in which
the child, like a slave, is seen as the property of the parent, to be sold to others if this
is what he wishes, or even to kill the child if he should rebel against parental com-
mands. The only difference between the child and a slave is Hobbes’ surprising
claim that the child consents to the absolute dominion of his parent-owner.
The right of Dominion by Generation, is that which the Parent hath over his Children; and
is called PATERNALL. And is not so derived from the Generation, as if therefore the Parent
had Dominion over his Child because he begot him; but from the Childs Consent, either
express, or by other sufficient arguments declared. (2:20)

Express consent is either verbal or written. Since it is absurd to argue that a new-
born child has given his express consent to the dominion of his parents, Hobbes
must rely on the idea of “consent by inference,” or what is now called “tacit
consent.”
Signs by Inference, are sometimes the consequence of Words; sometimes the consequence
of Silence; sometimes the consequence of Actions; sometimes the consequence of
Forbearing an Action; and generally a sign by Inference, of any Contract, is whatsoever
sufficient argues the will of the Contractor. (Leviathan 1:14)

Suppose that a man is hungry and, without saying a word or entering into a writ-
ten agreement, accepts food from another person who silently hands it to him. We
might safely infer that the hungry man (the Contractor) accepts the food because he
wants it (this is his will). We might also infer that he consents to taking the food,
although we have no grounds for saying that he consents to anything else (for exam-
ple, to pay for the food, or to be obedient to the person who gives him the food).
But none of these conjectures about tacit consent applies to the infant who suck-
les at her mother’s breast. The infant does not know what she is doing, nor can we
infer that she wishes to obligate herself to the future dominion of her mother. There
10.2  Philosophical Theories on the Status and Rights of Children 207

is nothing about the infant’s behavior that would lead us to infer that she consents to
anything at all. And has been pointed out by some of his critics (King 74), Hobbes
contradicts himself on this point in an earlier discussion about the inability of chil-
dren to enter into a covenant:
Over naturall fooles, children, or mad men there is no Law, no more than over brute beasts,
nor are they capable of the title of just, or unjust, because they had never power to make any
covenant, or to understand the consequences thereof … (Leviathan 2.26)

If children cannot make covenants because they do not “understand the conse-
quences thereof,” then there is no basis for Hobbes’ extraordinary claim that chil-
dren are human property because they have given their tacit consent to be treated as
such.

10.2.3  The Perfect Freedom of Children: Herbert Spencer

At the opposite end of the spectrum of philosophical positions on the rights of chil-
dren is the egalitarian theory that says that the child “has claims to freedom—rights,
as we call them—co-extensive with those of the adult.” This position is here repre-
sented by the nineteenth century social philosopher Herbert Spencer:
The fullest endowment of rights that any being can possess, is perfect freedom to exercise
all his faculties. And if each of two beings possesses perfect freedom to exercise all his
faculties, each possesses complete rights; that is, the rights of the two are equal; no matter
whether their faculties are equal or not. For, to say that the rights of the one are less than
those of the other, because his faculties are fewer, is to say that he has no right to exercise
the faculties he has not got! —a curious compound of truism and absurdity. (Spencer, Pt. II,
Ch. XVII).

Applied to children and the intellectually disabled, this means that their claim-­
right to make and act on their own decisions cannot be abridged on the grounds that
they are not as intelligent or experienced as the average adult. The child who wants
to cross the decrepit bridge (section “Intrafamily harm and the family privacy prin-
ciple”) possesses “perfect freedom” to exercise the mental faculties she possesses
regardless of how these faculties would compare with those of an adult. Her right to
“exercise her faculties” by making a decision to cross the bridge is equal to the right
of an adult to make the same decision. These rights are not less because her ability
to reason is less than that of an adult reasoner. Spencer’s argument, quite simply, is
that everyone has a right to make decisions on the basis of whatever reasoning abili-
ties they have, not on the basis of an objective standard of intelligence extracted
from the ability of average adult reasoners.
Spencer echoes John Locke’s much earlier claim that the state all men are natu-
rally in is “a state of perfect freedom to order their actions, and dispose of their
possessions and persons, as they think fit.” Spencer also agrees with Locke’s claim
that every man has “an equal right … to his natural freedom, without being sub-
jected to the will or authority of any other man.” (Second Treatise, 54) However, it
is apparent that Spencer would immediately part ways with Locke if he had read this
208 10  Children, Parents and the State

sentence: “Children, I confess, are not born in this full state of equality, though they
are born to it.” (55) Locke here contradicts Spencer’s major premise that the child,
like all human beings, possesses perfect freedom to exercise all his faculties. Locke
argues that children are born in a state of subjection, not in a state of freedom.
“Their parents have a sort of rule and jurisdiction over them, when they come into
the world, and for some time after.” This is a temporary condition: children are born
to a full state of equality because the age and reason they eventually attain will
“loosen the swaddling clothes” of the bonds of their subjection. It is only then that
they will achieve what Spencer refers to as “perfect freedom.”
The difference between these two natural law philosophers is to be found in their
different claims about the nature and origin of perfect freedom. Spencer argues that
a child has perfect freedom at birth. Locke denies this, saying only that children will
achieve freedom over time. Neither of these philosophers provide an argument to
support their respective claims beyond appeals to Biblical interpretation. Spencer
says that the law is a Divine ordination “rooted in the nature of things.” The law says
that “every man has freedom to do all that he wills, provided he infringes not the
equal freedom of any other man,” and it applies “as much to the young as to the
mature.” (Spencer, 172).
Locke also invokes God and the natural law in his argument for the opposite
conclusion. The parents of the child have a God-given obligation “to take care of
their off-spring, during the imperfect state of childhood” (Locke, 58). As for
Spencer’s claim that the child has a perfect freedom at birth, Locke’s reply might be
that freedom does not truly exist where there is no reason or understanding to direct
the will:
… for God having given man an understanding to direct his actions, has allowed him a
freedom of will, and liberty of acting, as properly belonging thereunto, within the bounds
of that law he is under. But whilst he is in an estate, wherein he has not understanding of his
own to direct his will, he is not to have any will of his own to follow; he that understands
for him, must will for him too; he must prescribe to his will, and regulate his actions … (58).

The natural law is “promulgated or made known by reason only.” As reason

needs the will to carry out its commands, so the will requires reason (understanding)
to know the natural or moral law and direct the will according to prescriptions of the
law. Hence, “he that is not come to the use of his reason, cannot be said to be under
this law; and Adam’s children, being not presently as soon as born under this law of
reason were not presently free” (57). In these sentences Locke is relying on a theory
of the mind first announced by Plato. In Republic the character Socrates distin-
guishes anger “without calculation” from calculations about “better and worse.” His
example is “small children” who “are full of spirit right from birth, while as far as
rational calculation is concerned, some never seem to get a share of it while the
majority do so quite late” (441a–b). A small child does not have the ability to make
a calculation about better and worse when she attempts to run into the street while
chasing a ball. A free act occurs only when it is grounded on understanding. The
small child lacks this faculty. Hence, it is absurd to say that we have interfered with
her “perfect freedom” when we restrain her from running into the street.
10.2  Philosophical Theories on the Status and Rights of Children 209

10.2.4  P
 arents as Temporary Custodians: John Locke
and J.S. Mill

Both John Locke in the late seventeenth century and John Stuart Mill in the mid-­
nineteenth century, rejected the Hobbesian theory of children as property and both
would have rejected Spencer’s theory of the moral equality of adults and children.
Although operating from completely different moral foundations, the theories of
Locke and Mill regarding children’s rights and obligations are surprisingly similar.

Locke’s Children

One year after the death of Thomas Hobbes, and 100 years before the birth of Herbert
Spencer, John Locke posited a relationship between parent and child that was much
different from the Hobbesian theory of consensual slavery and the Spencerian theory
of full equality. As noted in the previous section (Sect. 10.2.2), Locke argued that
parental power derives not from consent but from the natural duty of parents to pre-
serve, nurture and educate their children. Parents have a right to control their chil-
dren’s behavior, not because the child has consented to this but because the parents
need the right of control in order to carry out their God-given duty to protect the
child from harm and to provide her with food, shelter and education. And they must
exercise this control because children are not capable of regulating their own behav-
ior. If a child lacks “the understanding of his own to direct his will,” then giving him
the liberty to regulate his own actions would be positively dangerous:
To turn him loose to an unrestrained liberty, before he has reason to guide him, is not the
allowing him the privilege of his nature to be free; but to thrust him out amongst brutes, and
abandon him to a state as wretched, and as much beneath that of a man, as theirs. This is
that which puts the authority into the parent’s hands to govern the minority of their children.
(Second Treatise, §63)

Hence, the power that parents have to bring up their children not only derives
from the obligation to protect and care for them, but this obligation is reciprocal
with the natural right of children “not only to a bare Subsistence but to the conve-
niences and comforts of Life, as far as the conditions of their Parents can afford it.”
Parents are temporary custodians or caretakers of their children, not owners and
certainly not their equals. This is a far cry from both Hobbes’ contention that chil-
dren have no rights at all and Spencer’s claim that children’s rights are co-extensive
with the rights of adults.

Mill’s Children

As with Locke, Mill’s remarks about children were also incidental to a larger proj-
ect. In Locke’s case it was to distinguish political and paternal power. In Mill’s
writings, his ultimate aim was to give an account of the justifiable extent of political
or state power over the liberty of the individual:
210 10  Children, Parents and the State

The object of this Essay is to assert one very simple principle … That principle is, that the
sole end for which mankind are warranted, individually or collectively, in interfering with
the liberty of action of any of their number is, self-protection. That the only purpose for
which power can be rightfully exercised over any member of a civilized community, against
his will, is to prevent harm to others.

In Chap. 5 we referred to this as the harm-to-others principle of justifiable inter-

ference with individual liberty (Sect. 5.3.1), and compared it to the principle of
paternalism (Sect. 5.3.2) which Mill explicitly rejects:
His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be
compelled to do or forbear because it will be better for him to do so because, in the opinions
of others, to do would be wise, or even right … Over himself, over his own body and mind,
the individual is sovereign (On Liberty, Ch. I).

Although Mill soundly rejects paternalistic interference with the liberty of adults,
he does not reject this type of interference with the liberty of children:
It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human
beings in the maturity of their faculties. We are not speaking of children, or of young per-
sons below the age which the law may fix as that of manhood or womanhood. Those who
are still in a state to require being taken care of by others, must be protected against their
own actions as well as external injury … (On Liberty, Ch. I, my emphasis).

The reason Mill gives for excluding children from the doctrine of individual
liberty is that they are “not capable of being improved by free and equal discussion.”
It is assumed that they will eventually attain this capacity (when they reach the age
of majority). As soon as they attain it, they will be “guided to their own improve-
ment by conviction or persuasion, [and] it is no longer justifiable to compel them to
their own good … ” (On Liberty, I).
Mill does not specifically discuss issues concerning the extent of parental power
over children, except to say that their state or condition requires that they be taken
care of by others. But we can assume from his writings on individual liberty that he
would endorse Locke’s position that parents are justified in exercising control over
their children for purposes of protection and preservation. Mill only departs from
Locke when he states that he foregoes “any advantage which could be derived to my
argument from the idea of abstract right, as a thing independent of utility” (On
Liberty, Ch. I) Mill regards utility, not natural rights, as “the ultimate appeal on all
ethical questions; but it must be utility in the largest sense, grounded on the perma-
nent interests of man as a progressive being.” He contends that all of us have a per-
manent interest in both mental and moral self-improvement. It is the development
of this interest that justifies giving adults the most extensive liberty that is consistent
with their not using this liberty to harm others. But it is also this that tells us not to
interfere with those behaviors that might cause harm-to-oneself. When we pull back
the man who is about to cross over a decrepit bridge that he does not know is about
to collapse, we do this without making any real infringement of his liberty; because
liberty consists in doing what one desires, and he does not desire to fall into the
chasm below. But once apprised of the danger, if he should continue to walk onto
the bridge, we cannot “forcibly prevent [him] from exposing himself to it.” “[N]o
10.2  Philosophical Theories on the Status and Rights of Children 211

one but the person himself can judge of the sufficiency of the motive which may
prompt him to incur the risk” (On Liberty, Ch. I).
If it is a teenage girl who is about to walk over a decrepit bridge that she has been
told might soon collapse, we can justifiably judge “the sufficiency” of her motive
and forcibly restrain her. The justification for restraining her is to be found not in the
foolishness of her decision, but in the fact that she is not yet capable of being per-
suaded to do otherwise by a free and equal discussion with her about her options.
Hence, she can be restrained at least until the time that she achieves this capability.
Her mental and emotional condition is like that of a delusional man standing on the
top of a building who believes that he can jump off and safely fly to the ground. We
can justifiably restrain this man until he regains his ability to think rationally and
weigh the benefits and risks of what he is about to do. We can restrain the girl now
so she can live to make autonomous choices when she becomes an adult.

10.2.5  Criticisms of Locke and Mill

There are several criticisms that have been made of these accounts of the psychol-
ogy and the rights of children, two of which we will mention here. Let’s start with
Mill and his decrepit bridge example. If we reasonably assume that the girl who is
about to walk over the bridge does not want to be seriously injured, then as a child,
she is either “chronically or episodically thoughtless or merely inexperienced”
(Turner, 145). If children are episodically (that is, occasionally) thoughtless then
this does not mark a relevant difference between children and adults. Adults (like
the delusional man) are also episodically thoughtless, and we do not use this as a
basis for permanent interference with their liberty. So it must be chronic thought-
lessness that marks the difference for Mill between childhood and adulthood. He
must believe that children are chronically uncontrolled risk-takers, even though they
want to avoid death and injury. Although this might be true, it is an empirical remark
which Mill does not support with evidence. Moreover, if true it does not mark an
unassailable difference between children and adults. There are “extreme” sports
which are known to have a high rate of participant death but which continue to
attract adult newcomers.1 We might attempt to persuade, even beg them not to

1
 We do not make it illegal to engage in BASE jumping, despite the relatively high rate of death and
injury. “BASE jumping sees participants leap from a cliff, bridge or even skyscraper and quickly
deploy their parachutes before reaching the ground, wingsuit flyers – a subsection of BASE jump-
ers – don a winged suit that allows them to control their movement and swoop like a bird of prey,
reaching speeds of up to 200 mph in the process. Only last year, three leading lights of wingsuit
flying died after jumping from a helicopter over Lütschental in Switzerland. In 2013, stuntman
Mark Sutton, who skydived into the Olympic opening ceremony at the start of London 2012, was
killed after crashing into a ridge near Martigny at the Swiss-French border. In a report published in
2007, a study of the results of 20,850 BASE jumps between 1995 to 2005 at the Kjerag Massif in
Norway revealed that during this 11-year period there had been 82 nonfatal accidents (1 in every
254 jumps) and 9 fatal accidents (1 in every 2317 jumps)” (Soreide et al. 2007).
212 10  Children, Parents and the State

p­ articipate, but Mill tells us that we are not justified in forcing the willing adult to
not take such risks. But if we are not justified in forcibly preventing this group of
adults from risking their lives, then why is it permissible to use the relevant charac-
teristic (chronic thoughtlessness) as a justification for denying liberty rights to
children?
Second, Mill and Locke seem to recognize that psychological maturation is grad-
ual. That is, a child gains the ability to reason and achieves knowledge about the
world through a continuous and cumulative passage from childhood into adulthood.
And yet neither philosopher contends that one should be given legal rights in a
gradual way, with different rights being granted at different times in the psychologi-
cal maturation process. Both see the granting of rights as an “all-or-nothing affair.”
When the child becomes an adult at 12:01 am on the day he comes of legal age, he
immediately quits “parental authority, inherits property, becomes a citizen, and
assumes political obligation at a single stroke” (Archard, 95). Mill and Locke do not
appear to acknowledge the relevance of the fact that a young person of 17 years is
psychologically much less like an infant of 1 year or a young child of 9 years, and
much more like an adult of 21.

10.3  Constitutional Theories About the Rights of Children

David Archard (quoted above) rightly contends that the question which we must
answer is: How can we consistently think of children as both on the way to being
adult reasoners and as having a legal status that is less than that of the adult?
Imagine the following scenario. Gloria, a 19-year-old student at the University of
California, Berkeley, takes part in an on-campus event sponsored by her political
club. The purpose of the event is to drum up student support for legislation in the
State Assembly that would legalize the sale and use of small amounts of marijuana.
Gloria climbs up on a ladder and displays a humorous banner that says “LET’S
GET HIGH.” She and her friends collect hundreds of signatures on a petition to be
delivered later in the day to legislators. The event concludes without incident. No
one protested the content of the banner display, nor did anyone claim that some
students might be encouraged to use illegal drugs after viewing the banner.
Gloria’s (imaginary) experience when displaying her banner bears a remarkable
contrast with what actually happened at a high school-sanctioned event in Juneau,
Alaska in 2002. Joseph Frederick, a senior at Juneau-Douglas High School, unfurled
a banner saying “BONG HiTS 4 JESUS” during the Olympic Torch Relay that was
passing through town. Frederick’s attendance at the event was part of a school-­
supervised activity. The school’s principal, Deborah Morse, saw the banner and told
Frederick to put it away, as she was concerned it could be interpreted as advocating
illegal drug activity. After Frederick refused to comply, she took the banner from
him.
Frederick originally was suspended from school for 10 days for violating school
policy, which forbids advocating the use of illegal drugs. The school superintendent
10.3  Constitutional Theories About the Rights of Children 213

upheld the suspension, explaining that Frederick was disciplined because his banner
appeared to promote illegal drug use in violation of school policy. Joseph filed a
lawsuit alleging that the school board and Morse had violated his First Amendment
rights. The Ninth Circuit agreed that although the banner expressed a positive senti-
ment about marijuana use, Joseph’s First Amendment right to freedom of speech
was violated because the school punished him without demonstrating that his speech
threatened substantial disruption. The school district appealed this decision to the
U.S. Supreme Court. A 5–4 majority endorsed the action taken by the school prin-
cipal and reversed the Ninth Circuit decision. In Morse v Frederick (127 S. Ct. 2618,
2622, 2007), Chief Justice Roberts held that the Juneau school officials in this case
did not violate the First Amendment by confiscating the pro-drug banner and sus-
pending Frederick. Schools may take steps to safeguard those entrusted to their care
from speech that can reasonably be regarded as encouraging illegal drug use.
A student at a public university in the U.S. would not be ordered by the university
president to take down a banner like the one displayed by Joseph Frederick, nor would
any threat be made to suspend the student if he or she did not comply. In fact, if an
attempt were made to suspend a student under these circumstances, then it would
probably be the university president, not the student who would face the threat of
suspension or even dismissal. These facts prompt the following question:  “What
explains this difference in the way that public high school and university students are
treated when they express their political, moral or religious opinions?”
The relevant legal differences between Gloria (the university student) and Joseph
Frederick are (1) Joseph’s legal status as a minor and (2) the fact that he displayed
his banner at a school-sponsored and supervised event. The word “minor” means
“being under the age of legal adulthood,” that is, under the age of majority. Joseph
is legally dependent on his parents or legal guardians. As such, they are his custodi-
ans in the sense that they have the dual right to his care and to control his behavior.
When Joseph is at a school sponsored event the right to his care and control is tem-
porarily transferred to his teachers and others who supervise his education. If Joseph
runs away from home or is persistently truant from school, then his care and control
is ultimately transferred to other agents of the State under the doctrine of parens
patriae.2 As the Supreme Court put it in an earlier case “[J]uveniles, unlike adults,
are always in some form of custody … Children, by definition, are not assumed to
have the capacity to take care of themselves” (Schall v Martin, 467 U.S. 265).
What is confusing about the preceding quote from Schall is that it comes long
after the Tinker decision (first discussed at Sect. 4.2.2) in which the Court declared
that “...students in school as well as out of school are persons under our Constitution.
They are possessed of fundamental rights which the State must respect.” (393 U.S.
503). The children in this ground-breaking case were wearing armbands at school to
symbolically express their moral and political views about the Vietnam War.
Although the Court acknowledged that the State and school authorities have “com-
prehensive authority … to prescribe and control conduct in the schools,” the Court
also said that they cannot exercise this authority unless the child’s conduct “materi-

 Literally “parent of the country.” In this context it refers to the state’s role in protecting children.
2
214 10  Children, Parents and the State

ally and substantially interfere[s] with the requirements of appropriate discipline in

the operation of the school” (id., 629). Because the children in Tinker did not disrupt
any operation of the school, the Court found that their suspension violated their
First Amendment rights to freedom of expression.

10.3.1  Socially Inappropriate Speech: Bethel v Fraser

Seventeen years after Tinker, a more conservative Supreme Court held that admin-
istrators could punish a student for his political speech at a local high school (Bethel
v. Fraser, 1986). During an assembly at Bethel High School in Washington State,
Matthew Fraser delivered a speech nominating a fellow student for elective office.
He used “elaborate, graphic, and explicitly sexual metaphor[s]” (id., at 678). For
this, Fraser was suspended for 2 days. He challenged the suspension.
The District Court concluded that the punishment violated Fraser’s First
Amendment right to freedom of speech, and said that the school’s policy on speech
was “constitutionally vague and overbroad.” (id. 679). The Court of Appeals con-
curred, holding that Fraser’s speech was “indistinguishable from the [protest] arm-
bands used [by school children] in Tinker. In reversing, the U.S.  Supreme Court
applied a “balancing test” to students’ free speech rights.3 On the one hand, students
have “the undoubted freedom to advocate unpopular and controversial views in
schools and classrooms.” On the other hand, society has a “countervailing interest
in teaching students the boundaries of socially appropriate behavior” (id., 681)
While adults have the right to use “offensive form[s] of expression to make a politi-
cal point,” the same liberty is not necessarily available to juveniles in public school,
according to the Court (478 U.S. 682). Public schools have the right to “prohibit the
use of vulgar and offensive terms in public discourse.” (id. at 683). Because Fraser’s
speech “glorified male sexuality,” it was “acutely insulting to teenage girl students”
while “undermining the school’s basic educational purpose,” and was therefore con-
stitutionally impermissible.4
Concurring in the result, Justice Brennan agreed that the school district had the
right to restrict the student’s speech because he used “disruptive language” (id. 688–
689). Justice Marshall, dissenting, observed that the school district offered no evi-
dence that the speech in any way disrupted the educational process at the high
school (id. 689, n.2)5 Justice Stevens, also dissenting, argued that the speech did not

3
 “A constitutional doctrine in which a court weighs an individual’s rights with the rights or powers
of the state.” (Fisher, 19).
4
 478 U.S. at 683 and 685. The following excerpt from Fraser’s speech was at the center of the
controversy: “I know a man who is firm—he’s firm in his pants, he’s firm in his shirt, his character
is firm...Jeff Kuhlman is a man who takes his point and pounds it in... He doesn’t attack things in
spurts—he drives hard, pushing, and pushing until he finally succeeds. Jeff is a man who will go
to the very end—even the climax for each and every one of you.”
5
 478 U.S., at 689, n. 2.
10.3  Constitutional Theories About the Rights of Children 215

fall into the category of “conduct” regulated by the school’s disciplinary rule (id.
690).6 Indeed, the district’s rules of conduct contained no “unequivocal prohibition
against the use of ‘indecent language’” (id.694).
The Appeals Court had suggested that there is no relevant difference between the
facts used by the Supreme Court in Tinker to extend free speech rights to school
children and the facts used by the Court in Bethel. Expressing one’s political opin-
ion by wearing black armbands is a form of speech. It is only a short step from the
Tinker children’s non-verbal expression of a political opinion to Fraser’s speech
nominating a fellow student for elective office. The only differences suggested by
the Court majority were that Fraser’s speech violated the boundaries of “socially
appropriate behavior.” And yet the language used by Fraser did not qualify under
any legal standard as “obscene,”7 nor was there any evidence that the speech was
found to be disrupting or insulting by any of the students who heard it.
Let us assume that we know what types of speech are “socially inappropriate.”
Why should children be denied the right to express themselves in this way? A pos-
sible justification is their status as children and the context of the public school set-
ting in which they express their views. As a child, Matthew Fraser is under the
custodial supervision of his parents and, by extension, of the public school that he
attends. Since his parents have the right to regulate his speech at home, the Court
concluded that his teachers have the right to regulate his speech while he is at school.
What has changed in the years between the decision in Tinker and the decision in
Bethel is a change in the conception of the child from “a person who has fundamen-
tal rights” to “a person who is always in some form of custody.” As a result, the
Tinker standard for deciding children’s constitutional rights has been substantially
changed by the Supreme Court. Persons in custody may have the right to express
their moral, religious or political views, but they cannot express them in ways that
are offensive or socially inappropriate. They are under the control of custodians who
are allowed to dictate the content of their speech in ways that would never be
allowed in the case of adults.

10.3.2  “ Reasonable” Censorship of Children’s Speech:

Hazelwood v Kuhlmeier

Two years after the Bethel decision, the Supreme Court once more acted to change
a child’s First Amendment rights (Hazelwood v Kuhlmeier 484 U.S. 1986.). The
principal of a Missouri high school deleted two pages of a student newspaper to
which he objected. One of the stories was about three Hazelwood students’ experi-
ence with pregnancy and the other discussed the impact of divorce on students at the
school (id. 263). The principal believed that although false names had been

 478 U.S., at 690.

6

 Standards of obscenity were set in Roth v. United States 354 U.S. 476 (1957), and Miller v.
7

California 413 U.S. 151 (1973).

216 10  Children, Parents and the State

provided in the pregnancy story, the pregnant girls might be identifiable from the
text (id.). Furthermore, he felt that discussion of birth control and sexual activity
was inappropriate for younger readers.
While the District Court sided with the school district, the Court of Appeals did
not (607FSupp1450 1985). School officials were only allowed to censor the articles
if publication could have resulted in tort liability to the school, the appellate court
held (484 U.S.266).
In Hazelwood v. Kuhlmeier, the Supreme Court reversed the appellate court and
noted that rights of students are “not automatically coextensive with the rights of
adults in other settings.”(id.) Even though the district policy stated that the student
newspaper accepted “all the rights implied by the First Amendment,” school offi-
cials were entitled to regulate the contents of the publication “in any reasonable
manner” (id. 269–70). The Court also favorably noted Justice Black’s dissent in
Tinker in which he argued that the Federal Constitution does not compel teachers,
parents, and elected school officials “to surrender control of the American public
school system to public school students”(id.). The Justices believed that restricting
publications to take into account the “emotional maturity of the intended audience”
on sensitive topics was within the principal’s powers. Administrators may “exercise
editorial control” over student newspapers “so long as their actions are reasonably
related to legitimate pedagogical concerns”(id. 272–273). Censorship would be for-
bidden only when the restriction “has no valid educational purpose” (id. 273).
In dissent, Justice Brennan took note that the majority approved of press censor-
ship “that neither disrupt[ed] class work nor invade[d] the rights of others”(id. 275).
The Court in Tinker had acted to protect student speech unless it “materially
disrupt[ed] class work or involve[d] substantial disorder or invasion of the rights of
others”(393 U.S. 503.). In Brennan’s view the “mere desire to avoid the discomfort
and unpleasantness that always accompanies an unpopular viewpoint … or an unsa-
vory subject” does not justify suppression of student speech in a high school (484
U.S 260, 280–81). Furthermore, Tinker does not permit school officials to act as
“thought police” to restrict publication on “potentially sensitive” topics (id.285,
287).
It is against this background that the Supreme Court made its decision to further
alter (some would say “erode”) the right of school children to freedom of expression
in Morse v Frederick. Not only is student speech not protected speech when it is
disruptive (Tinker), socially inappropriate (Bethel), or about a sensitive topic
(Hazelwood), but student speech is also not protected if it might be construed by
other students as promoting illegal behavior. Most important in each of these deci-
sions is that there is no mention of the central reason for the custodial status of
children: to prevent them from doing harm to themselves.
10.4  The Supreme Court’s Dilemma of Classification 217

10.4  The Supreme Court’s Dilemma of Classification

A dilemma occurs when one is given a choice between two or more alternatives,
each having an unwanted outcome. In the thirty-year history of its rulings on the
constitutional speech rights of children, the Supreme Court appears to be struggling
with a “dilemma of classification” where the alternatives (between which it believes
it is forced to choose) are two different ways of classifying children. Either children
are to be regarded as persons with fundamental rights that the state must respect, or
they are to be regarded as non-persons who are always in some form of custody. If
children have fundamental rights, then the problem it immediately faces is how the
Court can justify the different treatment that children receive under the Constitution.
If both children and adults are “persons,” then it seems to follow that they should
have the same set of constitutional rights. On the other hand, if children are classi-
fied as non-persons who are always in some form of custody, then there appears to
be no basis for granting them any constitutional rights.
Each of these classification schemes has consequences that the Court has not
been willing to accept. The Tinker court was not prepared to accept the conse-
quences of treating children as persons by granting them full constitutional rights,
and the Bethel, Hazelwood and Morse courts had no desire to embrace the conse-
quences of classifying children as non-persons in custody by denying them all of the
rights that adults take for granted under the Constitution.8 We are to presume that a
child can still wear a black-arm band to school to make a symbolic political protest,
and she can still give a speech to her classmates about her political beliefs, as long
as the speech is “socially appropriate.”
When faced with a dilemma, the usual tactic is to attempt to find other alterna-
tives in the hope that at least one of them will not have an unacceptable conse-
quence. In the remainder of this chapter we will critically examine three alternatives
to the Supreme Court’s two conflicting classifications of children. Each provides a
unique interpretation of the idea of children’s constitutional rights that attempts to
make this idea consistent with the widely held belief that children are and should be
under the control of their parents or the State.
The alternative theories are these: (1) Children’s constitutional rights are rights
of a scope that is more limited than the scope of adult constitutional rights of the
same name (e.g. the right to freedom of speech). (2) Children’s constitutional rights
are rights that can be outweighed by important familial or State interests which do
not outweigh adult rights of the same name. (3) Children’s constitutional rights are
rights-in-trust, that is, rights which children possess but which, in some cases, they
are justifiably prevented from enjoying.

8
 For example, the Bethel court continued to assert that children have the constitutional right to
express their political opinions in public school.
218 10  Children, Parents and the State

10.4.1  Limited Scope Rights

In 1980, the authors of a lengthy note on “The Constitution and the Family” in the
Harvard Law Review wrote that there were two reasons why a child may not be
entitled to the full constitutional protection that an adult would receive under similar
circumstances:
First, a child may possess a constitutional right of lesser magnitude than an adult possesses.
This might be the case if the values animating a given constitutional provision were not as
applicable to children as adults. Second, the state may be able to assert interests to support
its treatment of children that it could not assert with respect to adults. This would be the
case if the state’s treatment of children fell within its police power or parens patriae power
while the treatment of identically situated adults did not come within this category
(Developments, 1358).

I suppose that what is meant by the phrase “right of a lesser magnitude” is that
the scope of the right may be smaller for children than for adults. Consider, for
example, First Amendment rights. The scope of First Amendment rights is not
unlimited either for adults or children; that is, the courts have never guaranteed
anyone a “right” to say anything, any time, any place. But the Supreme Court has
set more limits on First Amendment rights for children than it has for adults. On the
Harvard interpretation of what it means to say that children have the constitutional
right of freedom of speech, both children and adults have the right to free speech,
but the scope of free speech is narrower for children than the range of speech for
adults. To say that a child has the right to free speech means something quite differ-
ent than what it means to say that an adult has this right. Neither an adult nor a child
can use the First Amendment to justify a speech act of defamation, fraud, incitement
to riot, or solicitation to crime. But a child in school has the further restriction of
refraining from speech that uses “vulgar and offensive terms [to make a political
point] in public discourse” (478 U.S. 683).
One advantage of the Harvard approach is that it is consistent with Justice
Blackmun’s assertion that “minors, as well as adults, are protected by the Constitution
and possess constitutional rights.”9 Second, the Harvard approach also explains how

9
 Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74 (1976). The Court declared
unconstitutional part of a Missouri abortion statute requiring an unmarried minor female to acquire
the consent of her parent(s) or guardian(s) in order to have an abortion performed (unless a physi-
cian, in order to save her life, certifies the abortion). Justice Blackmun, delivering the majority
opinion, famously wrote, “Constitutional rights do not mature and come into being magically only
when one attains the state-defined age of majority. Minors, as well as adults, are protected by the
Constitution and possess constitutional rights.” In this case the relevant right is the “right of per-
sonal privacy, or a guarantee of certain areas or zones of privacy…(which) encompass a woman’s
decision whether or not to terminate her pregnancy.” Blackmun conceded that although the Court
“long has recognized that the State has somewhat broader authority to regulate the activities of
children than of adults,” upon examining whether there is any “significant state interest” in condi-
tioning an abortion on the consent of a parent, he found that there is none. Parental interest in the
termination of a child’s pregnancy “is no weightier than the right of privacy of the competent minor
mature enough to have become pregnant.” The right of privacy was again invoked in Carey v.
Population Services International. In this case, which reached the Supreme Court in 1977, the
10.4  The Supreme Court’s Dilemma of Classification 219

a child can have a constitutional right but also be regarded as subject to the custody
and control of his parents or the State. The function of the right is to set a limit to
what a custodian can demand of the child who is under his control. For example,
even though the scope of a child’s free speech right is narrower than that of an adult,
its scope is sufficiently large that a child cannot be prevented by her public school
custodians from advocating a view that is merely unpopular or controversial (id.
681).
However, there are several disadvantages of the Harvard interpretation of the
constitutional rights of a child. First, I am not at all sure that when Blackmun wrote
that minors are protected by the Constitution, he meant that the Constitution pro-
tects a set of rights having a different scope than the scope enjoyed by adults. This
seems clear from his ruling in a previous children’s privacy case in which he said
without qualification that a minor seeking an abortion has the “right of personal
privacy, or a guarantee of certain areas or zones of privacy [which] encompass a
woman’s decision whether or not to terminate her pregnancy” (428 U.S. 60). He did
not say or imply that this right was in some way different than an adult woman’s
right of personal privacy.
Second, the Harvard approach gives us two sets of constitutional rights, one for
adults and the other for children, where the difference between rights in each set
having the same name is a difference in their scope. Why not a third, fourth and even
more sets of rights for other classes of persons? The question that is begged by the
Harvard approach is: What are the criteria for deciding whether a given class of
persons should have rights of the same or of a different scope than persons of
another group or class?
Third, I have a more general concern about the very idea of constitutional rights
of the same name having varying scopes. Suppose, for example, that John, a U.S.
citizen, has the right to give a public speech about his dissident political beliefs, but
Mohammed, a citizen of Iran, does not have this right. However, Mohammed does
have the right to talk publicly about controversial non-political topics. I believe that
we would characterize this situation by saying that John has the right to freedom of
speech, but Mohammed does not. It would be not only odd, but also misleading to
say that Mohammed has the right to freedom of speech but his right has a narrower
scope than John’s. This is because we understand the very concept of a constitu-
tional right to freedom of speech to include political expression. Where it does not

Court overturned a New York law prohibiting the distribution of non-prescriptive contraceptives to

minors under the age of 16 years. Justice Brennan, writing for the majority, declared: “In a field
that by definition concerns the most intimate of human activities and relationships, decisions
whether to accomplish or to prevent conception are among the most private and sensitive.” The
Court rejected the Attorney General’s argument that New York had a legitimate interest in protect-
ing morality by casting doubt on his contention that limiting minors’ access to contraceptives
substantially discourages early sexual behavior. Moreover, the Court concluded, “It would be
plainly unreasonable to assume that the state has prescribed pregnancy and the birth of an unwanted
child or the physical and psychological dangers of an abortion as punishment for fornication.”
220 10  Children, Parents and the State

include political expression, we would reasonably conclude that the right to free-
dom of speech does not exist.
For example, in Bethel v. Fraser, the Supreme Court said that although adults
have the constitutional right to use “offensive form[s] of expression to make a politi-
cal point,” the same liberty is not necessarily available to juveniles in public schools
(id. 675). But if this right is not available to juveniles, then we should conclude not
that children in school have a constitutional right to freedom of speech that is nar-
rower in scope than the adult right to freedom of speech, but that children in school
do not have the constitutional right to freedom of speech at all! There is one right to
freedom of speech in the Constitution, and it includes the right to use offensive
forms of expression to make a political point.10

10.4.2  Rights-to-Be-Balanced

A second interpretation of the concept of constitutional rights of children is the

“interest-balancing” approach. This interpretation is suggested in the second part of
the Harvard position quoted earlier: “the state may be able to assert interests to sup-
port its treatment of children that it could not assert with respect to adults.” During
the 1970s, the Court frequently prefaced their decisions about the rights of children
by implying that the question before them is to what extent a child’s acknowledged
constitutional rights should be “outweighed” by the State’s interest in protecting
them from harm. In Justice Blackmun’s decision about the privacy rights of children
alluded to earlier, he conceded that the Court “long has recognized that the State has
somewhat broader authority to regulate the activities of children than of adults”
(id.). Hence, the Court must be prepared to weigh the right of privacy of the compe-
tent minor against her parent’s interest in the possible termination of her
pregnancy.
This is troublesome. In Roe v Wade, the Court ruled that the decision to abort
one’s pregnancy comes within the scope of the constitutional right of privacy. Once
having pronounced abortion to be within the area of constitutional protection it is no
longer open to the Court to “weigh” that protection against other considerations (for
example, strengthening the family unit, protecting the mother from harm). The
Constitution says that its guaranteed rights, once correctly determined “always have

10
 Before turning to an examination of the next concept of children’s rights, we take a brief look at
the Harvard claim that a child may possess a constitutional right of lesser magnitude than an adult
possesses if “the values animating a given constitutional provision were not as applicable to chil-
dren as adults.” Although we can accept the implication that this may be the best way to interpret
the Constitution it is not clear why the values relevant to the amendments should not be as appli-
cable to older children as to adults. On the basis of what criterion are we to decide this? In the case
of free speech, it might be said that the “animating value” is the value of knowing the truth. That
is, when speech is free, we are more likely to make progress toward discovery of the truth than we
are when speech is restricted. But why should this value not be as applicable to high school stu-
dents as it is to college students or other adults? This question remains unanswered.
10.4  The Supreme Court’s Dilemma of Classification 221

more weight than any possible combination of opposing interests, public or private”
(Feinberg 81, citing Frantz 1438). If the Court proclaims that a child has the consti-
tutional right of privacy, then it cannot “weigh” or “balance” this right against fam-
ily or other interests any more than it can do this in the case of an adult. The real
focus of the debate in the Court should not be over the question whether in the case
of children the right of privacy is to be outweighed by the State’s interest in protect-
ing them from harm (that makes no sense), but over the question whether children
ought to be granted the constitutional right of privacy at all.
We should reach the same conclusion when we turn to the right of free speech.
Once the scope of the constitutional right has been determined through precedent-­
setting court decisions, it is not to be weighed or balanced against other interests.
Thus, we can presume from previous decisions of the Court that the right to freedom
of expression does not include the right to defame the reputation of others, to shout
“fire” in a crowded theater when there is no fire, or to publish military secrets. These
decisions inform us about the scope of the constitutional right. Once this is deter-
mined the Court is barred from “balancing” the right of free speech against other
possible interests, for example the interest in not being made to feel uncomfortable,
or hearing speech that is socially inappropriate, or hearing speech that might encour-
age one to obtain or use illegal drugs. This is part of what it means to say that some-
one has a constitutional right. Whether it is possessed by adults or children, the right
of free speech, is “fundamental” within its defined scope, and is not to be balanced
or weighed against other concerns or interests.

10.4.3  Rights-in-Trust

There is a distinction between having a right and exercising or enjoying a right. In

the same way that property law allows us to speak of individuals possessing a future
interest, so in constitutional law we might speak of children possessing the right to
be treated as a person, although complete enjoyment of this right might be justifi-
ably postponed (Morris, 49–50). There are two situations in which this might occur.
(1) Situations in which a child is clearly incapable of exercising a constitutional
right, and (2) situations in which a child, though capable of enjoying the right, might
damage his future ability to exercise his rights if he is allowed complete enjoyment
of his rights now. Let me explain by discussing these situations in more detail.
(1) A small child might be regarded as a person under the Constitution with the
right to freedom of religious choice, even though she presently lacks the cognitive
capacity to form or express such beliefs. Of course, the usual objection to this char-
acterization is that possession of the capacity to exercise a right is a necessary con-
dition for possessing it. That is, it has been argued that if a small child lacks the
capacity to pray, attend church services, and promulgate her faith to others, then
surely it makes no more sense to say that she has the right to do these things than it
would be to say this about the family dog.
222 10  Children, Parents and the State

But there is a significant difference between the child and the family dog. The
child is a person. She will eventually become an adult able freely and in an informed
way to choose, and who will be prepared to assume responsibility for her choices.
Hence, to say that the infant qua person has the right of religious expression could
only be construed as a right in trust. That is, it is best interpreted as the right to have
her future options kept open until she is a fully formed self-determining adult capa-
ble of creating her own opinions about religion and making public expression of her
beliefs.
When we attribute moral or legal rights to children who are clearly not yet capa-
ble of exercising them, these are rights that are to be saved for the child until he or
she is an adult. Moreover, these rights can be violated “in advance,” so to speak,
before the child is even in a position to exercise them. Legal philosopher Joel
Feinberg has observed, “ the violating conduct guarantees now that when the child
is an autonomous adult, certain key options will already be closed to him. His right
while he is still a child is to have these future options kept open until he is a fully
formed self-determining adult capable of deciding among them …” (Feinberg 1980,
126). For example, an infant of 2 months has the right to walk freely down the pub-
lic sidewalk, even though she is not yet capable of enjoying this right. What then
could it mean to say that she has the right to freedom of movement? The answer is
that it is a right-in-trust. It is a right to be saved for the child until she gains the abil-
ity to walk. One would violate this right now by cutting off her legs, making it
physically impossible for her to ever be capable of self-locomotion at some future
time.11 By analogy, a young child has the right of free expression even though she
cannot yet speak. Her right is a right-in-trust and we are under a constitutional obli-
gation not to interfere with her development of the future ability to exercise this
right.
(2) What about older children who are clearly capable of exercising and enjoying
at least some constitutional rights? For example, in Bethel v. Fraser, no one doubted
that 17-year-old Matthew Fraser had the cognitive and emotional ability to form and
express his own political opinions. The ground for his suspension from high school
was not his incapacity to advocate an unpopular and controversial opinion, but that
his speech was “acutely insulting” and “disruptive,” grounds (by the way) that
would never be recognized by the Court as a basis for prohibiting adult speech.
Older children, like Mathew Fraser, though competent, are still under the control
of their parents, school administrators, and ultimately, the State. Is there any way of
reconciling their status as individuals-in-custody with their status as “persons”
under the Constitution?
My suggestion is that the personhood of older children, like that of younger chil-
dren, can also be understood as a right-in-trust, with this important difference, that

 A more realistic example of how a right-in-trust can be violated is the practice in some cultures
11

of female genital mutilation. In this case, the relevant (violated) right is the right to sexual freedom.
Although a young girl is not capable of sexual pleasure, her parents could violate her right to
sexual freedom now by mutilating her genitals, making it physically impossible for her to enjoy
herself sexually when she becomes an adult.
10.4  The Supreme Court’s Dilemma of Classification 223

the grounds for postponing an older child’s enjoyment of his fundamental rights are
nearly identical to the grounds for postponing an adult’s enjoyment of the same.
Nearly, but not quite identical. The older child is still under the custodial control
of his parents. However, the fact that the older child is competent to exercise his
constitutional rights severely limits what his parents or the State can do to him while
he is in their custody. The point of reminding us that the older child is a person is
that this places strict limits on the kind and degree of legitimate interference by his
custodians. To be specific, the child’s custodians must provide conditions for the
child to become an adult who is able freely and in an informed way to make choices,
that is, to become autonomous. Hence, any interference in the child’s attempt to
exercise his rights is justifiable only if it can be proved that this is necessary to pro-
tect his future autonomy. For example, in the Fraser case, if evidence had been
presented that would have shown that when high school students give offensive
speeches, they put at risk their future ability to exercise their free speech rights, this
would have constituted sufficient grounds for postponing Fraser’s right to give his
speech. It is only under this limitation that his custodians could argue that they are
respecting Mathew as a person.
Employing the distinction between having a right and enjoying a right and the
related notion of a right in trust, I am suggesting the following three-part theory of
the constitutional rights of older children. First, because children are persons, they
have the same set of constitutional rights possessed by adults. Second, primarily
because they are still under the custody and control of their parents or the state, the
full enjoyment of their constitutional rights may sometimes be postponed. However,
third, the child’s exercise of a right can be postponed only if when there is evidence
that exercising the right in the present will damage that child’s future autonomy.
Restrictions on an older child’s enjoyment of his rights for any other reason (e.g.
because the exercise of his rights might offend or disrupt the peace and quiet of oth-
ers) are simply unjustifiable.
Finally, I believe that this theory solves the dilemma about children’s constitu-
tional rights which I outlined earlier. The question was: How can children be said to
be “persons under our Constitution” with the “fundamental rights which the State
must respect” and at the same time be regarded as individuals who are “always in
some form of custody”? The answer is that younger children are persons in the
sense that they have the right to be provided with the opportunities and conditions
assuring their full enjoyment of their constitutional rights when they acquire the
characteristics of adult persons. Full enjoyment of their rights may be postponed
until this is accomplished. But this also explains the sense in which children are
always in some form of custody. The child’s right to be treated as a person is a right-­
in-­trust. The child’s parents, the school and the State are the trustees charged with
the duty to help children develop into fully autonomous adults capable of enjoying
their constitutional rights.
As the child grows older and acquires more and more of the intellectual abilities
of a fully autonomous adult, then the obligation to respect her choices and to place
upon her the responsibility for the choices she makes becomes even stronger. This
is reminiscent of the criticism of Locke and Mill about their failure to account for
224 10  Children, Parents and the State

the inconsistency between acknowledging the gradual development of a child’s

psychological maturation and their defense of the practice of granting legal rights to
a child suddenly upon reaching a certain age. It is interesting that Justice Blackmun
did notice this disparity when he wrote that constitutional rights “do not mature and
come into being magically only when one attains the state-defined age of majority.”
If children have constitutional rights before the age of majority, then we need an
explanation of how this is consistent with custodial interventions preventing the
exercise of these rights. The theory we propose is that the only ground that the cus-
todian of an older minor can use to justify postponing the exercise of her right to be
treated as a person is when postponement is necessary to assure the child’s develop-
ment into a fully autonomous adult.
I shall call this the Rights-in-Trust Theory of children’s constitutional rights”
because it is a theory about the conditions under which a person can be justifiably
denied the exercise (enjoyment) of a right that they legally have or hold. One objec-
tion to the theory is identical to the objection that I launched against the “balancing”
theory of children’s constitutional rights discussed earlier, namely that the very idea
of protecting speech or other activity as a constitutional right excludes the possibil-
ity of ever weighing it against other interests. For example, once having pronounced
abortion to be within the area of constitutional protection for a female minor, it is no
longer open to the Court to “weigh” that protection against other considerations (for
example, strengthening the family unit, or protecting the young mother from harm).
How, then, can the Court consistently maintain the position that a child’s enjoyment
of a constitutional right to freedom of speech might be legitimately postponed when
there is evidence that exercise of the right will damage the child’s future autonomy?
Am I not suggesting that the Court “balance” the child’s interest in her future auton-
omy against the exercise of her constitutional right?
The reply to this objection is that a temporary interference with a person’s liberty
for the purpose of protecting their future ability to act autonomously is not a case of
balancing one interest against another. Let me refer once again to John Stuart Mill’s
“decrepit bridge” example in which he said that we could seize and turn back a
person attempting to cross an unsafe bridge “without any real infringement of his
liberty.” Analogously, if we postpone a child’s exercise of his constitutional rights
because there is a substantial risk that his exercise of those rights at this moment
might prevent him from ever exercising them again, we have not “balanced” one
interest against another. To use Mill’s words, we have not infringed on his liberty,
“for liberty consists in doing what one desires,” and (we might reasonably assume)
the child does not desire to cripple his future ability to exercise his rights.
Questions for Thought and Discussion
1. In what ways do the theories of Hobbes, Locke, Mill and Spencer about the
rights of children compare and and in what ways do they differ?
2. Why does Mill say that the principle of paternalism justifies adult interference
with the behavior of children, but it does not justify adult interference with the
liberty of other adults?
References 225

3. What is Mill’s “decrepit bridge” example designed to prove? How does it apply
to interventions in the behavior of children? Is the distinction between episodic
and chronic thoughtlessness relevant to answering these questions?
4. If intellectual and emotional maturation is gradual, why is this fact not reflected
in legislative decisions about when a child becomes an adult? Should children
gradually receive more adult liberty rights as they get older, or should they not
get any liberty rights until they achieve the designated legal age of adulthood?
5. Is it possible for a child to be both a human being who is always in some form of
custody and at the same time be regarded as a person possessed of the First
Amendment right to freedom of speech?

References

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Developments in the Law. 1980. The Constitution and the Family. Harvard Law Review 93: 1358.
Feinberg, Joel. 1973. Social Philosophy. Upper Saddle River, NJ: Prentice-Hall, 81 (citing Frantz,
Laurent B. 1962. The First Amendment in the Balance. Yale Law Journal, LXXI. 1438).
———. 1980. Child’s Right to an Open Future. In Whose Child? Children’s Rights, Parental
Authority and State Power, ed. W. Aiken and H. LaFollette. Totowa: Littlefield, Adams & Co.
Fisher, Louis. 1990. American Constitutional Law. New York: McGraw-Hill.
Friedman Ross, Lainie. 1998. Children, Families and Health Care Decision-Making. Oxford:
Clarendon Press.
Hobbes, Thomas. 2008 [1640]. In The Elements of Law, Natural and Politics, ed. G.C.A. Gaskin.
Oxford University Press.
Hohfeld, Wesley N. 1920. Fundamental Legal Conceptions as Applied in Judicial Reasoning and
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Locke, John. 1980 [1690]. (ed.) McPherson, C.B. Second treatise of government Indianapolis:
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Mill, John Stuart. 1979. In Utilitarianism, ed. George Sher. Indianapolis: Hackett.
Morris, Herbert. 1979. Persons and Punishment. In On Guilt and Innocence: Essays in Legal
Philosophy and Moral Psychology, ed. Herbert Morris, 49–50. Berkeley: University of
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Soreide, K., et al. 2007. How Dangerous is BASE Jumping? An Analysis of Adverse Events in
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Spencer, Herbert. 1851. Social Statics: or, The Conditions Essential to Happiness Specified, and
the First of them Developed, London: John Chapman. http://oll.libertyfund.org/
titles/273#Spencer_0331_350 Last Accessed 8 Oct 2015.
 Part IV
Contract and Property Disputes Arising
from Alternative Birth Methods
Chapter 11
Surrogacy

“Public policy has always been that children should remain

with and be brought up by both of their natural parents.” 
J. Harvey Sorkow, In re Baby M (1988)
“The judge said Mrs. Johnson [the surrogate mother] was a
‘genetic stranger’ to the baby and did not acquire genetic
rights to claim parenthood through her surrogacy.” 
New York Times (1990)

Abstract  It has long been assumed that the woman who carried and gave birth to a
child is its legal mother, possessed of all moral and legal rights to custody. And if
she is married when she gives birth, then it is presumed in law that her husband is
the child’s father. But recent scientific and technological changes in Assisted
Reproductive Technology (also known as ART), coupled with the practice of sur-
rogacy, have led many to challenge these assumptions. We here consider the case of
a woman who gestates or gives birth to a child while serving as a surrogate for a
married couple who hired and paid her for the “job” of being inseminated with a
pre-embryo grown in vitro from their genetic contributions. The surrogate carries
the fetus to term, and she is expected to deliver the child to the couple when it is
born. If the surrogate refuses to comply, she has a long history of precedent cases
supporting her gestational claim to custody of the newborn child. In this chapter we
will discuss the normative underpinning of the principle that gives preference to the
gestational or birth mother. Why should the state prefer her to other claimants for
custody, for example, those who claim a right to the child on the grounds of their
genetic relationship to the child, or those whose claim is based on an existing con-
tract for the gestational services of a surrogate? In this discussion we will look at
several different answers from the perspective of natural law, Kantian and utilitarian
ethical theories.

© Springer International Publishing AG 2017 229

L.D. Houlgate, Philosophy, Law and the Family, AMINTAPHIL: The
Philosophical Foundations of Law and Justice 7,
DOI 10.1007/978-3-319-51121-4_11
230 11 Surrogacy

11.1  The Internal Oracle of Justice

In his 1861 essay Utilitarianism, John Stuart Mill expresses skepticism about the
oft-repeated claim that if we take “Justice” for our rule then “its application to any
given case could leave us in as little doubt as a mathematical demonstration” (Mill
54) Mill’s counter-examples to this claim include the familiar controversies over the
justice of punishment, the justice of fixing particular amounts of punishment, the
justice of giving “superior remuneration” to persons who have talent or skill, and
the justice of taking a higher percentage of taxes from those who have higher
incomes. In each case Mill shows with devastating ease that there is considerable
dispute when questions of justice are asked:
Not only have different nations and individuals different notions of justice, but in the mind
of one and the same individual, justice is not some one rule, principle, or maxim, but many
which do not always coincide in their dictates, and, in choosing between which, he is
guided either by some extraneous standard or by his own personal predilections (Mill 54).

If justice is a standard “which the mind can recognize by simple introspection of

itself, [then] it is hard to understand why that internal oracle is so ambiguous.” Why
do so many things appear both just and unjust “according to the light in which they
are regarded”? If Mill were alive today, he probably would add to his stock exam-
ples of the ambiguity of our internal oracle the controversies in family law about the
“justice” of the judicial and legislative responses to new birth technologies.
Beginning in the late Twentieth century we have witnessed several instances of
what one judge has referred to as “[the] technological fragmentation of the procre-
ative process” (In re C.K.G, 2005). There are new words and acronyms to describe
the fragmentation. Assisted Reproductive Technology (ART) is a general title for all
the technologies that help a woman to become pregnant. The most common ART
method is in vitro fertilization-embryo transfer (IVF-ET), a technology involving
surgically removing eggs from a woman’s ovaries, combining them with sperm in a
laboratory, and returning the resulting pre-embryo to the woman’s body.1 The pre-­
embryo may also be transferred to the uterus of a surrogate (another woman who
will carry and deliver the resulting child to another). Some embryos resulting from
IVF are cryopreserved: stored at sub-zero temperatures for later thawing and use.
ART has made possible the birth of thousands of babies in the U.S.A. to infertile
couples who would otherwise not have been able to have a biological child.
Cryopreservation has made family planning much easier for couples who want to
have children at a future time in their life that is more amenable for child rearing.
But these technologies are moving much faster than the law. The first set of legal
problems we shall discuss arise not from ART per se but from post-ART surrogacy
contracts in which there is a custody dispute between the surrogate mother and the
couple for whom she agreed to carry and deliver the newborn child. The second

1
 Other ART methods include gamete intrafallopian transfer (GIFT), zygote intrafallopian transfer
(ZIFT), and frozen embryo transfer (FET). http://www.sart.org/sart_assisted_reproductive_tech-
nologies/ Accessed 15 March 2016.
11.2 Two Surrogacy Cases 231

problem, to be discussed in Chap. 12, arises when there is a disagreement between

a husband and wife who file for divorce before all their frozen embryos are used.
The disagreement is about what should be done with the embryos. In both the sur-
rogacy and the cryopreservation cases “courts are increasingly faced with legal
issues for which there are no precedents” (Statsky 2013, 596).

11.2  Two Surrogacy Cases

There are two kinds of surrogacy, illustrated by the cases discussed below. The first
case (Baby M) is an example of a legal controversy arising from traditional surro-
gacy in which a woman, using her own egg, becomes pregnant for someone else.
The surrogate is gestationally and genetically related to the child because she uses
her own egg, carries and gives birth to the child. The second case (Johnson v Calvert)
illustrates a dispute arising from gestational surrogacy in which a woman, not using
her own egg, becomes pregnant for someone else.

11.2.1  In re Baby M (1987)

In one of the most highly publicized family law cases of the late twentieth century
the New Jersey Superior Court in Bergen County awarded to her biological father
sole custody of a child born pursuant to a “surrogate mother contract,” and termi-
nated the parental rights of her natural mother. William Stern, a 41-year-old bio-
chemist from Tenafly, and his wife, Elizabeth, a 41-year-old pediatrician, had agreed
to pay Mary Beth Whitehead, a married woman, $10,000 to be artificially insemi-
nated with Stern’s sperm and bear them a child. The terms of the contract stipulated
that Mrs. Whitehead agreed to relinquish all of her parental rights to and the custody
of any child conceived, and to consent to the Sterns’ adoption of any such child.
However, after the child was born, Whitehead refused the money and later refused
to surrender the infant. The Sterns were granted temporary custody of the child after
police located Mrs. Whitehead, her husband, and the baby in Florida, moving from
relative to relative.
After a lengthy trial, culminating in March 1987, Judge Harvey R.  Sorkow
awarded full custody of the infant to Mr. Stern, stripping Mary Beth Whitehead of
all legal parental rights. Sorkow ruled that the surrogacy contract was valid under
New Jersey law, and that it may specifically be enforced, because the child’s best
interests will be served by such remedy. Immediately after handing down his ruling,
Judge Sorkow conducted a private adoption ceremony, decreeing Elizabeth Stern is
the legal mother of the child. (Sorkow, Family Law Reporter p. 2019).
On February 3, 1988, the New Jersey Supreme Court unanimously overturned
most aspects of Judge Sorkow’s ruling. Surrogate motherhood contracts were held
to be illegal, the parental rights of the baby’s mother, Mary Beth Whitehead-Gould
232 11 Surrogacy

(now remarried) were restored and the order permitting Elizabeth Stern to adopt the
child was ruled invalid. The only part of the lower court judgment that remained
standing was the decision to grant custody to Mr. Stern (New Jersey Supreme Court,
New York Times, 1987, pp. 1, 14).

11.2.2  Johnson v. Calvert (1993)

Mark and Crispina Calvert, a married couple, desired to have a child, but could not
accomplish this because Crispina’s ovaries were not capable of producing eggs. In
1989, after hearing about the Calvert’s plight, Anna Johnson offered to serve as a
surrogate for the Calverts. The Calverts and Anna signed a contract providing that
an embryo created by the sperm of Mark and the egg of Crispina would be implanted
in Anna and the child born would be delivered to Mark and Crispina as “their child.”
Anna agreed that she would relinquish all parental rights to the child in favor of
Mark and Crispina. In return, Mark and Crispina would pay Anna $10,000  in a
series of installments. The embryo was implanted 4 days after the signing of the
contract.
Ultrasound tests soon disclosed that Anna was pregnant, but unfortunately, rela-
tionships between the Calverts and Anna started to deteriorate. Two months prior to
the infant’s birth, each party filed lawsuits seeking a declaration that they were legal
parents of the child. At trial, the court ruled that (1) Mark and Christina were the
child’s “genetic, biological and natural” mother and father, (2) Anna had no “paren-
tal” rights to the child, and (3) the surrogacy contract was legal and enforceable
against Anna’s claims.
The California Court of Appeal affirmed, and the Supreme Court of California
granted review. The court immediately noted that the state allows that both gesta-
tional and genetic evidence can be used to establish the existence of a parent-child
relationship. The relevant statutes do not say what a court must do when the two
kinds of evidence lead to conflicting results. In the present case, Anna is the gesta-
tional mother and Crispina is the child’s genetic mother. However, the court noted a
relevant difference between the two claimants: whereas Crispina “affirmatively
intended the birth of the child,” she never intended to donate the embryo to Anna.
Therefore, the court affirmed, declaring that Crispina is the “natural mother” (legal
mother) of the child under California law.

11.3  T
 he Biological Preference Principle and the Language
of Surrogacy

What is the justification for the traditional principle that says that the natural mother
and her husband are to be regarded as the legal parents of a newborn child? The New
Jersey Supreme Court notes that “our policy has long been that to the extent
11.3 The Biological Preference Principle and the Language of Surrogacy 233

possible, children should remain with and be brought up by both of their natural
parents.” In Baby M Judge Sorkow apparently ignored this policy, saying instead
that the only legal concepts that “attach to surrogacy arrangements are contract law
principles and parens patriae concepts for the benefit of the child.” (Sorkow, Family
Law Reporter, p. 2019). Acknowledging that an “agreement between parents is
inevitably subservient to the considerations of the best interests of the child,” he
then determined that Baby M should be placed in Stern’s custody and that specific
performance of the contract is thus appropriate; in short, Judge Sorkow suggests
that any right that a birth mother might have to a child can be weighed and balanced
against the merits and demerits of an alternative placement where a surrogate con-
tract exists. What, if anything, is wrong with this approach to child custody deci-
sions? What are the grounds for choosing a principle that gives the birth mother an
absolute right to her child rather than a doctrine that allows the presumption for the
birth mother to be overridden by such considerations as a contract and the best inter-
ests of the child?
First, we need to define the terms we will use in the remainder of this chapter. A
natural mother is a woman from whose uterus the child was gestated and born. She
is also referred to as the gestational or birth mother. A genetic parent is a person
from whose reproductive material (sperm or egg) the child was produced. A biologi-
cal parent is a person who is either a genetic parent or a natural mother or both. A
legal parent is a person on whom the law confers or imposes certain rights, privi-
leges, duties, and obligations with respect to a particular child; especially, a person
on whom the law confers the rights and obligations of custody. An intended parent
is “a person seeking to raise a child as its legal parent and who enters an agreement
with a woman to become pregnant, to give birth to a child, and then to relinquish all
parental rights to the couple, who will then adopt the child.” (Statsky, 603). A sur-
rogate contract is an agreement in writing between intended parents and a woman
who consents to become pregnant, to give birth to a child, and then to relinquish all
parental rights to the intended parents.2 Finally, a surrogate mother is any woman
who consents to the aforesaid terms of a surrogate contract.
Children born during the course of a marriage are legally presumed to be the
legitimate offspring of the married couple. To challenge this presumption success-
fully, state laws commonly require the husband to affirmatively disown the child and
present evidence in court proving beyond a reasonable doubt that he is not the genetic
father. At present there is no method by which the natural (gestational) mother can
disown a child born to her by proving to a court that she merely served as a gesta-
tional donor, carrying a fetus that genetically “belongs” to others. The assumption
has always been that the gestational mother is the legal mother of a newborn child,
and her husband is its legal father. In both the case of the natural mother and her
husband, there is the further assumption that they are the child’s genetic parents,

2
 The strong version of a surrogate contract would be one in which the terms of the contract stipu-
late that the aforesaid woman agrees to relinquish to the married couple, immediately after the
child’s birth, all parental rights to and custody of any child conceived, and to consent to the adop-
tion of any such child. A weak version of a surrogate contract would be one that provides for a
certain time period (e.g., six months) in which the natural mother could change her mind.
234 11 Surrogacy

although the husband is permitted to present evidence that will rebut this. Let us
extract from this the following principle: In a contest for custody between a biologi-
cal parent and one who has no biological relationship to the child, the state should
prefer the biological parent. That is, when deciding who shall be granted the status of
legal parent, the state should always prefer the biological parent to all other contes-
tants. I shall call this the Biological Preference Principle (BPP).
It should be noted that the word “biological” in the BPP is ambiguous. If “bio-
logical” means “gestational,” then the court in both of the previous cases should
prefer the surrogate mother. If it means “genetic” then the court should prefer Mr.
Stern and Mary Beth Whitehead in Baby M, and it should award sole custody to the
Calverts in Calvert v Johnson. If the BPP demands both a gestational and genetic
relationship between parent and child, then only Mary Beth Whitehead should have
custody of the baby. However, the BPP offers no resolution to the custody dispute
in Calvert because no party to the dispute can claim the dual relationship required
under this interpretation.
The central question we will attempt to answer in this chapter is, “Is there an
adequate justification for the BPP under either interpretation?” Answers to this
question, I shall show, involve some of the major ethical theories and illustrate, once
again, the fundamental division in philosophical ethics between natural law and
utilitarian ethical theories. But first, we need to get clear about the traditional rules
of contract law and the accompanying rules regulating recovery when a contract has
been breached.

11.4  Traditional Rules of Contract Law

The traditional view of a contract is to be found in the way that it treats legal duties.
Unlike the duty in tort to exercise due care in one’s relations with other people, all
duties under contract law are self-imposed by the individuals who create the con-
tracts. Thus, contract law did not impose on Mary Beth Whitehead or any other
woman a duty to become a surrogate mother. She had no prior duty to  become
pregnant and give the newborn child to a couple who have told her that they will pay
her $10,000 to be artificially impregnated with the husband’s sperm. But she does
have the power to impose a duty on herself by entering into a legally binding con-
tract with a couple for this purpose.
The second feature of contract law is that the traditional rule for recovery when
there is a breach of a contract says that the person who reneged on their obligation
(the contractor) should be required to give to the other (the contractee) an amount
that would leave them as well off as if they had kept the contract. This is quite dif-
ferent than the rule for recovery in tort which says that the negligent person who
caused the injury has a duty to give to the victim an amount that reflects the actual
harm done. In the previous example, if there is a breach of the contract by the sur-
rogate mother (she does not hand over the newborn to the married couple), then she
must return to them any money they had paid for her service. If the couple breaches
11.5 Natural Law 235

the contract by failing to pay for the surrogate’s services during her pregnancy, then
they can be made to pay the $10,000, as promised. This amount would restore the
surrogate to the position she would have been in if not for the breach.
But what happens if the couple pays the $10,000 but also decide that they no
longer want to raise this child because it has a physical deformity. They refuse to
take the infant. Where does this leave the surrogate mother? How does the court
restore her to a position she would have been in if not for the breach? Suppose the
surrogate insists that the position she would have been in means “no child” (in addi-
tion to receiving the $10,000 promised for her services)? If she decides to keep the
child, the expenses she will incur for raising the child until it reaches the age of
maturity will be far more than $10,000.3 Should the couple who reneged on the
contract be made to pay this amount? The traditional view on recovery gives no
clear answer, although it appears to ignore actual damages suffered by the surrogate
mother.
Rules of recovery are not set in stone. Self-imposed obligations should not be
seen as the only basis of contract law. The obligations we find in the common law
contain considerations of social policy that have been used by the courts as alterna-
tive rules for recovery when a contract is breached (Altman 2001, 121). One of these
alternatives is reliance-based. This means that a way of measuring damages is to
consider the costs or the harm suffered by the victim of the breach as a result of his
or her reliance on the contract.4 In the preceding example, the woman who agreed
to be a surrogate relied on the couple for whom she gave birth to a child to not only
pay her $10,000 but to also take the (special needs) newborn into their custody. As
noted above, if she keeps the child instead of putting it up for adoption, then the
costs of child rearing will be considerable. It would be unjust to require her to
assume these costs without her having consented to this. She would not have done
this had she known that there was a possibility that the couple might renege. Social
policy, it can be argued, should always rest on the bedrock of social justice. Let us
now look at what philosophers of law might instruct us about how social policy
should inform the construction of laws regulating or even forbidding the practice of
surrogacy.

11.5  Natural Law

In Chap. 2 we used John Locke’s writings about parental power as an example of a

natural law approach to evaluating the validity and content of the positive law of fam-
ily relationships (Sect. 2.3.1). Although Locke had much to say about the obligations

3
 A middle-income family with a child born in 2013 can expect to spend about $245,340 ($304,480
adjusted for projected inflation*) for food, housing, childcare and education, and other child-rear-
ing expenses up to age 18. This does not include the cost of raising a special needs child, nor does
it include the cost of a higher education. United States Department of Agriculture (2013).
4
 In this respect, reliance-based damages “are like the damages given the victim of tortious conduct
such as negligence” (Altman, 122).
236 11 Surrogacy

of a parent to a young child who had not yet reached the age of maturity, he never
considers the question whether biological parents have a moral right to the sole cus-
tody of their newborn children. Locke would undoubtedly respond affirmatively to
this question, but there is no text to support this. Hence, we will have to construct an
argument from other sources in Locke’s writings.
An argument for the BPP using Locke’s famous remarks about private property
is one possibility. Thus, it might be argued that since the male sperm and the female
egg are, respectively, part of the man’s and the woman’s body, then nobody but they
have the right to a child that results from the union of sperm and egg, the product of
their genetic material. Second, another possibility is to focus on gestation. The
woman who bears (gestates) the child in a normal case of insemination and gesta-
tion can argue that since she has done the “work” or “labor” of carrying the fetus for
the nine-month gestation, she has a right to it once it is born. The notion of labor
refers primarily to in utero nurture. At the time of birth, only the birth mother can
claim that it is her body that has nurtured the fetus until its birth. This would be a
parallel to Locke’s famous argument about establishing property rights: since peo-
ple have property in their bodies and their labor is also their property, then anything
with which they mix their labor becomes their private property (Locke 1983, Ch.
IV). The parallel is this: since the gestational mother provides the fertilized egg the
place to develop and grow (her body has nurtured the fetus), then she has a right to
the fetus and the newborn that results from this development, either because such a
right derives from her prior property rights in the product of her body and its labor;
or because such rights are required, in justice, as a return for her labor.
This Lockean argument appears to support the Biological Preference Principle
but only when the biological relationship between parents and child is gestational.
Merely providing the genetic material that leads to the existence of an embryo as its
product is not sufficient to make the embryo one’s property. Thus, if I give you the
seed to grow a plant and you subsequently dig a hole, plant and grow a vegetable,
the vegetable is the product of your labor. It thereby becomes your property, not
mine. By analogy, if a man provides the sperm to inseminate a woman to whom he
is not married, the Lockean property argument does not support a claim that he
might make for custody of the child.
There are two problems with the Lockean natural rights justification of BPP. First,
the argument fails to establish that there is any necessary connection between biol-
ogy and rights. Imagine a society in which tasks are divided between child
­procreators and child-rearers because of genetic traits that make persons unsuitable
for one or the other tasks. In this society persons who are fertile have a hormone that
causes them to be violent toward children immediately after birth; the infertile per-
sons have no such hormone. There is surely no contradiction in holding that those
who procreate in this society should not be given custody of the children they beget.
Hence, having a biological relationship to a child is not sufficient to establish that
one ought to be given the rights of custody.
There is a second and perhaps more serious difficulty with the natural rights
approach. The theory gives us no plausible way of deciding between situations in
which there is a conflict of rights. Suppose that a non-biological contestant for the
11.6 Utilitarian Concerns 237

custody of a particular child has entered into a contract with one of its biological
parents for the custody of their child once it is born. According to natural rights
theory, each person is free to act as he or she chooses, as long as the rights of others
are respected. It follows that contracts for the sale of sperm or for the rental of a
womb pose no special problems, if both parties agree. Adults who enter into such
agreements are seen as free, contracting individuals. Each has a duty to the other to
keep the terms of the agreement. Even if it is established that the genetic material
donor or the gestational donor have rights to the child, if they freely entered into a
contract with another for the custody of the child after it is born, they have “alien-
ated” any right that they initially had to the child. If someone argues that gestational
(or surrogate) mother contracts should not be honored because no one can alienate
their natural right to their own biological product, they simply beg the question.
That question is whether the (natural) right to enter into contracts with others takes
precedence over the (natural) right (if there is such a right) to the biological product
of one’s own body. To this question, natural rights theory provides no plausible
answer. In the language of John Stuart Mill, our internal oracle of justice provides
only ambiguity.

11.6  Utilitarian Concerns

An interesting feature of the natural rights argument is the claim that custody rights
are an “essential” feature of one’s biological relationship to a child. That is, one’s
status as a biological parent entails the inherent right to power over that child. And
yet the argument fails to make clear how the normative relation of custody follows
from the genetic and gestational connection between biological parent and child.
How do biological facts about procreation logically entail moral and legal conclu-
sions about custody rights?
Utilitarians attempt to make this connection by reference to the attainment and
maximizing of goods; yet they often differ over what good results should be empha-
sized. Some will emphasize the good of individual family members (for example,
the best interests of the child, or the good of the biological parents), whereas others
will emphasize general good consequences (such as the good of the community or
the state).

11.6.1  Best Interests of the Newborn Child

When the good of specific individuals is stressed in making decisions about the
initial placement of a child at birth, there may be a dispute between utilitarians over
whose interests should be of dominant concern. If the interests of the child are
dominant, decisions about the child’s custody are made solely in terms of advancing
his or her interests. In divorce child custody disputes between two biological parents
238 11 Surrogacy

the court must take multiple factors into consideration prior to making a custody
determination: parental stability in living arrangement, schooling, access to rela-
tives and friends; availability to spend time with the child; existing emotional rela-
tionships; parental career choice; actual or threatened abuse of one member of a
family by another member. Some of these factors will not be relevant to a dispute
over whether a biological or surrogate parent will prevail (for example, existing
emotional relationships). Other factors will be of primary concerns. For example,
let us assume that the sole interest of a child in being placed with a particular adult
who will serve as his custodian is in not being abused or neglected. That is, custody
will be granted only to those who are not potential child-abusers. Biological rela-
tionships will be relevant, but only to the question whether this is a predictor of
future abusive behavior toward the child. In this regard, the biological parent might
be in a worse position for custody than others. There is evidence that biological
parents are five times more likely to abuse their children than non-biological, adop-
tive parents (LaFollette 1981, 194).
Of course, children have interests other than freedom from neglect and abuse.
Recent child psychology has identified the child’s perception of being loved and
wanted as a crucial factor in his or her present and future psychological develop-
ment (Goldstein et al. 1973, 17). If it can be established that biological parents are
also psychological parents, that is, that they are more likely than other candidates
for initial custody rights to rear the child in such a way that the child feels both loved
and wanted, then there is at least a prima facie case for making the biological parent
the legal parent. And yet there seems to be no evidence to support this claim. Of
course, most biological parents can be expected to feel affection for and desire the
healthy development of their children. But this does not prove that non-biological
custodians do not derive as much satisfaction from rearing children as do biological
parents, nor does it establish that children reared by non-biological custodians do
not feel as loved and wanted by them as do children reared by their genetic and
gestational parents (Purdy 1987, 39).5
It follows from the above considerations that a utilitarian argument based entirely
on the best interests of the child cannot establish that initial placement of a child at
birth should be with the biological parents. There is no evidence that the child is at
less risk of being abused and neglected by the biological parents than other possible
candidates for custodian, and there is no evidence that the newborn child has a
greater chance of receiving love and a feeling of being wanted from the biological
parents than from other persons.

5
 It should be stressed at this point that in a custody dispute between a biological parent and a psy-
chological parent the determining test in most states is whether the biological parent is unfit, not
whether it is in the best interests of the child to have the biological as his or her parent. “Unfit”
means that the parent has been abusive or neglectful. If it is determined that the biological parent
is not unfit, then they will be awarded custody even if it is in the child’s best interests to be placed
with the psychological parent (Statsky, 253).
11.6 Utilitarian Concerns 239

11.6.2  Interests of Parents and State

Let us turn now to a consideration of the interests of those persons who are candi-
dates for the role of child custodian. If we restrict our attention to their interests, can
we arrive at a criterion that will guide the state in making custody decisions when a
child is born? In particular, is there any reason to prefer the child’s biological par-
ents to other persons who would like to have custody of the child?
Both biological and non-biological candidates for child custodian may have cer-
tain economic and psychological interests in common. Thus, both may hope that the
child they rear will provide support in the parent’s old age. Perhaps more important,
the child will provide a new bond of love for the child-rearer, and will return the
love that he or she gives to the child. Some benefits of child rearing, however, can
be realized only through rearing one’s own biological child. These are satisfactions
realized through rearing a member of one’s own bloodline, or achieving a kind of
immortality by having one’s genetic type persist through the child and his or her
descendants. These may be irrational desires, but they appear to be quite common.
In addition, according to some child psychologists, the satisfaction of raising one’s
own biological child is a form of the natural parent’s self-love. “Normally the physi-
cal facts of having begotten a child or given birth to it have far-reaching psychologi-
cal meaning for the parents as confirmation of their respective sexual identities,
their potency and intactness.”6 Biological parents have a psychological investment
in rearing their own children that is not present in the non-biological parent. This
does not mean that non-biological parents are not interested in or are not pleased by
the healthy development of their adopted children. It means only that they do not
receive the same kind of satisfaction that is received by the biological parent.
Finally, there is an argument based entirely on the interests of the child’s gesta-
tional parents. This argument was presented in Chap. 3 when we used H.L.A. Hart’s
suggestion to look for a “simple truism” about human nature that would make it
contingently necessary to have a rule assigning presumptive custody of a newborn
child to its biological parents (Sect. 3.7.3). One writer has argued that a gestational
mother has “contributed more of herself” and therefore has a “greater biological
investment and interest in” the child who has developed in her womb than any other
person who might wish to be the child’s custodian.7 This is the “simple truism” about
which utilitarians should be sensitive in constructing moral rules and laws regarding
child custody. Rules and laws regarding child custody should have a minimum con-
tent based on these truisms. One truism is that all newborns require protection and
care. They are helpless at birth and from years beyond birth. The other truism is that
“during pregnancy many  – perhaps most –expectant parents form a poignantly
embodied, but also emotional, intimate relationship with their fetus,” a bond estab-
lished during the lengthy period that the fetus is in utero” (Gaeus, 2012, 444). Indeed,

 Ibid., p. 17.
6

 George J. Annas, “Redefining Parenthood and Protecting Embryos: Why We Need New Laws,”
7

Hastings Center Report, October 1984, 51.

240 11 Surrogacy

gestational mothers and their partners are known to move through a grieving period
when they give over the child to a donee parent in much the same way that parents
mourn the loss of a child who dies at birth. We should be aware of these maternal and
paternal interests and take account of them when we do our utility calculations.
We have, then, strong utilitarian reasons for allocating rights of custody of a
child at birth to its gestational parents. The argument is based entirely on the pecu-
liar interests of these parents in rearing their own children, not on any interest of the
children. It should be noted that the argument derives most of its force from its
appeal to the interest of the birth mother (gestational parent), for only she can refer
to herself as the nurture-parent at birth.8 Nonetheless, it is clear that birth mothers
and their partners would undoubtedly experience more happiness and far less mis-
ery under a system that grants them custody of their own children than (say) under
a system that awards custody solely on the basis of what candidate for custodian is
most likely to promote the best interests of the child. Although the former system
may produce less aggregate happiness in those persons who would have enjoyed
rearing a child awarded to its biological parent, the amount would (on balance) be a
great deal less than the amount of unhappiness that would be produced under the
latter system. Finally, the utilitarian argument in favor of the BPP becomes much
stronger once we realize that any other basis for determining the custody of children
at birth would put excessive discretionary power over everyone’s lives in the hands
of the state. For example, if we decide to place children on the basis of the child’s
“best interests,” then the vagueness of this criterion would permit decision-makers
to make custody determinations that would inevitably lead to conflict and dispute
between claimants. The problems that we now see in custody disputes between
divorcing parents would be replicated every time a child is born.

11.7  Exceptions to the Biological Preference Principle

Should the presumption in favor of awarding custody of a child at birth to its natural
mother and her husband be “conclusive and irrebuttable” (Annas 1984, 51) or
should we allow it to be overridden under certain carefully defined conditions, for
example, by evidence that the natural mother had entered into a surrogate
contract?
The arguments in the preceding sections give us a fairly strong utilitarian basis
for BPP. However, these arguments establish a conditional rather than an absolute
right of a birth mother and her husband to the child at the time of its birth. The bio-
logical parents are not to be awarded custody of the child under any and all condi-
tions, for in some cases the parents may not be able properly to care for the child

8
 I owe this observation to Professor Sara Ann Ketchum, who has written two excellent, unpub-
lished papers on surrogate motherhood: “Selling Babies and Selling Bodies: Surrogate Motherhood
and the Problem of Commodification” and “New Reproductive Technologies and the Definition of
Parenthood: A Feminist Perspective.”
11.7 Exceptions to the Biological Preference Principle 241

(for example, the parent is too young or is mentally defective) and thus will not
fulfill the role of nurture-parents. Consequently, the BPP should stipulate that bio-
logical parents should be awarded initial custody of their child at birth only if they
meet certain minimal standards of child rearing. These standards will stipulate that
the birth mother and her husband (if she is married) can be predicted to be nurture-­
parents to the newborn child. The burden for establishing that this cannot be pre-
dicted shall be placed on the state. This conditional right is all that can be supported
by the utilitarian argument. The important question, to which I now turn, is whether
the existence of a surrogate contract should be allowed to provide an additional fac-
tor that will override the presumption in favor of the BPP.
If we generalize from Judge Sorkow’s ruling in the lower court decision about
Baby M, the result is that the gestational mother is the legal mother of the newborn
child unless she has entered into a properly executed surrogate contract.9 Perhaps
the strongest argument for permitting this modification to current law is that it gives
childless couples a lawful means, other than adoption, to acquire children. Infertile
couples will benefit most from this type of reproduction. They will now have an
opportunity to have a child that is in part genetically theirs, an opportunity hereto-
fore available only to fertile couples. Moreover, we provide women who wish to aid
infertile couples the legal means to achieve this goal through recognition of their
contractual relationship. In this way, both the gestational donors and the infertile
couples are able to achieve individual goals and to make predictions about the future
(such as who will have custody of the child) that are more accurate than the predic-
tions they would be able to make if such contracts were declared invalid and unen-
forceable. The ability to make accurate predictions about the future provides another
(utilitarian) argument for regulating (and thus legalizing) surrogate contracts. Judge
Sorkow noted that with an increasing number of surrogate births, legislation would
prevent a great deal of future harm to society, the family and the child.
Some of the issues that need legislative [action] are: establishing the standards for sperm
donors, legitimacy of the child, rights of the biological father’s spouse, rights of the biologi-
cal mother’s spouse, rights of the two biological actors as to each other and to the child,
qualifications for the surrogate, [whether] compensation to the surrogate is to be allowed,
concerns regarding the imperfect child. Many questions must be answered; [and] answers
must come from legislation. If there is no law then society will suffer the negative aspects
of this alternative reproduction vehicle that appears to hold out so much hope to the child-
less, who make up a substantial segment of our society (Family Law Reporter, p. 2019).

It has been argued in rebuttal that “there is no need for state legislatures to rush
to adopt measures to make this practice [surrogacy] any easier.” (Capron, sec. H). If
we leave things as they are—with the traditional rule that a woman who bears a
child is presumed to be its legal mother—then the status quo will create uncertainty
in the minds of those infertile couples that wish to hire a surrogate. “The element of
uncertainty that the traditional rule had created for surrogacy contracts may well

9
 As of 2010 approximately 16 states had laws regulating surrogate motherhood. Most states are
either silent about it or they explicitly refuse to recognize surrogacy contracts http://www.thesur-
rogacyexperience.com/surrogate-mothers/the-law/u-s-surrogacy-law-by-state/
242 11 Surrogacy

discourage people from entering into them, which in my view, is all to the good.”
(Capron, id.). It is interesting that the author of the preceding remark makes no
attempt to rebut Judge Sorkow’s suggestion, quoted above, that state regulation of
surrogate contracts could head off the harmful consequences of private, unregulated
contracts. These consequences might be disputes of the kind that we have witnessed
in the Baby M case, disputes over the custody of a newborn who is born mentally or
physically defective, or future disputes between the child and all parties to the sur-
rogate contract over the child’s inheritance rights.
The final utilitarian argument for making a surrogate mother contract an excep-
tion to the BPP is an argument from the utility of giving persons as much freedom
to enter into contractual relationships with others as is consistent with social wel-
fare. The argument is similar to pro-choice arguments in the abortion debate that
begin with the premise that a woman has the right to do as she wishes with her own
body. She can only be prohibited by law from doing those acts that would cause
harm to others, but “over herself, over her own body and mind, a woman is sover-
eign” (paraphrasing Mill 1979, Ch. IV). The state cannot prohibit a woman from
entering into a surrogate contract on the grounds that it thinks that such decisions
are unwise or even immoral. This would be paternalistic interference with a wom-
an’s liberty, and all such interference, utilitarians argue, produces more misery in
the long run than happiness. The only question that a utilitarian will allow us to
entertain is whether such practices are truly voluntary and whether they involve
harm to others, for example, harm to the children born of surrogacy contracts. If we
can settle these questions in the negative, then there is no justification for state inter-
ference. The rationale is to be found in the high utility value of maximizing a per-
son’s opportunity to exercise her liberty. The freedom to contract with a married
couple to serve as a surrogate mother, like the freedom to use artificial methods of
contraception and the freedom to choose whether to have an abortion, can be viewed
as just another example of a woman’s attempt to gain the right to do as she wishes
with her own body.
If this much good can be achieved through legal recognition of surrogate mother
contracts, then why not permit them; that is, why not allow the existence of a
­surrogate mother contract to provide an additional factor that will to allowed to
defeat the presumption in favor of the BPP? There are two remarkably different
answers to this question, one based on utilitarian factors not yet mentioned, the
other based on Kantian concerns about the moral prohibition on “selling babies and
selling bodies.”

11.8  Utilitarian Objections to Surrogate Mother Contracts

Utilitarians who have thought about reproductive technologies list a number of evils
that, they claim, are or will be produced by the general practice of hiring women to
serve as surrogate mothers. They fall into three categories: harm to the natural or
11.8 Utilitarian Objections to Surrogate Mother Contracts 243

surrogate mother, harm to the infant, and harm to third parties. I shall here consider
only the first two categories.10
First in line is the argument that the gestational mother will be exploited. Lower-
and middle-class women will bear most of the burden of surrogacy, for it is they
who will sign such contracts out of economic necessity. Judge Sorkow’s reply was
that “the surrogate has an opportunity to consult, take advice and consider her act
and is not forced into the relationship.” (Sorkow 2019). The fact that one performs
a service out of economic necessitude does not mean that one is exploited. A woman
is exploited only if she has no reasonable alternative to performing the type of
wage-earning labor that she has chosen to perform. In fact, many of those women
who enter into surrogate contracts report that they perform this service to help infer-
tile couples, not to make money, and those who do it for the money have options that
offer far better working conditions and a higher wage.
Another bad effect of surrogate mother contracts involving the natural mother is
that she may suffer emotionally from the act of giving up her infant. Most women
become nurture parents during their pregnancy; that is, they become emotionally
attached to the fetus they are carrying, and they will suffer more psychological
stress from giving up the newborn than would any other potential custodian of the
child, including the male sperm donor, upon learning that they will not be allowed
to adopt it. Although the psychological “investment” of the gestational parent in her
newborn is the factor I have singled out as tipping the scales in favor of the BPP, we
do not yet have sufficient empirical data on matters such as the amount of psycho-
logical stress that would be suffered by a surrogate mother required to honor her
contract and hand over her newborn, how long her anguish can be expected to last,
and the effect that this might have on her future psychological health. And yet this
is precisely the sort of information we need if we are to do the sort of “balancing”
of good and bad consequences of surrogate mother contracts required by the prin-
ciple of utility. Finally, it is important to realize that less than 1 percent of surrogate
mothers have changed their minds about giving up the child to the sperm donor.
Although additional facts may persuade us to modify surrogate contracts to provide
for a period in which the birth mother could change her mind, one wonders whether
the entire justification for this modification should rest on our desire to satisfy the
emotional needs of such a small number of women.
Will the newborn child suffer any short- or long-term harm from being the object
of a valid surrogate mother contract? As indicated above, there is no empirical basis
for concluding that a child will be any better off being raised by its gestational
mother than by non-biological custodians. What does appear to be crucial to a
child’s development is that the child perceives that he or she is loved and wanted by

10
 Third parties who might be harmed include other children of the surrogate. “How secure can they
feel when they learn that their brother or sister has been traded for $10,000? If the price is right,
are they for sale, too? Conversely, might the situation breed resentment in some children that they
weren’t taken from their family and adopted by other, more affluent, parents?” (Capron, op. cit.,
p. 5). Since the author presents no evidence to support a claim that there is psychological harm of
either type suggested (insecurity, resentment), it would be presumptuous to make his queries into
data for utility calculations.
244 11 Surrogacy

at least one adult on a continuous basis during the formative years. The evidence
that we have from the long history of adoption shows that this can be accomplished
by adoptive parents as well as by the child’s natural mother and her husband.

11.9  Kantian Objections: Selling Babies and Renting Bodies

The preceding discussion would be regarded as largely irrelevant to one group of

philosophers. Those who adhere to Kantian principles, as these are stated in various
versions of the Second Formulation of the Categorical Imperative, contend that
commercializing reproduction is morally objectionable, not because of its conse-
quences in terms of social or individual harm, but because it involves treating peo-
ple as means rather than as ends, as objects rather than as persons (Kant 1959, pt.
II). Utilitarian considerations are as out of place here as they would be in discus-
sions about the morality of baby selling. According to the Kantian, the sale of an
infant is wrong because this involves treating the newborn as a mere commodity and
this is also why we should think that a contract to gestate and hand over a newborn
at birth to its genetic father cannot be permitted.
There are two ways of avoiding the Kantian objection. First, we can admit that it
is wrong to sell babies but deny that surrogate mother contracts are contracts to sell
babies. This is what Judge Sorkow did. He contended that the $10,000 that the
Sterns paid to Mary Beth Whitehead was payment for her services, not payment for
the baby. “The money to be paid to the surrogate is not being paid for the surrender
of the child to the father… The biological father pays the surrogate for her willing-
ness to be impregnated and carry his child to term. At birth, the father does not
purchase the child. It is his own biological genetically related child. He cannot pur-
chase what is already his” (Sorkow 2017–2018).
Judge Sorkow begs the question when he writes that the child whose custody Mr.
Stern is vying for “is already his.” Baby M is the child of William Stern only in the
sense that she is his genetic product, but not in the sense that he is the legal parent
of the child; it is up to the court to determine the latter relationship. Judge Sorkow
cannot assume the conclusion that he is to determine in his ruling.

11.9.1  Selling Babies

The New Jersey Supreme Court rejected Judge Sorkow’s attempt to classify the sur-
rogate mother contract as a contract for services, contending instead that “this is the
sale of a child, or at the very least, the sale of a mother’s right to her child, the only
mitigating factor being that one of the purchasers is the father” (2014). It is not clear
to me from reading the decision in this case whether the New Jersey Supreme Court
would employ the Kantian objection to baby-selling. Let us suppose that it does. Is
the Kantian argument sound? Should we object to baby- selling, and thus to
11.9 Kantian Objections: Selling Babies and Renting Bodies 245

surrogate mother contracts, on the (Kantian) ground that this involves treating the
infant as a mere object instead of as a person?
The answer to this question is negative. First, if what makes it wrong to give up
a child under the provisions of a surrogate contract is that this involves treating the
infant as an object, then it must also be wrong voluntarily to relinquish one’s cus-
tody rights to a child under any circumstances whatever. A woman who gives up her
newborn child for adoption because she does not want to interrupt her career can
also be accused of treating it as an object. This may be a conclusion that some may
wish to embrace, but I can discern no rush to legally prohibit the practice of volun-
tary relinquishment of parental rights. But, second, we reach this unsatisfactory
conclusion because of the vagueness of the phrases “treating as a person” and “treat-
ing as an object.” Under the ordinary interpretation of these phrases, it is logically
impossible to treat an infant as a person. For Kant, a person is a moral agent, one
who possesses an autonomous will. This means that one has the capacity to formu-
late purposes, plans, and policies of his own and to carry out his decisions without
undue reliance on the help of others. Since newborns do not possess an autonomous
will, they cannot be conceived of as moral agents or persons (Houlgate 1980, 50,
52). Therefore, the failure to treat a newborn as a person cannot be what is wrong
with the sale of an infant; and if a surrogate contract is the sale of an infant, this
cannot be what is wrong with surrogate contracts. We must look elsewhere than to
Kantian ethics if we wish to find a moral objection to these practices.

11.9.2  Renting Bodies

Although, as mentioned above, Judge Sorkow begs the question when he writes that
because the infant is the product of William Stern’s sperm it is “already his,” I find
that it is certainly logically possible to conceive of a surrogate mother contract as a
contract for services. The woman who agrees to be a gestational mother contracts
for the use of her womb for a nine-month period, and although she (usually) pro-
vides some of the material (the egg) from which the infant is produced, it is still the
case that she has contracted to perform the service of gestation. Consider the follow-
ing analogy. If a woman contracts to rent her garage so that someone can grow
orchids therein with the understanding that he (not she) keeps the orchids when they
are grown, the contract is not for the sale of orchids, even if she has donated some
of the materials used in growing them.
The difference between the surrogate contract and the orchids-in-the-garage case
is that in the former case the birth mother is presumed in law to be the legal parent
of the child. Hence, the “services” that she provides to the sperm donor can only be
accomplished when she signs over her right to the child. It is this act of assigning
her rights that makes the case look more like baby selling than mere womb rental.
However, this is to miss the point of what is wanted by those who are attempting to
achieve legal recognition of surrogate contracts. If surrogate contracts are declared
to be legally enforceable then according to the agreement between contracting par-
246 11 Surrogacy

ents and the surrogate mother, the contracting parents (the sperm donor and his
wife) are to be considered in law as the child’s parents from the moment of its birth.
In this case, there would be no need for the surrogate to “sign away” the child to
those for whom she has provided the service.
As far as I can tell, there is no logically decisive reason for refusing to think of
surrogate contracts as contracts for services. But this does not mean that there is an
end to the Kantian objection. A consistent Kantian is not only morally compelled to
object to the practice of selling babies, but she will also press objections to legal
recognition of any practice that involves “renting” one’s body or a part of one’s
body to another. The argument is that to rent one’s body to another is to treat one’s
body as part of another person’s domain by granting the other rights to one’s body.
Thus, by signing a surrogate contract, Mary Beth Whitehead had granted William
Stern the right to the use of her womb for a nine-month period so that he could
“grow” a child therein. But, according to the Kantian, to treat one’s body as a part
of the domain of another is to treat oneself as less than a person and this is in itself
morally wrong. Hence, the Kantian would object to the surrogate mother “service”
contract on grounds identical to those she would use to object to voluntary slavery
contracts. A person, a being with a rational will, cannot alienate one’s own auton-
omy, for it is autonomy that serves as the defining condition of personhood.
But once again the Kantian argument fails. There may be grounds for objecting
to surrogate “womb rental” contracts, but they cannot be those of the argument just
noted. First, the phrase “treating oneself as a person” is intolerably vague. The con-
trast is usually made with the equally vague phrase “treating oneself as merely a
means.” Suppose that I sign a contract to pose as a model for a painter or a photog-
rapher. The contract is for a nine-month period. The painter or photographer has the
right to the limited use of my body for several hours a day, placing me in different
poses, requiring that I maintain that pose for long periods, and perhaps even requir-
ing that I maintain a certain diet and exercise program during this period so that I
maintain the appropriate body tone. I assume that none of us would see anything
morally objectionable about this agreement, so long as we are assured that my con-
sent was voluntary and informed. It is not entirely clear to me, however, that the
Kantian could reach this conclusion given the criteria already used to condemn a
surrogate “service” contract. According to the Kantian, by renting my body to the
painter/photographer I am treating my body as part of his or her domain; I am giving
her a right to the use of my body and thus I am treating myself as less than a
person.
I conclude, then, that unless the Kantian can give us an alternative interpretation
of the phrase “treat oneself as a person,” the argument sweeps much too broadly,
compelling one to condemn not only the practice of women using their bodies to
produce babies for others but also using their bodies for any commercial purpose
whatever. The reason that I think most Kantians would not want their arguments to
sweep this broadly is because of another Kantian concern, namely autonomy, a
value that is extolled even more highly by them than it is by the utilitarian. The
reason that a Kantian would regard it as impermissible to prohibit a person from
contracting with another for the limited use of his or her body (say, as a model) for
11.9 Kantian Objections: Selling Babies and Renting Bodies 247

a certain period of time is that this would place the state in the uncomfortable posi-
tion of paternalistically declaring that it (the state) knows what is good for women
better than they know this themselves. Even if the state is omniscient with respect to
the interests of its citizens, the Kantian would object that as persons we have funda-
mental autonomy rights, especially the right to make self-regarding decisions (deci-
sions that concern only ourselves), even where such decisions might be thought to
be foolish, risky, or would be characterized as decisions that involve treating our-
selves “as part of another’s domain.” I conclude that a Kantian cannot consistently
condemn surrogate contracts where such agreements are considered as contracts for
services on the ground that they imply or involve the practice of a woman treating
oneself as less than a person. Again: there may be good reasons for prohibiting such
contracts, but they cannot be the reasons produced by the Kantian.
Questions for Thought and Discussion
1. In Baby M, the surrogate mother who gave birth to the child had a genetic rela-
tionship to the child. In other cases, the surrogate mother had no genetic relation-
ship to the child she was carrying. (She was a “genetic stranger” to the newborn
child). Should the biological relationship of the surrogate mother to the newborn
have any relevance to settling a dispute over custody between the surrogate
mother and the couple with whom she had a surrogacy contract? Why?
2. Is there a natural right to have a child? Is this an absolute right or does it have
exceptions (for example, can a person procreate as many children as he/she
wants or should there be a limit placed on the number of children any one person
or couple can have? What kind of persons should we not allow to procreate?
Why?)
3. Some of those opposed to surrogacy contracts have argued that they violate basic
moral principles involving exploitation of women, the selling of children, and
the rental of a woman’s body. Are any of these arguments sound? Should surro-
gacy contracts be completely banned? If not, what kind of regulation is needed?
4. John and Mary are a married couple who plan to have three children after both
finish college and start their careers. They want to space the birth of each child at
least two years apart. Should any limits be placed on the means they use to do
this? For example, should they be allowed to use artificial contraception devices
or pills? Should they be allowed to use the “morning after” pill? Should they be
allowed to use abortion as a method of birth control?
5. How should the courts determine damages when surrogacy contracts are

breached by a couple who try to back out of a contract with the birth mother
when it is discovered that the newborn has a serious birth defect? Should the
couple pay all of the costs of raising the child until it reaches the age of 18?
Explain.
248 11 Surrogacy

References

Altman, Andrew. 2001. Arguing About Law. 2nd ed. Belmont: Wadsworth.
Annas, George J. 1984. Redefining Parenthood and Protecting Embryos: Why we Need New Laws.
October: Hastings Center Report.
New Jersey Supreme Court. 1988. Decision in In re Baby M. New York Times, Feb 4.
Department of Agriculture. 2013. Parents Projected to Spend $245,340 to Raise a Child Born in
2013. Press Release No. 0179.14. http://www.usda.gov/wps/portal/usda/
usdahome?contentid=2014/08/0179.xml&contentidonly=true Accessed 11 Oct 2016.
Gheaus, Anca. 2012. The Right to Parent One’s Biological Baby. The Journal of Political
Philosophy 20(4): 432–455.
Goldstein, J., et al. 1973. Beyond the Best Interests of the Child. New York: Free Press.
Houlgate, Laurence D. 1980. The Child and the State. Baltimore: Johns Hopkins University Press.
In re Baby M. 217 N.J. Super. 313 (1987), 525 A.2d 1128.
In re C.K.G. 173 S.W. 3d 714, 721 (Tenn. 2005).
Johnson v Calvert. 5 Cal. 4th, 84, 81 P.2d776, 19 Cal. Rptr. 2d 494 (1993)
Kant, Immanuel. 1959. Foundations of the Metaphysics of Morals, Lewis White Beck. Trans.
New York: Liberal Arts Press. First published in 1785.
LaFollette, Hugh. 1981. Licensing Parents. Philosophy and Public Affairs.
Locke, John. 1983. McPherson, ed. Second Treatise of Government. Indianapolis: Hackett. First
published in 1690.
Mill, John Stuart. 1979. On Liberty. Indianapolis Hackett. First published in 1861.
Purdy, Laura M. 1987. The Morality of the New Reproductive Technologies. Winter: Journal of
Social Philosophy.
Sorkow, Judge Harvey M. 1987. In re Baby M, Family Law Reporter. April 7, vol. 13.
Statsky, William P. 2013. Family Law: The Essentials. 3rd ed. Stamford: Cengage Learning.
Chapter 12
Frozen Embryos

“We would not enforce an agreement that would compel one

donor to become a parent against his or her will … forced
procreation is not an area amenable to judicial enforcement.”  
J. A. D’Annunzio M.B. v J.B. (2000)
“An in vitro fertilized human ovum exists as a juridical person.” 
Louisiana Health Law LA-RS 9 §121 (1986)

Abstract  The philosophical and normative questions raised in this chapter are
raised in disputes between divorcing couples over the disposition of previously fro-
zen embryos stored in a cryopreservation facility for future use. We examine several
court cases in which judges have made explicit and implicit references to rights and
interests: for example, a person’s right to procreate, a right not to procreate and the
interests of future persons. We will discuss whether these concerns might lead to
legislation placing justifiable limits on relevant pre-divorce contracts created before
decisions are made about in-vitro fertilization and storage.

12.1  Divorce and Cryopreserved Embryos

In the previous chapter we discussed the first of two normative problems arising
from Assisted Reproductive Technology. The second problem emerged after the
invention and use of cryopreservation technology. Cryopreservation is generally
defined as “the process of cooling and storing cells, tissues, or organs at very low
temperatures to maintain their viability.” In the cases to be discussed below, pre-­
embryos have been cooled and stored at a temperature below the freezing point.
This permits high rates of survivability of the embryos upon thawing. The norma-
tive problems occur when there is a disagreement between a husband and wife who
file for divorce before all their frozen embryos are used. Their disagreement is about
the final disposition of the embryos.

© Springer International Publishing AG 2017 249

L.D. Houlgate, Philosophy, Law and the Family, AMINTAPHIL: The
Philosophical Foundations of Law and Justice 7,
DOI 10.1007/978-3-319-51121-4_12
250 12  Frozen Embryos

In a series of cases over the past few years, state supreme courts in Tennessee,
New  York, Massachusetts, and New Jersey have made groundbreaking decisions
settling disputes between divorcing couples over the custody and disposition of fro-
zen embryos. When the frozen embryo cases first came before the state courts there
were no relevant statutes and no previous cases on which judges could rely in devel-
oping arguments for their decisions. Hence, as so often happens in these situations,
the courts fell back on time-tested political and/or moral considerations to reach
their conclusions. These are often disguised as principles of social or public policy.
And it is here where Mill’s warning about our dependence on an “internal oracle of
justice” is relevant (Sect. 11.1). Absent statutory law and precedent, is it possible to
provide non-arbitrary reasons for awarding custody of frozen embryos to one party
rather than the other?

12.2  Four Cases

In Davis v. Davis (1992), a divorce case that eventually found its way to the Supreme
Court of Tennessee, the wife sought custody of the embryos so that she could donate
them to another couple for implantation. Declaring that embryos are entitled to
“special respect because of their potential for human life,” the court recognized that
the husband and wife both had legitimate interests in the future of the frozen
embryos. The wife wanted to become a genetic parent but her husband had an
equally strong interest in avoiding this. She wanted to procreate and he did not. The
court regretted the fact that there was no pre-divorce agreement between the couple
regarding disposition of the embryos. Therefore, the court balanced the equitable
interests of the two parties and concluded that the husband’s interest in avoiding
parenthood outweighed the wife’s desire to become a genetic parent through dona-
tion of the embryos to a childless couple.
In the 1998 case of Kass v. Kass the Supreme Court of New York issued its first
decision in a dispute over the disposition of frozen embryos. The couple in this case
was arguing over the custody of five frozen, stored embryos created five years ear-
lier during their marriage. Now divorced, the woman wanted the embryos implanted,
claiming that this was her only chance for genetic motherhood. Her former husband
objected to the burdens of unwanted fatherhood, claiming that he and his wife had
a prior agreement that in the event of a divorce the embryos would be donated to the
IVF program for approved research purposes. The court observed that agreements
“should generally be presumed valid and binding, and enforced in any dispute
between [the donors].” Therefore, the court enforced the agreement that provided
that the frozen embryos be donated to the IVF clinic.
In A.Z. v. B.Z. (431 Mass. 150,725 N.E.2d 1051, 2000), the Massachusetts
Supreme Judicial Court ruled in the first case ever to come before it involving a
dispute over the custody of frozen embryos. In this case, the husband and wife
already had twins as a result of IVF. Moreover, they had signed a standard contract
at the fertility clinic stating that if they were ever to separate, any fertilized eggs
12.3 A.Z. v. B.Z.: A Closer Look 251

should be “returned to the wife for transfer to the uterus.” However, after their
divorce, the man wanted the contract declared unenforceable. The trial court, which
heard the suit, agreed on the ground that “the wife’s desire for more children
achieved through IVF is significantly outweighed by the husband’s interest in avoid-
ing procreation.” When the case was appealed, the Massachusetts high court
affirmed the lower court decision. In its ruling, the court implicitly rejected the
recommendation of both the Tennessee and New York court that the existence of a
pre-IVF agreement regarding disposition of the embryos should be determinative.
The court argued that “even had the husband and the wife entered into an unambigu-
ous agreement between themselves regarding the disposition of the frozen embryos,
we would not enforce an agreement that would compel one donor to become a par-
ent against his or her will.” A contract that forces an individual to procreate is a
contract that violates public policy.
Finally, in a case that was appealed to the New Jersey Supreme Court in 2001, a
man wanted seven frozen embryos donated or, perhaps, implanted in a future
spouse. He maintained that his former wife agreed when they underwent IVF during
their marriage, that any unused embryos from the process would be frozen for dona-
tion to other childless couples. But the woman, insisting that she does not want to
become a biological parent against her will argued that her prior agreement should
not be enforced. Instead, she wants the embryos destroyed or used for research (J.B.
v M.B. 783 A.2d 707 (2001).

12.3  A.Z. v. B.Z.: A Closer Look

Each of these cases raises important questions. We begin by taking a closer look at
the arguments presented by counsel and by the lower court in the Massachusetts
case when it first came to trial. Since A.Z. v. B.Z. is the most recent case decided by
a state high court, almost all of the issues presented in the earlier cases were re-­
introduced here. We can avoid needless repetition by focusing on this case and bring
in relevant considerations from other cases as needed.
For ease of identification, I will refer to A.Z. as “Allan” and B.Z. as “Betty.”
Betty’s attorney presented a number of arguments in her behalf. First, she claimed
that preventing Betty from using the remaining embryos is unjust because it violates
her fundamental right to bear children. Second, in order to counter any fears of
Allan arising from his paternity, Betty promised that she would not seek child sup-
port from him, nor would she require him to have contact with the child. Third,
because she is now 45 years old and the medical risks of implantation at her age are
considerable, Betty claimed that this was her last chance to become pregnant.
Fourth, because the embryos have been frozen for 8 years, this may be the last
opportunity for a successful implantation before they lose viability. Fifth, Betty
argued that she went through much more pain and suffering than did Allan during
252 12  Frozen Embryos

the invasive fertility treatments, and this should give her a stronger compensatory
claim to the embryos.1
Allan’s counsel disputed Betty’s claim to the embryos, contending that justice is
entirely on his side in his attempt to prevent her from using them to attempt procre-
ation. First, Betty already has two children produced from the frozen embryos.
Thus, her desire to have more children from the same source diminishes in signifi-
cance when weighed against Allan’s desire that he not procreate. Second, if Betty
wants a large family, then she can always adopt. And if she wants more of her own
biological children, she can go through IVF again, using another man’s sperm.
Third, although not specifically raised at the trial, Allan might claim that he as much
of a right to refuse having a biological child with a woman who is no longer his wife
as he would have if the woman were a stranger.2 Moreover, Allan could argue that
he has a compelling privacy or liberty interest in avoiding procreation. He wants to
be able to control the conditions under which he enters into intimate or personal
relationships with others. If Betty were allowed to procreate, using the disputed
embryos, then (despite her protestations to the contrary) there would be no guaran-
tee that the child would not pursue Allan for money or personal contact when he or
she becomes an adult. Finally, Allan might also want to avoid the guilt that he
believes he would inevitably feel if he did not contribute to the child’s physical and
emotional support.

12.4  The Right to Procreate

Some of the preceding arguments make straightforward appeals to the rule of justice
or (indirectly) to the related notion of rights in order to support their conclusion. Our
question is whether any of these arguments are sufficiently plausible that we can
make a clear choice between Allan and Betty’s claims to custody when these claims
are supported solely by an appeal to justice.
First, if we accept Betty’s claim that she has a fundamental right to bear children,
does it follow that depriving her of the custody of the frozen embryos has violated
this right? There is a distinction, familiar to political and legal philosophers, between
positive and negative rights. “A positive right is a right to other persons’ positive

1
 Betty’s lawyer, Gretchen Van Ness, said, “I’ve seen what the man goes through and what the
woman goes through for fertility treatments, and the woman goes through so much more. There’s
surgery; it’s incredibly demanding. My client suffered from infections and nausea, she lost both
Fallopian tubes. That’s major! I understand why people say there should be equality between the
sexes on this issue but that ignores how much more invasive IVF treatment is for women.” (Coles,
1999:37)
2
 In Davis v Davis (842 SW2d 588, 604), decided by the Tennessee courts in 1992, there was no
written agreement between the Davises about their frozen embryos. Upon divorce, it turned out
that neither of them wanted custody. The wife, however, did not want them destroyed. She wanted
them donated to a surrogate. The husband did not. The court found in the husband’s favor, arguing
he had a right to refuse having a biological child with a stranger.
12.4 The Right to Procreate 253

actions; a negative right is a right to other persons’ omissions or forbearances. For

every positive right we have, someone else has a duty to do something; for every
negative right we have, someone else has a duty to refrain from doing something”
(Feinberg, 1973:59). It has often been pointed out that there is no right to bear chil-
dren if this means that we have a positive right to the use of another person’s body
in order to procreate. Nor is there a right to bear children if this means that infertile
couples have the positive right that others provide them with the means to bear chil-
dren, for example, the money and/or the technology to bring about a pregnancy
through IVF and transplantation. But this is not what Betty is claiming. She is not
asking for the use of another person’s body, nor is she asking for charity. She is
prepared to pay the clinic’s fee for the embryo transfer. In her case, “the right to bear
children” is the negative right not to be interfered with by others in her attempt to
have a child by implanting the embryos.
It may be objected that by granting ownership of the embryos to Allan, the court
is not preventing Betty from bearing a child. It is only preventing her from having a
child that will be the product of one of these embryos. She has a right to bear chil-
dren, but she has no right to bear the particular children that these embryos will
become if they are implanted. But that is like saying if you prevent me from leaving
my office by locking the door, then my right to liberty has not been violated because
I can always choose to climb out the window. The fact that Betty has an alternative
way to achieve her goal of bearing a child does not imply that denying her use of
these embryos is not a violation of her right to bear children. Someone who walked
into the clinic and discarded the contents of the petri dish prior to fertilization would
violate this right. And someone who discarded the contents of the dish immediately
after fertilization, thereby preventing her from implanting the embryo, would also
violate it. And this is exactly what she is claiming. Her right to bear children via
embryo transfer is violated by a decision of the court to grant custody of the embryos
to her former husband who will subsequently order the embryos destroyed.
The right to bear children is not an absolute right. For example, it may be limited
to protect innocent people, and in particular, children. Thus, it is plausible to argue
that a married couple does not have the right to bear a child if they know in advance
that the child will be born with HIV infection and will suffer chronic hospitalization
and early death because of a progressively deteriorating immune system. Nor do
they have the right to bear a child if they know in advance that the child will prob-
ably be neglected or abused (e.g. both of them are alcoholics). In other words, birth
may sometimes be unfair to the child, and this places a limit on our right to bear
children. But again, none of these conditions reflect Betty’s situation. The birth of a
child from one or more of the embryos will not be unfair to the child. There is no
evidence that the child will be born with a serious physical defect, or that Betty will
neglect or abuse the child.3

3
 A second limit on the right to bear children is probable harm to others as a result of the child’s
birth. Under certain rare conditions, bearing a child may detrimentally affect the interests of other
persons. For example, in some areas of the world there is only enough food to maintain existing
children at the minimum level required for survival. Providing food to newborns in such circum-
stances puts all other children at risk of malnutrition and death. Childbirth, in these cases, is not an
occasion of joy, but an occasion of sorrow.
254 12  Frozen Embryos

12.5  The Right not to Procreate

Although it cannot plausibly be argued that the future child will be harmed if Betty
gives birth from one of the frozen embryos, Allan might point out that he will suffer
harm. He has an interest in not procreating and this interest will be detrimentally
affected (harmed) if Betty gives birth to a child that is partly his biological product.
In fact, he asserts this interest as a right. Allan maintains not only that he has an
important interest in not procreating a child from one of the disputed embryos, but
also that he has a fundamental right not to procreate.

12.5.1  Interpretations of the Right not to Procreate

There are several interpretations of “the right to not procreate.” The interpretations
are as diverse as the methods of preventing procreation listed below in Table 12.1:
Except for those who accept the prohibitions of religious law, most would agree
that men and women have the right to method A1 and A2 respectively: preventing
procreation either by abstaining from sexual intercourse or by practicing contracep-
tion. Second, although women have the right to method B3, men have no right to
method B4, forcing an abortion on the body of a woman, even if the embryo is
biologically related. That is, a man’s right to not procreate is limited by the location
of the embryo. If the embryo is in the body of the woman (in-utero), then no one can
invade her body and force her to expel the embryo.4
Methods C, D and E are relatively recent because the methods of procreation to
which they refer were not technologically feasible until the 1970s. For example,
because it is now possible to begin the process of procreation ex-utero by donating
sperm or eggs for in vitro fertilization, we can now speak of not procreating by C5
and C6. That is, forbearing or refraining from making these kinds of donation.
Moreover, we believe that we have a right to C5 and C6, i.e. it would be a violation
of our right to bodily autonomy (the equivalent of rape) to forcibly take a man’s
sperm or a woman’s eggs.
Methods D and E contemplate the existence of an ex-utero embryo. In these
cases, sperm and eggs have been donated, they have been placed in a petri dish and
fertilization has occurred. A woman has the right to D7, that is, she under no obliga-
tion to implant an embryo in her body, even if the embryo is biologically hers and
even if she is “responsible” for its existence, that is, even if she created it with the

4
 In a recent California case, a genetic father demanded that the hired surrogate abort the three
fetuses she was carrying, explaining that he only wanted one child—citing financial concerns. The
surrogate (a “genetic stranger” to the fetus) refused and the children were born (seven weeks pre-
mature). The surrogate is now suing the father for custody of all three newborns. She is contesting
a provision of California law which gives parental rights to the intended parents in a surrogacy
agreement. (Langford 2016)
12.5 The Right not to Procreate 255

Table 12.1  Some methods of avoiding or preventing procreation

Female Male
A 1. Abstaining from sexual intercourse; 2. Abstaining from sexual intercourse; using
using natural or artificial contraception natural or artificial contraception
B 3. Abortion of an in-utero embryo or fetus 4. Forcing a woman to abort an in-utero
embryo or fetus
C 5. Forbearing from the donation of one’s 6. Forbearing from the donation of one’s
eggs to be used for IVF sperm to be used for IVF
D 7. Forbearing from the implantation of a 8. Preventing the transfer of a biologically
biologically related ex-utero embryo in related ex-utero embryo to the body of the
one’s own body female egg donor
E 9. Preventing the transfer of a biologically 10. Preventing the transfer of a biologically
related ex-utero embryo to the body of a related ex-utero embryo to the body of a
third-party gestational surrogate third-party gestational surrogate

intention of implanting it.5 Moreover, despite a recent law passed by the Louisiana
state legislature declaring ex utero embryos to be “juridical persons”, no court can
force a woman to proceed with an implantation. If a woman has the right to expel
an in utero embryo during the first trimester of a pregnancy, then she surely has the
right to refrain from the implantation of an ex utero embryo.
If a man had the physical means to gestate an embryo, then we would not hesitate
to say that he had a right equivalent to the woman’s right to method D7. But since
men do not yet have this ability, the closest equivalent is D8, which is, preventing a
woman from implanting an ex-utero embryo that is biologically his. Moreover, D8
has close parallels to the methods described in E9 and E10. The difference is that in
E10 the male sperm donor prevents the transfer of the embryo to an unrelated sur-
rogate (that is, a woman who is not biologically related to the embryo), and in E9
the female egg donor prevents the transfer of the embryo to the uterus of another
woman.6

12.5.2  Application to Legal Decisions

The question whether men and women have the right to the respective methods of
preventing procreation described in D8, E9 and E10 is central to all of the court
cases mentioned above. And the answer to this question has been unanimously
negative.

5
 Suppose she does implant it. Does this change her moral relationship to the embryo? For example,
once implanted, does she now have any obligation she did not have prior to implantation? Does she
have an obligation to gestate the embryo until it grows to the point that it can survive outside of her
body? For a discussion about the alleged right of an embryo to the “use” of a woman’s body, see
Judith Thomson, A Defense of Abortion, Philosophy & Public Affairs, Vol. 1, no. 1 (Fall 1971).
6
 E9 describes the fact situation in Davis v Davis and E10 duplicates the fact situation in the most
recent case from New Jersey.
256 12  Frozen Embryos

First, according to the court in AZ v BZ, the right not to procreate by preventing
implantation of an ex-utero embryo is interpreted as or is derived from the right not
to enter into intimate relationships with others. The court declared that pre-IVF
contracts giving custody to a spouse who wants the embryos implanted are unen-
forceable. “[I]ndividuals shall not be compelled to enter into intimate family rela-
tionships, and… the law shall not be used as a mechanism for forcing such
relationships when they are not desired” (5).
The phrase “intimate relationship” is significant in the context of child rearing. It
is part of the definition of the concept of “psychological” or “social parent.” There
is a distinction between becoming a biological (or natural) parent and becoming a
psychological (or social) parent to a child. The biological parents are those who
physically produce the child. In the case of the female, the biological parent is the
child’s gestational and genetic mother. In the case of the male, the biological parent
is the child’s genetic father. A psychological parent, on the other hand, has an inti-
mate relationship with the child. He or she “is one who, on a continuing, day-to-day
basis, through interaction, companionship, interplay, and mutuality, fulfill the
child’s psychological needs for a parent, as well as the child’s physical needs”
(Goldstein, 1973: 98).
In ethics, the right to enter or not enter into an intimate relationship with another
person is derived from the general right of self-determination, the right to develop
one’s own life goals and to pursue them. We have the right to develop our own
friendships, marital and parent-child relationships. It is on this basis that Allan
asserts a right to prevent his former wife from implanting the remaining embryos:
he does not want an intimate relationship with another child. However, Betty has
assured the court that she would not seek child support from Allan, nor would she
require him to have contact with the child. Of course, Allan is dubious about her
ability to prevent the child from contacting him when the child becomes an adult,
but Allan should have no doubt about his ability to prevent himself from becoming
the child’s psychological parent. Allan’s biological child cannot enter into an inti-
mate relationship with him unless he willingly reciprocates her attempts to initiate
the relationship. Hence, it is entirely up to Allan whether he wishes to become the
child’s psychological father when she is born.7 To put it another way, if there is a
right not to be forced into intimate relationships with others, this right is not threat-
ened by the enforcement of a contract that compels a man to become a mere biologi-
cal father.
Is there anything left of Allan’s claim that he has a right to prevent the implanta-
tion of an ex-utero embryo in Betty’s uterus? I believe that there is. The right might
be derived from the right of bodily autonomy, the right to control one’s body and the

7
 This conclusion is consistent with Professor Laurie Schrage’s claim that “in consenting to sex,
neither a man nor a woman gives consent to become a parent, just as in consenting to any activity,
one does not consent to yield to all the accidental outcomes that might flow from that activity”
(Opinionator, NY Times 2013). By analogy, in consenting to having pre-embryos frozen, one does
not consent to become a parent by having them implanted after a divorce, nor does one consent to
have them donated to others.
12.5 The Right not to Procreate 257

use of a product of one’s body, including the right to alienate that product (to waste
or destroy it). Suppose that Allan has provided his sperm and Betty has provided her
ripe eggs to the fertility clinic. Before fertilization takes place, Allan changes his
mind. He decides that that he does not want a child. He wants his sperm destroyed,
that is, he wants to use method D6. I believe that most of us would agree that he has
a right to do this. But if this is true, then he also has a right to D8, that is, a right to
prevent Betty from implanting any egg that has already been fertilized. The mere
fact that fertilization has now taken place in a petri dish is not significant. If you
believe that Allan has the right to have his sperm destroyed immediately prior to
fertilization, then he also has the right to have the fertilized egg (the embryo)
destroyed. In sum, Allan’s right to D8 and the corresponding right to the methods
described in E9 and E10 are instances of the general right to control and consent to
the use of a product of one’s own body.
Of course there are limits to the right to control (and alienate) a product of our
body. The product of our body must at least be extra-corporeal. If the embryo has
already been implanted in Betty, Allan cannot order an abortion performed on her in
order to destroy the embryo (he does not have the right to method B4). She has a
fundamental right not to have her body invaded by others without her consent. Any
attempt to perform an abortion on her without her consent would rightly be regarded
as an assault.
Another limitation on the right to control a product of our body is that control
must be necessary in order to protect ourselves from probable harm. Unless we can
prove that we will suffer harm as a consequence of loss of control, then we do not
have a right to control how a sperm, an egg, or even an embryo is used. In order to
prove this, consider the following analogy. Suppose that an unmarried man makes
an anonymous donation of sperm to a sperm bank. Prior to the donation he signs an
agreement giving control of future use of the sperm to the clinic. He understands
that it will probably be used to fertilize an egg. The clinic promises that his identity
will not be made known to the child or to the child’s mother. If he later changes his
mind on the ground that he does not want his sperm used to procreate, I do not see
any moral or legal problem in holding him to his contract. He has waived his right
to the future use of his sperm and because his donation is anonymous, keeping him
to his agreement will cause him no harm. His right to privacy (the right to control
information about his identity) is not threatened. He may become a biological father,
but he will never know his biological child and she will never know him.
Let us carry this case one step further. Suppose that the sperm he has donated has
recently been placed in a petri dish with an egg provided by an anonymous female
donor. Fertilization has just occurred. He walks into the clinic and demands that the
contents of the dish be discarded. Once again, his demand would be rejected by the
court, and rightly so. He has signed a valid agreement giving the fertility clinic con-
trol over the use of his sperm, his bodily product. If we do not think it wrong for the
court to reject his demand to destroy his sperm before fertilization has taken place,
then I do not see how it could be wrong for the court to destroy the contents of the
petri dish after fertilization has taken place. Once again, the reason for this is the
anonymous nature of his donation. He will suffer no harm through the birth of a
258 12  Frozen Embryos

child from the implantation of the embryo. And here lies the relevant moral differ-
ence between this case and divorce custody disputes over frozen embryos. In the
case of Allan and Betty, there are no guarantees that the child will never know that
Allan is her biological father. If the frozen embryo is given to Betty and a child is
born, then Allan is not only a biological father, but his right to the privacy of his
identity has been threatened, with all the possibly deleterious consequences men-
tioned earlier (e.g. the emotional burden of guilt, possible future claims for child
support, inheritance, etc.). Although Allan can decide whether or not he wants to
enter into an intimate relationship with his child, it is the fact that he might need to
make a future difficult choice that is out of his control. The very existence of a new-
born child places on him a psychological burden that he wants to avoid. He may
have to make the emotionally difficult choice of whether to become a psychological
parent to the child. It is the decision to become intimate, not the intimacy that will
cause him harm.
It follows that there is a right to control the products of one’s body, including
one’s sperm, egg, and the resulting embryo, but only when the product is extra cor-
poreal and when control of the extra corporeal products is necessary to prevent harm
to an important individual interest. The fact that an embryo, if implanted, will
become one’s biological child is not sufficient to establish a right to control and
custody. One must also show that the implantation of the embryo will create an
unavoidable burden (emotional, financial, etc.) on the non-consenting parent.
Finally, there are some extra-corporeal products of our body that we have no
right to waste or destroy, e.g. our biological children. My biological child is a prod-
uct of my body, but I have no right to kill my child. And there are some who would
argue that since an embryo, if implanted, will become a future child, it has the right
not to be destroyed. These suggestions will be discussed in a later section. At this
point the argument is only that Allan can make a plausible claim for custody of the
frozen embryos on the ground that he has a right not to procreate, where this is
interpreted as a right to consent to what happens to his bodily products, with the
limitation that (a) the bodily product must be extra corporeal, and (b) the product of
his body might be used in ways that could cause him harm.

12.6  Appeals to Utility

The upshot of preceding discussion is that both Allan and Betty have at least one
principle of justice that appear as plausible if not true: the principle (invoked by
Allan) that says that it is unjust to deprive someone of his right not to procreate, and
the principle (invoked by Betty) that says that it is unjust to deprive her of the right
to procreate, interpreted as the right not to be interfered with by others in the attempt
to bear a child. Assuming that the application of these principles to the particular
case is accurate, and if Allan and Betty are not compelled to take into consideration
any other maxim of justice than the ones they have selected, then we can declare
each of them to be triumphant. To apply Mill’s observation here, “each, from his
12.6 Appeals to Utility 259

own point of view, is unassailable, and any choice between them, on grounds of
justice, must be perfectly arbitrary …” (Mill, 1979:56–57).
Mill was convinced that the only way to reach a decision in cases of ethical con-
flict is by appeal to the principle of utility. He argues that we need to look at both the
good and the bad consequences of each alternative course of action, weigh or bal-
ance the consequences and then choose the act that produces the greatest net utility
(the greatest balance of good over bad consequences. This method appears to be
part of the basis of Judge Nesi’s decision in A.Z. v. B.Z.). When he wrote that “the
wife’s desire for more children achieved through IVF is significantly outweighed by
the husband’s interest in avoiding procreation” (my emphasis).8 The judge implies
that there is a coherent way of measuring and comparing interpersonal utilities, but
if there is a way to do this, then it is not revealed in his decision. Why is Betty’s
desire for more children “significantly outweighed” by Allan’s interest in avoiding
procreation? If she had no children, then would we say that her desire for one child
would be outweighed, but not significantly outweighed by Allan’s interest? Does a
desire for children diminish in weight proportional to the more children that you
have? If I want three children, but I’ve only got two, does my desire for a third child
weigh less than a desire for a second child when I’ve only got one (or a desire for a
first child when I’ve got none)?
Similar questions can be raised about the process of determining the weight of an
interest. Allan maintains that he has an interest in avoiding procreation that is
weightier than Betty’s desire to procreate a third child. We can safely assume that
the probable emotional and financial setbacks from the birth of a third biological
child are what give strength and weight to Allan’s interest in avoiding procreation.
If so, then Betty can counter that she will suffer emotionally by being deprived of
the opportunity to have another child that is the biological product of her and Allan’s
embryo, despite Allan’s protestations that this is irrational.9
Let us assume, then, that both Allan and Betty will be harmed if the other is
granted custody of the stored embryos. Let us also assume that it is irrelevant to
determining the weight of Betty’s desire that two children have already been pro-
duced from the stored vials. This being the case, then unless we are given further
information it is not at all clear whose interest is weightier. We do not know, for

8
 Judge Nesi also seems to imply that it is not unjust to deny someone more than she needs of a
desirable commodity (babies, cars, food, money, etc.), especially if having it will detrimentally
affect the interests of others. If you’ve already got something of what you need, and having more
will affect the interest of someone else, then it is not unjust to deny you more. It is Judge Nesi’s
belief that since Betty has her fair share of children then her desire to have another child should
have less weight than her husband’s desire that he not procreate. Of course, this interpretation of
Judge Nesi’s argument falters on the absurd assumption that there is a “fair share” of children allot-
ted to each of us.
9
 We can imagine Allan contending that it is irrational for Betty to want his child even while divorc-
ing him. However, there may be perfectly good reasons for Betty wanting his child, for example,
she may want a child with Allan’s physical characteristics. Moreover, even if we still think that
Betty’s desire is irrational, this does not make it any less a desire which, if not satisfied, produces
misery in the person who has it.
260 12  Frozen Embryos

example, the strength of Betty’s desire for more children or the weight of Allan’s
interest that he not procreate. Nor can we predict the amount and duration of her
happiness or the amount and duration of Allan’s misery if she succeeds in having
children.
I conclude that the court has no coherent basis for deciding which of the two
competing desires and interests is “weightier.” Contrary to Mill’s assertions, appeals
to consequences and to the principle of utility to decide who should get custody of
a frozen embryo when its “parents” divorce appear to be as unhelpful as appeals to
moral rights and the rules of justice.

12.7  Non-discretionary Standards

We seem to be at an impasse. Neither of the traditional approaches to the resolution

of ethical dilemmas are of much help in resolving disputes over who should get
custody of frozen embryos when a couple divorces. Both approaches lead to judicial
decisions that appear to be arbitrary, in the sense that the opposite decision granting
custody of the embryos to the other party in the dispute could have been just as well
grounded.
Whenever there is an impression of arbitrariness in judicial decision-making,
legislators have sometimes responded by removing discretion from judges. For
example, a law might be passed that requires fertility clinics to destroy frozen
embryos in the event of a divorce between the couple that produced them.
Alternatively, legislators might decide that the embryos should always remain in the
custody of the woman (Andrews, 1986:357), and/or that she must attempt procre-
ation with the remaining embryos (Note, 1993: CLR 305; Comment, 1992: UMLR
803). In either case, dispute settling would be automatic.
The problem with nondiscretionary standards is that they beg all of the questions
with which we have been dealing. Why ought the embryos to be destroyed if there
are situations in which at least one of the parties to the divorce wants to use them to
procreate (as in the case of Allan and Betty)? Why ought the embryos to be given to
the woman if there might be men who would like to use a surrogate for the purpose
of procreation? Legislative answers to these questions are likely to be seen as just as
arbitrary as the ruling of judges who are given discretion to make custody
decisions.

12.8  Pre-IVF Contracts

Another solution is for the state to require, as a condition for IVF treatment, that
couples create their own agreement on the disposition of remaining embryos in the
event of a divorce or separation. The fertility clinic had asked Allan and Betty to
sign an agreement giving custody to Betty in the event of a divorce or separation.
12.8 Pre-IVF Contracts 261

The court declared the contract unenforceable. However, if it been upheld, it is

important to recognize that the terms of the agreement were entirely dictated by the
clinic, requiring in all cases that custody should be granted to the woman. Once
again, an important moral question was begged: Why should a contract give auto-
matic preference to one of the parties in a potential custody dispute?
The pre-IVF contract I wish to discuss here differs in the important respect that
the couple seeking IVF, not the fertility clinic, dictate its terms, including such
important matters as the final disposition of remaining embryos and whether or not
it will be relevant that other children have been successfully produced from previ-
ous transplantations. The fertility clinic can advise them on the terms of their con-
tract, but the decision about disposition is entirely theirs. They may decide that the
remaining embryos be destroyed, be given to the woman, or be given to the man.
This would be the parents’ “last friendly agreement” about the custody of any
frozen embryos in the event that they should divorce. The agreement is always open
to renegotiation at any time before or after the birth of any children from the IVF
treatment, and even before or after any divorce. They need not be held to the original
contract if both parties want to change its terms. Its effect would be to assure that, if
the parents did divorce and could not then agree on custody, this agreement would
exist between them and the court would hold them to it.10
This is the approach to the solution of embryo custody disputes that was favored
by both the Tennessee and the New York courts referred to earlier. In Davis v. Davis,
the Tennessee court stated that although there was no agreement between the donors
regarding disposition of the embryos, such agreements “should be presumed valid
and should be enforced.” (597). In Kass v. Kass, the Court of Appeals of New York
agreed with the Tennessee court position. Pre-IVF contracts between donors “should
generally be presumed valid and binding, and enforced in any dispute between [the
donors].” (597) While recognizing that it is difficult for donors to anticipate the
future of their relationship, the court concluded that such agreements minimize mis-
understanding, maximize procreative liberty, and provide needed certainty to IVF
programs.
There are other arguments in favor of encouraging and enforcing pre-IVF agree-
ments about the disposition of frozen embryos in the event of a divorce or separa-
tion. First, this solution is consistent with John Stuart Mill’s contention that the state
should not interfere with the self-regarding affairs of individuals. They should be
left free to make their own private arrangements. Of course, by requiring that cou-
ples applying for IVF enter into a binding agreement on the disposition of remain-
ing embryos in the event of a future divorce or separation, we are in effect forcing
them to be free. This may be seen as paradoxical, but surely part of the value of
freedom is that one takes responsibility for one’s choices. To require that donors

10
 In Kass v Kass, the New York Supreme Court affirmed the judgement of the New York Court of
Appeals enforcing an agreement of the parties that provided for donation of their frozen embryos
to the IVF program for approved research purposes. They noted that the court “unanimously rec-
ognized that when parties to an IVF procedure have themselves determined the disposition of any
unused fertilized eggs, their agreement should control.” (Id.,at p. 554).
262 12  Frozen Embryos

keep to their last friendly agreement about the disposition of frozen embryos is to
require that they take responsibility for this decision and not throw it onto the courts.
And this suggests a second rationale. By keeping custody decisions out of the
courts, we achieve a significant decrease in litigation. This may adversely affect the
economic interests of some law firms, but it is a highly desirable consequence in
light of today’s crowded court calendars and the heavy financial and emotional toll
that lengthy custody battles take on those who wage them.

12.9  Limits on the Content of Pre-IVF Contracts

Two limits have been proposed for pre-IVF contracts: no contract should require
that someone be forced to procreate against their will, and no contract should ignore
the status of the future personhood of the embryo.

12.9.1  Forced Procreation

I mentioned at the outset of this paper that the Massachusetts High Court rejected
the recommendation of both the Tennessee and New York court that pre-IVF agree-
ments should always be enforced. The court argued that such contracts violated
“public policy” on the ground that they “would not enforce an agreement that would
compel one donor to become a parent against his or her will.” (Sect. 12.3).
This is an important objection to the preceding proposal. It is part of a more
general objection that there are legitimate limits upon freedom of contract that are
posed by the rights of the parties to the contract. Suppose that a couple’s pre-IVF
contract provides that, in the event of a divorce, any frozen embryos should be car-
ried to term in the mother’s womb. Such an agreement cannot be binding on her,
even if she did voluntarily enter into it, because it would infringe upon a right that
cannot be waived by contract. A woman has a fundamental right not to procreate
and she cannot be held to a prior agreement that says that will gestate and attempt
to bring to term one or more of the remaining embryos.
The solution to the problem posed by the court’s objection is not to abandon the
idea of a “last friendly agreement,” but to require that pre-IVF contracts be fash-
ioned in a way that is consistent with fundamental rights, legitimate interests, and
public policy. The question is whether we can come to some agreement about the
nature of these rights and interests. Mindful of Mill’s warnings about the difficulty
of deciding ethical dilemmas by appealing to rights, and the warnings of Mill’s non-­
utilitarian opponents that the application of the principle of utility does not always
lead to unambiguous ethical conclusions, what restrictions should we place on pre-­
IVF contracts? One restriction has already been mentioned. No contract shall com-
pel a woman to procreate. She cannot be required to undergo transplantation of the
frozen embryos. Her constitutional right to terminate a pregnancy implies a right
12.9 Limits on the Content of Pre-IVF Contracts 263

not to begin a pregnancy. Therefore, simply by an appeal to the right to privacy

guaranteed under the U.S. Constitution, we can unambiguously declare that no pre-­
IVF contract shall require a woman to transplant, gestate and bring to term one of
her own embryos.
However, in A.Z. v. B.Z., the court did not contemplate forced intrusions on the
body of the woman. Instead, by “the right not to procreate,” they meant “the right
not to enter into intimate relationships.” The individual who they decided had this
right was the former husband. Of course, the wife could be forced to enter an inti-
mate relationship with a child in a parallel way. Suppose, for example, she enters
into a pre-IVF agreement with her husband giving custody of the embryos to him in
the event of a divorce. She discovers that instead of ordering the destruction of the
embryos he wants to have them implanted in a surrogate who has agreed to carry
them to term. Can his former wife be held to the contract, or should the contract be
declared unenforceable on the ground that she has a non-waivable right not to
procreate?11
I had earlier argued that the right not to enter into intimate relationships does not
apply. I had argued this on the ground that it is up to us to decide whether or not to
become a psychological parent to a child. If Betty gives birth to a child from one of
the embryos, then Allan becomes the child’s biological father, but he can avoid hav-
ing an intimate relationship with the child. In general, a pre-IVF contract can always
contain language guaranteeing that the other party need not be a part of the child’s
life.
However, the question before us is different. Assuming that there is a right not to
enter into an intimate relationship and that it applies in this and other cases, is this
right fundamental in the sense that it cannot be waived through a pre-IVF contract?
Let me offer a definition of “fundamental.” A right is fundamental when it is not
open to the court to “weigh” the protection afforded by that right against other con-
siderations. A fundamental right always has more weight than any possible combi-
nation of opposing interests, public or private.12 For example, I cannot contract with
another person to become her slave, even if this would promote everyone’s
interests.
Is this how we understand the right not to enter into intimate relationships? If it
is, then like the right to liberty, the court should not be able to weigh or balance it
against any competing private or public interests. But in fact, this is not how the
legal system understands the right not to be forced into an intimate relationship with
a child. For example, the object of a paternity suit is to compel a man suspected of
being the biological father of a child to take a blood test in order to determine
whether he is in fact the father. “Today, it is the public policy of most states that a
determination of paternity through a judicial proceeding is in each child’s best inter-
ests, absent some compelling reason why the issue of paternity should not be

11
 As far as I am aware, no cases based on this factual circumstance have yet appeared before the
courts, but the situation is certainly possible, and as has happened so often in the history of
American law, a case will appear with precisely this set of facts.
12
 This is the definition of “fundamental right” described at Sect. 10.4.2.
264 12  Frozen Embryos

determined.”(Kramer, 362) The threat to a man of an intimate relationship with the

child is not compelling. He cannot resist the blood test on the ground that he has a
right not to be put in the emotionally difficult position of choosing whether or not to
become the child’s psychological parent.
It follows that the right not to procreate, understood as the right not to be com-
pelled to enter an intimate relationship, is not a fundamental right. Hence, it can be
waived by a pre-IVF contract. That is, the interest in keeping a person to a contrac-
tual agreement giving custody of embryos to a partner who wants to use them to
procreate can conceivably outweigh his or her interest in not procreating.

12.9.2  Interests of Future Persons

The final limitation on the content of a pre-IVF contract that I want to discuss
derives from the suggestion that such contracts should contemplate the interest of
the future child that the embryo will become if implanted and brought to term. In
U.S. law, the embryo has no legal status. Hence, there is no obligation on the part of
the court to take into consideration the best interests of the embryo when reaching a
custody decision. It has neither the negative right not to be killed, nor the right posi-
tive right to a woman’s uterus. And yet, as I indicated in my introduction, the embryo
is not mere property. The embryo has the potential to become a future person. What
if the pre-IVF contract provides that, in the event of a divorce, the woman should
have the embryos to do with as she wills, but after the divorce the man claims that
she is a chronic alcoholic. He contends that if she implants an embryo, then there is
a high probability that she will damage it during pregnancy in such a way as to cause
fetal alcohol syndrome in the child that the embryo will become, if it lives. By way
of analogy, if a couple drew up a contract prior to marriage providing that, in the
event of a divorce, the woman should get custody of any children, most states will
not allow such an agreement to be binding upon divorce (Kramer, 1994:92–93). The
reason for refusing to enforce such pre-marital contracts is that in child custody
disputes there is a third party involved, namely the child. The court may determine
that placement in the mother’s custody is not in the child’s best interests.13 But if the
best interest of the child standard is supposed to make the child’s welfare paramount
in child custody disputes, this should be no different when an IVF agreement
involves bringing into existence a future child.
I find this argument entirely convincing and I would support placing a corre-
sponding limit on pre-IVF contracts. However, there are two difficulties with this
proposal, both involving possibly unacceptable consequences. First, if we say that
no pre-IVF contract will be enforced that threatens damage to the embryo, then
don’t we also have to say that no placement shall be made that threatens death to the

13
 For example, “[c]urrent substance abuse, addiction to drugs or alcohol, and the like will almost
always result in the parent not having such problems being awarded custody of the child or chil-
dren in dispute.” (Kramer, 69).
12.9 Limits on the Content of Pre-IVF Contracts 265

embryo? If we decide to adopt a policy that prevents the destruction of an ex-utero

embryo, then we must extend this to the protection of all in-utero embryos. I don’t
believe that this follows. We cannot harm the future child by discarding or destroy-
ing an embryo. If the embryo is discarded, then there will be no future child. If there
is no child, then there is no subject of harm. I can no more harm a future child by
discarding an embryo than I can harm a future child by discarding the contents of a
petri dish before fertilization takes place or by using artificial contraceptives to pre-
vent conception during sexual intercourse.
The second consequence is practical. If courts are directed to consider the best
interests of the future child in making embryo custody decisions, then all of the
standards now used to determine best interests in divorce child custody disputes
must be employed, e.g. the quality of the home environment and the nature of paren-
tal guidance that can be offered, the character and reputation of the parties involved,
the ability to provide for the continued emotional and intellectual needs and devel-
opment of the child; the potentiality of maintaining natural family relationships; and
material opportunities affecting the future of the child. Courts also consider parental
fitness, including moral fitness; love and affection of the parent for the child, and
past conduct affecting the child’s needs.
The problem is that these factors are so vague that the judge has virtually unlim-
ited discretion when awarding custody. The judge must determine whether the
child-rearing conduct of one of the disputants will be superior to the other, and this
assumes that the judge has a defensible concept of what counts as “good” parenting
and the correlative concept of the child’s “best interests.” It also implies that the
judge can obtain the empirical information needed to make accurate predictions
about the child’s future with either parent. In short, the best interest standard forces
judges to answer what most would regard as unanswerable, predictive questions.
I acknowledge this practical difficulty, but I see no way to avoid considering the
best interests of the future child in making frozen embryo decisions. If a future child
can suffer future harm as a result of being placed with a particular custodian while
still in an embryonic state, then we have an obligation to prevent or minimize the
probability of harm.
Questions for Thought and Discussion
1. Suppose that a husband and wife file for divorce before all their frozen embryos
are used. How should we refer to the relationship between them and the embryos?
Should we call it “custody” or “ownership”? Does it matter which one of these
terms we use? Does the term we use have any moral or legal relevance for a
dispute between them about what should be done with the embryos? (Suppose
that the husband wants them destroyed, but she wants them kept alive so they can
be implanted at some future time).
2. In Davis v Davis the wife wanted to donate the frozen embryos to a childless
couple. The husband was opposed to this. He wanted the embryos destroyed.
They had no prior agreement about the disposition of any of the unused embryos
in the cryopreservation facility. Nor were there any existing statutes in their state
to help the court decide what to do. How would you decide this case, and why?
266 12  Frozen Embryos

3. A statute in Louisiana specifies that a human embryo is a fertilized “human”

ovum “with certain rights granted by law.” This applies both to frozen embryos
and in vitro fertilized human ova prior to implantation or freezing. In both cases,
the statute declares that the embryo is a juridical person which shall not be inten-
tionally destroyed. What impact would the Louisiana statute have on settling
disputes between divorcing couples about the disposition of their frozen
embryos?
4. Should ART and cryopreservation technologies be regulated? In 2009, a single
mother of six children gave birth to eight additional children (octuplets) after
undergoing IVF (in vitro fertilization and transfer of the resulting embryo to the
uterus). Should there be a restriction on the number of embryos that can be trans-
planted in one patient? Should other regulations of fertility clinics be put in
place? (For example, to prevent mix-ups in which one woman’s fertilized egg is
mistakenly implanted in another woman, or one man’s sperm is used to fertilize
the wrong woman’s egg?)

References

Andrews, N. 1986. The legal status of the embryo. Loyola Law Review 32: 357–409.
Coles, J. 1999. The custody battle for an embryo. The Times (London), 1 December.
Feinberg, Joel. 1973. Social philosophy. Englewood Cliffs: Prentice-Hall.
Goldstein, Joseph, Anna Freud, and Albert J. Solnit. 1973. Beyond the best interests of the child.
New York: The Free Press.
Kramer, Donald E. 1994. Legal rights of children. Vol. 1. New York: McGraw-Hill.
Langford, Cameron. 2016. After fighting abortion demand, surrogate mom demands custody.
Courthouse news service. February 4. http://www.courthousenews.com/2016/02/04/after-­
fighting-­abortion-demand-surrogate-mom-demands-custody.htm Accessed 5 April 2016.
Mill, J.S. 1979. Utilitarianism. Indianapolis: Hackett, 1979. First published in 1861
Shrage, Laurie. 2013. Is Forced Fatherhood Fair? Opinionator. New York Times 12 June. http://
opinionator.blogs.nytimes.com/2013/06/12/is-forced-fatherhood-fair/ Accessed 30 Mar 2016.
Thomson, Judith. 1971. A defense of abortion. Philosophy & Public Affairs 1(1): 47–66.
 Part V
Alternative Approaches to the Philosophy
of Law
Chapter 13
Critical Legal Studies and Feminist
Jurisprudence

“If you want to know the law and nothing else, you must look at
it as a bad man, who cares only for the material consequences
which such knowledge enables him to predict.”
J. Oliver Wendell Holmes (1897)

Abstract  The theories about the relationship between law and morals discussed in
Chaps. 2 and 3 and theories of constitutional interpretation in Chap. 4 by no means
exhaust the available legal theories that have been prominent in the philosophical
literature. In the debates about the validity of laws pertaining to the family and fam-
ily relationships one will find not only variations of legal positivism and natural law
theory, but approaches to the law that attempt to determine how legal decisions are
made by judges. What is legal reasoning and how does it differ (if at all) from moral
and political reasoning? How does a judge begin the process of legal reasoning? Is
her choice of a guiding principle based on the self-evident nature of the principle, as
would be recommended by natural law, or is it to be found in whatever policies and
practices promote the general welfare, such that we can say “The law is whatever
the judge says that it is”? The latter approach to legal reasoning, first developed in
the United States in the 1920s and 1930s, is Legal Realism. It was a reaction to an
earlier theory now called Legal Formalism. Another theory, influenced by Legal
Realism and originating in the 1970s, is Critical Legal Studies. A fourth, partly
influenced by both Legal Realism and CLS, is the radical version of Feminist Legal
Theory. We will discuss these in order.

13.1  Formalism and Legal Realism

A word of caution before we proceed. There is a distinction between the common

law on the one hand and statutory and constitutional law on the other. The common
law is judge-made law, that is, law that has been developed in the course of time
from the rulings of judges, as opposed to law embodied in statutes passed by

© Springer International Publishing AG 2017 269

L.D. Houlgate, Philosophy, Law and the Family, AMINTAPHIL: The
Philosophical Foundations of Law and Justice 7,
DOI 10.1007/978-3-319-51121-4_13
270 13  Critical Legal Studies and Feminist Jurisprudence

legislatures (statutory law) or law embodied in a written constitution (constitutional

law). Common law in the United States, originally inherited from Great Britain, is
also known as “case-law” or “case-precedent.”
The distinction is important because the debate between formalism and realism
is largely contained within the common law. It is not about constitutional interpreta-
tion nor the interpretation of federal and state statutes. It is a debate that is both
descriptive and prescriptive, that is, it is a debate about how common law cases are
and ought to be decided. The theory known as Legal Formalism (also referred to as
“formalism”) contends that cases are and should be decided deductively from the
legal principles found in the common law. In American law schools this led to the
“case method” of legal study in which “the student was to confront and analyze the
opinions written by judges deciding particular disputes in order to extract from them
the fundamental principles of law” (Adams 2013, 102). The guiding source of this
approach was a desire to make the study of law a scientific discipline, much like the
approach a student would take to the study of biology or sociology. But formalism
had a prescriptive side as well. The student of law and the legal professional should
not only discover the abstract principles of law (descriptive), but she ought to use
the results of her research to guide her own legal opinions and recommend these
legal principles to others (prescriptive).
The theory known as Legal Realism (also referred to as “realism”) rejects all of
this. The word “Realism” in the title is important. The realist wants to know what
judges and the courts really or actually do when they make decisions in the common
law cases that come before them. What the realists discovered is that judicial deci-
sions in common law cases are not deductions from a coherent set of rules and
principles (as suggested by natural law proponents), nor are they the commands of
a sovereign power (as suggested by legal positivism). What, then, is the law? Oliver
Wendell Holmes answered this question by using the thought-experiment of “the
bad man,” mentioned in the epigraph to this chapter. Suppose that a bad man in the
late nineteenth century wants to know if he can beat his wife without getting
arrested. He discovers that he will not suffer this material consequence. This is all
he wants and needs to know about spousal abuse law. He can predict that he will not
be dragged into court and prosecuted for abuse if he beats his wife. He can be said
to “know the law” because the law is no more than “the prophecies of what the
courts will do in fact, and nothing more pretentious” (Holmes 1897).
Richard Posner attempts to sort out the debate between formalism and realism by
giving both of these theories “a precise sense” that differs from the meaning used by
the original nineteenth century American legal formalists and the later realists. “I
want [formalism] to mean the use of deductive logic to derive the outcome of a case
from premises accepted as authoritative” (Posner 1986: 181). On the basis of this
meaning, a commentator will be able “to pronounce the outcome of the case as
being correct or incorrect, in approximately the same way that the solution to a
mathematical problem can be pronounced correct or incorrect” (id.). “Realism,” by
way of contrast, means “deciding a case so that its outcome best promotes public
welfare in nonlegalistic terms; it is policy analysis.” A “realist” decision, therefore,
“is more likely to be judged sound or unsound than correct or incorrect” (id.)
13.1  Formalism and Legal Realism 271

The model of deductive logic used by Posner is the classic syllogism “All men
are mortal. Socrates is a man; therefore, Socrates is mortal.” Applied to legal
decision-­making, the first or major premise is a concept or definition, and the sec-
ond or minor premise is a factual statement. To illustrate, let’s recall the discussion
of the Baby M case at (Sect. 11.2.1). The Supreme Court of New Jersey overturned
the lower court’s decision in favor of the married couple who had hired the surrogate
or birth mother. The concept used in their major premise is the common law prin-
ciple that the legal mother of a child is its birth mother. The factual statement in the
minor premise is that the surrogate, not the married woman who hired the surro-
gate, gave birth to the child. Therefore, as a matter of a valid deductive inference,
the surrogate is the child’s legal mother. The same logical process also supports the
court’s ­decision to give custody to the natural father on the ground that the legal
father of a child is the child’s biological father. Using a combination of formalism
(the use of deductive logic to derive an outcome) and realism (a major premise
based on policy analysis), we get the following argument:
Major premise: The legal mother of a child is its birth mother.
Minor premise: The surrogate is the birth mother of Baby M.
Conclusion: (Therefore) The surrogate is the legal mother of Baby M.
Posner points out that “the choice of premises is critical, and that is where public
policy comes in” (182). Why decide for the birth mother and the natural (biological)
father in a custody dispute? “The reason, if it is a good reason, has to be traceable to
some notion of policy rather than just be the result of arbitrary personal preferences
or antipathies, or class bias, or some other thoroughly discredited ground of judicial
action” (id.) But the major premise “cannot be logic.” (id.) Logic gets you from the
major and minor premise to the conclusion. It does not help you get premises. The
major premise (“The legal mother of a child is its birth mother”) might be derived
from a premise that is more general and basic, but at some point in the process of
deriving one premise from another you get to a premise “that cannot be obtained or
proved by deduction” (id.)
Since the correct choice of premises on grounds of policy is more uncertain than
the correct deduction of a conclusion from its premises, the formalists preferred to
focus on the process of deduction rather than on the choice of premises. They liked
to give the impression that the premises were self-evident—meanwhile packing as
much into the major premises as possible, to shorten the chain of deductions. The
result is Platonism: the idea that concepts exist “out there,” like trees or rocks, rather
than are created. (Posner 1986, id.)
In the same case (Baby M), a lower court had previously awarded the infant to the
wife and her husband on the quite different principle that the contract they and the
surrogate had made was legally enforceable because there was consideration in the
form of a legal benefit given to the surrogate (she received a $10,000 fee for her
services). The deduction goes like this: “An enforceable contract is a promise sup-
ported by consideration. The surrogate’s promise to the married couple to hand over
the newborn infant was supported by consideration. Therefore, the promise is a
contract.” Why enforce only promises supported by consideration? Again, the
­reason has to be traced to some notion of policy. There may be a deduction of the
272 13  Critical Legal Studies and Feminist Jurisprudence

major premise from a “higher” premise that is said to be “self-evident” (for exam-
ple, a promise without consideration is a logical impossibility), but this requires an
argument, and the argument is inevitably an argument about policy, not about
semantics.
A second feature of Legal Realism is its rejection of the formalist idea that most
of the rules and principles of private law (tort, contract and property) are an apoliti-
cal derivation from the common law employed in the nineteenth and early twentieth
century American law. The realists argued that there is no such thing as a neutral or
apolitical legal principle to be derived from the very idea of a contract, a tort, or
property. The major premise in the arguments of formalist judges could always be
exposed as decisions involving their personal, moral or political considerations. In
the preceding case, the higher court’s decision to grant the right of custody to the
birth mother was based on the policy that “to the extent possible, children should be
brought up by both of their natural parents.” The court goes on to justify this policy
by appealing to the best interests of the child.1 A child, instead of starting off its life
with as much peace and security as possible, finds itself immediately in a tug-of-war
between contending mother and father” (In the Matter of Baby M, 1988). The point
made by the Legal Realist is that no matter what decision the court reaches, it is
always a political decision –- in this case it is based on the desire to honor contracts
between consenting parties where there is consideration, and/or to protect what it
believes to be the best interests of the child.

13.2  Critical Legal Studies

Although the early realists and their allies “were largely concerned with demon-
strating that the existing private-law rules were politically biased in favor of the
wealthy... their deeper philosophical point was that any set of private-law rules
would be politically biased in some way” (Altman 2001, 115). Private law, includ-
ing family law, was essentially political, and “the only way to evaluate any system
of private-law rules is on the basis of some political position or ideology” (Altman,
115). If the tort, contract, property, and power-conferring rules of family law (trusts,
wills, marriage, divorce, adoption) are necessarily political, then the question for a
Legal Realist is whether these rules should represent the politics of a largely white,
male, Christian, wealthy majority or the politics of a diverse group of many races,
ethnicities, genders, sexual preferences, religions, and people from all levels of

1
 [As the result of this surrogacy contract] “a child, instead of starting off its life with as much peace
and security as possible, finds itself immediately in a tug-of-war between contending mother and
father” (In the Matter of Baby M, 1988). For a full discussion of the debate over the validity of
surrogate mother contracts see Chap. 11.
13.2  Critical Legal Studies 273

wealth and income. Both the early realists and their contemporary counterparts in
the Critical Legal Studies movement choose the latter course. Their stated aim is to
“promote progressive values through the law… [by using] the legal system to reduce
inequalities of wealth and power in society” (Altman, 115).
Critical Legal Studies (CLS) is a “direct descendant of American Legal Realism”
(Tushnet 1986, 505). CLS accepted the criticism made by the early realists that the
assumptions made by formalists that judges can draw on a relatively small collec-
tion of abstract concepts—CLS focused on “liberty of contract” and “property
rights” --- as the basis for decisions in particular cases and either deduce results
from the necessary meanings of the concepts or intuit them from the social under-
standing of their meanings” (Tushnet, 506). Legal Realists correctly argued that
“the concepts were so abstract that they led to contradictory conclusions, and
because of social divisions—between employers and organized labor, for exam-
ple—there could be no broadly shared social understandings on which intuitions
could properly be based” (Altman, 106).
While accepting the main ideas of their predecessors, CLS proponents go much
further in the critique of modern philosophical theories of law. They reject the main-
stream positions that the rule of law exists and the related notion that there is a
unique form of legal reasoning, defined as a “distinctively legal method of deciding
a case … that is clearly different from a political or moral approach to the case”
(Altman, 286).

13.2.1  Legal Reasoning

The phrase “legal reasoning” implies that there is a form of reasoning employed in
the law that is distinct from the type of reasoning that ordinary people use in moral
or political arguments. If two friends have a private debate about the moral justifica-
tion of abortion, one of them might argue that “abortion is murder” and give as her
reason that “the fetus is a person just like us.” Her friend might counter with the
argument that abortion is justifiable on the ground that “a woman has the right to do
whatever she chooses to do with her body.” According to Legal Formalism, both of
these people are using incomplete, unclear, arbitrary rules to arrive at their conclu-
sions. Legal reasoning, they contend,
… uses a complete, clear and consistent body of rules that dictates a single correct answer
to any legal question. The job of the judge is to find the applicable rule for a case and then
deduce by means of a syllogism the correct answer from the rule in conjunction with the
facts of the case (Altman, 292).

According to the formalist a decision on abortion employing legal reasoning

would look like this:
274 13  Critical Legal Studies and Feminist Jurisprudence

Major Premise. Statement of the Texas Penal Code, Article 1191, prohibiting
abortion.2
Minor Premise. John Doe, M.D. administered to a pregnant woman with her con-
sent a drug or medicine and thereby procured an abortion.
Conclusion. Therefore, John Doe, M.D. has violated the Texas Penal Code.
In this example, it is clear that the argument is valid. The statute cited in the
major premise was passed by the Texas legislature and the text of the statute dictates
its application. We shall assume that the facts supplied in the minor premise are also
true. If the premises are true, then the conclusion must also be true. And the major
premise is correctly applied to the facts presented in the minor premise. If two peo-
ple living in Texas in 1972 had a dispute about the legality of abortion they need
only look at Article 1191 of the Texas Penal Code to settle the dispute. But if the
same two people have an argument about the morality of abortion there are no
authoritative rules and no common, neutral “moral judge” to which they can both
appeal to settle their differences.
There are two replies to this that can be made by the Legal Realist. First, the
claim about the difference between legal and moral reasoning works only because
we are dealing with a case of statutory not common law. But this is a pyrrhic victory.
What is gained by showing that legal reasoning is a deduction by means of a syllo-
gism is lost when one realizes that the major premise is ultimately the product of a
legislative policy debate about abortion law. That debate inevitably contains moral
appeals to what individual legislators believe will make “good” or “just law” when
deciding whether there should be legal restrictions abortion in the form of a penal
code.
Second, if the formalist uses common law cases to make her point about legal
reasoning, then the argument collapses, as shown in the syllogism used to decide the
Baby M case cite above (Sect. 13.1). The first premise of the syllogism is a judge’s
(not a legislator’s) choice made on the basis of policy. The judge decides that the
legal mother of a newborn child is its birth mother because she believes for a variety
of reasons that this is the best policy to pursue. The judge could just as well have
endorsed the lower court judge’s decision that it is good public policy to enforce a
contract in which a birth mother (prior to insemination) has agreed to hand over her
newborn for consideration ($10,000). This difference between policy considerations
in a single case makes us wonder about other cases. How much indeterminacy is
there in legal reasoning?3

2
 “If any person shall designedly administer to a pregnant woman or knowingly procure to be
administered with her consent any drug or medicine, or shall use towards her any violence or
means whatever externally or internally applied, and thereby procure an abortion, he shall be con-
fined in the penitentiary not less than two nor more than five years; if it be done without her con-
sent, the punishment shall be doubled. By `abortion’ is meant that the life of the fetus or embryo
shall be destroyed in the woman’s womb or that a premature birth thereof be caused” (Greenhouse
and Siegel, 2012).
3
 See also the example of “reliance-based” rules of recovery as an example of how social policy is
used to resolve contract disputes (Sect. 11.4).
13.2  Critical Legal Studies 275

The answer is “A great deal of indeterminacy.” Consider again the reasoning of a

trial court in Florida dismissing a woman’s law suit seeking recovery for damages
suffered by her and members of her family by her husband when he had attacked
them with a machete, inflicting serious injury upon them (Sect. 8.4.2). The trial
court’s argument for dismissal was deductive. It began with a major premise that
simply said that one spouse may not sue the other in tort, even where that tort is the
intentional one of assault and battery. The second premise is: This is a suit in tort for
assault and battery brought by the wife of the man who committed the tort. From
these two premises we get the conclusion: The husband is immune and this suit is
thereby dismissed. However, once the courts decided to take a careful look at the
common law basis for the interspousal immunity doctrine, it became clear that “the
public policy reasons for applying it do not exist” (Waite v Waite). The implication
is that these policy reasons may have existed at one time, but they do not exist now!
It is the kind of answer that is at the root of the CLS accusation that legal reasoning
is indeterminate, subject to the constant changes over time of societal and judicial
values.
CLS theory contends that “the law is mostly indeterminate, [and] if most such
issues and questions have no determinate answer—then the whole idea of legal
reasoning begins to look very dubious” (Tushnet 1986). Judges are not engaged in
a unique type of reasoning when they decide common law cases. They are reasoning
in the same way that two or more people reason when they are debating a moral or
political topic. The only difference is that judges are using their deductive argument
to make an “authoritative” decision that the litigants before them will be compelled
to obey.4 But because the major premise they use in their argument is a statement
ultimately based on a debatable policy or moral position, the reasoning is essentially
the same as we find in political or moral debates. This is exactly what happened in
the Baby M case, and according to those feminists who have been influenced by
CLS theory, it is exactly what historically has happened in cases that have nega-
tively impacted the lives of women (such as those early cases giving tort immunity
to husbands who intentionally injured their wives). Certain moral and political deci-
sions were made in forming the common law doctrine of coverture. These decisions
prevented married women from having a legal identity separate from that of their
husbands (Sect. 5.3.2). It was only after a painful and prolonged struggle that
women broke these bonds. But this only proves the CLS case for indeterminacy.
Although new authoritative decisions have been made to replace the old ones, the
new decisions are just as political. CLS now has its foot in the door and can legiti-
mately call for a change to progressive values in the law. If all judicial decisions
based on common law are indeterminate, then formalists no longer have an argu-
ment for the inevitability of a judicial decision based on common law.

4
 “[T]hey are making from scratch an authoritative political decision that the litigants in the case
before them will be compelled to obey, unless the decision is overturned on appeal by a judge in a
higher court” (Altman, 293)
276 13  Critical Legal Studies and Feminist Jurisprudence

13.2.2  Stare Decisis and the Rule of Law

The previous remarks have consequences for the oft-repeated idea that our govern-
ment adheres to the rule of law. This phrase is ambiguous, but we shall take it to
mean that where there is the rule of law the government is required to exercise its
power in accordance with well-established and clearly written rules, regulations,
and legal principles. CLS theorists would contend that the legal reasoning of the
judiciary employing the rules, regulations and legal principles are neither “clear”
nor “well-established.” Common law examples of this have been cited in the pre-
ceding section (Sect. 13.2.1). The common law rules that comprised the practice of
coverture were once “clear,” but have long since been abandoned.
CLS progressives are not the only theorists who point out that the rule of law has
been abandoned by the courts -- even when considering constitutional cases. In
Chap. 4 we briefly discussed the acknowledged fact that the U.S. Supreme Court
does not regard its own decisions in prior cases to be “inexorable commands.” There
are circumstances in which it will abandon these earlier cases and the rulings which
were based on them. For example, although the Court in Planned Parenthood v
Casey was careful to enunciate a standard (for overruling previous decisions) to
which they would adhere (see Sect. 4.3), Justice Scalia in a strong dissent in a later
case (Lawrence v Texas), pointed out that this standard was simply ignored when it
overturned a precedent “rendered a mere 17 years” earlier in Bowers v Hardwick
(478 U.S. 186, 1986). In Bowers the Court had upheld a Georgia statute criminal-
izing “homosexual sodomy,” a decision which also involved private consensual sex
between two adults. This opinion would ordinarily set a precedent for future cases,
but the decision in Lawrence was to strike down on due process grounds a Texas law
criminalizing private sexual acts between persons of the same sex. Scalia’s dissent
to this decision underscores the high degree of discretion that the Court has to ignore
its prior rulings. To this extent he would agree with the CLS attack on stare
decisis.
I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do
believe that we should be consistent rather than manipulative in invoking the doctrine.
Today’s opinions in support of reversal do not bother to distinguish–or indeed, even bother
to mention–the paean to stare decisis coauthored by three Members of today’s majority in
Planned Parenthood v. Casey (Lawrence v Texas, 539 U.S., 2003)

Scalia quotes the relevant passage in Planned Parenthood in which the Court
majority had earlier defended stare decisis:
Where, in the performance of its judicial duties, the Court decides a case in such a way as
to resolve the sort of intensely divisive controversy reflected in [Roe v Wade], … its decision
has a dimension that the resolution of the normal case does not carry … [T]o overrule under
fire in the absence of the most compelling reason … would subvert the Court’s legitimacy
beyond any serious question. (Planned Parenthood v Casey, 505 U.S., 1992).

Scalia points out that there was “widespread opposition” to the 1986 ruling in
Bowers. It was as “intensely divisive” as the decision in Roe v Wade (1973). But
instead of defending stare decisis in Lawrence v Kansas by refusing to overrule
Bowers, the Court majority said that the divisiveness is “a reason in favor of over-
13.3  Feminist Legal Theory 277

ruling it” (Lawrence, 15–16) This is exactly the opposite of what the Court had
previously declared in its standards for overruling a precedent case. It is also the sort
of maneuver that proves the point made by CLS theory. When previous constitu-
tional law cases are so easily cast aside as precedents, then the Court undercuts the
promise of predictability embedded in the rule of law.

13.2.3  Family Privacy

Another CLS attack on traditional legal theory in general and formalism in particu-
lar is to argue that there is no area of private conduct in which “individuals should
be at liberty to act without interference by government or law” (Altman, 205) As
previously discussed at length in Chap. 5 (Sect. 5.2), the attack begins with the
simple observation that zones of privacy are defined and created by the legal system.
If it is claimed that a woman and her spouse have privacy to use artificial means of
contraception in their own bedroom, then this is only because there are legal rules
that prohibit public invasions of a person’s home to prevent such this kind of use. It
is then pointed out that the very act of defining a zone of privacy should be seen as
a kind of legal intervention. Therefore, this makes it conceptually impossible for
there to be a “private” sphere of family life from which government should be
barred. The state intervenes by virtue of the fact that it has created by law the very
area that it makes private.
The reply to this objection is it makes the assumption that a decision not to
legally intervene in the conduct of an individual (i.e. to refrain from legally prohibit-
ing a particular action) is to be construed as a kind of intervention (Sect. 5.2). Of
course, this assumption guarantees the conclusion that a sphere of private life does
not exist. But the hypothesis that the state always intervenes in our lives is now
completely untestable, and therefore immune to refutation. For not only does the
state intervene when it prohibits or requires a certain kind of conduct, but it also
intervenes when it does not prohibit or require that conduct. In other words, CLS
has so defined the concept of legal intervention that no example of non-intervention
that we choose to submit could possibly count as evidence against the hypothesis. It
follows that the CLS conclusions that there is no such thing as non-intervention and
no such thing as a sphere of privacy are logically empty.

13.3  Feminist Legal Theory

Before we discuss feminist legal theory (FLT) and the influences on it of CLS, we
should attempt to understand how FLT views the status of women in American soci-
ety. In one sentence, FLT contends that women are now and have always been
unjustifiably and systematically discriminated against and oppressed by men.
“Discrimination” is a term used to designate unfair treatment. “Oppression” is a
term used to designate discriminatory treatment that is built into the very structure
278 13  Critical Legal Studies and Feminist Jurisprudence

of society, that is, built “into its practices, laws, norms, customs and institutions”
(Altman, 204). “Patriarchy” is the term used to designate the unfair treatment and
oppression of women by men.
Patriarchy takes several forms. Part of the unfair treatment and oppression of
women is seen in the traditional view of the family and the role of women in it. For
example, women are expected to bear most of the burden of taking care of and rais-
ing children. They are believed to be responsible for most domestic chores. Men are
regarded as the ultimate decision makers in the household. Working women are
deprived of jobs and opportunities routinely given to men. As a result, they do not
hold nearly as many positions of power, wealth and influence in society as their
male counterparts.
It is easy to find examples of how patriarchy is built into the laws of non-Western
societies. In some Middle East countries, a woman can work and travel only with
the written permission of her husband or male guardian, and she cannot obtain a
divorce without the husband’s cooperation (who can obtain divorce simply by filling
out a divorce form). Saudi Arabia is seen as the world’s most repressive country
when it comes to women’s rights. “The Wahhabi form of Islam requires women to
submit to male guardianship all their lives, which means that men decide where
women go outside their home, which school to attend, whom she marries,5 whether
she works and even what medical treatments she takes. Saudi Arabia remains the
only country that forbids women to drive” (icdblogsphereteam 2013).
Is there anything comparable to Middle Eastern patriarchy in western countries,
including the United States? One answer is that although there were some patriar-
chal laws and practices in early American common law, such laws and practices no
longer exist. The discriminatory marriage and property laws that were part of cov-
erture have long since been discarded.6 According to liberal feminists,7 patriarchy is
dead.
The liberal feminist declaration of the death of patriarchy has been greatly exag-
gerated, according to CLS-inspired radical feminism. There may be little evidence
of patriarchy in case law, but “patriarchy is alive and well” (Smith 1993) in the
informal norms, rules, and practices of society. These norms dictate that the woman,

5
 Readers will recall the example at (Sect. 3.2) of a young Moroccan woman who was required to
marry her rapist.
6
 Under the doctrine of coverture, “a married woman or feme covert was a dependent, like an under-
age child or a slave, and could not own property in her own name or control her own earnings,
except under very specific circumstances. When a husband died, his wife could not be the guardian
to their under-age children. Widows did have the right of “dower,” a right to property they brought
into the marriage as well as to life usage of one-third of their husbands’ estate. Though a married
woman was not able to sue or sign contracts on her own, her husband often did have to obtain her
consent before he sold any property his wife had inherited.” (Harvard Business School 2010). See
also the discussion of the Family Privacy Doctrine at section “Intrafamily harm and the family
privacy principle”.
7
 Altman makes a distinction between liberal and radical feminism. The liberal feminist believes
that patriarchy has been largely eliminated from Western societies. Radical feminism believes that
it still exists. (202)
13.3  Feminist Legal Theory 279

not the man, shall be the principal caretaker of their children, her word is not taken
as seriously as are the words of a man in powerful social institutions, and “girls are
systematically encouraged to have lower expectations for themselves than do boys”
(Altman, 203). As a probable result of these social factors, gender inequality remains
a serious unsolved problem. The phrase “gender inequality” refers to a disparity of
power and status between men and women. And this is exactly what we currently
have in much of the United States workforce.
• According to the U.S. Census Bureau, women made up 50.8 % of the population
in 2010. Also in 2010, women became half of all workers in the U.S. Yet this
mere presence of women in the workforce is anything but a show of equality
when men hold the top management positions in a variety of professions in
extremely unrepresentative numbers: In 2011, women ran only twelve of the
Fortune 500 companies.
• In 2010, women made up 31.5 % of all lawyers but were only 19.5 % of partners
in U.S. law firms according to Catalyst. Additionally, 11 % of the largest law
firms in the U.S. had no women on their governing committees.
• No state has ever achieved federal or state judgeships gender equality. Women
held only 23 % of all federal judgeships and only 27 % of state judgeships in
2010. In its 220-year history, only four women justices have served on the
Supreme Court although we currently have the all-time high of three justices out
of nine.
• Today in the 112th Congress women hold 17 Senate seats out of 100 and hold 92
out of 435 House seats.
• The United States has never had a woman President.
• Men outnumber women at a rate of 73 % vs. 27 % in all sectors of employment
for science and engineering as of 2009.
• Obviously, there are large disparities in the number of women managers and
leaders despite the fact that women make up half of the workforce. This is true
gender inequality, a gender difference in power and status. Ignoring gender
inequality in the U.S. or assuming the glass ceiling is broken when it’s not, is
dangerous. In the World Economic Forum’s Global Gender Gap Report of 2010,
the United States ranked number 19 in terms of gender equality (Ferro 2012)
The author of the preceding litany of wrongs against women writes that “a failure
to recognize the problem of gender inequality in the U.S. is the perfect way to assure
that we’ll never solve the problem” (Ferro, id.). But can any of the functions of fam-
ily law (Sect. 1.2) be used to correct social (non-legal) forms of discrimination
against women, such as those mentioned above?
First, as is now the case in some Scandinavian countries, federal legislation could
be passed requiring paid parental leave when a child is born or adopted. For exam-
ple, in Sweden parents are entitled to share 480 days, or around 16 months, of paid
parental leave. Not only mothers but 85 % of fathers take parental leave. (Swedish
Institute 2013–2016). Second, gender inequality at work could be dealt with by laws
requiring that all employers actively pursue specific goals to promote equality
between men and women. For example, federal law could prohibit discrimination
280 13  Critical Legal Studies and Feminist Jurisprudence

against any employee who is, has been or is willing to take parental leave. Third, in
order to cover the pay gap between men and women,8 federal legislation could be
passed requiring either equal pay for equal work or by requiring pay equity for work
of equal value. In the former case, equal pay compares the pay of incumbents in the
same or very similar jobs. In the latter, pay equity compares the value and pay of
different jobs, such as nurse and electrician.
There is another, more controversial solution specifically targeted at women and
the goal of providing them with a level playing field in the competition with men for
an equal chance to make it up the chain of command in the workforce. The solution
of requiring paid parental leave applies equally to men and to women. Under
Swedish law both genders are equally entitled to take leave when a child is born or
adopted. But there is a second approach. It involves recognizing that there are cer-
tain differences between men and women that make it unfair to women when soci-
ety requires that the rules be the same for both. This is most obvious in the United
States when a woman wants to take a leave of absence during the final stages of her
pregnancy but is denied disability benefits from the same company for the period of
time she is not at work. If she had been unable to work because of accident or illness
she would have received disability benefits. Women get pregnant and are sometimes
disabled by their pregnancy. Men do not get pregnant. To deny women a benefit on
the basis of this difference between women and men is discriminatory.
The “difference” approach to correct gender inequalities is illustrated by a 1974
Supreme Court case (Geduldig v Aiello 1974). Carolyn Aiello experienced disabil-
ity as result of complications during her pregnancy. She was denied benefits from
California’s Disability Fund under the state’s Unemployment Insurance Code.
Aiello and other disabled women who were also denied benefits for the same reason
challenged the statute as a violation of the Equal Protection Clause of the Fourteenth
Amendment, claiming that by disallowing payments related to pregnancy, California
inevitably discriminates against women. The U.S. District Court agreed and declared
the statute unconstitutional. The state of California appealed this decision to the
Supreme Court, but the court overruled, arguing that the list of conditions covered
by the disability insurance system is not exclusive. Other conditions were not cov-
ered that affect both men and women. Furthermore, there are conditions not covered
by the system that affect both men and women. Moreover, if all disabling conditions
were included, this would result in lesser amounts of funding for all other more seri-
ous conditions. Altman interprets the majority decision as saying that the distinction
is between pregnant persons and non-pregnant persons (that is, the disabling condi-
tion), not between women and women (that is, gender). On this basis the Court ruled
that there is no unconstitutional discrimination under the Fourteenth Amendment
(Altman, 217).

8
 Compiling data from the Census Bureau, the Department of Education and the Bureau of Labor
Statistics, AAUW calculated the median salaries for full-time employment in all 50 states and the
District of Columbia. In the U.S., the average woman is paid 23 percent less than the average man
(The Huffington Post. 2014).
13.3  Feminist Legal Theory 281

Radical feminists would object to the Supreme Court ruling in Geduldig by

rejecting the premise that attention to the difference between men and women
regarding pregnancy is “special treatment.” They see it as a leveling of the playing
field, as a way of giving pregnant women equal opportunity. Since women are living
in a patriarchal society, they need programs that treat them differently in order to
have a fair chance to achieve economic independence. Here is an analogy. Imagine
a society in which a large population of persons do not have the same ability to
speak, read or write the language of the majority population. This makes it much
more difficult for them to read the law texts that are written in the language of the
majority. There is no way to correct this disability, and there are no texts available
in their language. It would hardly be fair treatment if professors used exactly the
same standards to grade both groups of students. Those unable to fully understand
because of their disability are unfairly treated if that difference is ignored and
exactly the same rules are applied to them as to the students who do not have the
same disability. The best solution, of course, is to make sure that all students have
an equal chance to succeed on the same examination. This can be accomplished by
correcting the language deficit of those who have the disability. And, by analogy, the
best way to level the field on which men and women “play” is to create a society in
which patriarchy is eliminated and no one suffers on account of gender.
Gender equality could be achieved in the U.S. Congress by requiring that a num-
ber of seats in the Senate and the House of Representatives be reserved for women
proportionate to the percentage of adult women in the population. Quotas for women
have already been instituted in 45 countries.9 Since women are currently at 50.8 %
of the population they would be allocated 51 of the 100 seats available in the Senate
and 222 of the 435 seats available in the House. This would certainly correct the
current unequal representation of women in Congress, but it would also open the
door to those who would want to correct the enormous gap in Congress between
white and the non-white populations who have historically suffered from discrimi-
nation and oppression. If we reserve seats in Congress for women, then why not also
reserve seats for African-Americans?10

9
 “A number of countries have adopted measures intended to improve the political representation
of women. The International Institute for Democracy and Electoral Assistance (IDEA) global data-
base on quotas for women lists 45 countries where quotas for female candidates are presently
mandated (either by constitutional provision or by national law) at the national or sub-national
level. And there are many more countries where parties have implemented voluntary quotas for
female candidates. Whether or not these measures are effective is another issue, but countries and
parties are at least interested in appearing to promote greater gender-balance in their representative
assemblies” (Bird 2003, 3).
10
 “Only a few states have passed laws to correct the under-representation of ethnic minorities, and
in most cases these laws apply to dominant national minorities, and not to polyethnic immigrant
minorities. In addition, most of the countries where parliamentary seats are reserved for national
minorities are either new or non-democracies, where such measures are required to maintain ethnic
peace or to limit the autonomy of national minorities. There are also a handful of established
democracies where seats are reserved for designated indigenous communities. There are no estab-
lished democracies that have adopted quota laws for ethnic minorities (in the fashion that many
have for women” (Bird, 3).
282 13  Critical Legal Studies and Feminist Jurisprudence

Returning to (and ending with) the problem of patriarchy as it occurs in the tra-
ditional family, I see no legitimate way to use the tools of family law to correct
internal gender inequalities in the family. How could a democratic society intervene
with mandatory laws prohibiting families from allocating the role of taking care of
and raising children exclusively to women, making women responsible for most
domestic chores, or denying them the role of equal decision maker in the house-
hold? Do we assign social workers to each and every family and charge them with
the task of making monthly unannounced visits to see if there is conformity to the
state-imposed model of a family that practices gender equality in the assignment of
child-rearing duties? Should we allow the state to undertake programs that require
constant audio and video monitoring of family activity within the home? What stan-
dards should the state adopt to determine when forcible intrusion is necessary to
investigate possible violations? How are we to determine whether these standards
are morally justifiable? We have seen how the family privacy doctrine has been
misused to shield families from state intervention in cases of spousal and child
abuse (section “Intrafamily harm and the family privacy principle”), but at the same
time there is considerable resistance to removing all of the barriers to state
intervention.
Questions for Thought and Discussion
1. Why is the debate between formalism and realism restricted only to cases arising
within the common law? Why does it not extend to statutory and constitutional
law?
2. What is the main point of contention between formalism and realism? Use a
common law case to illustrate.
3. Posner says that the first or major premise used to draw a conclusion in common
law cases is crucial. Why is this premise so important? How would the major
premise be defended in one or more cases in Chaps 11 and 12?
4. What is Critical Legal Studies, and how did it emerge from Legal Realism? What
does it have in common with Legal Realism? What are the differences (if any)?
5. To what extent does radical feminist legal theory use Critical Legal Studies to
reach its conclusions about women’s legal equality?
6. Despite the arguments and skepticism of CLS and feminist legal theory do you
think that a case can still be made that there is a rule of law in our legal system
and there is a form of legal reasoning to which we all should subscribe and
defend?
7. Where do you stand in the debate between liberal and radical feminists about the
equality of women under the law in the United States?

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