Jeffrey Shulman
- Published in print:
- 2014
- Published Online:
- January 2015
- ISBN:
- 9780300191899
- eISBN:
- 9780300206746
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300191899.003.0001
- Subject:
- Law, Family Law
The law of parentchild relations has long embodied a belief that education (a “leading away from”) is the path away from childhood and toward intellectual and moral enfranchisement. Unless children ...
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The law of parentchild relations has long embodied a belief that education (a “leading away from”) is the path away from childhood and toward intellectual and moral enfranchisement. Unless children are to live under “a perpetual childhood of prescription,” unless we are to deny them the pursuit of happiness, they must be exposed to the dust and heat of the race—intellectually, morally, spiritually. It is no wonder then that we would want to transform the sacred trust of parenthood into a sacred right. But our legal traditions teach that parenthood is first and foremost not a sacred right but a sacred responsibility, a fiduciary duty owed equally to the child and the state. The Constitution's guarantee of personal freedoms is meaningful only if we, as parents, accept the responsibilities from which parental authority arises, and the constitutional strength of parenting privileges should depend on our willingness to do so.Less
The law of parentchild relations has long embodied a belief that education (a “leading away from”) is the path away from childhood and toward intellectual and moral enfranchisement. Unless children are to live under “a perpetual childhood of prescription,” unless we are to deny them the pursuit of happiness, they must be exposed to the dust and heat of the race—intellectually, morally, spiritually. It is no wonder then that we would want to transform the sacred trust of parenthood into a sacred right. But our legal traditions teach that parenthood is first and foremost not a sacred right but a sacred responsibility, a fiduciary duty owed equally to the child and the state. The Constitution's guarantee of personal freedoms is meaningful only if we, as parents, accept the responsibilities from which parental authority arises, and the constitutional strength of parenting privileges should depend on our willingness to do so.
Jeffrey Shulman
- Published in print:
- 2014
- Published Online:
- January 2015
- ISBN:
- 9780300191899
- eISBN:
- 9780300206746
- Item type:
- book
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300191899.001.0001
- Subject:
- Law, Family Law
It is commonly assumed that parents have long enjoyed a fundamental legal right to control the upbringing of their children, but this reading of the law is sorely incomplete. What is deeply rooted in ...
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It is commonly assumed that parents have long enjoyed a fundamental legal right to control the upbringing of their children, but this reading of the law is sorely incomplete. What is deeply rooted in our legal traditions is the idea that the state entrusts parents with custody of the child, and the concomitant rule that the state does so only as long as parents meet their legal duty to take proper care of the child. This book looks at four related areas of the law: parental custody, state regulation of education, religion and parental rights, and nonparental third party rights. In each it is argued that, historically, the authority of the parent has been treated as a sacred trust, a delegation of state power made on the presumption that it will be employed to promote the eventual enfranchisement of the child; that the emergence of a rights orientation has threatened to uncouple the traditional linkage of rights and responsibilities, subordinating the best interests of the child and the legitimate needs of the state to parental preferences; and that a renewed reliance on the trust model of parentchild relations would better serve both the developing personhood of the child and the civil society to which he or she belongs. In each area of the law, we face the same historical reality: It is the rights orientation that breaks with deeply rooted legal traditions and cultural values, rejecting time-honored trust principles of family law meant to protect both private and public interests.Less
It is commonly assumed that parents have long enjoyed a fundamental legal right to control the upbringing of their children, but this reading of the law is sorely incomplete. What is deeply rooted in our legal traditions is the idea that the state entrusts parents with custody of the child, and the concomitant rule that the state does so only as long as parents meet their legal duty to take proper care of the child. This book looks at four related areas of the law: parental custody, state regulation of education, religion and parental rights, and nonparental third party rights. In each it is argued that, historically, the authority of the parent has been treated as a sacred trust, a delegation of state power made on the presumption that it will be employed to promote the eventual enfranchisement of the child; that the emergence of a rights orientation has threatened to uncouple the traditional linkage of rights and responsibilities, subordinating the best interests of the child and the legitimate needs of the state to parental preferences; and that a renewed reliance on the trust model of parentchild relations would better serve both the developing personhood of the child and the civil society to which he or she belongs. In each area of the law, we face the same historical reality: It is the rights orientation that breaks with deeply rooted legal traditions and cultural values, rejecting time-honored trust principles of family law meant to protect both private and public interests.
