Adult Wrongs Don't Make Youth Rights

Sarah Fitz-Claridge

What is it like to be a child in our society, at this time in history?

No doubt many of us would like to be a child again, if only to have more life, but if we forget the physical advantages, how many adults, given the choice, would genuinely choose to put themselves in the position of children? And of those who genuinely believe that children are well-treated, how many of them would actually enjoy not having the right to choose where to live and with whom? How many of us would actually enjoy living under the child labour laws, the child curfews, and the anti-truancy measures? How many of us would actually enjoy not being permitted legally to make contracts?

This morning I read on the youthrights.org web site that Apple has given the boot to a young man who had been a frequent contributor to Darwin – the open-source core of Mac OS X – because he's only 15 years old. Apparently, the reason for this high-handed action was because minors can't legally be held to business contracts, so the fear is that the young man might later decide that he wants the rights to the work he has done on the project.

Surely Apple could find a better way to solve the potential legal problems than this? Surely, with a bit of effort, they could have found a way round this? Perhaps the parents could have indemnified them? There has got to be a way.

So first, I'll explain why age-specific laws tend to harm children rather than protect them. Then, I'll ask whether there should be laws against age discrimination. Then I'm going to explain why it's a mistake to think that ending the oppression of children is primarily a matter of changing the law or constitution.

I shall point out that that is only a small part of the problem. Most oppression is not a result of bad law, but of prevailing social, educational and parental ideas and practices. And that is where TCS (Taking Children Seriously) comes in.

A moment ago, I mentioned the case of the young man prevented from working on Apple's open source project because as a minor, he is deemed legally incompetent to make a contract. Of course there is a lot more minors can't do legally.

Children are excluded from many legal rights adults take for granted, such as the right not to be assaulted, the right to drink alcohol, have sex, and, I am told, here in America, to smoke.

It is usually taken for granted that the best way to protect children, both in law and in education, is to override their wishes for their own good, for instance by preventing them from doing things that they may regret later. But as we can see from the case of the young programmer, the very laws which are intended to protect young people from exploitation are actually harmful to them.

Age-specific drinking laws are intended to protect young people from their putative poor judgement in that respect. What these laws do is to channel children into one way of life, a way of life which is stereotypical.

The laws which give parents the legal right to force their children to undergo medical treatment against their will if it is deemed medically necessary by a doctor, are intended to protect children from themselves. In fact what we have is a double standard here: If an adult says, “No, I do not want the operation,” the doctor must not do it, irrespective of the risk of death to the patient if he does not have the operation. Adults are legally competent if they simply know what they want, but that criterion is not applied to children. When it comes to children, merely knowing what they want does not constitute consent (or lack thereof). Children are expected to meet a completely different criterion of competence. If the terms “competence” and “consent” are used in a consistent way for adults and children, the argument that children are incompetent collapses. The argument that children are less than full human beings who, in contrast to adults, need to be protected from their own incompetence, is circular.

On the left: the sign-language interpreter.

Laws should not be age-specific. They should not discriminate against or in favour of children or any other group. One example of the dangers of laws discriminating in favour of a particular group is that of the positive discrimination you have here in America.

Even though its intention is to improve the lot of minority groups, its effect is to do the opposite, because, for instance, the fact that positive discrimination is enforced means that employers take less seriously any apparent achievements black people have, because how can they tell whether the achievements are real or the result of positive discrimination?

Similarly, compulsory education harms and discriminates against children while its purpose is to help them. If it were really true that education should be compulsory, the law would say that education is compulsory for ignorant people, not for people of a certain age.

Legitimate laws do not mention age. Even laws which say that parents have a legal obligation to provide food and shelter for their children should not mention age. What they should say is that when a person wilfully or negligently places another person in a position of need, he or she thereby acquires obligations to that person.

This applies to all sorts of other groups too, such as pilots and their passengers, surgeons and the patients they are operating on, and so on.

The origin of the surgeon's obligations is NOT the patient's needs, but the surgeon's own voluntary or negligent actions. Similarly, the origin of the parent's obligations to her children is not the child's needs, it is the parent's own freely-chosen or negligent actions. So there is absolutely no need for laws to discriminate on the basis of age. Children can be protected without age-specific laws.

Now I want to move on to the tricky issue of whether or not individuals and companies should be permitted to discriminate against children. Should there be laws against discrimination? For example, should hotel owners be legally able to turn away children? Or black people? Or women?

In a fully free society, hotel owners would be able to discriminate, and should be able to discriminate. But if you have a hotel, and you put up a big sign on the motorway advertising your hotel, but not mentioning that you will turn away children or black people or trombone players, and then you turn those people away, you are wronging them.

Of course our legal system forbids racist hotels from putting up notices giving the information that they will turn away black people, and they are not legally permitted to turn away black people, so the end result is that black people have no way of knowing which hotels to avoid, and end up being treated badly and getting sick as a result of the racist hotel staff spitting in their breakfast. They would have been better off going elsewhere.

It is not always clear what the right answer to these sorts of legal dilemmas is, given how our laws are currently, but one thing that is very clear is that all these issues about the state of the law are minor side issues when it comes to the oppression of children. Because in virtually all cases, children can be protected from the discriminatory and coercive effects of bad laws, if they have the TCS (non-coercive) parents. Whereas it CAN'T protect them from coercive parents.

The harm done by age-specific laws is undeniable, but it is nevertheless only a small part of the problem. Most oppression of children has nothing to do with the law. It is a result of ideas (conscious and unconscious) that are prevalent our society.

Adults, particularly parents and teachers, do far more to oppress children than the laws do, and could perfectly legally desist from most of this oppression if they so chose.

There is no legal requirement upon parents to punish their children for a wide range of perfectly legal activities, yet they choose to anyway. There is no legal requirement upon parents to insist that their children live with them, and yet parents whose children seek other guardians usually invoke their legal right to force the children to return. There is no legal requirement to deny children freedom of association, and yet many parents do deny their children that. There is no legal requirement to assault children, yet, in the name of discipline, many parents do so. There is no legal requirement to deny children access to information in the home, yet many parents go to extreme lengths to do so. There is no legal requirement upon parents to subject unwilling children to extra-curricular activities such as piano lessons and Girl Guides. Indeed, there is no legal requirement for parents to force their children to go to school, yet most do. There are not even specific requirements for the education children must receive, and yet some parents force their children to jump through a variety of educational hoops.

Similarly, there is nothing in the law that suggests that teachers should treat their pupils with disrespect. The law does not insist that children should be given homework, or that parents should make them complete it when they would rather be doing something else.

It is not the law that causes parents and teachers to put children in double binds to manipulate them into doing the adults' will.

Real changes in society are rarely caused by political change or legislation, they are caused by shifts in attitudes at the individual level.

Changing the law will do no good at all if it asks people to do things that they are psychologically unable not to do, or desist from doing things that are contrary to the way people are in our culture.

It is not much good making a law that in any court case involving a child, the child must have his own lawyer, if the judge, the lawyer himself and everyone else involved have a conception of a child as a person who is incompetent to make decisions. Whereas if our society were already one in which everyone had been raised in TCS homes, and thus had the right attitude to children, then irrespective of the law, everyone in the court would be doing the right thing anyway.

A constitutional amendment can make involuntary servitude illegal, and of course has done here, but no court in the land would declare school unconstitutional despite the fact that it is clearly involuntary servitude. But even if there were no such constitutional amendment, that would make no difference if people had the right attitude to children.

Similarly, several commentators have pointed out that Apple should have found a way around the law to allow the young man to work on their project. When people have the right attitude and the right ideas, they can and do find ways around such legal impediments.

If people are wrong-thinking, no amount of law will help. Even if the new law is right, that won't help if the child's parents are unable to change from their previous coercive way of interacting with the child.

They can simply use the power which the relationship with the child has given them to control the child. They can do that quite effectively without violating any of the child's legal rights. Making a sad face at someone does not and never would violate anyone's legal rights, but it is a very effective weapon employed by parents to get their children to do what they, the parents, think the children should do.

This shows that is it not the laws, so much as the ideas in people's minds, that determine whether and how badly children are oppressed.

Now I am going to talk about Taking Children Seriously. TCS is a radically new and different idea about child-rearing.

Its most distinctive feature is the idea that it's both possible and desirable to bring up children entirely without doing things to them against their will, or making them do things against their will, and that they are entitled to the same rights, respect and control over their lives as adults.

TCS is an educational philosophy in the broadest sense, in that it's about the conditions under which human minds do and do not thrive, and about how people learn and how knowledge is created, and it has far-reaching implications for all relationships and for all areas of life.

It's a whole new world-view.

[End excerpt]

Visit the Taking Children Seriously web site for further information about TCS.

Visit the National Youth Rights Association web site for further information about the organisation.

Against Sharing Equally Published in Taking Children Seriously.

Appearance, Reality and Education Law: The interesting case of Phillips v Brown. Published by Education Otherwise.

Is it necessarily the case that age-based laws are needed to protect children from paedophiles, etc.? How the usual argument that children are incapable of consenting are based on an equivocation – switching the meaning of the word ‘competent’. Children's Rights and the Law Published in Taking Children Seriously.

For all those children who hate school: Who Wouldn't be ‘School Phobic’?

What's Wrong With Home Visits? On providing evidence of education to state officials. Published by Education Otherwise.

My Libertarian International Fall Convention 2002 paper, given in London, England, The Semblance of Consent. Published in the The Laissez Faire Electronic Times Vol 1, No 40, November 18, 2002.

To an index of further articles, papers and speech transcripts by Sarah Fitz-Claridge

Copyright © 2002, 2003 Sarah Fitz-Claridge

This page is: http://www.fitz-claridge.com/Articles/YouthRights.html