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Wrong With Children's Rights,
by Martin Guggenheim, a professor of clinical law at New York University, is a meticulously-crafted, well-researched, and argumentative tome reflecting the
author's years of experience in the subject of family law and in the more
specialized area of child advocacy. The book demonstrates a strong ideological
stance, as Guggenheim draws on history and basic American constitutional
principles to demonstrate how the children's rights movement embodies a set of
ideas that is distinctly out of step with traditional American values. There
are strengths of the book worth talking about, but there are also weaknesses
that should be mentioned. Though he deserves recognition for contributing his
ambitious effort to the ongoing debate, and his analysis of some particular
issues he discusses are worth reading, Guggenheim's ideological stance is often
a source of frustration for the reader.
main theme is that the concept of "children's rights" treats the
needs and interests of children "as antagonistic to those of their parents".
Children's rights, he says, can serve as a smokescreen for the interests of
other adults who have something to gain in legal disputes, leaving children as
pawns in a game that is primarily for adults and works little, if at all, to
the benefit of children themselves. We would be better served, Guggenheim argues,
by aligning the rights and interests of children with those of their parents,
the only ones who can offer the detailed sort of attention and care that
individual children require. A concentration on parental rights, he states, is
a position that cares for children. State officials, such as well-meaning but
necessarily aloof judges, or lawyers who claim to speak for children (and whom,
Guggenheim notes in Chapter 5, there are perhaps far too many of), cannot be
expected to be able or even willing to look out for the best interests of the
child -- only the parents, whether or not they meet our own personal definition
of what constitutes a good parent, are suitable to the task, and ought to be
given the benefit of the doubt if they are only up to a minimal standard of
main strength of the book is its concentration on the unfortunate consequences
of the "best interests of the child" standard. Guggenheim is at his
best when illustrating the problems that the legal system has adopted within the
last few decades. These illustrations will certainly provoke a welcome debate
over whether modifications should be made to the complex system of family law.
Guggenheim's central question here is: with results like these, which the
system is certainly responsible for producing, is the system acceptable? He
points out that no system is perfect, and sound policy comes from wise
policymakers who attempt to predict where they will go wrong and minimize the
ill consequences of their own actions: "Sound policy (...) presumes errors
will be made and [it] consciously seeks to achieve more errors of a certain
kind and less of another" (47).
upon reading such a sentence, the central problem with the book becomes
evident. The only solution to our problem, Guggenheim argues, is a return to
the 'parental rights doctrine,' of allowing parents great and almost
unassailable authority in making the decisions that determine the makeup of a
person's time as a child and, ultimately, perhaps much of their attitudes as an
adult. For Guggenheim, this is a choice between liberty and, if not tyranny,
an unacceptable amount of government meddling in an individual's personal life:
"There are few questions of greater importance to a society committed to
personal freedom" (91). This stark dichotomy appears repeatedly
throughout the book. The primary conflict that Guggenheim describes is one of
private individuals vs. state power, and he leans heavily on well-worn
arguments rooted in American history and constitutional law to convince us that
we should stand with the rights of parents against the power of the state. The
power of the state, he says, is a dangerous tool to unleash, and only private
individuals can be trusted to deliver the care that children need: "Parents
are in a better position than anyone else to make the proper decisions for
their children and that parents tend to have their children's best interests at
heart (...) [the parental rights doctrine] recognizes the potential dangers
associated with empowering state officials (judges) to make these decisions
instead of parents" (120). Not having life-determining decisions made by
state officials is a rather obviously desirable thing that should, ideally, go
without saying, and nobody is really suggesting that is what should be done.
attempts to frame the discussion as, ultimately, a personal liberty issue for
adults, and one that rests, curiously enough, on a uniquely American way of
doing things: "Our arrangement may not be natural or necessary. But it is
ours" (48). He quotes Supreme Court Justice Brennan approvingly here,
saying that Plato's vision of a society where the needs of children are met not
by parents but by the government, "is a brilliant one, but it is not our
own" (ibid). Leaving aside the rather obvious straw man, a further
question comes to mind: why, exactly, is our way good merely because it is our
way? Any good introductory textbook of informal logic will tell us that the
argument from tradition is a logical fallacy. What does this mean for the rest
of his book? Although Guggenheim's analyses of several more specific issues in
the book are well worth reading, and the problems he points out are surely in
need of fixing, his philosophical position seems in need of some fine-tuning when
one considers that one of his reasons for arguing for the parental rights
doctrine is that it is 'more American.' This ultimately works to his
detriment. It is, therefore, worth reading this book for a look at some
problems with our family law system, but not a book which presents a
comprehensive solution -- nor is it one with a philosophical justification that
we should readily agree to.
2006 Justin Moss
Moss recently graduated from the University of Idaho with an
MA in Philosophy, and is now studying for the Ph.D. in Philosophy at
the University of Nebraska-Lincoln.".
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