Natural Rights on the Threshold of the Scottish Enlightenment

15. On the Rights of Parents and Children

134 u chapter 15 u On the Rights of Parents and Children1 Since everyone obviously needs the care and protection of others because of the condition in which he enters the world, it is appropriate that the persons who were the authors of his taking his first breath should provide him with the necessities of life. But they should not only supply what is necessary for the preservation of animal life; they should also form the minds and the morals of their children, so that the life they gave them will not be lost nor turn out to be a burden to others and painful and shaming for themselves. This obligation [to our children] flows necessarily from the act of begetting itself, whether or not we assume with Titius that the begetter consented to it.2 And since this obligation is an indissolubly integral part of parental power, nothing prevents us from saying, with Grotius, that this power too is founded on begetting. Cf. Locke, Second Treatise of Government, chapter 6.3 [II.3.2.i] [Pufendorf asserted that the right and obligation to bring up a child devolved upon the father in any formal marriage (inasmuch as the marriage contract must be supposed to have been initiated by him and he is normally the head of the 1. From the notes to bk. II, ch. 3, “On the Duties of Parents and Children.” 2. Titius, Observationes, no. 502. 3. Grotius, Rights of War and Peace, II.V.1–7, pp. 185–88; Locke, Second Treatise, ch. 6, “Of Paternal Power.” Locke’s emphasis was different from Carmichael’s: Locke was concerned to underline (against Filmer) the role of mothers in the generation of children and the continuing authority of mothers in the family (Second Treatise, ch. 6, secs. 52, 53). It was also to affirm that no child should be understood to be the creation of his parents; children are the workmanship of God alone (sec. 55, and First Treatise, ch. 6, secs. 52–54). on the rights of parents and children 135 household), but on the mother if the child was born out of wedlock. Carmichael stresses the right and the obligation of the father to share in the raising of the children in all possible circumstances.] Even outside a regular marriage, agreements may settle this question, as often happens in concubinage (cf. Of the Law of Nature and Nations, VI.II.5). In fact even without an agreement, if the father is somehow known, there is no reason why we should not say that the parental right and obligation is shared between the parents. We may ignore the nonsense of Hobbes about the origin of the mother’s right in occupation:4 even if a human life were a suitable object of ownership (the contrary of which will appear below),5 it should still be noted that it would be a case of the accession of an object belonging to someone else. [II.3.3.i] Apart from the civil law, however, the positive law of God awards a prerogative power to the man in matrimony and a particular right over legitimate offspring. [II.3.3.ii] Because husbands are the heads of their families, civil societies are usually constituted by such heads of families not vice versa. The prerogatives of husbands are therefore older than civil societies. [II.3.3.iii] [Pufendorf says that when the father dies, the right over a child (not yet adult) goes to the mother. Carmichael comments:] This must be understood [only] of the parental right, strictly so called, because its aim is the rearing of the children. It is not to be understood of the right which belongs in the natural state to the head of a separate family as such, and which passes to his heir with the ownership of the land, nor of the right which was granted specially to the father by the civil laws of several peoples, particularly the Romans, and which dies with the father. [from II.3.3.iv] [Pufendorf distinguished between the power which the father has as such, and his power as head of the family, and between the power of the father in families 4. Hobbes, On the Citizen, 9.2–3, pp. 108–9; cf. Leviathan (1946), ch. 20, pp. 130–31. 5. See below, pp. 139–40. 136 natural rights living apart and the power of...