What Is Parenthood?: Contemporary Debates about the Family

5. Legal Parenthood, Natural and Legal Rights, and the Best Interests of the Child: An Integrative View

105 CHAPTER FIVE Legal Parenthood, Natural and Legal Rights, and the Best Interests of the Child An Integrative View Don Browning The question to which I respond is this: How should contemporary family law define who is a parent in light of the rights of the parent, the rights of children, and the best interests of the child? Overall, modern human rights thinking, as it pertains either to children or adults, stands largely devoid of critical grounding. The historically most influential tradition conveying human rights to the modern world—the natural rights and natural law traditions of Aristotelian and Stoic philosophy , Roman law, and the early Roman Catholic canonists—has been for the most part publicly rejected in the United States. I will argue, however, that this influence lingers in the content of two major human rights documents whose intellectual history I analyze in this chapter: the Universal Declaration of Human Rights (UDHR) and the United Nations Convention on the Rights of the Child (CRC). These documents focus on the front door of family formation in striking contrast to so much of today’s U.S. family law scholarship that focuses on the back door of family dissolution. This chapter argues for the relevance of natural law and rational philosophical approaches, of which religious thinkers have been custodians, to today’s questions about adults’ and children’s rights when it comes to legal definitions of parenthood. It suggests that religious language has functioned to stabilize insight gained from natural observation and philosophical argument. The chapter traces the natural law and rational philosophical roots of what we are calling the integrative tradition and its influence on significant human rights documents in international law. In a paired chapter, legal scholar David Meyer ably examines how the rights of adults and the rights of children can come into conflict and identifies what he believes to be the limits of rights talk in deciding issues such as defining parenthood.1 Meyer sees attention to the unique rights of both 106 Don Browning children and adults present in seminal international human rights instruments such as the UDHR and the CRC. My approach, by contrast, is to reveal what I believe to be the deeperseated intellectual history that led to these instruments, a background that helps us to understand the concern those drafting these documents had for the natural family and in particular the needs of children within it. This tradition, I believe, helps to shed light on contemporary discussions of how to define parenthood. The chapter also offers contrasting examples of family law scholarship , with encouraging contemporary examples of scholarship attentive to the integrative tradition compared with other current, more pervasive approaches. Overall, the chapter affirms that marriage and biological relatedness should remain central in law’s orientation to questions of defining parenthood, even as the law is and should be attentive to the varieties of families and parent-child relationships in special need of support. The integrative tradition traced here begins with the later Plato and Aristotle , interacts with the doctrine of creation in Judaism and Christianity, appears in early medieval rights theory, gets synthesized with Roman law in the moral theology of Thomas Aquinas, and becomes transmitted to secular family law during the early years of the Protestant Reformation. Later, this tradition was mediated by Charles Malik and Jacques Maritain to the committee that wrote the UDHR, ratified in 1948. The tradition came to Malik and Maritain most directly from late nineteenth-century and early twentieth-century Roman Catholic social teachings. Assumptions about Modernity The question of modernity—its logic, power, and degree of inevitability —is important for understanding the decline of the integrative tradition . Western modernization is best characterized by the powerful dialectic between cultural individualism2 and the spread of technical rationality, defined as the increasing use of means-end thinking and action to achieve a range of short-term life satisfactions.3 Family law theories can be classified by whether they consider it the task of law to resist modernization (e.g., the work of Margaret Brinig, a contributor to this volume, which I shall discuss)4 or conform to and possibly promote it (e.g., contributor to this volume June Carbone, as well as Martha Ertman, Martha Albertson Fineman, and the American Law Institute’s Principles of the Law of Family Dissolution,5 which I shall also discuss). 107 Legal Parenthood, Natural and Legal Rights In the field...