“The suggestion that a child doesn’t know something and therefore shouldn’t make the decision is a non sequitur: patients lack knowledge too, yet everyone agrees that patients should be allowed to make such a decision on their own behalf.”
– Sarah Fitz-Claridge
From the archives: First published in Taking Children Seriously 16, 1995
My earlier article and editorials in this discussion [linked here] generated many critical responses, some extracts of which I will quote for context before my reply to Professor White’s second critical response below:
Children’s legal status: extracts from a critical response by Professor Jan Narveson, University of Waterloo, Canada
“It seems to me difficult to avoid something like an age of consent. You surely would not want to say that a child’s consent, in the usual, more or less verbal, sense of ‘consent’ is a sufficient condition for the legitimacy of anything done to it under those auspices, would you? You make a tremendously important point when you observe that most hurt to children is done by those who claim to love them. One way to try to avert this would be by laying down criteria for proper application of the term ‘love’. Those who do not spare the rod but claim to be manifesting love to children, for instance, are doing something which would prima facie exemplify malice. They therefore need to claim that the rod, in the cases in question, is conducive to the long-run well-being of the child (or the adult it becomes). This requires solid empirical evidence, and I believe there is good evidence for precisely the reverse hypothesis.
Be that as it may, we can nevertheless insist that love logically requires a disposition to do what is for the good of the person loved, and thus that any actions that are prima facie unloving require justification of a kind that requires empirical evidence to support it…
In regard to the whole range of sexual issues in relation to children, we have, surely, serious questions about ideals of later life.
Many people… have a view that a person should have one and only one sexual partner in life. That view is part of their ideal of how life should be lived. May [they] inculcate and enforce that ideal in a child? Surely there’s a problem about saying ‘no’. But if the child’s consent is sufficient to legitimise actions toward it, that child’s parents run a continual danger of having their child-rearing activities… undermined.
Do we have freedom about how we should bring up our children? If children were adults, the answer would be no. But insofar as they are children, it is surely very difficult to maintain that our freedom is limited, strictly, by the child’s consent, as such.
If you claim that we have objective, scientific-type ‘evidence’ that some views about how life should be lived are right, some wrong—independently, that is, of other-affecting actions—then I’d like to hear more about this. The Ancients and plenty of moderns think along some such lines, but I am exceedingly sceptical.
Anyway: in your discussion of contract law, you come to several conclusions about what the child could claim (‘uberrimae fidei’, for instance)—but how is a preverbal child to invoke these categories? Or one who, though verbal, does not understand law? It seems to me that you’re going to have to invoke a model of children’s well-being, such that any actions by adults that are inconsistent with this model will putatively be regarded as not freely consented to by the child, whatever it actually said. Thus, the child who ‘consented’ to sexual intercourse at age three—you want to express real doubts that the child did, in the relevant sense, consent. Okay, but that’s my point. Saying ‘yes’ does not, in its case, establish genuine consent.
The consent-throughout idea is important, of course; perhaps it would indeed do for many cases of what most of us would be inclined to regard as wrongful sexual activities… [But] in the Jones Town case, the children all lined up for cyanide lemonade; most, I dare say, didn’t know that that was what they were drinking. Here we should impute, retroactively, non-consent. But after all, almost every activity involving a very young child is one where the problem about consent is inability of the child to be fully aware of later consequences, isn’t it? Certainly you raise an important question when you ask why we should distinguish adults from children in regard to consent. I take it that the answer, broadly speaking, is that we suppose adults are competent to deal with conceptions of future consequences and that infants are not.
You raise some questions that are focused on the very important problem of continuity: infants are not, adults are, but how about 14-year-olds? Clearly the child is continuously developing and there is no precise point at which he is now competent when he previously wasn’t. Now, perhaps you have in mind a way of building this continuity into your proposal. The degree of inferred or imputed, as opposed to explicitly uttered, at-the-moment consent, is inversely proportional to the age of the child, or something. Well, we certainly have to know a good deal more. For example, you might say that children are to be free in regard to all matters with respect to which they are competent, whatever we say about those in which they are not.
I would certainly deny your suggestion that “where the ostensible reason for excluding children is that they lack competence, the real reason is that they have not reached a particular age. In other words, the argument is vacuous.”
We all know children who are ‘exceptionally mature’, as we would say, for their age. No critic would say that Sarah Chang’s violin artistry is ‘immature’ on the ground that she was, after all, just ten years old. That there are immature adults and mature children is a matter of common knowledge. Age as such does not enter into it. But we are, of course, astounded when (modest degrees of) wisdom cometh from the mouths of babes and sucklings, though it is routine in adults.
It seems to me that the rationale, insofar as there is one, for an age of consent it just about what you suggest: ‘we might envisage a system in which a party making an agreement with a minor would be automatically deemed to be in the wrong unless he was able to prove that the child knew what he was agreeing to and had had proper access to the opposing view.’ You go on to say, ‘If the real issue is that professed, namely, ignorance, there can be no justification for not applying it consistently, to adults as well as children. Ignorant adults should be prevented from making contracts just as this system’s advocates would frustrate the potential contracts of ignorant children.’
Well, hang on, now. The question is what are the reasonable presumptions. If an adult signs a contract in ignorance, is it because he was bilked? If so, the adult in question may sue for damages, but we do not prevent these things in advance, both because we can’t, and because the point is that the reasonable presumption about an adult is competence; it isn’t in the case of very young children.”5– Professor Jan Narveson
University of Waterloo, Canada
Taking Children Seriously 13, July 1994, pp. 8-9
Philosophically valid but socially unacceptable: extracts from a response by Dr Alan Thomas, Northern Territory University, Darwin, Australia
“I find the debate interesting because, as you say, there is almost a mind-set that prevents people seeing children as individuals in their own right, only as a species that needs protecting.
I particularly liked your point about political and personal enlightenment, and I agree wholeheartedly that the issue should be about whether certain individuals should be legally impotent by virtue of their age.
I’ve not previously given much thought to the issue except perhaps with regard to education. So please take the following garbled comments as from someone who is trying to come to grips with the topic rather than a considered and thoughtful response to your papers.
Overall, your argument is convincing but too far ahead of its time, philosophically valid but socially—to most people—unacceptable. As Marx said, the problem is to change the world. Many people can’t see or won’t see that far ahead. They are willing only to consider little incremental shifts as you put it—whatever the strength of the argument.
Psychologically, children of three or four are capable of logical thinking and by the time many of them are ten, they are probably better than many adults at safeguarding their own rights.
In a sense children are already active in seeking equal rights. Very many see ‘unsuitable’ films, have under age sexual relationships and drink under age. They are increasingly demanding the right to live with whom they want.
Control is not the issue, but it explains why people are averse to the suggestion that children should have rights. As a society we are still obsessed with controlling children.
But many people think this is the only way of stopping them running amok. The problem is complicated because in one sense they are right—in school for example, where the nature of the institution forces teachers to be controlling whatever their personal philosophies.
Everyone has been to school and experienced this and thinks it is the norm and that that is how children should be treated…
… Many of the issues are deep, though most people seem to respond to the superficial aspects of them.”– Dr Alan Thomas
Northern Territory University,
Darwin, Australia
Taking Children Seriously 13, July 1994, p. 9
Too Risky?: extracts from a critical response by Nigel Glew, Centre for Criminal Justice Studies, Law Department, Leeds University, UK
“You put forward an intriguing argument about removal of the age-of-consent laws, but having seen firsthand the treatment children get at the hands of abusers I cannot say that I really condone the idea…
My first assessment is that to remove the protection of the law then you are leaving the door wide open to abuse of the less streetwise child or, God forbid, the intellectually challenged children who cannot in reality be seen to give informed consent.
I accept the situation is not perfect and that the law impinges upon the rights of children, but there should always be some legal redress to fall back on.
The situation in reality is that if a paedophile has sex with a young girl, she cannot give informed consent and he is therefore guilty of rape or unlawful sexual intercourse.
Remove the age of consent and all you are left with is statutory rape, which may be difficult to prove, the paedophile is then free to carry on with no legal restraint…”– Nigel Glew
Centre for Criminal Justice Studies,
Law Department,
Leeds University, UK
Taking Children Seriously 13, July 1994, p. 9
Thoughts on the legal status of children: a critical response, by Professor Lawrence H. White, University of Georgia, USA
“In her stimulating article ‘Thoughts on the Legal Status of Children’ (Taking Children Seriously 12), Sarah raised several objections to the argument I made in a letter (in the same issue) in which I defended a particular type of ‘age of consent’ legal rule with respect to contracts and sexual relations. I would like to try to clarify where we agree and where we disagree.
THE COMMON LAW
Sarah begins by proposing to follow Popper in asking how institutions can be organised to prevent rulers from doing too much damage (to the liberty of the citizens, presumably), rather than asking who is to rule. I agree that this is the right way to proceed. I would argue that a common-law legal system, based on the accretion of decentralised judge-made precedent rather than on parliamentary legislation, is a very good way to constrain the damage done by rulers. In defending a particular kind of ‘age of consent’ rule—spelled out below—I took for granted that such a rule (or something like it) was historically developed by common law judges. I argued that this kind of a rule is consistent with libertarian rights theory. I have since been told by a legal scholar that the common law did indeed traditionally recognise ‘infancy’ as a defence against being bound to a contract. If this is correct, then Sarah is proposing to overturn the common law by abolishing all age-of-consent rules.CONSENT AND THE AGE OF CONSENT
Sarah correctly notes that the principal issue is about consent. If so, she wonders, when then should the law have a rule formulated with regard to age? What does age have to do with consent?
My argument for allowing age-based distinctions into consent-based law runs as follows. Disputes will arise over contracts or sexual relations involving children, in which the children or their advocates will plead that the children in question did not genuinely consent (therefore they should not be held to the contracts or have been sexually assaulted). In adjudicating such disputes the courts need to decide in each case not only (a) whether the child gave apparent consent, but also (b) whether the child was legally competent, that is, capable of giving genuine consent. The court needs to assign the burden of proof regarding a child’s competence or incompetence to one side of the dispute or the other. In assigning the burden of proof the court is justified in taking note of the fact that children below some age are typically not capable of giving the sort of full-fledged or genuine consent that normal adults can give. Agreements involving very young children are therefore properly subject to a different burden of proof—a higher standard of scrutiny for genuine consent—than are agreements strictly among adults.
Genuine consent requires a certain level of cognitive development, and human cognitive development is age-related. Although different individuals reach various cognitive milestones at different ages, there is a much lower probability of error in assuming that an adult has achieved the cognitive level requisite for meaningful consent than in assuming that a very young child has achieved that level. A body of law based on consent is therefore justified in having an age-related default rule of the sort: an individual younger than x is presumed incapable of giving genuine consent; an individual older than x is presumed capable.
In calling this sort of an age-of-consent rule a ‘default rule,’ I wish to emphasise that I am not at all arguing for a rule whereby ‘under-age’ children may never lawfully engage in contractual or sexual relations. (Thus, like Sarah, I would oppose a law that ‘prevents sex between mature almost-of-age individuals’ or that ‘frustrates astute young entrepreneurs.’) Age provides a legal presumption of competence or incompetence, but the presumption is rebuttable. Legal protection should be provided to the freely made agreements of under-age children who provide evidence that they are ‘mature beyond their years,’ that is, who can show that do have the requisite capability. The type of age-of-consent rule I am defending is simply a line below which the burden of proof shifts: the court presumes that an over-age party is capable (unless shown otherwise) of meaningful consent, whereas it presumes that an under-age party is incapable (unless shown otherwise).PLEADINGS AND PRESUMPTIONS
Sarah discusses at some length the remedies that the law of contract should properly make available to children when unscrupulous adults attempt to take advantage of them. She says that these remedies would be available ‘if children were subject to the same rules adults are now’ or ‘if children were treated equally under the current legal system,’ but in fact the application of several of the remedies she cites would treat children and adults differently or unequally. Sarah does want the court to take into consideration the respective ages of the parties to a dispute. Thus Sarah implicitly endorses age-based distinctions in the law, though she explicitly decries them in principle.
(1) Sarah writes: ‘If a child does not know what a contract is, or what it means to be bound, or what it would mean in this case, there would be no contract.’ This suggests that a child, sued for breach of a contract he signed, could defend himself by pleading ignorance of one of these things. This is reasonable. But it does not seem reasonable that an adult could equally well defend himself this way. We rightly presume that adults who sign contracts do know these things. If the court, as a rule, accepts the child’s plea of ignorance unless it is specifically rebutted, but requires the adult attempting to plead the same ignorance to provide evidence of mental incapacity at the time, we have an age-of-consent distinction in the law.
(2) Sarah writes that children ‘would simply get relief on grounds of duress in cases where adults used their greater age and power to intimidate or manipulate them.’ Here Sarah clearly posits an age-based distinction, and one which takes the form of an age-of-consent rule. No such defence is available, I would think, to a 25-year-old who seeks relief from a contract with a 50-year-old. Both are adults. If a child is granted relief on this grounds it is because the child has not yet attained the age at which the law presumes the ability to deal with elders as equals.
(3) Sarah cites ‘undue influence’ as a defence for voiding a contract, offers the relationship of parent to child as a situation in which ‘undue influence will be assumed unless the contrary is proved,’ and proposes that the list of such situations ‘ought to include any relationship that tended to undermine the child’s independence of decision.’ It should be obvious that such a rule treats children and adults asymmetrically, not equally, when an adult cannot plead that his independence of decision has been undermined by a child’s ‘undue influence.’
(4) Sarah says of legal disputes between children and adults in her preferred legal system: ‘Although there would be no particular age of consent or majority, a young child would be able to complain that he had not consented, and the onus would be on the adult to prove that the child had consented.’ If a young child may offer this defence, as is reasonable, but an adult may not, the courts need a definite rule regarding how young is ‘young’. Let us apply this principle to sexual relations. Consider a thought-experiment in which we gradually increase the age of the party who complains that he had not consented. At some age, older than that of a young child, the onus of proof must shift, so that it no longer rests with the adult defendant to prove his innocence of sexual assault (by showing that the complaining party genuinely consented, a defence Sarah is rightly committed to allowing), but it rests with the complaining party to prove the defendant’s guilt. There must be some such age assuming that Sarah would, as is required by the principle of presuming innocence until guilt is proven, wish the court to place the onus of proving non-consent on an adult who complains of sexual assault by another adult. The age where the onus of proof shifts is the age I am calling the age of consent. When Sarah writes that ‘there would be no particular age of consent,’ she seems not to recognise that the court needs a particular (specific) default rule for assigning the burden of proof, and needs that rule to be based on a generally relevant and readily ascertainable fact like the complaining party’s age.
(In principle, the rule need not be strictly chronological. As an alternative, the court might formulate a rule based on physical indicators. For example, it could presume competence for individuals who have reached puberty, but not otherwise. If common-law courts have not formulated such rules, I would assume that this is either because physical indicators are more ambiguous, or because cognitive development is more closely associated with age that with physical indicators.)
All this indicates that if children are to receive the ‘high degree of protection under contract law’ that Sarah rightly seeks, in a world in which adults know more than children and can manipulate children into not-genuinely-consented agreements more readily than the reverse, an age-of-consent default rule is necessary. Sarah disagreement is more apparent than real.WHO DEFENDS THE CHILD?
In response to my raising the question of when ‘manipulation’ of children represents an invasion of their personal rights, Sarah writes: ‘The answer to this question must be prima facie ‘when they think it does.‘ How else can we judge?’ This strikes me as a wholly inadequate answer in the case of children who are too young (i.e. do not yet have the cognitive skills) to say, or to know, that their rights have been violated. As Jan Narveson, in his contribution to the debate on this question in the July ‘Taking Children Seriously Forum,’ quite rightly asked: how is a preverbal child, or a child who does not understand how to hire a lawyer, supposed to mount a defence?
I proposed, having especially in mind just such children who are preverbal or prejurisprudent, that a child’s parents (or legal guardians) have a right to bring legal action against an adult who violates the child’s rights (say, molests the child).
I did not imagine that this proposal would be controversial, but Sarah questions it. Can it really be true that English law, as Sarah maintains, does not give parents recourse to the law when their child is molested, but only gives the child recourse? (If the parents are denied recourse because only the state may bring criminal prosecutions, I would hardly regard this as a libertarian or desirable state of affairs.)
The argument for giving parents or legal guardians recourse to the law is, of course, that a child is typically not capable of hiring a lawyer, much less of mounting his own case. The molestation is not a crime against the parents, of course, but as the parties who have assumed the responsibility for raising the child they should be empowered to seek redress on the child’s behalf. Who is more properly empowered, when the child himself is incapable?COMPETENCE AND CONSENT
Sarah writes: ‘Consent is about wishes.’ She asks: ‘Are these critics of equal rights for children really driven by a paradoxical fear that children’s true wishes would in fact be systematically overridden by a future legal system that did its utmost to respect them?’ I cannot speak for other critics, but my view is that meaningful consent involves more than simple wishes. Children begin expressing wishes long before they attain the cognitive level associated with meaningful consent.
Genuine or meaningful consent, I have argued above, requires a certain level of cognitive development. Children (or mentally handicapped adults) well below that level can at most give superficial or non-meaningful consent to a contract or sexual proposition. I am reminded of the climactic scene in the movie Rain Man. Raymond Babbitt, the (in some ways easily manipulated) autistic adult played by Dustin Hoffman, is asked whether he would like to live with his brother Charlie. ‘Yeah,’ he says. He is then asked, would he like to return instead to the residential institution where he had been living before Charlie removed him? ‘Yeah,’ he says. The questions are put again, with emphasis on the either-or nature of the choice. ‘Yeah,’ Raymond replies time and again. Given Raymond’s cognitive deficits, as highlighted by his inability to respond appropriately to an either-or choice, his ‘yeah’ does not provide meaningful consent to either option.
I am afraid that in calling superficial consent (of which this is an unusually stark example) ‘pseudo-consent’ in my letter, I was guilty of a poor terminological choice. In any case the distinction I had in mind is not consistent with Sarah’s interpretation that ‘in a case of pseudo-consent, then, the child is happy with the situation, but he would not be if he were competent. This may be contrasted with pure coercion, in which he is not happy with the situation.’ Happiness with a situation is evaluated ex post; it can not tell us whether the situation was entered ex ante with consent or under coercion. In a case of merely superficial consent, an individual—manipulated or not, happy ex post or not—agrees without sufficient ability to understand.
Sarah writes: ‘Adults have a vision of what children should do in a given situation, and if a child chooses to do something else, the child is deemed incompetent and his wishes overridden.’ I hope it is clear that I do not, in fact, propose that the courts should judge competence in regard to particular choices, but rather by evaluating an individual’s overall level of cognitive function. Consequently I have no trouble endorsing Sarah demand that we should consistently apply the same competence criterion to adults as to children. I would only add the proviso that at some age the burden of proof shifts; individuals above but not below the age of consent are properly presumed competent. The presumption of competence is rebuttable, however. An over-age individual, to be judged incompetent to manage his own affairs, must be shown to be insane or to be of unusually low cognitive function. An under-age individual, to be judged competent under the legal system I am defending, must be shown to be of unusually high (i.e. approaching normal adult) cognitive function.
Sarah worries that ‘making competence the criterion’ for legal protection of an individual’s agreements, as I have proposed, ‘is fraught with problems,’ because people who are ignorant or make foolish decisions might be declared incompetent. My argument refers, on the contrary, to a much narrower sense (what I take to be the standard legal sense) of competence. Sarah asks: by what criteria is competence to be judged? I do not know the exact standard the court should use for judging competence, but in general it will assess whether the individual reasons well enough, or understands the consequences of making choices sufficiently well, to pilot his own life. Courts use some such criteria for judging competence today (to cite an example, in adjudicating the suit by other members of the Beach Boys seeking to take control of Brian Wilson’s musical estate on the grounds that Wilson’s alleged psychoses and drug abuse have left him mentally incompetent).
Sarah mulls various possible criteria for competence. Among them, a party’s ability to understand the contract and its ramifications, and ability to understand enough of the situation (‘expertise’) are indeed germane to judging his competence. ‘Frame of mind’ and taste are not at issue, just as they are not at issue when an adult’s legal competence is questioned. Sarah asks: ‘Are there any minors with a desire to do something apparently radically unwise who would pass the competence test?’ As I conceive the test, yes, unless the same desire on the part of an adult provides sufficient evidence to judge the adult mentally incompetent.IN CONCLUSION
Sarah concluded her article with a challenge: ‘it still remains for those whose professed argument for excluding children from legal equality is one of consent or competence to justify their position.’ I hope I have met that challenge. To summarise, I have pointed out that children, by and large, do not have the cognitive capacities of adults. The law is therefore justified in a general presumption that a child below a certain age lacks the cognitive capacity, or competence, to give meaningful consent to contractual or sexual relations. An age of consent rule of this sort is not a blanket prohibition. It does not authorise prosecuting minors for victimless activities. It allows legal protection to the agreements of children below the age of consent who do have the requisite competence to make them, because the presumption of incompetence is rebuttable in specific cases. Finally, I have shown that the legal safeguards necessary to protect the rights of children from unscrupulous adults—as Sarah herself describes those safeguards—lessen the burden of proving non-consent for a child preyed upon by an adult. These safeguards therefore embody, explicitly or implicitly, age-of-consent rules.”1– Lawrence H. White, Associate Professor,
University of Georgia, USA
Taking Children Seriously 14, October 1994, pp. 5-8
My reply to Professor White’s critical response above (Taking Children Seriously 16, March 1995, pp. 6-12):
Children’s legal status: a defence
In his thoughtful response (Taking Children Seriously 14) to my articles, ‘Thoughts on the Legal Status of Children’, and ‘Questionable Motives?’ (Taking Children Seriously 12) Lawrence White argues that “…children do not have the cognitive capacities of adults,” and that the law “…is therefore justified in a general presumption that a child below a certain age lacks the cognitive capacity, or competence, to give meaningful consent to contractual or sexual relations.” He stresses that an age-of-consent rule of this sort “…is not a blanket prohibition”, and that it “…allows legal protection to the agreements of children below the age of consent who do have the requisite competence to make them, because the presumption of incompetence is rebuttable in specific cases.” Finally, he suggests that “…the legal safeguards necessary to protect the rights of children from unscrupulous adults… lessen the burden of proving non-consent for a child preyed upon by an adult,” and that “…these safeguards therefore embody, explicitly or implicitly, age-of-consent rules.”
I should like to comment on this reply in detail, because I think there are serious problems with it. I must at the outset thank David Deutsch for helping me to clarify my ideas on the legal status of children. Some of the arguments below are due to him, and others have been improved in the light of his comments on an earlier draft.
The common law
Let me start with what is, perhaps, a small point. Lawrence White is wrong to say that in Popperian thinking, the overall aim of politics is to prevent rulers from doing too much damage to the liberty of the citizen. The real Popperian maxim is that we should aim to prevent rulers from doing too much damage according to whatever criteria are currently thought to be best. These criteria may change over time. It is because of its evolutionary, error-correcting properties that common law is a good way of constraining the damage done by rulers.
But just because a common law legal system is the best system, that does not mean that a particular law that arises in such a system must be right, as Lawrence White assumes. On the contrary, the whole point of that kind of system is that it can gradually replace laws when they seem to be wrong, even if they did come up in that system. He rather contradicts himself by judging age-of-consent laws according to whether they are “…consistent with libertarian rights theory,” which implies a particular class of laws. The common law is not libertarian. Libertarians hope that further evolution of the common law, if allowed to proceed, would make it more libertarian, but it is not self-evident that that is what would happen, and it certainly is not libertarian now.
Lawrence White goes on to say: “I have since been told by a legal scholar that the common law did indeed traditionally recognise ‘infancy’ as a defence against being bound to a contract. If this is correct, then Sarah is proposing to overturn the common law by abolishing all age-of-consent rules.” This is a non sequitur. How can I be “…proposing to overturn the common law,” by merely arguing that one particular law is mistaken? Proposing to overturn particular laws because they seem mistaken is the very life blood of common law, as it is of every rational human institution.
“Competence”
First I must clarify something: the word ‘competence’ has several different meanings, both in everyday English, and technically too. Each meaning is relevant in a different context. So, to avoid the equivocation I think there is here, I’d like to state specifically these different uses, and in so doing, elucidate the flaws in Professor White’s reasoning. If one uses the terms consistently, then none of these ‘competence’ arguments for treating children differently actually holds up.
Suppose that I am a patient in hospital for tests to see whether I might benefit from a heart bypass operation. I know nothing whatever about hearts, let alone how to judge whether the bypass operation is a good idea. The doctor has worked in the field for twenty years, and is considered one of the leading heart specialists in the country. This is my first time even thinking about heart bypass operations. Who is competent to decide whether I should have the operation or not? In one sense of the word “competent”, I am incompetent to make the decision: for instance, nobody in their right mind would let me make that decision for them, or ask my advice about whether they should have such an operation. Clearly, in that sense of the word “competent”, the doctor is eminently more competent than I, by virtue of his superior knowledge.
But suppose that I do not want the operation. Who is legally competent to make the final decision? Not the doctor: if he goes ahead with the operation against my will, he will be committing a criminal offence. That is not because I am more competent than he is at making the decision in that first sense—I am obviously not. But legally, I am the only one competent to make that decision. The doctor is not competent to make that decision on my behalf. In this second sense of the word “competent”, I, the patient, am the only person competent to decide what treatment to have. In this second sense of the word, the doctor’s superior knowledge confers no authority upon him to act against my will. That is because I am a human being with rights, who can make decisions on my own behalf.
Suppose I am suffering from some other disease, and I have just had an operation, and I am delirious from the anaesthetic, and the surgeon realises that an immediate heart bypass operation might save my life. Someone has to make the decision as to whether I should have the heart bypass operation now. At that moment, I am not legally competent to make the decision: I have been rendered incompetent by being under the influence of an anaesthetic. When the anaesthetic wears off, I am competent again. When I am back under it, I am incompetent again. And so on. None of this has anything to do with my knowledge of medicine. When I come round I do not suddenly learn about heart bypass operations. It is just that when I am conscious and can express a clear wish (“No, I do not want that treatment.”) then the doctor becomes legally incompetent to make the decision for me.
There is a third context in which “competence” may be an issue: Suppose that I am unconscious as a result of a road accident that has just occurred. A policeman or ambulance man is competent to decide whether I should go to hospital, or which hospital I should go to, and so on, irrespective of whether I have signed a consent form, and irrespective of their own medical expertise. But anything that these people do to me on this basis must be reasonable and must be relevant to the accident. It would not be reasonable for the surgeon to perform a breast augmentation, say, just because he was convinced that I would benefit from it, but was currently incompetent to give consent. Performing unrelated surgery, however beneficial, would put the doctor in the same position as one who simply went ahead with my heart bypass operation despite my explicit instruction not to.
When Lawrence White says a child is not competent, he is comparing a child with the delirious patient, or the unconscious road-accident victim. The argument in such cases that I am not a doctor—that I don’t know the answer—is irrelevant. What matters is that I am delirious, or unconscious. But what if I say to the doctor, “Well, I have come round now, and I do not want the operation”, and he says, “Well what do you know about it? To me it is just as if you are still delirious. You don’t know any more about hearts now than you did when you were delirious, so why should I let you make the decision? I will make it for you, for your own good.”1
The role of consent in our legal tradition
Decision-making is all about knowledge. So why have our legal traditions and other basic institutions of our society been arranged so as to put the decision into the hands of the person who knows less? Why don’t we require that whenever there is a dispute between two people, the one who knows more should make the decision? Why don’t we say (as Lawrence White does in the case of children) that the patient can only make the decision if he rebuts the natural presumption that he doesn’t know anything about hearts? He is unusually competent for a patient, say. He has read the text books and has clued himself up about this issue, and that then the normal assumption that he doesn’t know anything, can be rebutted. Why don’t we say that? Why isn’t that the way the system is set up?
Why do we go to extraordinary lengths to ensure that every single (adult) patient in hospital is scrupulously given the final word as to whether they have the operation or not? Only in the tiny number of cases involving a patient who also happens to be a doctor or medical researcher is there even any dispute about who knows more about it. So the law systematically puts the decision in the hands of the person who knows less. Why is this? It is because that is the best way to get the right answer. The overwhelming majority of patients take their doctor’s advice. But some don’t and are right not to. One might consider the many examples of cases in which the medical establishment has been systematically wrong, and people who have rebelled against them have been systematically right—such as the idea that all pregnant women should lie flat on their back to give birth. If knowledge is to grow, it can only grow through creativity, reason and open criticism. And that means that many new ideas—and almost all important new ideas—begin as a minority idea, a deviation from the best expert opinion at the time. Of course, many people have rebelled against medical advice, and have been wrong. Our liberal institutions are not a method of always getting the right answer. There is no such method. But other methods—illiberal, tyrannical methods—tend to get the wrong answer.1
There is an epistemological principle here: when there is a dispute between two people, there is no mechanical way of determining who is right. In particular, who is right on a particular issue is independent of what other things the people in dispute know. If they can’t agree, the one who first abandons reason and resorts to force is likely to be wrong. Our legal traditions and our traditions of human rights know this. That is, they embody the knowledge inexplicitly. The suggestion that a child doesn’t know something and therefore shouldn’t make the decision is a non sequitur: the patient doesn’t know either, yet everyone agrees that he should be allowed to make such a decision on his own behalf.
Rule by experts—the aristocracy, if you like—is as stultifying a system of government as any other tyranny. It prevents the growth of knowledge by removing the condition of consent. A liberal state which respects human rights does make progress. What does it mean to give people human rights? It means (paradoxically, but when you think about it, necessarily) taking responsibility for decisions out of the hands of those who know, and putting it in the hands of those who don’t know the right answer.
Consent is a condition for rationality in the decision-making process. But what if children were systematically irrational? Rationalism is the doctrine that knowledge grows only through reason. So given that children’s knowledge grows, a rationalist must believe that children possess reason. (Some people say that early learning, by babies, is pre-programmed, but there is no real evidence for this.)
The argument
Having an age of consent is like having a rule that if one has more than 100 cc’s of anaesthetic in one, then one is deemed incompetent unless one can prove otherwise, and if one has less than that, one is deemed competent. Okay, but the thing one would have to prove under such a rule is not that one has suddenly learnt about heart surgery: it is simply that one wants to make the decision: that one knows what the question is and knows what it is one wants.1
Lawrence White says: “My argument for allowing age-based distinctions into consent-based law runs as follows. Disputes will arise over contracts or sexual relations involving children, in which the children or their advocates will plead that the children in question did not genuinely consent (therefore they should not be held to the contracts or have been sexually assaulted). In adjudicating such disputes the courts need to decide in each case not only (a) whether the child gave apparent consent, but also (b) whether the child was legally competent, that is, capable of giving genuine consent. The court needs to assign the burden of proof regarding a child’s competence or incompetence to one side of the dispute or the other. In assigning the burden of proof the court is justified in taking note of the fact that children below some age are typically not capable of giving the sort of full-fledged or genuine consent that normal adults can give. Agreements involving very young children are therefore properly subject to a different burden of proof—a higher standard of scrutiny for genuine consent—than are agreements strictly among adults.”
Let’s replace “child” by “patient” and “parent” by “doctor” in Lawrence White’s argument, and we’ll see clearly where his mistake is:
“My argument for allowing level-of-anaesthetic-based distinctions into consent-based law runs as follows. Disputes will arise over contracts involving patients, in which the patients or their advocates will plead that the patients in question did genuinely consent or not, and that therefore they should be held or not be held to the contracts, or to have been assaulted during the operation. In adjudicating such disputes the courts need to decide in each case not only (a) whether the patient gave apparent consent, but also (b) whether the patient was legally competent, that is, capable of giving genuine consent.”
That is true, because the patient might have been babbling in his delirium. But what the court would mean by whether the patient was competent or not is merely whether the patient was actually in a delirium, so that his words did not express his wishes, or whether he was not in a delirium and his words did express his wishes.
“The court needs to assign the burden of proof regarding a patient’s competence or incompetence to one side of the dispute or the other. In assigning the burden of proof the court is justified in taking note of the fact that patients who have more than a certain level of anaesthetic are typically not capable of giving the sort of full-fledged or genuine consent that normal patients can give. Agreements involving anaesthetised patients are therefore properly subject to a different burden of proof—a higher standard of scrutiny for genuine consent—than are agreements strictly among well people.”
This is all true. But that still does not entitle one to drag the patient off, kicking and screaming “I don’t want this operation,” to the operating theatre. So why does Lawrence White assume that it does, when the patient is a child?
“Genuine consent requires a certain level of consciousness, freedom from the anaesthetic, and human cognition depends upon the blood concentration of anaesthetic. Although different individuals reach various cognitive milestones at different concentrations, there is a much lower probability of error in assuming that an anaesthetic-free person has the cognitive level requisite for meaningful consent than in assuming that an anaesthetised patient is at that level. A body of law based on consent is therefore justified in having an anaesthetic-related default rule of the sort: an individual with more than x cc’s is presumed incapable of giving genuine consent; an individual with less than x cc’s is presumed capable.”
Well, maybe. I can imagine such a default rule. But actually, of course, the law doesn’t have such a rule in regard to anaesthetic. The reason why it doesn’t is that these cases come up very rarely. And the reason they come up rarely is that patients have human rights, and therefore, when it seems that there may possibly be a dispute about whether the patient consented, people go to great lengths to make sure that the patient really does genuinely consent, and that there is evidence of this. And measuring the patient’s anaesthetic level is a very poor sort of evidence of consent, when you could instead just ask him.
Continuing the substitution, Lawrence White would claim, in his defence: “In calling this sort of de-humanising rule for patients a ”default rule,“ I wish to emphasise that I am not at all arguing for a rule whereby anaesthetised people may never lawfully engage in contractual relations. (Thus, like Sarah, I would oppose a law that ”forces operations upon only slightly anaesthetised people“ or ”forces people who are only slightly anaesthetised, to stay in hospital against their will“). The dosage of anaesthetic provides a legal presumption of competence or incompetence, but the presumption is rebuttable. Legal protection should be provided to the freely made agreements of patients who provide evidence that they are ”conscious beyond one can usually expect for people of that level of anaesthetic,“ that is, who can show that do have the requisite capability.”
“The type of de-humanising rule for patients I am defending is simply a line below which the burden of proof shifts: the court presumes that a well party is capable (unless shown otherwise) of meaningful consent, whereas it presumes that a very anaesthetised person is incapable (unless shown otherwise).”
Well, again, yes. But why does he keep going on and on about anaesthetic dosages? The thing is, it is easy for a patient to show that they “have the requisite capability”. All they have to do is say clearly, “I don’t want this operation.” That’s it. If the surgeon fears lawsuits, he can ask a supplementary question, such as “which operation do you mean?” And he can get bystanders to witness the reply: “The heart operation you are trying to get me to agree to, you twit!”1
We can go through the same thing with women or black people (immigrants, say), and it makes exactly as much sense:
“My argument for introducing length-of-stay-based discrimination between immigrants and other citizens law runs as follows. Disputes will arise over contracts involving recent immigrants, in which the recent immigrants or their advocates will plead that the immigrants in question did not genuinely consent (therefore they should not be held to the contracts, or have been defrauded, for instance, because their culture was so different that they did not understand what kind of agreements they were entering into when they stepped off the boat). In adjudicating such disputes the courts need to decide in each case not only (a) whether the immigrant gave apparent consent, but also (b) whether the immigrant was legally competent, that is, capable of giving informed consent.”
So, if one signs a contract with somebody who is from a different culture or is ill or whatever, you have to make sure it is informed consent. In America, I’m told, before they do an operation, they do sometimes have to read one pages and pages of stuff, just to make sure it is informed consent.
“The court needs to assign the burden of proof regarding a immigrant’s competence or incompetence to one side of the dispute or the other. In assigning the burden of proof the court is justified in taking note of the fact that immigrants who have only recently entered the country are typically not capable of giving the sort of full-fledged or genuine consent that those who have been here much longer can give. Agreements involving very recent immigrants are therefore properly subject to a different burden of proof—a higher standard of scrutiny for genuine consent—than are agreements strictly among natives.
Genuine consent requires a certain understanding of the culture in which one is immersed, and the degree to which immigrants reach this varies from one individual to another. Different individuals reach different milestones at different lengths of stay in the country, but there is a much lower probability of error in assuming that a native person understands the relevant cultural details required for meaningful consent than in assuming that an immediately-arrived immigrant has achieved that understanding. A body of law based on consent is therefore justified in having a length-of-stay-related default rule of the sort: an individual who has arrived very recently is presumed incapable of giving genuine consent; an individual who has been here for longer than x years is presumed capable.“
Yes, it might think it convenient to do that, but in fact it isn’t convenient, because in fact it hardly ever arises, because immigrants have human rights. I don’t object to this kind of rule in principle as a matter of convenience; it is just that when people suggest this rule in regard to children, it is usually because they have in mind the wrong notion of competence. They want the child to prove he knows the answer rather than to prove that he wants something.
Were we discussing this 100 years ago, we could have substituted the word “woman” for “child”, because women were brought up not to understand financial matters and to defer to men.
“Disputes will arise over contracts involving women, in which the women or their advocates will plead that the women in question did not genuinely consent (therefore they should not be held to the contracts, or have been cheated). In adjudicating such disputes the courts need to decide in each case not only (a) whether the woman gave apparent consent, but also (b) whether the woman was legally competent, that is, capable of giving genuine consent….”
And so on. Now if in a society it is the case that most women are brought up not to know what money is and always to defer to men, then that society could have a default rule that unless proved otherwise, the woman is assumed to have merely deferred to the man, rather than to have genuinely consented. That would be a possible way to go, but the way a woman could rebut that, would be to go to a lawyer, for instance, and say, “I want this contract!” One would never get the situation where a woman was dragged kicking and screaming into somewhere, because she “could not genuinely consent”.
In real life the law does not do any of those things: if consent is really the criterion it is easy to determine. These Byzantine complexities only arise when what you are really interested in is whether the person makes the decision you want him to make.1
Pleadings and presumptions
Lawrence White suggests that I am arguing that a child, sued for breach of a contract he signed, could defend himself by pleading ignorance. That is not quite true. It is not that he could plead ignorance, it is that what he would be pleading is that given his age, it was unreasonable for the other person not to tell him certain things, because it would have been obvious that he did not know them. The burden of proof would be on him but being a child of a certain age (say, a child of four) it would be easy for him to show that a reasonable person would have presumed that he did not know what an interest rate was, and that if he were signing a contract to do with interest rates, then it would be incumbent upon the other side to ensure that he did know about them. It is not that he is pleading ignorance as an excuse from a contract. It is that it really was unreasonable to have expected him to have known about interest rates; and the same would be true if he was a recent immigrant who was unaware of some peculiar aspect of English culture, and the other party had reason to know that he was ignorant of it.
Lawrence White says that we rightly presume that adults who sign contracts do know what a contract is, what an interest rate is, or whatever, and that thus, adults cannot use this defence I am suggesting some children might have. True, not all adults, in all situations, have such a defence, but some, in some situations, do. For instance in the case of a nun who has been under the influence of the mother superior for many years, we presume that she is not truly able to make decisions independently of the mother superior unless we have reason to believe otherwise.
Lawrence White argues that in saying that children would simply get relief on grounds of duress in cases where adults used their greater age and power to intimidate or manipulate them, I am positing “…an age-based distinction, and one which takes the form of an age-of-consent rule.” But it isn’t. The age is simply a piece of evidence that would suggest whether there had in fact been intimidation or manipulation, or other undue influence. If a trade union stages a violent demonstration outside a company, and somebody agrees not to enter the gates because of that, and it looks like intimidation prima facie, then we assume that the person has been intimidated unless someone proves otherwise. On the other hand, if a coach load of 50 heavyweight boxers claim to have been intimidated by me waving a placard, then it’ll be assumed that I did not intimidate them, because of our different intimidation capacities, which in general might have to do with age or it might not. (Now if I were waving a Smith and Wesson .44 magnum revolver rather than a placard, things might well be different!) In a violent row between a ninety-year-old person and an eighteen-year-old, the older person can be presumed to have been intimidated. It depends. That is not an age based thing, it is simply looking at the facts: it is whether he was intimidated that is the important thing, not how old he is.
In discussing ‘undue influence’ as a defence for voiding a contract, I suggested that undue influence should be assumed unless the contrary is proved, where the relationship is one that tends to undermine the child’s independence of decision. Lawrence White argues that this amounts to a rule treats children and adults asymmetrically, but that is not necessarily true. That is a bit like saying it treats nuns and mother superiors asymmetrically, not equally. That isn’t so. It treats them perfectly equally. If the circumstances indicate that the mother superior would have been unduly influenced by the nun, then that is the way the presumption will go. One could imagine strange situations in which that was so.
Lawrence White argues that if a young child could complain that he had not consented to a contract, and that the onus would then be on the adult to prove that the child had consented, the courts would need a definite rule regarding how young is “young”. But that is like saying the courts need a definite rule to determine how many pages of medical notes one has to have seen before it is informed consent. The courts might have such a rule, but probably they wouldn’t need it. Probably it would be enough to say that the child must have genuinely consented. Then people will take care to ensure that the dispute simply does not arise, by providing themselves with the requisite evidence, just like the doctor.
So again, the reason we probably wouldn’t have a rule about age, is that age is not the issue—it is consent that is the issue. If we had a definite rule, then the courts could easily get overwhelmed with the cases that are trying to rebut the assumption in the rule. If the aim is not to have the courts overwhelmed, we have got to use the actual criterion, and the one which is easy to determine. Consent is very easy to determine. Not always; but in general it is much easier to be sure of than is a person’s age!
A thought experiment
Professor White asks us to consider a thought-experiment in which “…we gradually increase the age of the party who [later] complains that he had not consented.” To translate into my example: “Let’s consider a thought experiment in which we gradually increase the number of pages of medical notes that a patient has been given before it counts as informed consent.” He then points out that at some age, the onus of proof must shift, so that it no longer rests with the adult defendant to prove his innocence of assault, by showing that the complaining party genuinely consented, but that it rests with the complaining party to prove the defendant’s guilt. Exactly the same is true with the patient and doctor, with informed consent. So why isn’t this a problem? It isn’t a problem because everybody knows what it means for a patient to consent to an operation.
And everyone knows what it means for a child to consent to an operation. It is just that where a child is concerned, they panic: “You can’t use that notion of consent”, they think, “because the child might make the wrong choice.” And so they start changing the meanings of words: “When the child screams ‘I don’t want the operation,‘ he is not genuinely withholding consent, because he is not capable of genuine consent: he is not rational enough to make the right decision, perhaps because his judgement is impaired by fear or a ‘childish fit’, and anyway he needs the operation”. Yes, Larry. And when the woman says “no” it isn’t really rape. When women say no they mean yes. And anyway, she needs a good seeing-to! And those immigrants. They’re not like us. It’s pointless giving them the vote because they can’t understand the issues….
Lawrence White’s assertion that “There must be some such age,” is like saying “there must be some such number of pages”. Suppose there was a rule that said that sixteen pages is the right number to inform a patient of the nature of the operation, and that if it is above sixteen, it is up to the patient to prove that he had not consented, and that if it is below sixteen, it is up to the doctor to prove that the patient had consented. Well that would be absurd. It would lead to a lot more cases going to court, because the number of pages isn’t the issue. Consent is the issue. In a different case, one might need a completely different number of pages.
Lawrence White says that “the court needs a particular (specific) default rule for assigning the burden of proof, and needs that rule to be based on a generally relevant and readily ascertainable fact like the complaining party’s age…[but that] in principle, the rule need not be strictly chronological.” Translation: “It need not be strictly the number of pages.” He goes on to suggest that as an alternative, the court might formulate a rule based on physical indicators. True, they might try to measure the amount of medical information. For instance, it might be the number of side effects that have been listed, rather than the number of pages of notes. But it is still a very bad idea and still totally beside the point, for the same reasons.
Lawrence White suggests that if children are to receive protection under contract law “…in a world in which adults know more than children and can manipulate children into not-genuinely-consented agreements more readily than the reverse, an age-of-consent default rule is necessary.” That is simply not true. Let’s ‘translate’ again: “if patients are to receive protection under contract law in a world in which doctors know much more than patients and can manipulate patients into not-genuinely-consented operations more readily than the reverse, a number-of-page default rule is necessary.” The suggestion that my rule, if implemented, would necessarily involve de facto ages of consent, is clearly not true.
Who has recourse to law when a child is abused?
Lawrence White follows Jan Narveson in asking how a pre-verbal child, or a child who does not understand how to hire a lawyer, would be able to mount a defence. Well, how is a new immigrant, who doesn’t know how to hire a lawyer, supposed to mount a defence? How is a person who is under anaesthetic supposed to mount a defence? There is rather a surprising assumption here, that an ordinary person knows how to mount a legal defence. I don’t. I suggest that most non-lawyers don’t either.
Lawrence White is so surprised to learn that English law gives a molested child recourse to law but not his parents, that he suggests that this might be because only the state may bring criminal prosecutions. That is not true. First, it is not the case in English law that only the state may bring criminal prosecutions, Anyone may bring a criminal prosecution, although the Attorney General can strike it down if he wants to, as being “not in the public interest.” Secondly, the alternative to the parents is not that the state brings it: it is that the child brings it.
A while ago, a boy of nine took an Oxford college to court, and he won. The child can appoint a lawyer, or the state can appoint a lawyer for the child. In such a case there can be four sets of lawyers in court: the parents’ lawyers, the child’s lawyers, the state’s lawyers (or prosecution, as the case may be), and the Official Solicitor. The Official Solicitor is a social worker type: he instructs lawyers to act “in the child’s best interests”. The child’s lawyer is a different lawyer with a different brief: he has to follow the child’s instructions. So there is one lawyer in court who is following the child’s instructions; there is another one who is to act “in the child’s best interests”.
What does real consent look like?
In saying that children begin expressing wishes long before they attain the cognitive level associated with “meaningful consent”, Lawrence White is, I think, showing what he really thinks the issue is. Translating again: “the patient begins to show wishes, and as he is coming out of the anaesthetic, he expresses wishes long before he attains the cognitive level associated with meaningful consent.” In other words, in that intervening time, the patient can be saying, “No, no, don’t cut me open,” and we can say, “Tough luck. We want to.”
Lawrence White then goes on to compare children to mentally-handicapped adults. He mentions a scene in the film Rain Man, in which Raymond Babbitt, the autistic adult replies “Yeah” repeatedly, to each of the contrary either-or questions posed to him. Lawrence White then says rightly: “Given Raymond’s cognitive deficits, as highlighted by his inability to respond appropriately to an either-or choice, his ”yeah“ does not provide meaningful consent to either option.” It doesn’t provide meaningful wishes either. If he had provided meaningful wishes, they would have been granted him, because he was an adult. This example is quite a good one: it is an example of not having meaningful wishes. It would have been quite sufficient for him to say “Yeah” to some questions and “No” to the contrary questions. He would not have then been given a test of competence. That would have defined competence.
If there is prima facie reason to believe he does not have clear wishes, then we do a further test. In other words, we find out whether he is really consenting, whether the “Yeah” is really consent or just noise. In the film, the “Yeah” is just noise. What sort of test might we do? We could, for instance, ask one question in two very different ways, to see whether we got the same answer; we could ask one question, then ask it again later, to see whether the person still answered the same way; or we could ask a question, then provide an opportunity for equivalent action, to see whether the person acted in accordance with his answer to the verbal question.
By the way, comparing children to this sort of mentally disabled individual is odd in itself. Even extremely young children do not behave like that. Even pre-verbal babies have some clear wishes which are obvious.
Many metaphors have been used historically to ‘explain’ why children are different. Children are likened to animals, to devils, to savages, to unconscious people, and so on. Here, children are likened to mentally disabled people. As often happens with metaphors, Lawrence White is not aware that he is using a metaphor. He seems to think that he is stating a plain fact; but actually, it is a metaphor, and a controversial one, which I absolutely reject and which he has not justified at all.
If this metaphor did hold, then I would agree that it would be right to treat children in some respects differently in law from adults. But Lawrence White claims not to be arguing that. He says: “I have no trouble endorsing Sarah’s demand that we should consistently apply the same competence criterion to adults as to children.” But then he adds a proviso (“that at some age the burden of proof shifts”) which he interprets effectively to nullify that endorsement.
Later, he says that as he conceives the competence test, there are some minors with a desire to do something apparently radically unwise who would pass, “…unless the same desire on the part of an adult provides sufficient evidence to judge the adult mentally incompetent.” He says that he does not propose that the courts should judge competence in regard to particular choices, “…but rather by evaluating an individual’s overall level of cognitive function.” The word “cognitive” is doing a lot of work there, and he does not tell us what it means. But he ends by saying: “An under-age individual, to be judged competent under the legal system I am defending, must be shown to be of unusually high (i.e. approaching normal adult) cognitive function.” (Compare: “an immigrant, to be judged competent … must be shown to be unusually well assimilated.”) Without a substantive theory of “adult cognition”, showing how its difference from “child cognition” confers special rights upon a person, this is just circular. It defines adult cognition as that experienced by an adult.
Conclusion
I have refuted Lawrence White’s suggestion that the legal safeguards I suggested embody, implicitly, age-of-consent rules. He explores various rationales for overriding children’s wishes on the grounds that they cannot give “genuine” consent. But none of these make sense if one insists (as I do) on using the same notion of “consent” (and “competence”, etc.) for all human beings. Finally he appears to contradict his own argument by saying that the same criteria should be used to judge the legal competence of children as adults. If he really means that, then we have no disagreement at all. But does he?1,2,3
Notes
1. Clarification
In case you think that I was using an analogy (the heart surgery patient), let me correct that misapprehension. I was not using an analogy at all. I was just applying the criteria people purport to use, to a different case, to see if they like the result.
I was not saying “a child is in essence a patient, and a parent a doctor, so parents must behave towards children as doctors do towards patients”. That is no argument, and in any case I don’t want parents to behave like doctors! What I was saying is, if you coerce children on the grounds you and most others claim, you would also be in favour of this or that form of coercion by doctors. Since my critics are not in favour of that, we can deduce that the reasons they give for coercing children are not their real reasons.
2. Parents, be sure to read this important warning.
3. To read the previous parts of this thought experiment argument about how it could be possible in principle for children to have full legal rights without untoward consequences, see Children’s rights and the law.
See also:
Sarah Fitz-Claridge, 1995, ‘Children’s legal status: a defence’, Taking Children Seriously 16, ISSN 1351-5381, pp. 6-12, https://takingchildrenseriously.com/childrens-legal-status-a-defence