Family Dissolution and the Concept of Children’s Rights

A Historical and Culture-Comparative Analysis—

By Akira Morita

Introduction: Where the Problem Lies

On June 8, 1989, at the final discussion of the 45^th United Nations Human Rights Committee in Geneva, Dr. Richard Jaeger, representing the German government, voiced his reluctance and reservations regarding the adoption of the Convention on the Rights of the Child:

In the case of Article 5, which deals with the responsibilities, the rights and duties of the parents, we would have liked a more precise wording. There can be no doubt at all for the Federal Republic of Germany that the exercise of specific individual freedoms by children must find its clear limitation in the rights of guidance and direction of the parents.

This can be demonstrated particularly well by means of Article 13 which, among others, gives children the right to consume presentations of the electronic media. . . . I am certain that no one in this room here is of the opinion that children should be allowed to watch television without any limitations.

This statement by the German representative dramatically illustrates the shock people experienced when the legal concept of the "child’s right to autonomy" appeared as a problematic legal concept that threatens the organic parent-child relationship in the context of an international treaty. In the words of another German representative, spoken on a separate occasion, this surreal situation, never anticipated in the past, was a symbolic expression of the dissolution of the contemporary family.

How did this problem occur in the first place? Is there no room for questioning the legal concept of children’s rights itself? How can we overcome our current predicament? I would like to review the process of how the legal concept of children’s rights developed—a process which clearly reflects the interplay between family disintegration and the law. I have chosen material that relates the experience of the United States, a forerunner of modern society and a representative leader of the history of child legislation in the West. I would like to discuss in depth the question of what can be done to protect the family, parents, and children, based on an historical analysis of this material, and also in reference to the experience of Japanese law.

I. Formation and Transformation of the Concept of Children’s Rights in the United States

(1 ) The right to protection

In the process of the development of the child welfare system in the United States, the concept of children’s rights first arose in the wave of Progressive social reform that took place at the turn of the century. The reformers were alarmed by the preliminary signs of trouble and breakdown they saw occurring in families against a backdrop of rapid industrialization, urbanization, and the influx of immigrants into the country that dated from the mid-nineteenth century.

The power of the family, while the pioneering hope of twentieth-century America, was also an institution facing imminent crisis. In the midst of this duality of hope and crisis, the reformers—known as "child savers"—concentrated all of their efforts on the establishment of a legal network (parens patriae) which would function as a substitute parent for the children abandoned in cities, those struggling in dark factories and coal mines, as well as for prone-delinquent children whose parents could not control them. The reformers called the objective benefits that should be given to children by this network "children’s rights."

A. J. Mckelway, one of the reformers, defined children as having "the right to be dependent." One court practitioner cleverly described this by saying, "The juvenile’s right is not the right to liberty, but the right to custody."

In other words, the child welfare laws in the first half of the twentieth century attempted to reconstruct the endangered organic parent-child structure of protection and dependence by creating a framework for the exercise of parental authority by the law. This artificial system of legal fiction was known as parens patriae. The right to protection in this context was therefore more accurately described as the need for protection being fulfilled within the legal framework; it can be referred to as the child’s objective legal entitlement. Legal historian Martin Grossberg describes the origin of the thinking that gave birth to this right:

The reformers had to create a new paternalistic vocabulary that defined rights in terms of children’s needs and parental failure. . . . Like others before and since, child savers hoped to make these needs inviolate by turning them into rights. . . . Rights talk proved too attractive to ignore.

Thus, these "rights" were not subjective rights in the classic sense, which makes self-determination a prerequisite.

Equating children’s needs with rights in this way was not limited to the United States, but developed as a common symbol of child welfare and its legal paternalism in Western countries in the twentieth century and made steady progress up to 1959, the year of the United Nations Declaration on the Rights of the Child. But a transformation in the concept of children’s rights began in the second half of the century.

(2) The right to autonomy

The actualization of anti-discrimination, which arose from the new egalitarianism and individualism that emerged in America toward the end of the 1950s, energized to spread through every section of society like wildfire in the late 1960s in the form of social protest that was rooted in a distrust of all traditional and institutional authority. In the world of education, not only did the protection structure that formed the parent-child relationship come under fire, but so did various legal systems that imitated the parent-child relationship.

The sharp increase of new types of child abuse, declining family morals, free sex, and especially the escalating family disintegration that was reflected by soaring divorce rates—which all became apparent in the 1960s—dealt a decisive blow to the traditional concept of protection. The difference in the status of parent and child and even parental authority itself began to be viewed with suspicion. A philosophy which made no fundamental distinctions between adults and children, calling for the liberation of children from protection, gradually came to be widely accepted. The child’s right to autonomy was born in this climate of social change, thus returning the concept of rights to its classic meaning of individual freedom and autonomy.

In 1967 and 1969 the U.S. Supreme Court made historical rulings that allowed the child’s right to autonomy in the contexts of juvenile justice and school education. However, preceding this radical advancement of modern freedom lay the de facto breakdown of parenthood on a social scale, as I have just described.

The emergence of the child’s right to autonomy inevitably caused dramatic changes in both the American legal system as it concerned children and in the reality of how children are treated. I will omit the details of these changes, but it is obvious that the concept of the autonomy of the child, which appeared in response to protests against protection, actually furthered the destruction of the protective relationship and helped to weaken education.

Hindsight suggests that the history of modern law in the West, which started out with the two articles of faith—individual autonomy and the right—is a history of the gradual dissolution by these two key concepts of the organic links of traditional society and the replacement of those organic links with legislation. In the early twentieth century when the aforementioned legal system was created, the term "right" was used to express a need of children, but in fact this terminology reflected the struggle to prevent the dissolution of protection—a struggle that opposed the trend followed by modern law from the eighteenth century onward. The emergence of the child’s right to autonomy in the second half of this century was a symbolic event which demonstrated how the process of the disintegration of modern Western society, led by the principles of individual autonomy and the right thereto, had finally reached down, 200 years after the French Revolution, to the primary level of the intermediating body of society—the family.

Let me reiterate the question I posed at the beginning of this report: How can we overcome our current predicament?

II. Beyond the Concept of Children’s Rights

(1) It is apparent from the account of protection and autonomy I have just summarized that these two seemingly contradictory legal concepts of children’s rights are actually twins in the world of modern law—both grown from the same root of decline and weakening of natural parenthood and parental authority that has been a continuously occurring phenomenon in the past century. Today we are bewildered as we confront a postmodern situation in which the concept of the child’s right to autonomy functions as a disintegrating force against organic parent-child bonds.

Is the solution simply to demand a return to the concept of rights as meaning the child’s right to protection that is consistent with parental authority? Is this a duty that should be entrusted to the law? In one sense these questions may be answered in the affirmative, but my understanding is that this solution alone is not sufficient. What we need at this point is an in-depth discussion of the very concept of children’s rights, including both protection and autonomy.

(2) First, we should consider that the concept of children’s rights itself is based on the highly modern premise of the superiority of artifice over nature. The philosophy of parens patriae was rooted in a powerful optimism which believed that the natural parent-child relationship could be reconstructed and developed by the law. In particular, the key concept of rights epitomized the spirit of enlightened rationalism, which began in the seventeenth century, by its conviction that nature could be intentionally restructured and developed by rational human choice. This is why, as Grossberg writes, for the child savers, "rights talk proved too attractive to ignore." Yet we have witnessed many cases where, paradoxically, legal paternalism—the right to protection—acted in a destructive manner against the natural parent-child relationship and proved detrimental to long-term child welfare because of its excessive optimism and forcefulness. In a way, the institution of the child’s right to autonomy was a reaction against this forcefulness.

(3) The second point I want to offer for your consideration is that the concept of rights itself is, to begin with, one that found a basis in isolated individual cases. Today we are faced with a new paradox: the right to autonomy that came into existence as a result of the criticisms that were levied against protection is dismantling parent-child and teacher-student relationships by dividing all the parties concerned into individual entities, which only serves to further weaken the educational function of these relationships. This new paradox was not a by-product of the emergence of the right to autonomy concept but was certainly a consequence of the of the appearance of the parens patriae idealism at the beginning of this century that helped to dissolve the parent-child relationship with a concept of "rights" that considered the individual interest of the child as separate from that of the parent. Looking at this in simple terms we find, as suggested by Mclvelway’s expression "the right to be dependent," that what children need most is not an isolated benefit in the name of rights, but the "relationship" itself. Joseph Goldstein, a renowned authority on children’s law, argues:

While the law may claim to establish relationships, it can in fact do little more than give them recognition and provide an opportunity for them to develop. . . . It may be able to destroy human relationships, but it does not have the power to compel them to develop.

(4) Although I do not believe that modern law is as incapable of fostering human relationships as Goldstein asserts, I believe we should acknowledge unequivocally that modern law, which uses the individual as a starting point, does not have a framework for dealing with the organic interpersonal relationship itself. The eminent legal philosopher Friedrich August von Hayek called the excessive confidence in the superiority of artifice over nature contained in modern law "constructivist rationalism" and described its limitations in detail.

If we follow this line of argument, it is evident that today, as we find ourselves in the midst of a crisis of family disorder, that we are faced with the task of somehow transcending the limitations of constructivist rationalism and rights-oriented thinking which is the underpinning philosophy of modern law. As Hayek might have said, we must transcend a legal order based on individualism and constructivist rationalism and "rediscover" the "spontaneous order" that incorporates human relationships.

III. The Experience of Japanese Law

(1) The above propositions are highly abstract in nature, so I would like to share with you a few experiences and observations of Japanese law I have made which suggested these general propositions to me.

As you are probably aware, Japanese society is a curious combination of the modern and premodern. Japan’s legal system has adopted wholesale the legal system of modern Western states but, as many have noted, the behavior patterns exhibited by the Japanese cannot be explained fully in terms of modern individualism.

To cite an example, one of the important principles governing Japanese behavior patterns is the ethic of reciprocity, fostered by interpersonal dependency and a sensitivity towards the state of belonging. Whereas in the West, dependency is viewed as being tantamount to subordination or even inferiority and therefore tends to be suppressed and relegated to the subconscious. In the Far East island nation of Japan, sensibility to the need of dependency has not only survived without having been negated but can even be said to be institutionalized within the social structure. The "belonging" that is the psychological foundation of the parent-child relationship and the primary model for human relationships is referred to as amae in Japanese. I would like to refer those of you who are interested in this topic to The Anatomy of Dependence by Takeo Doi, an excellent study of this phenomenon which is available in translation in seven languages. Inevitably, the remnants of such nonindividualistic behavior patterns have been criticized by modern Japanese intellectuals who view them in a negative light as a premodern legacy that should, for the most parts, be subjugated.

(2) Yet when we consider this problem from the perspective of our interest in the theme of this conference, Japan’s experience of combining the modern with the premodern provides us with very interesting data. It is very clear that one of the major reasons that the Western-style phenomenon of family dissolution has not yet occurred in Japan is due to the amae behavior pattern I have just touched on. In the legal world, we find many interesting phenomena. For example, the long history of the family mediation system in the Japanese family courts has shown its governing principle to be structured around the recovery of belonging through compromise and conciliation. The parties to mediation are encouraged to minimize the modernist assertion of their rights and discover the possibility of interpersonal relationships based on the ethic ot reciprocity. It is observed that people also arrive at court hoping unconsciously to recover through mediation some kind of psychological reconciliation.

(3) Another example is the Child Welfare Law. As a rule, the various measures for dealing with children in Japan’s municipal child welfare centers are taken only with parental consent. When parental consent cannot be obtained, the child welfare center can seek a court decision that allows it to intervene compulsorily in the parent-child relationship. In cases of extreme abuse of parental rights, the child welfare center can ask the family court to rule that the parents forfeit their rights. This law was enacted in 1947 during the U.S. Occupation, based on the principles of parens patriae.

Yet interestingly enough, there have been very few actual cases of compulsory intervention into the parent-child relationship by Japan’s child welfare centers and the courts. According to the Annual Report of Judicial Statistics for 1995, Japanese courts authorized compulsory, temporary intervention into the parent-child relationship in only 19 cases, and there were only 15 rulings for forfeiture of parental rights, some of which some were later overturned. There is only one case recorded in the precedents which is worth citing as a public reference: in 1979, a case involving a girl raped by her father, in which the Tokyo Family Court ruled that his parental rights be forfeited. It should be noted, however, that these numbers are within the context of the present Japanese population, which is about 120 million.

(4) Another illustration of the Japanese law’s reluctance towards compulsory intervention and its belief in the superiority of nature over artifice is its approach to status offense (prone-delinquent) jurisdiction in juvenile law. The current Japanese Juvenile Law, like the Child Welfare Law, was enacted after the Second World War under the influence of the parens patriae principle and, like its model, anticipates the need for considerable, proactive, compulsory intervention into the parent-child relationship. Yet in reality, the number of prone-delinquent juveniles sent by the Japanese Police to the family court in the past 50 years accounts for a mere 1.6% of all juvenile offenses every year. This percentage has not changed from that recorded in the years when the preceding Taisho Juvenile Law, enacted in 1922, was in force. This law banned outright any long-term compulsory intervention in prone-delinquent without parental consent. Dr. Tanida Saburo, the legislator at the time, tells why the relevant article was included:

The reason we added this article was to ensure that the law does not damage the natural emotional bond between parent and child in our country.

The reserved approach and administration of the old juvenile law, which was based on a respect for the natural relationship of dependency between the parent and child, has not changed even in the 50 years since the new law, formulated along the lines of the idea of parens patrie, was enacted. In other words, Japanese law makes a sharp response neither to the right to protection nor to the right to autonomy.

The experience of modern law in Japan that I have related is limited to Japan and therefore perhaps not immediately applicable to other societies. Also, the passiveness of Japanese law that I have described is generally depicted as evidence of the backwardness of Japanese society. But if we view our greatest task as one of putting a halt to the "waning of belonging," as Bruce Hafen expresses it, a result of the fragmentation of human relationships in a world where modernization is being pushed to its limits, then the experience of Japanese law which values human connectedness might provide us with clues that will lead to a viable solution.

In Conclusion

Seventeenth-century philosopher and mathematician Blaise Pascal argued that there are two types of mind: l’esprit de geometric, the geometrical mind, and l’esprit de finesse, the intuitive mind. The geometrical mind draws conclusions from a small number of precise principles through logical reasoning. The key to this form of reasoning is the clear judgment of concepts. In contrast, the intuitive mind deals with a myriad of things which, by nature, cannot be demonstrated in an ordered, geometrical fashion. These things are extremely delicate and must be seen by the intuitive mind at a glance, and not as a result of progressive reasoning. The process this involves can be more accurately described as feeling, rather than perceiving.

The distinction Pascal draws between these two types of mind is closely related to our theme of law and the family. Law makes its appearance in real-life situations, where things must be assembled along the lines of geometrical evidence and logical perspectives to form a social order. Yet the entities of the family and the parent-child relationship cannot be satisfactorily understood only in such Cartesian terms. They also involve instinctive, emotional, historical, and religious aspects—the natural resources, so to speak, that are part and parcel of human life. To truly grasp the orders of the family and parent-child relationship, we must turn to the power of the intuitive mind. But as Pascal noted, "Geometricians are rarely intuitive."

Here, at last, the problems embodied in the question of how modern law can protect the family become clear. We must begin from the awareness that law and the family are objects of two different orders and, to quote Pascal once more, avoid the carelessness of "geometricians who treat these intuitive matters geometrically; and make themselves ridiculous by trying to begin with definitions followed by principles." Surely our most vital task, as legal scholars and practitioners, is to make decisions with the utmost of care, all the while fully aware of the part the intuitive mind has to play, as we grow, step by step, toward a better, more balanced understanding of the parent-and-child relationship.

Akira Morita, professor of law, is a member of Toyo University’s Faculty of Law. He is the author of The Convention on the Rights of the Child—It’s Contents, Theme, and Perspective, as well as hundred of articles on juvenile and constitutional law. Over the past 15 years he has served as a volunteer probation officer for juveniles in the Tokyo area.