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Colin Johnson’s blog

The Rule of Law (1)

There was an interesting discussion on AskMetafilter a week or so ago about whether a parent had the right to fine a minor for swearing in the family home, especially when the money being taken away had been independently earned by the child.

One of the interesting arguments used by people in favour of the fine was “my house, my rules”; that the child lives in a house provided by the parents, and should therefore defer to that provider. An interesting hypothetical is to consider how this could be enforced in law.

Presumably, the basis for this in the “general position”, where there is no parental responsibility between the parties involved, is that the provider of the service can set arbitrary conditions on the providee, within the bounds of the law. If I want to let out a room in my house, it is reasonable for me to set a condition like no smoking, compulsory communal singing every morning, or the saluting of the house flag. If the lessor doesn’t like it, they are free to rent elsewhere.

But, this doesn’t apply in the family case. The child doesn’t have the ready right to move to an arbitrary other home; they are constrained to live within the family home. It would seem that the “my house, my rules” defence can’t apply here, as the necessary freedom of action doesn’t obtain.

This raises interesting questions about the rule of law within families. Do we, in general, believe that it does obtain? I think if asked the question, we might say that it does, but the reality is different. Clearly, the vast majority of us would believe that serious crimes within the family should be treated normally. But lesser issues less so—many jurisdictions, for example, allow a certain class of physical attacks on the child by the parent to be exempt from criminal status, which would exist if those attacks were carried out on a arbitrary individual. So far, we are still within the rule of law sensu strictu—there is an exception, agreed via a democratic and legally sound process, to the general argument that it is illegal to hit someone. But the ground is getting boggier. It get boggier still when we move onto crimes like theft. Is it theft for a parent to take away a child’s property? If I, through menace or surreptition, take some money from my neighbour, I am a thief; if a parent does the same to a child, is it still theft?

Parents in general treat the idea that their child has legal rights with a mixture of contempt and dismissive amusement. Perhaps we need to see a shift in this? Certainly, just a couple of generations ago, the idea that wives had recourse to law in matters such as assault and rape was treated with similar derision. I also worry about the greater implications here for the child’s learning about the rule of law; if the idea that they have no legal recourse is established in their mind through minor issues about property, will they apply the same reasoning when the issue is a serious one?

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