Laurence Houlgate

This paper is an exercise in political philosophy with an emphasis on political concepts used to describe various forms of government, for example ‘democracy,’ ‘oligarchy,’ and ‘aristocracy,’ and political concepts used to describe lawful activities or strategies within forms of government, for example, ‘filibuster,’ ‘presidential veto’, ‘representation,’ and ‘elector’. The main question in the paper is about the logical consistency of these concepts and the concept of democracy.Section 1 of the paper is about key concepts that give more detail about types of democracy, for example, ‘direct’ and ‘representative’ democracy, and the distinction between democracy and oligarchy. Section 2 describes several instances of oligarchic rule in all branches of the United States government, including a novel rule that the author refers to as ‘the rule of a shifting minority.’ Assuming that these instances of oligarchic rule in a government. are defects, then Sect. 3 offers several recommendations for repairing or removing them. It is left up to the reader to decide whether the instances of oligarchic rule in American government are either defects or non-defective strategies borrowed from oligarchy to prevent what John Adams calls the ‘suicide’ of American democracy.

In this chapter we define the concept of a tort and explain the distinction between tort and criminal liability. We introduce the doctrines of parental and spousal immunity that are still used in some jurisdictions to shield parents and spouses from lawsuits brought against them by a child or spouse. We begin the chapter by asking general and particular questions about tort law and its application to injuries occurring in the family. The general questions are: What is the general aim of tort law? Why are certain types of conduct classified as torts and other kinds of conduct are not torts? Responses to these questions refer to principles governing the just allocation of costs when a person has suffered an injury. In the section on intrafamily immunities we distinguish between several variations of the extent to which parents and spouses have historically been immunized, and we will determine whether any of these immunities can be morally justified. Finally, in those cases in which a parent or spouse has no immunity and is a defendant in a tort action for negligence, then they must prove that their act or omission that led to the tort was not a violation of legal duty. This raises the final normative question of the chapter. Under what standard of care should a jury be instructed to decide whether the defendant is or is not negligent? Should the defendant’s conduct be judged by an objective standard (for example,“the reasonable parent”) or should the jury use a subjective standard and inquire only about what the defendant honestly believed?

It has long been assumed that the woman who carried and gave birth to a child is its legal mother, possessed of all moral and legal rights to custody. And if she is married when she gives birth, then it is presumed in law that her husband is the child’s father. But recent scientific and technological changes in Assisted Reproductive Technology (also known as ART), coupled with the practice of surrogacy, have led many to challenge these assumptions. We here consider the case of a woman who gestates or gives birth to a child while serving as a surrogate for a married couple who hired and paid her for the “job” of being inseminated with a pre-embryo grown in vitro from their genetic contributions. The surrogate carries the fetus to term, and she is expected to deliver the child to the couple when it is born. If the surrogate refuses to comply, she has a long history of precedent cases supporting her gestational claim to custody of the newborn child. In this chapter we will discuss the normative underpinning of the principle that gives preference to the gestational or birth mother. Why should the state prefer her to other claimants for custody, for example, those who claim a right to the child on the grounds of their genetic relationship to the child, or those whose claim is based on an existing contract for the gestational services of a surrogate? In this discussion we will look at several different answers from the perspective of natural law, Kantian and utilitarian ethical theories.

Legal marriage is a type of contract that confers a status on those individuals who marry. In this respect it substantially differs from the traditional idea that legal duties arising under contract law should be self-imposed by individuals, not dictated by the public in the form of a contract which everyone is required to enter if they wish to achieve the status of “married person.” This status consists of non-changeable terms about the indefinite duration of the contract, support obligations of spouses, the distribution of property, and the amount of taxes paid to federal, state and local government. One reason that unmarried persons might see this status as a desirable choice is that marriage has considerable economic benefits that are not enjoyed by unmarried co-habiting couples. One of the central questions of this chapter is whether this distribution of benefits between married and unmarried couples is justifiable. We look at several principles of just distribution in an attempt to answer this question. Another important part of this chapter is about the description and evaluation of gendered marriages in which laws in earlier times dictated specific roles for husband and wife. Third, and perhaps of most relevance in contemporary family law are questions about access to marriage. In this context, we examine both the 2015 Supreme Court decision overturning state laws prohibiting same-sex marriage, and the arguments given in the public debate about same-sex marriage prior to this decision. We will next look at some of the alternatives to traditional marriage such as private contracts and a recent proposal called “minimal marriage” which uses state regulation only to recognize and promote caring relationships between the parties to the marriage, regardless of number and gender. Our concluding discussion is about the exit rules enabling divorce or dissolution of a marriage in which we ask whether the rules for dissolution should be neutral with respect to moral and religious beliefs.

Although family law is an area of the law most often used by the average citizen, and has seen the most modification as a response to changes in cultural mores, philosophers of law have largely ignored it as an area of inquiry. This book attempts to repair this omission by offering a unique introduction to the philosophy of law. It draws exclusively on family law cases as a way of introducing most of the traditional philosophical problems of legal philosophy: the nature of law and the relationship between law and morality, theories of constitutional interpretation, the moral limits of the law, theories of punishment, and tort liability. Other chapters are devoted to contemporary issues unique to family law, including justifiable limits of access to marriage, alternatives to marriage, child custody disputes involving surrogate mothers, quasi-property disputes involving custody of frozen embryos and the justifiable limits of the right not to procreate. This introductory chapter also draws a distinction between the philosophy of law and jurisprudence and gives a brief explanation of the typology of family law that will be used throughout the book.

An examination of some of the ethical issues that arise in making policy decisions about divorce child-custody disputes. It is argued in this paper that what needs to be resolved is the dilemma that occurs when the legislator is faced with a choice between using a discretionary standard that promotes the best interests of the child or a non-discretionary standard that settles disputes by an arbitrary assignment of custody. The dilemma is resolved through a normative analysis of various types of dispute-settling processes and a canvas of standard that allow for the automatic but non-arbitrary settling of disputes between contending parents.

This book is a unique introduction to the philosophy of law that repairs an enormous gap in the philosophy of law -- a lack of philosophical attention to family law. (In fact, PhilPapers does not recognize the philosophy of family law as a category.) This book uses only cases drawn from family law to illustrate the traditional problems of legal philosophy. This is why I wrote this book as a textbook rather than as a monograph. My hope is that students will learn more about the problems of legal philosophy by using cases with which they might be more familiar than from criminal law cases. Questions for thought and discussion follow each chapter.

In an unpublished paper of 1693 John Locke weighed in on the ongoing debate in the English Parliament by declaring that there should be a “general naturalization” of all immigrants currently residing in England. His argument for this controversial policy was entirely economic and based on promoting England's interest in achieving greater wealth. He wrote nothing about the interests of the immigrants (most of whom were escaping religious persecution) nor did he appeal to the moral and political theory he had so strongly proposed in Second Treatise of Government, published only a few years earlier in 1690. In this paper I look closely at the concepts of community and law in the state of nature and conclude that if Locke had employed the fundamental principles developed in Second Treatise he would have endorsed a far more radical policy that would have permitted the immigration and eventual naturalization of persons on humanitarian grounds. The application of these principles have important consequences for contemporary debates in the United States Congress and in other wealthy countries about the extent of the obligation to provide relief to foreigners who are escaping religious persecution, war, enslavement, hunger, and natural disaster.

The Minos is one of thirty-five dialogues that ancient editors and commentators regarded as one of the authentic works of Plato. Although it is now regarded as spurious, in both the classical and modern eras, the Minos was treated as a suitable problematic introduction to Plato's Laws. The co-authors (Houlgate and Hathaway) believe that it is still an excellent introduction to the Laws. It has philosophical significance whether or not it is authentic. It is the philosophical significance that is discussed in this article.

In this chapter we examine the ongoing debate about how the U.S. Constitution should be interpreted. Although family law is traditionally the responsibility of the states, there are a few U.S. Supreme court cases that brought about a change in areas once controlled mainly by state laws: the right of parents to control their child’s education; the right of children to freely express their political or moral views in school; and the right of married couples to use artificial contraception. We briefly look at these cases in order to get an understanding of the debate between proponents of two broad categories of theories of constitutional interpretation: Originalism and Non-originalism. Originalist theories insist that the only considerations to use when interpreting the Constitution and its provisions are those that are temporally “fixed” to the time when they were written or ratified. Non-originalism denies this and considers such non-temporal factors as the purpose of the Constitution or the underlying moral philosophy that might have inspired its authors. All of the interpretations are normative. They attempt to answer the question as “Why ought the justices on the Supreme Court to defer only to the intentions of those who wrote the Constitution and its amendments or to the intentions of those who had a hand in the ratification of these documents? “What moral standing do the framers, ratifiers and the general public in the 18th century have that gives them the final word on interpretation?” We begin the chapter by looking at how the word “person” was originally used in the Constitution in order to get some perspective on “originalist” theories of interpretation. We then examine three U.S. Supreme Court cases involving family law in order to illustrate the persistent arguments that occur over how the doctrine of stare decisis is employed, and in the final sections of the chapter, to show how the various theories of constitutional interpretation have been employed by justices and legal scholars when deciding these and other cases that have come before the U.S. Supreme Court.

What response should the legal system make to intrafamily harm? Should these harms be classified as crimes and punished in the same amount and manner as other criminal acts? Or should there be some other type of response focusing not on the individuals who caused the harm but on the family to which they belong? Questions about the general justification of punishment, the amount and manner of punishment, and alternatives to punishment are central to the philosophy of law. In this chapter we discuss the debate between utilitarians who look to the future by justifying punishment on the grounds of deterrence and retributivists who look to the past by justifying punishment on the grounds of moral blame and desert. We examine this debate through the lens of the crime of sexual abuse of a child by its parent. We then turn to a discussion of therapy as an alternative to punishment in cases of intrafamily crime. Our question is whether there is something about intrafamily harm that would make therapy a more just response to those who cause such harms than the response of punishment.

Questions about the moral limits of state intervention have usually been asked about intervention in the actions of individuals, and only rarely asked about intervention in the behavior of families. In this chapter we will discuss these questions as they pertain to families by using the same normative principles employed in familiar discussions about the limits of state intervention in the conduct of individuals: harm-to-others, legal paternalism, and moralism. In this discussion we will introduce and critically examine the doctrine of family privacy which says that the state has no business intervening in internal family conduct which does not harm the interests of anyone outside the family. Using the language of J.S. Mill (quoted in the epigraph), we will ask whether it is true to say “Over itself, over its own members, the family is sovereign.” Before we attempt to answer this question we need to respond to the objection that questions about the limits of state intervention wrongly assume that there is a concept of the family that is pre-political or pre-legal. It has been argued that this assumption is false because the family, like the personal, is essentially political. Is the assumption false? Or is there a concept of family that allows us to refer meaningfully to unjust or wrongful legal interventions in family life?

The philosophical and normative questions raised in this chapter are raised in disputes between divorcing couples over the disposition of previously frozen embryos stored in a cryopreservation facility for future use. We examine several court cases in which judges have made explicit and implicit references to rights and interests: for example, a person’s right to procreate, a right not to procreate and the interests of future persons. We will discuss whether these concerns might lead to legislation placing justifiable limits on relevant pre-divorce contracts created before decisions are made about in-vitro fertilization and storage.

The theories about the relationship between law and morals discussed in Chaps. 2 and 3 and theories of constitutional interpretation in Chap. 4 by no means exhaust the available legal theories that have been prominent in the philosophical literature. In the debates about the validity of laws pertaining to the family and family relationships one will find not only variations of legal positivism and natural law theory, but approaches to the law that attempt to determine how legal decisions are made by judges. What is legal reasoning and how does it differ (if at all) from moral and political reasoning? How does a judge begin the process of legal reasoning? Is her choice of a guiding principle based on the self-evident nature of the principle, as would be recommended by natural law, or is it to be found in whatever policies and practices promote the general welfare, such that we can say “The law is whatever the judge says that it is”? The latter approach to legal reasoning, first developed in the United States in the 1920s and 1930s, is Legal Realism. It was a reaction to an earlier theory now called Legal Formalism. Another theory, influenced by Legal Realism and originating in the 1970s, is Critical Legal Studies. A fourth, partly influenced by both Legal Realism and CLS, is the radical version of Feminist Legal Theory. We will discuss these in order.

This chapter provides descriptions and critical discussions of two versions of the philosophical theory known as Legal Positivism: the classical account of John Austin and the modern version of H.L.A. Hart. Legal Positivism makes what John Austin calls a “clean separation between law and morals,” thereby refuting the central thesis of natural law theory. This is not a rejection of the idea that morality is a source of positive laws. Legal Positivists accept the notion that laws prohibiting murder, assault and theft reflect prohibitions of the same acts that we find in the rules of positive (human-made) morality. But this prompts the question “What is the reason why law and morals should include a specific content?” It is here that H.L.A. Hart enters the debate with a recommendation that ties together both the theory of natural law and legal positivism. Although he finds no logical relationship between law and morals, he believes that there are truths about human nature that “not only disclose the core of good sense in the doctrine of Natural Law but are of vital importance for the understanding of law and morals.” (Hart 2012, 199) These truths or “simple truisms” provide us with the “minimum content of natural law.” Using Hart’s methodology, we here examine rules of family law in order to determine whether there are any facts about human nature and the environment in which we live that necessitate any specific rules concerning family formation or access to family relationships.

In this chapter we will critically examine natural law theory and the proposal that there is a necessary connection between positive (human-created) family law and natural family law (objectively valid, universal moral rules not created by humans). Natural law theory, as it applies to family law, proposes that the rules of positive family law are valid only if they conform to the rules of natural family law. Our question is whether this theory can be successfully defended. We begin with a description of a Supreme Court case invalidating a state statute prohibiting sexual activity and marriages between persons of different races, in which the prohibition was partly based on appeals to natural law. We will then test several versions of natural law theory, beginning with a classical version originally proposed in the seventeenth century by the English philosopher John Locke. We conclude with a discussion of two modern versions of the theory proposed and defended in the twentieth century by American philosophers Lon Fuller and Ronald Dworkin.

In this chapter we discuss both the moral and constitutional conception of children’s rights. The moral conception has been debated since the seventeenth century by Thomas Hobbes, John Locke, John Stuart Mill and Herbert Spencer. All except Spencer accept the idea that children have none of the so-called “liberty rights” possessed by adults. This idea is reflected in state laws denying such rights to children, including the right to freedom of expression when at school. But in a series of Supreme Court cases beginning in 1967, the U.S. Supreme Court declared that children are persons who are possessed of fundamental rights that the state must respect. Included among these rights is the right to freedom of expression. In this chapter we consider several Supreme Court cases introducing this right and later restricting its scope because of its inevitable conflict with another idea: children are human beings who are always in custody of their parents, of the school they attend, or ultimately of the State. We conclude the chapter by discussing several theories that attempt to resolve the dilemma of conceiving children as both persons with fundamental rights and as human beings who are always in some form of custody.

A familiar public response to intrafamily harm is child protection. It is a response that occurs when cases of child abuse or neglect are given over to a family or juvenile court. The court orders a disposition primarily aimed at protecting the child from further harm. The disposition may consist of court ordered home services for the family, temporary transfer of the child to a foster family, or permanent severance of the parent-child relationship. In creating the disposition, a judge will first attempt to determine what is in the child’s best interest. This is where philosophical questions arise. What is an interest? How does an interest relate to the concept of a harm? What should count as a child’s interests? What interests are best or better than other interests? The answer to these questions often depends on one’s conception of the relationship of a child to the family. We look at a distinction between different models or ideals of the family, each of which generates different answers. These answers are closely related to a debate between social welfare professionals over whether it is more important to protect the child or to preserve the family, and to a related debate between those who want to criminalize abusive conduct and those who want to take a therapeutic approach to domestic violence by searching for and correcting its underlying causes.

This book begins with an overview of the current legal status of children under U.S. federal and state law, It includes an analysis of relevant Supreme Court decisions and an extended critique of the philosophical arguments for treating children differently from adults under the law. Sections in the book include discussions of the need for a theory of juvenile rights, the moral arguments that prop up such theories, Professor Houlgate's proposal for a theory, and a final discussion of the applications of his theory to the debates about status offenses, child neglect, and rehabilitation of juvenile offenders.

I. Although there has been considerable recent dispute as to what Socrates meant by saying that Virtue is Knowledge, if the claim is, as it is sometimes taken to be, that knowledge of the essential nature of virtue is sufficient for virtuous behavior, then it is only necessary to point out what seem to be quite obvious counter in stances. The fact of moral weakness, coupled with what large numbers of scientists and lawyers and plain men now believe about the capacity of human beings for self-control, demonstrates that a man can surely know the good and yet fail to do the virtuous thing. What, then, is left of the view that Virtue is Knowledge?