Premodernidad, modernidad y posmodernidad: itinerarios

In the context of the family, things are said to be dire. Some observers claim that rights in the family negate loving ties of intimacy and “encourage people to think that the proper relationship between themselves and their children is the abstract one that the language of rights is forged to suit” (Schoeman 1980: 9). Even the ready

acknowledgement that children are ‘owed’ something and are not mere parental vassals

does not quiet criticism of rights-talk. Sandel’s sophisticated criticism of Rawl’s A

Theory of Justice is one of the best exemplars of this (1982). Sandel takes aim at the very root of calls for justice by calling into question Rawls’ underlying premise that “[j]ustice

is the first virtue of social institutions” (Rawls 1971: 3).25 Sandel claims Rawlsian justice

25 _{While Rawls claims that the monogamous family is a social institution, he pulls back from incorporating}

it within the constitutional arrangement. Okin’s Justice, Gender and the Family (1989) takes aim at what she perceives to be Rawls’ failure with regard to his discussion (or lack thereof) of the family. In her view,

is a remedial virtue, which obtains in the presence of “fallen conditions”. To imply

circumstances whereby justice is necessary is to concede other, competing, virtues

whereby they would be unnecessary, such as the prevalence of benevolence. It might be appropriate for justice to prevail in conditions where one would be hard-pressed to satisfy the rival interest of someone who resided within one’s political community, but whom one had never met and with whom one shared little, but within the family calls for justice are seen as begetting the “fallen conditions” that might, on proper inspection, be better served by circumstances of benevolence, from the moral point of view. It seems helpful to quote Sandel at length. He writes:

When I act out of a sense of justice in inappropriate circumstances, say, in circumstances, where the virtues of benevolence and fraternity rather than justice are relevantly engaged, my act may not be superfluous, but might contribute to a reorientation of prevailing understandings and motivations, thereby transforming the circumstances of justice to some degree. And this can be true even where the ‘act’ I perform out of justice is ‘the same act’ as the one I would have performed out of benevolence or fraternity, except in a different spirit. As in Rawls’ account of stability, my act and the sense of justice that informs it have the self-fulfilling effect of

bringing about the conditions under which they would

have been appropriate. But in the case of the

inappropriate act of justice, the result is to render the circumstances of justice more pressing without necessarily evoking an increase in the incidence of justice to a similar degree (1982: 34-5).

The difficulty here is that Sandel’s point does not take proper account of the fact that benevolence and fraternity, while part and parcel of all ‘well functioning’ familial

relations, simply do not themselves always obtain. It might be one thing to say that Rawls

theories of justice are incomplete to the extent that they don’t tackle the gender inequalities that exist within families and which are subsequently reproduced generationally.

overstates the case by saying that justice is the supreme value of all social institutions, but it is quite another to dismiss the question of justice in the family altogether. One might note that circumstances of justice can have the equal and opposite consequence than that identified by Sandel, which is that a concept of justice can bring a change in the circumstances of benevolence and fraternity. This is true by working on what it is that we believe others ought, rightly or justly, to have. In relationships marked by power

relations, as is the case with parents vis-à-vis their children, the question of acting upon

what we believe children ought rightly to have might yet remain a question of

benevolence, and can be rendered conceptually distinct from the question of examining

what it is that they ought rightly to have. The desire to act for the good of others is different from knowing of what that good consists. Largely, questions of justice in the

family have taken aim at the myriad ways in which assumedpower relations have

unwittingly reproduced circumstances that have had ill effects upon those who are the most vulnerable to the decisions made by others and to the extent that seeing others as rights-bearers increases one’s view of the obligation one has in view of those others, rights-talk is beneficial even within the family.

A secondary function of rights-talk is noted by Brighouse who claims that “a great deal of rights-thinking does not involve the assertion of rights. It involves waiving one’s rights” (2002: 34). According to Brighouse, the gesture of waiving one’s rights within intimate relationships out of love or respect for the wants and desires of others is a profoundly powerful gesture. While this gesture is unavailable to children who lack the emotional resources and the coercive power to give this gesture the meaning with which

it may be imbued by adults, he concludes that the fact of seeing one’s child as a rights- bearer shapes our actions toward our children (34-5).

Relatedly, Dwyer makes the important observation that criticism of rights-talk with respect to children always comes from those whose rights vis-à-vis children are presently established. After all, the opposite view of restricting the rights of children is to increase the rights parents have in view of them (2006: 12-14). In other words, rights within the family already exist. By default, these rights extend to parents. The question is not that of whether rights in the family ought to exist, but who shall have what rights.

Justice, in the first place, gives us the vocabulary to examine how we ought to conceive of how it is that people, particularly the most vulnerable among us, out to be treated, in a language that assumes a greater priority than that of ‘should’, precisely because of the enormous investment liberal theory has made in the idea that justice ought, normally, to prevail and that the idea of rights is the best means through which to

articulate that idea. In an equal and opposite way, Dwyer opines that talk of fulfilling responsibilities on the part of the powerful rather than focusing upon the rights of the powerless, appeals to the power-holders’ desire to ‘be good’ and ‘moral’. This desire, however, suffers from the same incompleteness that Sandel maintains talk of justice does, but on the opposite side of the question. Rights-talk in the family is important because it gives us the language through which we can articulate present inequities and imbue them with the moral priority they deserve. Dwyer maintains that to the extent that rights-talk elevates the moral claims of a person and “to the extent that one believes significant change in treatment of children is morally requisite, one will find rights-talk useful” (14). In order, however, to determine what the treatment of children in our society ought

morally to require, it might be beneficial to examine several implicit and explicit

conceptions of children and childhood that are presently observable within liberal society.