Parental2 Authority and Marriage.—The laws of family life are based upon a physiological3 or psychological foundation, the love of parents for their children. In cases in which the legal regulation of family life is unduly4 harsh—as in the case of the maintenance in former times of parental authority in the interest of the parents—parental love exercises a mitigating5 and counteracting6 influence.
To-day, the duty of parents to devote themselves to the careful upbringing of their children is universally accepted on principle. (There is but one exception to this generalisation: the duty of the father to provide for the upbringing of an illegitimate child is not as yet generally accepted on principle.) The duty of parents to provide for the upbringing of their children is one prescribed, not only by nature and morality, but also by the laws of human society. And yet this duty is not directly established by law; although it seems possible that children might be able to enforce by legal process the duty of their parents to exercise their parental authority in accordance with accepted rules. The[72] obligation to provide for the upbringing of their children is legally imposed on parents, if only for the reason that the liabilities thus incurred7 through the sexual act withhold8 many persons from needless and excessive sexual indulgence—and such conditional9 abstinence is advantageous10, not merely to the individual, but also to the community. The upbringing of children rests upon the legal basis of parental authority. The suitable upbringing of the offspring is best ensured when the legal relationships between the sexes are properly regulated. In all times, the essence of such regulation has consisted in the fact that a particular form of sexual union offers certain advantages, but that the acceptance of these advantages involves the performance of certain duties. This particular form of sexual union is known as marriage.
History of Marriage.—It is a debatable question whether matriarchy ever really existed. The question interests us here only for the reason that many modern scholars, including many Socialists11, contend that matriarchy did at one time really exist; and they infer from this that a time will come in which the sexes will have equal rights. In actual fact, in recent times, the importance of patriarchy—the father right—has continually diminished.
Child-Protection and the Family.—An overwhelmingly large proportion of child-protection to-day is mainly concerned with cases in which children have (in one sense or another, materially or morally, permanently12 or temporarily, wholly or partially13) been abandoned by their parents. Such cases are those in which: (a) the parents are unable to fulfil their duties, on account of lack of means, illness, or absence; (b) the parents are unwilling14 to fulfil their duties; (c) the parents make an improper15 use of their parental authority. But certain children also need protection from the community who cannot in any sense whatever be said to have been abandoned by their parents; and it is altogether erroneous to suppose that the idea of “child-protection” has reference solely16 to abandoned children. The child is born in a state of complete helplessness, and is unable to protect itself, not only immediately after birth, but for a considerable time afterwards. It lacks the requisite17 organs for self-protection, it[73] lacks power, and it lacks instinctive18 knowledge. For these reasons, if our legal system makes provision for the protection of adults, a fortiori must it do so, and to a greater extent, in the case of children. From all these considerations it follows that the most important relationships of child-protection are not, as is commonly assumed, with criminal law and with local administrative19 activity, but with civil law and individual rights. The kind and degree of child-protection, depend chiefly upon the mutual20 relationships existing between the State and the family. The institutions of child-protection, in so far as they are associated with civil law and individual rights, will, as a rule, be found to be preventive in character; institutions based upon criminal law, on the other hand, commonly exhibit punitive21 and repressive tendencies, as will become apparent when a number of concrete instances are studied. If the legal relationships of family life undergo changes, the methods of child-protection will also be transformed.
Maternal22 Authority.—In the matter of love for the offspring the mother, for physiological reasons (pregnancy, parturition23, and lactation), stands on a higher plane than the father. The intensity24 of her love for her children explains the fact that the mother neither needs nor exercises much parental authority. Moreover, inasmuch as hitherto the mother has always been in a state of greater or less subjection to the father, parental authority has at all times chiefly taken the form of paternal25 authority. But as time goes on, this paternal authority is, in fact, tending to be transformed very gradually into a true parental authority; that is to say, the mother begins to exercise the rights and to perform the duties of parental authority in a manner parallel with or subsidiary to that of the father. To-day we stand at the beginning of this development. Its chief cause is the profound transformation26 of economic life, as a result of which women are to an ever greater extent entering the arena27 as wage-earners, whilst the differences between the legal position of men and women continually diminish.
Fiduciary28 Character of Parental Authority.—Formerly, parental authority took the form mainly of a right of[74] dominion29 over the child, subserving chiefly the interests of the head of the family—the patriarch. The more complete the social integration30 of any particular country, the more in that country does paternal authority assume a fiduciary character, the character of a protective authority, arising out of the child’s natural need for protection, and subserving its need for guardianship31. Owing to their possession of parental authority, it is the duty and the right of the parents to exercise the guardianship over their children in every capacity; as the legal representatives of those of their children who are still under age, the parents are competent to act on behalf of and in the name of their children. Thus the second characteristic of the developmental tendency of parental authority is, that that authority involves the acceptance of an ever-increasing number of duties, and also that the State, through the intermediation of Boards of Guardianship[2] exercises a control over the parents which was almost unknown in former times.
In the modern State, the following ideas as to parental authority are generally prevalent. Parental authority involves duties as well as rights. Our laws give rights to parents only in order to enable them to fulfil their duties. They are, in a sense, plenipotentiaries of the State, entrusted32 with the duty of bringing up their children in a state of bodily, mental, and moral health, and of ensuring that these children shall develop in such a way that they will be useful to society. To enable them to attain33 these ends, parents are endowed with certain rights. Just as, in the matter of public education, the State enforces upon the child a minimum of school attendance, even against the wishes of the parents, so also, in the general upbringing of children, the State enforces a certain standard, with which all parents have to comply.
The Elementary Principles of State Interference with Parental[75] Authority. (The State as “Over-Parent.”)—The modern State interferes34 with parental authority in accordance with the following principles. It is impossible for the State to supervise in detail the domestic life of millions of families, or to examine the soundness of the upbringing which millions of parents provide for their children. For these reasons, the State can intervene only in cases in which the conviction arises that by the conduct of the parents the mental or physical well-being35 of the child has been endangered, and thereby36 the interest of the State seriously threatened. If one endowed with parental authority has disturbed the natural foundations of that authority by criminal offences or immoral37 conduct, and has thus shown himself unworthy of the confidence exhibited in him by the State which has hitherto permitted him to exercise parental authority, the State is fully39 justified40 in depriving him of his delegated powers. In its own interest, in such cases, the State is compelled to withdraw the parental authority wholly or partially, and even to order that the child shall be removed from its parents’ house, to be brought up in a suitable family, in a reformatory school, or in some other institution (Zwangserzichung, Fürsorgeerzichung).
The legislator is not in a position to define in precise terms the cases in which parental authority should be withdrawn41, or the child transferred to other guardianship than that of the parents; it must suffice to explain the general principles which the Boards of Guardianship (see note on last page) have to apply at their own discretion42.
There can be no question of the need for State interference when the parents are leading a disorderly or immoral life; when they are ill-using or exploiting their child; when they are quite ignorant of the proper way of bringing up children; or when, owing to severe illness, alcoholism, morphinism, or utter destitution43, they are obviously unfitted to bring up their own children. Since long drawn-out proceedings44 in the law courts are desirable in the interests neither of the parents nor of the children, it is better that the procedure in these cases should not in the first instance necessarily involve an application to the law courts. But the parents must have the right of appeal to the courts, if they consider they have been unjustly[76] treated by depriving them of the custody45 of their child. Although the institution of such education under guardianship must not be made dependent upon the financial position of the parents, these latter should be made responsible for the greater part of the cost. Unless this were done, for parents to neglect their children would be a step towards shaking off a financial burden—those parents would be rewarded who failed to bring up their children properly; this would naturally still further weaken the parents’ sense of responsibility; and this again, by a vicious circle, would still further encourage them to neglect their children. Indeed, we have to ask whether, in the case of parents able to pay, an effective system of forced labour might not be introduced.
The withdrawal46 of parental authority must on no account be regarded as a punishment. There may be cases in which the parents are quite blameless, and yet in the interests of the child it may be absolutely necessary to abrogate47 the parental authority; or, in similar cases, it may be necessary, for educational purposes, to remove the child from its home. Again, it often happens, for example, that only the father is to blame, and yet the mother cannot be permitted to exercise her parental authority, but the child must be removed from its home, because in no other way can the harmful influence of the father be overcome. There are worthy38 parents who, simply from an excessive blind affection for their children, fail to bring them up properly; there are worthy working-class parents who have positively48 no time to attend satisfactorily to the upbringing of their children.
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1
secondly
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| adv.第二，其次 | |
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parental
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| adj.父母的；父的；母的 | |
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physiological
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| adj.生理学的，生理学上的 | |
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unduly
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| adv.过度地，不适当地 | |
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mitigating
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| v.减轻，缓和( mitigate的现在分词 ) | |
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counteracting
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| 对抗，抵消( counteract的现在分词 ) | |
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incurred
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| [医]招致的，遭受的； incur的过去式 | |
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withhold
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| v.拒绝，不给；使停止，阻挡 | |
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conditional
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| adj.条件的，带有条件的 | |
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advantageous
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| adj.有利的；有帮助的 | |
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socialists
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| 社会主义者( socialist的名词复数 ) | |
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permanently
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| adv.永恒地，永久地，固定不变地 | |
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partially
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| adv.部分地，从某些方面讲 | |
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unwilling
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| adj.不情愿的 | |
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improper
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| adj.不适当的，不合适的，不正确的，不合礼仪的 | |
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solely
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| adv.仅仅，唯一地 | |
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requisite
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| adj.需要的，必不可少的；n.必需品 | |
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instinctive
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| adj.(出于)本能的；直觉的；(出于)天性的 | |
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administrative
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| adj.行政的，管理的 | |
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mutual
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| adj.相互的，彼此的；共同的，共有的 | |
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punitive
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| adj.惩罚的，刑罚的 | |
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maternal
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| adj.母亲的，母亲般的，母系的，母方的 | |
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parturition
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| n.生产，分娩 | |
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intensity
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| n.强烈，剧烈；强度；烈度 | |
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paternal
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| adj.父亲的，像父亲的，父系的，父方的 | |
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transformation
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| n.变化；改造；转变 | |
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arena
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| n.竞技场，运动场所；竞争场所，舞台 | |
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fiduciary
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| adj.受托的，信托的 | |
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dominion
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| n.统治，管辖，支配权；领土，版图 | |
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integration
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| n.一体化，联合，结合 | |
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guardianship
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| n. 监护, 保护, 守护 | |
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entrusted
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| v.委托，托付( entrust的过去式和过去分词 ) | |
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attain
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| vt.达到，获得，完成 | |
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interferes
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| vi. 妨碍，冲突，干涉 | |
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well-being
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| n.安康，安乐，幸福 | |
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thereby
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| adv.因此，从而 | |
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immoral
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| adj.不道德的，淫荡的，荒淫的，有伤风化的 | |
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worthy
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| adj.(of)值得的，配得上的；有价值的 | |
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fully
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| adv.完全地，全部地，彻底地；充分地 | |
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justified
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| a.正当的，有理的 | |
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41
withdrawn
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| vt.收回；使退出；vi.撤退，退出 | |
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discretion
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| n.谨慎；随意处理 | |
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43
destitution
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| n.穷困，缺乏，贫穷 | |
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proceedings
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| n.进程，过程，议程；诉讼(程序)；公报 | |
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45
custody
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| n.监护，照看，羁押，拘留 | |
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46
withdrawal
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| n.取回，提款；撤退，撤军；收回，撤销 | |
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47
abrogate
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| v.废止，废除 | |
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48
positively
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| adv.明确地，断然，坚决地；实在，确实 | |
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