Front Page Titles (by Subject) chapter 15: On the Rights of Parents and Children 1 - Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael
Return to Title Page for Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
chapter 15: On the Rights of Parents and Children 1 - Gershom Carmichael, Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael 
Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael, ed. James Moore and Michael Silverthorne (Indianapolis: Liberty Fund, 2002).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
On the Rights of Parents and Children1
Since everyone obviously needs the care and protection of others because of the condition in which he enters the world, it is appropriate that the persons who were the authors of his taking his first breath should provide him with the necessities of life. But they should not only supply what is necessary for the preservation of animal life; they should also form the minds and the morals of their children, so that the life they gave them will not be lost nor turn out to be a burden to others and painful and shaming for themselves. This obligation [to our children] flows necessarily from the act of begetting itself, whether or not we assume with Titius that the begetter consented to it.2 And since this obligation is an indissolubly integral part of parental power, nothing prevents us from saying, with Grotius, that this power too is founded on begetting. Cf. Locke, Second Treatise of Government, chapter 6.3 [II.3.2.i]
[Pufendorf asserted that the right and obligation to bring up a child devolved upon the father in any formal marriage (inasmuch as the marriage contract must be supposed to have been initiated by him and he is normally the head of the household), but on the mother if the child was born out of wedlock. Carmichael stresses the right and the obligation of the father to share in the raising of the children in all possible circumstances.]
Even outside a regular marriage, agreements may settle this question, as often happens in concubinage (cf. Of the Law of Nature and Nations, VI.II.5). In fact even without an agreement, if the father is somehow known, there is no reason why we should not say that the parental right and obligation is shared between the parents. We may ignore the nonsense of Hobbes about the origin of the mother’s right in occupation:4 even if a human life were a suitable object of ownership (the contrary of which will appear below),5 it should still be noted that it would be a case of the accession of an object belonging to someone else. [II.3.3.i]
Apart from the civil law, however, the positive law of God awards a prerogative power to the man in matrimony and a particular right over legitimate offspring. [II.3.3.ii]
Because husbands are the heads of their families, civil societies are usually constituted by such heads of families not vice versa. The prerogatives of husbands are therefore older than civil societies. [II.3.3.iii]
[Pufendorf says that when the father dies, the right over a child (not yet adult) goes to the mother. Carmichael comments:]
This must be understood [only] of the parental right, strictly so called, because its aim is the rearing of the children. It is not to be understood of the right which belongs in the natural state to the head of a separate family as such, and which passes to his heir with the ownership of the land, nor of the right which was granted specially to the father by the civil laws of several peoples, particularly the Romans, and which dies with the father. [from II.3.3.iv]
[Pufendorf distinguished between the power which the father has as such, and his power as head of the family, and between the power of the father in families living apart and the power of fathers of families in civil society. Carmichael observes that:]
… the power of the father as such is the same [whether he is considered as the begetter of the child or as the father of a family]. But the power of the father as head of his family takes different forms, depending on whether the family is separate from or subject to a civil power. [from II.3.4.i]
Grotius (II.V.2 ff.) distinguishes three periods in a child’s life: first when his judgment is unformed; second, when the judgment is formed but the son remains part of the family of the parents; third, after he has left the family.6 [I.3.5.i]
The division of paternal power [into the power of the father as such and the power of the father as head of the family] belongs in a very particular manner to the second period [distinguished by Grotius]. For the power of the father as head of the family is not at all relevant to the third period, and while the first period lasts, it is absorbed in the properly parental power. [II.3.6.i]
The power of the father as begetter in the second period is nothing other than that parental authority, in the etymological sense of the Latin word, as the “author” of their being, which children are bound to acknowledge and revere to the very last breath of life. And in truth the power of the parent, properly so called, which affects grown-up sons who still remain in the family, and which is accordingly characteristic of the second period rather than the third, is posterior to the power which belongs to the parent as head of his family. [II.3.6.ii]
This is not the place to determine what the emperor Justinian meant by his statement (Institutes, I.9.2) that the right of authority which the Romans had over their children was a right peculiar to Roman citizens7 or whether this statement was in fact true. But we may see in what sense it could be true de jure, if we note two points. First, since children are subject to government and the civil law only through the mediation of their parents, the power granted by law to the father over his children cannot be greater than the power given him by nature. Second, a father of a separate family can rightly demand that neither grown-up children nor anyone else should remain in his family, or even on his territory, unless they are willing to recognize his government (imperium). Accordingly, in a larger state the supreme ruler (summus imperans) who has the power to appoint lesser magistrates could grant to fathers of families a subordinate civil government (civile imperium) over their own grown-up children and members of their household. This government, which was very broad among the Romans, was gradually weakened subsequently and has finally been abolished by more modern sentiment. Today, the father is left with only a modest coercion, enough to preserve proper order in the family, its ultimate recourse being expulsion from the family if the need should arise. [II.3.7.i]
Filial obligation should be the more sacred and extensive, the more the father has shown diligence and affection in caring for his children. A parent who has played no more than a minimal part in bringing up his children seems to have done his duty badly. [II.3.8.i]
A parent may not transfer to someone else any right to profit from the property or labor of a child, beyond what is rightfully due to the parent himself; the limits of this have been explained at pp. 115–16. The father should see to it that the purchaser [of his son’s property or labor] has no excuse for stretching his right beyond the modest limits which I describe there. In this connection, the parent should ask less from the purchaser than what the child owes him for his past maintenance, since the child’s life and health are uncertain. And perhaps the father should require nothing at all, if the son is far removed from the age at which he can earn his daily bread by daily labor. But more on this matter in the next chapter. [II.3.9.i]
[1.] From the notes to bk. II, ch. 3, “On the Duties of Parents and Children.”
[2.] Titius, Observationes, no. 502.
[3.] Grotius, Rights of War and Peace, II.V.1–7, pp. 185–88; Locke, Second Treatise, ch. 6, “Of Paternal Power.” Locke’s emphasis was different from Carmichael’s: Locke was concerned to underline (against Filmer) the role of mothers in the generation of children and the continuing authority of mothers in the family (Second Treatise, ch. 6, secs. 52, 53). It was also to affirm that no child should be understood to be the creation of his parents; children are the workmanship of God alone (sec. 55, and First Treatise, ch. 6, secs. 52–54).
[4.] Hobbes, On the Citizen, 9.2–3, pp. 108–9; cf. Leviathan (1946), ch. 20, pp. 130–31.
[5.] See below, pp. 139–40.
[6.] Grotius, Rights of War and Peace, II.V.2.
[7.] Patria potestas is said at Justinian, Institutes, I.9.2, to be “a right peculiar to Roman citizens.”