Since I started my studies in political philosophy, I have been interested in the political theory of the family, and the political theory of immigration, broadly conceived. At the moment, I am pursuing questions at the intersection of both areas. In particular, I am interested in proposing feasible immigration and citizenship arrangements that are particularly sensitive to the interests of children. The motivation for this project springs from the realization that current immigration and citizenship arrangements are not only poorly equipped to protect children’s interests, but can also, at times, contribute to the vulnerability that the most marginalized children face in their lives.
One question that is very relevant for this overall project is the question of what grounds the right of children to acquire citizenship (I address this question in Ferracioli, forthcoming). Traditionally, political philosophers have paid little attention to the citizenship arrangements of liberal states, and have focused primarily on their immigration arrangements. Indeed, their focus has been on advocating for their preferred theory of justice in migration on the assumption that liberal states would also ensure that their citizenship laws and policies would not conflict with what justice requires, by for instance, ensuring that no one would be rendered stateless (But see Baubock 2006; Shachar 2009; Carens 2013 for exceptions). However, as I hope to show in the remainder of this discussion, current citizenship arrangements fail to track children’s interests even when they don’t lead to statelessness, and even when they don’t conflict with the demands of a just immigration arrangement.
To illustrate the problems with our current citizenship arrangements, consider the following citizenship principles that currently apply to children: (i) citizenship should be granted to those who have been born in the state (jus soli), (ii) citizenship should be granted to those who have at least one parent who is a citizen of the state (jus sanguinis), and (iii) citizenship should be granted to permanent immigrants who have legally resided in the state for a significant period of time (jus domicilii). There are compelling reasons for thinking that jus soli, jus sanguinis, and jus domicilii, whether employed alone or in combination, fail to do justice to children.
Consider first the principle of jus soli, which applies to children who are born within the borders of the state. The problem with this principle is that children do not always reside in the same state where they were born. Some children immigrate immediately to another state after birth and so are placed from the very beginning of their lives in a position where they lack full membership in the state that is arguably in a position to advance a number of their interests. Now it is certainly true that the adequate application of jus soli across the globe can prevent all children from growing up in a position of statelessness. The problem is that we should not only care about the predicaments that arise when one lacks citizenship altogether, but also care about the predicaments that arise for those who lack citizenship in their state of on-going residence. This is because citizenship provides reliable access to a number of rights that are important for children’s lives to go well (Ferracioli, forthcoming)
Consider next the principle of jus sanguinis. One problem with this principle is that not all children have a parent who is a citizen of the state where they reside. Even worse is the fact that some children do not even enjoy the benefits of a parent-child relationship, as it is the case of those who have lost their parents or have been abandoned by them. Yet, both the fact of lacking a citizen parent and lacking a parent all together can place children in a position of extreme vulnerability, which is of course made all more acute by the subsequent denial of citizenship on the basis of that vulnerability.
Finally, consider the norm of jus domicilii adopted by most states that accept that permanent immigrants should be granted citizenship after many years of legal residence. One problem with jus domicilii is that not all immigrant children who reside in a state do so after having been granted legal access to its territory, and so are typically not eligible for citizenship, no matter how long they have resided there (Bhabha 2014). Children who seek asylum in a state but are neither granted refugee status nor returned to their state of origin have a strong claim to enjoy reliable access to important rights and benefits in their state of residence and yet are typically not entitled to citizenship via jus domicilii. The same is true of children who ‘illegally’ cross international borders with their parents or other family members. These children cannot consent to such dangerous immigration projects, and yet, they are particularly vulnerable to suffering human rights violations as a result of the precarious socio-political position in which they and their families find themselves. Again, the very fact that renders these groups of children particularly vulnerable to all forms of abuse and violence (i.e., their lack of legal authorization to be in the territory) weakens their claim to enjoy secure access to important rights and benefits that come with citizenship.
Given these shortcoming, I believe that the right of children to citizenship should depend solely on the actual relationship between child and state, and not on their place of birth, family lineage or long-term residence. The idea is that a child’s claim to citizenship is distinct from that of an adult, and separate from that of her parent(s) (if she has one), and that any child who resides in a liberal state has a right to acquire citizenship there. The foundation of this right lies on the unique paternalistic relationship between child and a liberal state, a relationship that gives the latter a duty to act on what is in the former’s best interests. I have called this citizenship principle Jus Paternus (Ferracioli, forthcoming).
In future work, I hope to investigate the implications of giving center stage to this paternalistic relationship in our theory of citizenship rights. After all, our views of social justice, global justice and parental rights will change dramatically once we recognize that the state owes much more to its resident children that is currently assumed.
Baubock, Rainer. 2006. "Stakeholder citizenship and transnational political participation: a normative evaluation of external voting." Fordham L. Rev. 75: 2393.
Bhabha, J., 2014. Child migration and human rights in a global age. Princeton University Press.
Carens, Joseph. 2013. The Ethics of Immigration. Oxford University Press.
Ferracioli, Luara. Forthcoming. Citizenship for Children: By Soil, by Blood, or by Paternalism?
Shachar, Ayelet. 2009. The birthright lottery: Citizenship and global inequality. Cambridge, MA: Harvard University Press.
Luara Ferracioli is Lecturer in Political Philosophy in the Department of Philosophy at the University of Sydney
In my current research I am attempting to answer a number of questions about justice and parenting. These questions include: How should the right to parent a particular child be determined in the first instance? When should those parental rights be re-allocated? and What support is owed to parents from others in society?
In many jurisdictions, biological parents are initially allocated legal parental rights and they only lose those rights if they are suspected of abusing, neglecting or otherwise seriously mistreating the child. The level of support offered to parents varies from place to place. In some societies, support is quite generous, in others there is little or no support. It is a matter of great consequence how child-rearing is regulated through laws, policies and social norms. It not only matters for children themselves, whose whole lives will be determined by the quality of care they receive. It also matters for the parents of those children, who may receive adequate or inadequate support; it matters for would-be parents, who may wish to adopt a child or utilise private or state-sponsored fertility treatments; and it matters for what I call third parties, such as grandparents, who may become estranged from their grandchildren after a post-separation custodial dispute, and even non-parents who, as tax payers, have an interest in the levels of state support for parenting and the effectiveness of family policy more generally.
The practical importance of the questions is one of the reasons I am interested in carrying out research in the hope of answering them. Another reason is that until relatively recently questions such as these were neglected by political philosophers. In recent decades new ground-breaking work has sought to challenge established understandings of the family, including its distinctive value and its justificatory power. The radical potential of this new research makes it is a very exciting area to work in. Perhaps a final reason for my interest in this area, and in the distribution of parental rights in particular, is its relation to questions of distributive justice, which was the subject of my doctoral training and early research that sought to clarify and defend sufficientarianism (Shields, 2016a).
It is possible to see the distribution of parental rights as a problem of distributive justice. In distributing opportunities to parent we distribute certain benefits and burdens, thus affecting the overall distribution of benefits and burdens. Children stand to benefit from being parented well and can be burdened by being parented badly or worse than they otherwise could have been. Parents stand to benefit from the goods of parenting, would-be parents are burdened by being denied those goods. Grandparents and relatives can be benefitted by the relationships they establish and are burdened when they are severed, and non-parents may benefit from living in a society where the next generation are just and productive citizens and burdened by contributing to social support for parenting more than they might otherwise. Importantly, benefitting some of these representatives will likely mean burdening others, and so justification of child-rearing regulation may make essential reference to ideals of equality, priority or sufficiency in assessing the distribution of those benefits and burdens.
Like others writing in the area, I see child-rearing/parenting arrangements as justified when the interests of all relevant representatives are taken into account and given their appropriate weight. While some have taken a child-centred approach, and focus exclusively on the child’s interests (E.g. Dwyer, 2006; Hannan and Vernon, 2008; Vallentyne, 2002), others have taken a dual-interest approach, and focus on the child’s and the parents’ interests (Brighouse and Swift, 2014; Clayton, 2006). I wish to take a broader approach and argue that third party interests, including the interests of grandparents and tax payers, are also important. Conceptualizing third party interests, and drawing out their practical implications, is one of the tasks I am currently working on. I will now explain my current thinking about two aspects of this task: the ‘current parents/prospective parent distinction’ and ‘third party interests’.
The Current Parent/Prospective Parent Distinction
In the most well-developed dual-interest accounts the difference between current parents and prospective parents is not fully appreciated, and this is of some consequence for how we think about the justification of child-rearing arrangements.
Most accounts that find the parents’ interests relevant articulate an account of the parents’ interests that is held both by current and prospective parents. Some understand this as an interest in the relationship goods of parenting (Brighouse and Swift, 2014), others as an interest in intimacy relationships (Clayton, 2006), and others as creative self-extension (Macleod, 1997 and 2015). But we should notice that this is an interest in the activity of parenting and so it is possible for a person who is not currently engaged in this activity, such as an adult who wishes to become a parent, to possess this interest.
If prospective parents and current parents both possess this interest, then the interest gives us no more reason to keep children with their current parents or re-allocate them to prospective parents, assuming the child would be no worse off if re-allocated. But usually we think that current parents have some stronger claim to continue parenting and so we should look further for a parenting interest that helps us to distinguish current parents and prospective parents by looking for an interest in continuing to parent to supplement the interest in the activity of parenting. However, if we find that no such interest can be identified we should be open-minded enough to accept the surprising conclusion that follows that it does not require some special justification to re-allocate children to prospective parents for the child’s own good.
A final comment on this distinction. We should be mindful of the possibly troubling implications of finding a compelling interest in continuing to parent in a world where opportunities to procreate are not equal. In such a world, those with superior opportunities to procreate, by the natural lottery or by being better able to purchase private fertility treatment, thereby have superior opportunities to acquire an interest in continuing to parent. We might think that this is unfair because those who have inferior opportunities are doubly disadvantaged and can become parents only if others fail to do a good enough job or seek to relinquish their parental rights. In response to this, and acknowledging any force than the interest in the activity of parenting has, we might look to develop a principle of equality of opportunity parent, which would make available state-sponsored fertility treatment so that this unfairness can be dealt with. But this in turn has significant costs for those who would be asked to contribute to state-sponsored fertility treatment, including those who conscientiously choose not to become parents. This may lead us to restrict contributions to this support to parents themselves. Some of my research related to the ‘current parent/prospective parent distinction’ is published as Shields (2016b and 2016c).
Third Party Interests
What I am calling “third party interests” includes the interests of those who are neither parents (current or prospective) nor children. There is a distinction that we can make within the category of “third party interests”, that is between the interests of relatives, such as grandparents, family members and perhaps close friends, and of non-relatives, such as the tax payer. I will now discuss one issue I am currently thinking about with respect to each of these two types of third party.
Familial relationships of all sorts can be valuable for us. Children’s relationships with their grandparents, their uncles and aunties, and adult friends of the family can be a source of flourishing. However, much like the case of ‘current parents/prospective parents distinction’ this is not acknowledged by the prevailing theories. This strikes me as odd because relatives seem to be able to make a similar case to parents in arguing from their interest in establishing or continuing intimate relationships. While a relative’s relationship with a child may not be as intense as the relationship that child has with her parents, it may, in many cases, come fairly close in its quality and accounts of the parental interest could be extended to include the interests of relatives. We might ask: What is the distinction between the interests of parents and the interests of relatives? Is it merely a matter of degree or is it different in kind? I do not know the answers to these questions, but I hope to make some progress in thinking about them soon, and take as my starting point this comparison with the interests of parents.
One possible important implication of taking the interests of relatives seriously is that it may place constraints on post-separation custodial arrangements whereby parents awarded custody may have a duty to provide reasonable access to the child for the relatives, so that a relationship can be maintained. If, in the final analysis, we find that the interest of some relatives is often similar to that of parents, then this will follow often. If instead the interest of parents has strong priority over the interests of relatives, then exclusion may be permitted, though access may also be granted on child-centred grounds, possibly at the parents’ expense.
A further possible important implication of taking the interests of relatives seriously, is that it could help to underpin a widely shared conviction that when parents are unable to adequately care for their child granting custodial rights to a close relative, possibly a blood relative, is the better than any non-relative alternative. If relatives have a strong interest in continuing that relationship that is not possessed by prospective parents, then this would provide a reason for preferring relative to non-relative custody for a child.
While it would be most uncharitable to deny that the basic rights of third parties are not taken into account by existing theories of parental rights, they may have claims that are relevant to justice in child-rearing that are not based on their basic rights. Clayton recognizes this, but dismisses the need for a separate analysis of the interests of third parties when he says that the interests of others in society are in children becoming just citizens (Clayton, 2006: 60). I think he may be right in thinking that one powerful interest of third parties is in children becoming just citizens, but I don’t think that it is true that this interest exhausts their interests nor do I think that the fact that they have this interest would entail that no separate analysis was needed. Let me explain briefly and tentatively why I am inclined this way.
First, we should consider that the child themselves has other interests, such as those in her well-being, which may conflict with her interest in becoming a just citizen. If there are cases where the child’s own well-being conflicts with her interest in becoming a just citizen, for example, imagine the child can become a just adult citizen more quickly and enjoy less of the intrinsic goods of childhood or the child can become a just adult citizen more slowly and enjoy more of the intrinsic goods of childhood (see Macleod, 2010 and 2016, and the rest of the Symposium on The Nature and Value of Childhood). It would bear on this question whether others too had an interest in the child becoming a just citizen since this would add perhaps decisive weight to the case for the child becoming a just adult citizen more quickly. When we aggregate the interests of all tax payers, we may find this consideration is overwhelming in many cases.
Second, it is not obvious that third parties’ interests in how productive children will be is illegitimate. It too might have its root in concerns for distributive justice. For example, if the child is more productive this may create more social product that can be used to better satisfied the correct principles of distributive justice by improving the position of those third parties who are the worse off. If actions could be taken to ensure that the adults that children become are more likely to exercise their right to occupational choice, for example, in ways that are optimal for distributive justice or whose parents will utilise training or genetic enhancements to increase their productivity, this may be favoured only once we account for the interests of third parties. However, this line of thought does seem to assume that we can have unenforceable duties of justice, which some will deny, see the debate on the basic structure.
Third, referring to the interest we all have in being “just” cannot end the matter since we are, when working out which interests are relevant to questions about child-rearing, trying to work out what justice itself demands. So this response may appear question begging.
These are some preliminary thoughts though these questions.
My current research will attempt to develop a complete theory of justice in child-rearing through a clarification of the interests of parents, children and third parties and their relative weight. Such an account will enable us to answer many of the most practically important questions about the regulation of child-rearing, including questions about the provision of fertility treatment, the initial and subsequent allocation of child-rearing rights, and the nature and extent of social support for parenting.
Brighouse, Harry, and Adam Swift. Family values: The ethics of parent-child relationships. Princeton University Press, 2014.
Clayton, Matthew. Justice and Legitimacy in Upbringing. Oxford University Press: 2006.
Dwyer, James G. The relationship rights of children. Cambridge University Press, 2006.
Gheaus, Anca (ed.) “Symposium on The Nature and Value of Childhood”, Journal of Applied Philosophy (2017): http://onlinelibrary.wiley.com/doi/10.1111/japp.12280/full
Hannan, Sarah, and Richard Vernon. "Parental rights: A role-based approach." Theory and Research in Education, 6.2 (2008): 173-189.
Macleod, Colin M. "Just Schools and Good Childhoods: Non‐preparatory Dimensions of Educational Justice." Journal of Applied Philosophy (2017).
Macleod, Colin M. "Parental competency and the right to parent." In Brennan, S., Hannan, S. and Vernon, R. ed.s Permissible Progeny?: The Morality of Procreation and Parenting, Oxford University Press, 2015.
Macleod, Colin M. "Conceptions of parental autonomy." Politics & Society 25.1 (1997): 117-140.
Shields, Liam. Just Enough: Sufficiency as a Demand of Justice. Edinburgh University Press, 2016a.
Shields, Liam. "How bad can a good enough parent be?." Canadian Journal of Philosophy 46.2 (2016b): 163-182.
Shields, Liam. "Parental rights and the importance of being parents." Critical Review of International Social and Political Philosophy (2016c): 1-15.
Liam Shields is Lecturer in Political Theory at the University of Manchester