Children’s Rights, State Intervention, Custody and Divorce. Contradictions in Ethics and Family Law

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This book is about four philosophical problems that arise from consideration of the legal relationship of the state to the family and the ethical relationship of individuals within families: Do children have the same rights enjoyed by adults under the United States Constitution? What are the conditions under which the state is justified in intervening in the family in order to protect children and other family members? What standards should the state adopt to resolve disputes between parents and others over child or embryo custody? Can traditional ethical theory be used to resolve moral problems arising within families? Several solutions to each of these problems are presented and subjected to critical examination. Emerging from this study is a foundation for the development of a consistent theory of family law and family ethics that will stimulate and advance scholarship in the philosophy of law and social ethics


“Houlgate’s philosophical analysis of law, policy and practice offers profound insights about how we think about families, family relationships, family obligations, and the role of the state in supporting or undermining families. In an era where claims of “family values” win presidential elections, it behooves us to examine what these values are; whether or when they should be promoted; and how they transform state-family boundaries.” – (from the Commendatory Preface) Lainie Friedman Ross, M.D., Ph.D., Associate Professor, MacLean Center for Clinical Medical Ethics, University of Chicago

“Dr. Laurence Houlgate brings together the fruits of years of reflection upon the norms and policies that ought to govern how the law defines and shapes the family. Both broad ranging and carefully argued, Dr. Houlgate examines four sets of philosophical problems that are at the center of moral and legal controversy concerning the family ... Dr. Houlgate’s book, advances scholarship in family law with insightful analyses of such topics as child custody disputes, the disposition of “frozen” embryos, and the ethics of divorce; and the book as a whole importantly contributes to the development of a consistent theory of family law and family ethics that doubtless will stimulate further scholarship.” – David M. Adams, Professor of Philosophy and Director of Institute for Ethics and Public Policy, California State Polytechnic University, Pomona

“In a time of increasing polarization and political extremism, this is a book that stresses moderation and compromise. At the same time, there is an underlying focus on the significance of responsibility and the seriousness of commitment. The book raises timely issues of grave importance that cry out for measured analysis and rational resolution, but all too often are the subject of emotional rhetoric and ideological assertion. In this regard the great contribution of this book is its sanity and balance.” – Patricia Smith, Professor of Philosophy, City University of New York

Table of Contents

1. The Child as a Person: U.S. Supreme Court Decisions, 1967-1979
2. The Child as Custodial Subject: The Diminishing Rights of Juveniles, 1980-1995
3. A New Theory of Children’s Constitutional Rights
4. Law and Family Privacy
5. Child Abuse, State Intervention and Clinical Responsibility
6. Children, Paternalism and Rights to Liberty
7. Divorce Child Custody Disputes
8. Frozen Embryos and the Right not to Procreate
9. Surrogate Births and the Biological Preference Principle
10. Persons and Particularity
11. Toward an Ethics of Family Relationships
12. The Ethics of Divorce

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