Why Rights are Wrong
In the past century or more, it has become almost axiomatic that relations between parents and children are described in terms of rights. There are international conventions and national legislation that talk about the rights of children, and of late also judicial decisions based on the right to be a parent and other rights.
A “right” is defined as a claim of entitlement that can be demanded in legal proceedings. What is common to the present terminology is that it leads to the perception that on parental separation the rights of the parents need to be sorted out by judicial intervention, unless the parents can reach some compromise, which can only be achieved if one or both of them relinquishes some right they have. This approach makes the parents, at least at the start of discussions about the effects of their separation on the children, face each other in an adversarial stance, which is the opposite of what the children need.
The children need their physical, developmental, psychological, and emotional needs to be provided for by their parents.
Those who think that children have rights, including a right to equality, dismiss the idea that parents should guide and instruct their children— parental authority – as improperly restricting the child’s freedom to decide for himself how to behave. The results have been damaging to children and society.
Those who decry parental authority are guilty, whether by careless thinking or deliberately, of conflating authority with authoritarianism and parenthood with paternalism. Granting a child rights sets up an adversarial relationship between the child and his parents. Rights imply a legal, plaintiff-defendant relationship, which runs counter to the language of family life and child development. For example, an adolescent will assert his “liberty” right to decide for himself whether to do homework or chores, and what time to come home. The legal ramifications are impossible; instead, the adolescent, alongside his parents’ duty to hear him out and take his views into account, has a duty to act as they instruct him.
An unscrupulous parent may tell the child to make demands on the other parent as the child’s right, and when that parent refuses for good reasons to do with the child’s welfare, turn the child against that parent. A child needs to feel that he can discuss things with his parents, not that he has demands of them arising from his rights.
Giving persons with mental or cognitive disabilities rights which they cannot exercise, without specifying who is responsible to provide their needs, risks consigning them to neglect or worse.
This understanding underlies all the work that Philip Marcus has been doing. His writings, lectures and activities – in advancing the setting up of specialist family courts- in encouraging holistic multidisciplinary work to deal with separating and divorced parents and their children, for protecting child-parent contact and preventing parental alienation, for giving the state the responsibility to attend to the needs of children and disabled persons, while limiting the exercise of such responsibility only to what is essential and cannot be carried out by family members, the responsibility of parents and courts to listen to a child or person with a disability and to give appropriate weight to the views expressed – all of these are informed by adopting the discourse of responsibilities. The discourse of rights is inadequate to handle these issues, and in many cases causes serious damage to the best interests of those it purports to protect.
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PUBLICATIONS AND PAPERS (PARTIAL LIST)
Thesis for LL.M. degree
Hohfeld Without Rights, University of Haifa 2007
Paper (in Hebrew): The Future of the Family Court: New Paradigms, Statutory Amendments, and More, January 2013
Paper: Towards a Convention on Responsibilities and Obligations to the Child,March 2013
Paper: Adapting the Hague Conventions to the Paradigm of Parental Responsibilities, January 2014
Paper (together with Dr Eliezer Perl): A Medical, Legal and Halachic Guide to Determining Capacity to Make a Will or a Gift Published (in Hebrew) in Assia, Journal of Jewish Medical Ethics and Halacha, Jerusalem,Vol. 24 No 3-4 pp 61-85, October 2014
Paper: Parental Responsibilities: Formulating the New Paradigm for Parent-Child Relationships Published (in Hebrew) Journal of the Israeli Society for Medicine and Law, Issue 48, 121-136, October 2015
Position Paper: Legal Capacity and Guardianship (Amendment No 19) Bill Delivered to the Ministry of Justice and Welfare Ministry, January 2015
Paper (with Dr Eliezer Perl): Guardianship of disabled persons: Medical, Halachic and Legal Aspects Published (in Hebrew) in Assia, Journal of Jewish Medical Ethics and Halacha Vol. 95-96, pp 35-77, Jerusalem, April 2016
Article: Parental Responsibilities: Reformulating the Paradigm for Parent-Child Relationships
Part 1: What is wrong with the ways in which we deal with the children of separated parents, and how to put them right.
Part 2: Who has responsibilities to children and what are these responsibilities? Published in Journal of Child Custody , 83-105 and 106-133, October 2017
Article: India and Israel: two approaches to triple-talaq divorce Published in International Bar Association Family Law News, Vol. 10 No. 1, December 2017
Article: The Israel Family Court – Therapeutic Jurisprudence and Jurisprudential Therapy from the Start Published in The International Journal of Law & Psychiatry, Special Issue: Therapeutic Jurisprudence Today and Tomorrow, Vol. 63, 68-75, March-April 2019
RESPONSIBILITIES: FAMILY TIES, FAMILY LAW, FAMILY COURTS