Friday 6 August 2010

What right have parents to home educate?

One of the things which annoyed me about Ed Balls' recent article in the Guardian was his talk of home educators' 'rights' and the need to balance these against the rights of their children. Even Graham Badman was seduced into this error. There is of course no explicit right to an education for children in this country, although all children over the age of five are entitled to school places if their parents want them. Instead of a stated right, the law lays a duty upon parents to see that their children receive an education. Because duties and rights go together, we can extrapolate from the parents' duty and deduce correctly that the child has a corresponding right, the right to an education. Some then go further and try to demonstrate, incorrectly, that their child's right combined with their own duty somehow bestows a 'right' on them to home educate. This is nonsense. Before we look at this idea in detail. it is worth looking at what some of those who commented here on Wednesday said about this business of rights. Their comments actually expressed most ordinary people's thoughts on the idea of 'rights' very neatly.

One person said:

' I'm saying that unless there is a law that says that something cannot be done, we automatically by default have the 'right' to do it.'

This would seem to create a human right to having bacon and eggs for breakfast and holidays in France. I don't think that we can regard those things as rights, because if so then somebody must have a duty to provide them for me. Somebody else suggested that we 'just know' what rights we have. That we feel them 'viscerally'. I don't think that this will do either. Some older people 'just know' that homosexuality is wrong and feel 'viscerally' that they don't want to live next door to African immigrants. Does that create for them the right to have heterosexual, white neighbours? This does not sound right. Perhaps looking briefly at the history of rights might help.

Until forty or fifty years ago, the situation was pretty simple. There were two main ways of looking at rights. On the one hand were religious people who believed that rights came from God and that human legal systems should be based upon God's laws. Whether the law agreed or not, these people firmly believed that certain rights existed anyway because the maker of the Universe had granted them to us. On the other hand were most philosophers and lawyers fifty years ago, who thought that rights could only exist if there was a law which provided for them. They were legal positivist who agreed with Jeremy Bentham that the idea of a 'right' without a law to back it up was , 'Nonsense on stilts'. Of course some people belonged to both groups; I do myself.

These days, things are a little more complicated. A lot of people do not belong to either of these two groups, which gives us a real problem when we are talking about 'rights'. Many people today are atheists, which of course means that they do not believe that there is divine backing for any right. Most people also have difficulty with the idea that the only rights which we have are those granted by law. After all, the law once gave people the right to keep slaves. They surely could not really have had that right though; it is so plainly wrong. So many of us fall back on the claim that there exists a code of morality, ethics and rights which is universal, not given by God and applicable regardless of the laws of any individual country. So when Sweden bans home education, these people feel that the 'rights' of home educators in that country have been infringed. Even if the law of Sweden forbids the practice and even if we don't believe in God, these people think that the 'right' of parents to home educate still in some sense exists.

The big problem of course with this point of view is that we are left having to explain where these abstract rights come from. Some people on Wednesday fell back on the Universal Declaration of Human Rights, but that won't do at all. These 'rights' were cobbled together by a group of people led by Roosevelt's widow in the late forties. They are firmly based upon the Christian values of a liberal democracy and are as such anathema to many Muslims. Some regard these 'rights' as a form of neo-colonialist oppression. The point is that in this country we have one set of values which most of us live by. We are tolerant of adultery and homosexuality, but come down sharply on racism. These values are just passing fads; not timeless truths. In other parts of the world racism is an accepted way of life and adultery and homosexuality are punishable by death. To suggest that we in the West have the only correct ethical system and that we alone can formulate the rights which go with this system is simply ethnocentric and disparaging of other cultures. This is particularly so if we put together some code of ethics and rights based upon our own religion and society and then try to impose it on the rest of the world by describing it as 'universal'.

Any set of rights which does not come from God must be the product of men and women. Those men and women will formulate what they see as 'rights' according to which country and age they were born into. They are sure to make mistakes and include their own prejudices. There can be no such thing as a universal and objective set of 'rights'.

I am sometimes accused of not saying plainly what I believe in and so I shall do so on this subject. This does not mean that I am right of course! I believe that God gave us rules for conduct and that among these are various rights and duties. I think that human laws sometimes reflect God's values and sometimes go against them. However this cannot be the basis for rights in civil society. I can't charge around breaking the law and claiming that God told me to do so. Remember that God told Peter Sutcliffe to hack up prostitutes with a screwdriver. People have done some pretty awful things because they claimed that God wanted them to do something or other. I think that I am safer following the principle of legal positivism and simply accepting that a right is some activity or freedom conferred by law which means that other people have a duty to allow me to do or exercise. Neither the legal positivist point of view nor the religious is wholly satisfactory, but both are far preferable to the strange idea that rights have come into existence from nowhere. Created from nothing and not the invention of men and women, these 'rights' transcend national boundaries and can be in opposition to law. This is such a peculiar idea that I shall not be subscribing to it in the near future, unless somebody can show me where these abstract rights have come from. It follows inexorably that the idea of a 'right' to home educate cannot really be claimed by anybody in the world unless the country in which they live allows this practice.

22 comments:

  1. Maybe we should ask ourselves "why do I think I have any right to impinge on somebody else's freedom in any way?"

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  2. "why do I think I have any right to impinge on somebody else's freedom in any way?"

    Interesting question. As long ago as the eighteenth century a famous jurist summed this up by saying, 'My right to swing my arms ends at another person's nose'!

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  3. My German husband tells me that in Germany and France they are governed by Napoleonic Law. This means unless something is specifically allowed by law there is no right to it.

    He then went on to say English law is unique (and based on ability to pay for a lawyer as it is so case law biased....but that bit is him having a rant). So, like our constitution which is not written down, rights are pretty much guesswork for the man in the street.....

    The idea of "rights" is a jolly new one in historical terms and I am not a lawyer so I think for me the basic rule of thumb is that whatever I do should not negatively impact on another person or break a law.

    I would be breaking a law if I did not provide an education for my children. I choose to do this by home educating. I am positively operating within the law by fulfilling the duty laid out to me within that law.

    But there is no "right" to home educate - and the people who first coined the phrase "right to home educate" to my knowledge were actually the local authorities in their documents. There is no right by anyone to stop someone from home educating for any reason other than that they are failing to provide a suitable education.

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  4. Does calling home education a right effectively make it easier to remove? They can say, why should you be allowed to have this right over your children/to do as you please and remove that right by making home education illegal. On the other hand, would they find it more difficult to answer the question, what right have you to stop us from home educating?

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  5. "As long ago as the eighteenth century a famous jurist summed this up by saying, 'My right to swing my arms ends at another person's nose'! "

    This is true. This is classical liberalism. As long as I do no harm to another's person or property, I can do as I please.

    And the original comment "why do I think I have any right to impinge on somebody else's freedom in any way?" is the ONLY question worth discussing.

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  6. "But there is no "right" to home educate - and the people who first coined the phrase "right to home educate" to my knowledge were actually the local authorities in their documents."

    Home education is no more a right than education is a right. These endeavours are 'goods'.

    We can not say something is our right if it infringes on someone elses rights. Logically, the only rights we have are negative rights ie the right NOT to be punched on the nose, the right NOT to be coerced, stolen from etc

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  7. "The big problem of course with this point of view is that we are left having to explain where these abstract rights come from. Some people on Wednesday fell back on the Universal Declaration of Human Rights, but that won't do at all."

    Man's inalienable rights are part of his nature.
    They are inherent in all human beings and protect Man's need and desire to be free. Thomas Jefferson said they are granted by the Creator. He was not a Christian. The Creator can mean whatever/whoever you want it to - a Darwinist can explain these rights in terms of evolution.

    These rights can be oppressed, but they still exist. Can you think imagine any human being who does not want to be free to live their life as they see fit?

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  8. AS: "I think for me the basic rule of thumb is that whatever I do should not negatively impact on another person or break a law."

    That's a conundrum...not negatively impacting on another person is clearly moral, while obeying a law could be highly immoral ;-)

    We all have to decide where we stand though, don't we?

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  9. "I think for me the basic rule of thumb is that whatever I do should not negatively impact on another person or break a law."

    This is very much like Jesus in the Sermon on the Mount:

    "What is hateful to you, do not to your fellow men"

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  10. SW: This is very much like Jesus in the Sermon on the Mount:"What is hateful to you, do not to your fellow men"

    Also, "Do unto others as you would have them do unto you".

    The Ethic of Reciprocity, often called the Golden Rule in Christianity, simply states that we are to treat other people as we would wish to be treated ourselves.

    This ethic pre-dates Christianity and was present in certain forms in the philosophies of ancient Babylon, Egypt, India, Greece, Judea, and China. Almost all organised religions use such an ethic. Natural Law is based upon it and it is arguably the basis for the modern concept of human rights.

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  11. This ethic pre-dates Christianity and was present in certain forms in the philosophies of ancient Babylon, Egypt, India, Greece, Judea, and China. Almost all organised religions use such an ethic. Natural Law is based upon it and it is arguably the basis for the modern concept of human rights."

    It is of course true that the so-called Golden Rule is common to many religions and cultures. However while few readers are likely to be familiar with Babylonian texts, many will have heard of Jesus and the Sermon of the Mount. I certainly did not mean to suggest that Jesus was the first person to say this!
    "

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  12. The Hindu religion teaches, "This is the sum of duty: do naught to others which if done to thee would cause thee pain".
    The Mahabharata

    The Buddhist religion teaches, "Hurt not others with that which pains yourself".
    Udana-Varga

    The Jewish traditions teach, "What is hateful to you, do not to your fellow men. That is the entire Law; all the rest is commentary".
    The Talmud

    The Muslim religion teaches, "No one of you is a believer until he desires for his brother that which he desires for himself".
    Hadith

    The BAHA'I faith teaches, "He should not wish for others that which he doth not wish for himself, nor promise that which he doth not fulfil".
    The Book of Certitude

    Other Sources:

    Do not do unto others what angers you if done to you by others.
    Isocrates 436-338 BCE

    "Tzu-kung asked, 'Is there a single word which can be a guide to conduct throughout one's life?' The Master said, 'It is perhaps the word "shu". Do not impose on others what you yourself do not desire'"
    Analects, 15.24

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  13. "The Jewish traditions teach, "What is hateful to you, do not to your fellow men. That is the entire Law; all the rest is commentary".
    The Talmud"

    Awful distortion! This anecdote was told to illustrate the difference between Shammai and Hillel.One was brusque and impatient and the other patient and gentle. The teaching itself is not really the point of the story; it was their attitude to the gentile. To use it to sum up 'Jewish tradition' is not really possible.

    You seem to be saying that these odd references sum up the various religions, but that is not true at all. Certainly if you scour through the holy books of the world you can often find aomething analogous to the Sermon of the Mount. In many cases though, as in the story from the Talmud, it is a couple of verses and not at all significant in the religion as a whole.

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  14. SW: You seem to be saying that these odd references sum up the various religions,

    No Simon, I was showing various examples of the 'reciprocal ethic'.

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  15. "No Simon, I was showing various examples of the 'reciprocal ethic'."

    Which can be found in many religons and political systems throughout the world. This is quite true. I am not sure though that this tells us anything about any universally accepted rights. After all, a number of religions and political systems also recommend death for certain offences. I would not want to regard this as a universally applicable principle either.

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  16. SW:"After all, a number of religions and political systems also recommend death for certain offences."

    Reciprocal Justice can be an example of the Reciprocal Ethic - but that is not what you are talking about here I assume.


    Anyway, this is a digression, since we are discussing The Reciprocal Ethic and the possibility that it is the basis of universal inalienable rights.

    How would you explain that the Reciprocal Ethic is apparent throughout man's known written history? Can we assume that it is a presentation of Man's inherent nature?

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  17. "This is very much like Jesus in the Sermon on the Mount:

    "What is hateful to you, do not to your fellow men" "

    You got me, I'm a Vicar's daughter......

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  18. Rights can be seen in essentially one of two ways.

    1. By virtue of being an inhabitant of planet earth, each individual can behave as they wish, unless in doing so, they infringe the liberty of another.

    2. Some person or body of people decides what 'rights' everyone can have.

    I believe this was roughly the distinction that Isaiah Berlin made between 'negative' and 'positive' liberty. The UK traditionally, has adopted model 1. Continental Europe has tended towards model 2.

    My other half tells me it's probably because the UK's geographical isolation meant that the Romans with their model 2 citizen's rights didn't stay here as long as they did in continental Europe, so UK legislation has been much more influenced by Anglo-Saxon model 1 law.

    Both models lead to problems.

    1. People soon start infringing each other's liberty in model 1, and to stop this happening, social groups institute prohibitions and duties. You can end up with a plethora of ad hoc legislation that gets very confusing.

    2. Even if the person who determines rights in model 2 is a deity, some person or body of people has to translate the deity's thoughts into a form everyone can understand. This means that rights usually end up being determined by the most powerful social groups.

    The UNCRC and ECHR claim to protect natural rights (the ones you are born with) but, in codifying the rights and by requiring governments to incorporate them into legislation, there's an immediate risk of slipping into model 2, that everyone starts to assume that 'rights' are the ones on the UNCRC or ECHR list and that the government has to defend them.

    Some people have suggested that making a distinction between 'liberties' and 'rights' might be helpful. Liberties are what you are born with. No one has a corollary duty to fulfill your liberties. You just get on with your life, paying regard to your country's prohibitions and duties. But if someone infringes your liberty you can call them to account.

    I can see the point of requiring governments to have regard to codified human rights in their legislation, but you soon get into the territory of who protects those rights and what duties that person might have in respect of them. It's a bit pointless having a right to life or to food if you're in the middle of a plague or famine.

    I suggest that all other 'rights' issues spring from one or other of these models.

    And I would agree that under UK law, parents do not have a 'right' to home educate but that the location of the education and the child's right to it, both spring from a parental duty. Section 7 already ticks the boxes of the UNCRC and ECHR.

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  19. "1. People soon start infringing each other's liberty in model 1, and to stop this happening, social groups institute prohibitions and duties. You can end up with a plethora of ad hoc legislation that gets very confusing."

    There will always be law breakers, so there will always be a need for organisations, of some kind, to defend your rights. However, the 'social groups' or defenders of rights do not have to be a 'government'.

    We are so accustomed to the idea of needing a government or state to 'protect our rights', we are blind to the fact it is the government or state that is the greatest abuser of our rights.

    If 'the state' was genuinely bound by its own laws, it could not operate. After all, what is taxation but institutionalised theft; what is war but institutionalised murder; what is conscription (or compulsory schooling) but institutionalised slavery.....

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  20. Do you mean what right do parents have to parent?

    I can't speak for anybody else, but my son is out of school as the result of a parenting decision. His education is literally beside the point. His happiness is the point. Always will be even if he decides to flip burgers for a living.

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  21. "We are so accustomed to the idea of needing a government or state to 'protect our rights', we are blind to the fact it is the government or state that is the greatest abuser of our rights."

    I think you'll find, AM, that 'government' is what has always emerged, historically, from the groups who defend liberties. Institutionalised theft, murder and slavery have always taken place, in tribal communities, kingdoms, democracies, totalitarian regimes, you name it. Personally, I feel that history suggests these were much bigger problems before modern government was instituted.

    After all, you could equally well see taxation as subscription, war as collective defence and compulsory schooling as collective insurance against economic disaster.

    In short, if you think what we have now is bad, you should think about what went before.

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  22. SG: After all, you could equally well see taxation as subscription, war as collective defence and compulsory schooling as collective insurance against economic disaster.

    AM: This is not the case at all, since these things are not voluntary but compulsory and are enforced with violence. We have no choice other than obey or jail.

    SG: I think you'll find, AM, that 'government' is what has always emerged, historically, from the groups who defend liberties.

    AM: With the exception of the early US government, governments NEVER emerge to 'defend liberties' but to steal money and power. People are the servants of government, not the other way around.

    SG:In short, if you think what we have now is bad, you should think about what went before.

    AM: It is VERY bad now though; shall we accept this because it may have 'once been worse'?

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