Once again, there seems to be a little confusion between duties and rights. Since they are connected, although remaining quite different things, it is worth looking at this question and seeing how it relates to home education.
A right is something which the law guarantees somebody. I am going to leave aside the question of abstract moral rights, because unless one is a theist, such rights are an irrelevance. In British law, children have a right to an efficient education, suitable to their age and ability and also having regard to any special needs which they have. Now any right of this sort which anybody has, must be associated with corresponding duties on the part of others. In the case of the child's right to an education, the parent has the duty to ensure that the child has this right; that he or she is actually provided with an education. So far so good. Rights create duties as a matter of routine; one cannot have a right without others having a duty to respect that right. Now for the confusion, confusion to which even Nick Gibb seems to have fallen prey. He talks in his letter of 'the rights of parents to home educate their children'. This is sheer lunacy. The idea now becomes that there are two sets of people with rights and that one must balance up the rights of one set against the rights of the other. This confusion has arisen through faulty logic and wooly thinking. Many people are vaguely aware that rights create duties and so they have extended the idea by suggesting that the process works in the opposite direction and that duties may also create rights.
This idea of duties creating rights for the person upon whom the duty has been thrust is not tenable philosophically, but we do not need to get bogged down in arguments of that sort. It is enough to look at the legal position of parents to see that such a right does not and cannot exist. It is the duty of parents to cause their children to receive an efficient education. Let us take an extreme example; that of a person with severe learning difficulties, non-verbal and barely able to feed herself, who has nevertheless become pregnant and given birth to a child. This has actually happened; this is not merely a gedanken experiment. This parent has all the usual rights in law that everybody else has. Being learning disabled does not mean that she has any fewer rights than the rest of us; this is obvious both legally and morally. If, as has been suggested, there is a 'right' of parents to home educate, then she too is possessed of this right. She cannot speak or even take care of herself properly and yet it is being seriously suggested by some of those commenting here that she has a legal 'right' to educate her child. Is this really what those who are talking of a 'parental right to home educate' mean? Are they really trying to say that there is a universal and legal right which all parents of whatever ability have and which is guaranteed by law? I am honestly puzzled by such a position and look forward to having it explained to me.
She has the right to choose how to provide the education if she fulfils the duty laid upon her. However, if she fails to provide an adequate education then she has failed in that duty and action may be taken on behalf of the child.
ReplyDeleteSo yes, she has the same rights on paper as anyone else. The law merely requires parents to provide an education to their children but then places no further restrictions apart from the need for it to be suitable. In practice it comes down to three options: do it yourself, pay someone to do it or let the state do it.
It probably comes down to semantics as to whether the absence in law of a specific requirement confers a 'right' to choose your own method or whether you consider it necessary for the law to state that you are allowed to do it. before it is a right.
I much prefer the approach that if the law doesn't say I must not then I can, unlike some countries where they start from a default of 'not allowed' and then explicitly grant permissions. Another phrase allied to this is "personal responsibility", which has sadly been steadily erased from society over the past decade or so.
Simon said
ReplyDelete'In British law, children have a right to an efficient education, suitable to their age and ability and also having regard to any special needs which they have. '
Not quite. What you describe is the duty of a parent, not the right of a child. Since the UK ratified the UNCRC in 1991, children in principle have a right to an education as described in the UNCRC, but that right has not, to my knowledge, ever been codified in UK law.
In other words, rather than the situation being one where the parent's duty is a corollary of the child's right, the opposite situation exists, whereby the child's right is a corollary of the parent's duty.
The previous government's framing home education legislation in terms of balancing the child's and parent's 'rights' is meaningless, really.
Another source of confusion is the idea that because we are not forbidden to do something, this confers upon us a right. This is quite the strangest idea I have heard in a long while! I am not forbidden to attend Oxford University. Nor am I forbidden to acquire a driving license. Hooray, does this mean that I have a right to go to Oxford and have a driving license? Well no, not at all. The fact that I am not forbidden those things does not mean that I have a right to them. This is a similar situation to the supposed 'right' to home educate.
ReplyDeletechildren have a right to an efficient home education education? or does it only mean a right to an efficient education in a state school or private school?
ReplyDeleteI thought it was an achievement to aquire a place at Oxford and gain a driving licence.
ReplyDeleteA 'jump through the hoops' type of thing.
"I am going to leave aside the question of abstract moral rights, because unless one is a theist, such rights are an irrelevance. "
ReplyDeleteWhy? I don't believe in god/s but I do believe in moral rights. If this is true, you of all people should not consider these rights irrelevant since you claim to believe in god. Or do you have some other reason for attending church?
"If, as has been suggested, there is a 'right' of parents to home educate, then she too is possessed of this right. She cannot speak or even take care of herself properly and yet it is being seriously suggested by some of those commenting here that she has a legal 'right' to educate her child."
People have rights but where they impinge on rights of another, one must take precedence over the other. In this case, the child's right to an education takes precedent. It's not difficult.
"Nor am I forbidden to acquire a driving license. Hooray, does this mean that I have a right to go to Oxford and have a driving license? Well no, not at all."
Again a situation where rights conflict. You have a right to go to apply to Oxford as long as you don't infringe on the right of their admission officers to select those they wish to accept.
According to the UDHR we have the right to not be subjected to arbitrary interference with privacy, family, home and correspondence (Article 12). Since the law does not define how we are to provide our children with a suitable education, any attempt to prevent home education without a good reason is an arbitrary interference with out family and against our human rights.
ReplyDeleteI wrote,
ReplyDelete"the child's right to an education takes *precedent*"
or even precedence.
(blumin' spell checker...)
"A right is something which the law guarantees somebody. I am going to leave aside the question of abstract moral rights, because unless one is a theist, such rights are an irrelevance."
ReplyDeleteSo you would reduce rights to actions that you have been given express permission to carry out by someone who has authority over you? Sounds more like control and ownership than rights.
'Why? I don't believe in god/s but I do believe in moral rights. If this is true, you of all people should not consider these rights irrelevant since you claim to believe in god.'
ReplyDeleteI am a theist; many other people are not. I believe that rights and duties are as much a part of the fabric of the universe as gravity and electro-magenetism. Unless one believes in a Deity, this view is meaningless. The only rights in such a case can be those which are conferred by law. This is why I left out any abstract idea of rights and stuck to the legal aspect.
"I believe that rights and duties are as much a part of the fabric of the universe as gravity and electro-magenetism. Unless one believes in a Deity, this view is meaningless."
ReplyDeleteSo people cannot have views on morality that also include rights without believing in a god/s? I believe people have the right to do anything that does not harm another person or impinge on their rights. Why would I need to believe in a deity to take this view?
"The only rights in such a case can be those which are conferred by law."
ReplyDeleteGenerally laws to not confer rights. They tend to be used to define the harms we must avoid doing to others whilst enjoying our right to do anything without harming others. There are obviously also laws that lay down duties, but the important laws (murder, theft, etc) just define what we must not do to others whilst enjoying our right to live our lives as we wish.
"Generally laws to not confer rights. They tend to be used to define the harms we must avoid doing to others whilst enjoying our right to do anything without harming others."
ReplyDeleteFor example, the right to life is protected by laws against murder and manslaughter in the UK rather than a law that confers the right to life. Or are you suggesting that we don't have right to life in the UK because the law does not specifically give us this right?
"For example, the right to life is protected by laws against murder and manslaughter in the UK rather than a law that confers the right to life. Or are you suggesting that we don't have right to life in the UK because the law does not specifically give us this right?"
ReplyDeleteWell, at least until the Human Rights Act 1998, of course... blush. Change that to, did we not have a right to life in the UK until 1998, in your view?
There are moral rights whose existence is implied by laws. There are also legal rights that are explicit in law. A child's moral right to an education might be implied by parents being given a duty, but it wasn't until the UK ratified the UNCRC that the UK had a duty to safeguard a child's right to an education. It chose to do that through the 1996 Education Act by referring to a pre-existing parental duty.
ReplyDeleteBut Badman et al were wrong, in my view, to frame home education in terms of balancing a child's right to an education with a parent's right to educate how they wish, because the first is is a right in international law and the other is a duty in domestic law.
'I believe people have the right to do anything that does not harm another person or impinge on their rights. Why would I need to believe in a deity to take this view? '
ReplyDeleteBecause unless this belief is enshrined in law or you believe that it proceeds from God's wishes, you are probably going to have trouble explaining where this 'right' comes from.
Simon said 'Because unless this belief is enshrined in law or you believe that it proceeds from God's wishes, you are probably going to have trouble explaining where this 'right' comes from.'
ReplyDeleteYou're quite correct in suggesting that a 'right' has to be conferred by some body or other. However, a liberty can exist by default, which is what Anonymous was referring to. That's why I think it's important to call them different things.
The way UK law has worked, on and off since the Anglo-Saxons and certainly during the couple of hundred years prior to international human rights legislation is that legislation is introduced only in response to problems that have arisen during the course of people going about exercising their natural liberty as human beings.
It's a different model to EU legislation and it would be tragic if we lost it.
I love these kind of posts, thanks for posting!
ReplyDeleteJob Duties
"Because unless this belief is enshrined in law or you believe that it proceeds from God's wishes, you are probably going to have trouble explaining where this 'right' comes from."
ReplyDeleteFrom social convention, or ethical theory?
'Anonymous said...
ReplyDelete"Because unless this belief is enshrined in law or you believe that it proceeds from God's wishes, you are probably going to have trouble explaining where this 'right' comes from."
From social convention, or ethical theory?'
Not sure about this. Social convention in this country dictates that one sends a child to school. How would we derive a right not to send a child to school from such a convention? If social convention says that I can keep slaves, as it has done in many countries, does that mean that I have a 'right' to own slaves? Can a social convention give me the 'right' to kill Jews or deny black people a vote? if rights come from social conventions then they must change dramatically over time. If this is so, then we once again fall back on their being the gift of Heaven. If we do not do this and simply view them as the manifestation of society's views, then there must have been a time when I had the 'right' to beat my wife or even sacrifice my child.
"If social convention says that I can keep slaves, as it has done in many countries, does that mean that I have a 'right' to own slaves?"
ReplyDeleteObviously, this has been the case in the past and people did have the right to own slaves then. Or are you suggesting they did not have this right in law? We've obviously decided since that slaves also have rights that conflict with those of their 'owners', but this doesn't change the fact that before that point people did have the legal right to own slaves.
"if rights come from social conventions then they must change dramatically over time. If this is so, then we once again fall back on their being the gift of Heaven."
Why? If they are a gift of Heaven they would not change dramatically over time - they would remain the same. Since rights have obviously changed dramatically over time this cannot be the case - rights cannot be a gift of Heaven.
"If we do not do this and simply view them as the manifestation of society's views, then there must have been a time when I had the 'right' to beat my wife or even sacrifice my child."
Well obviously this was the case. Men could beat their wife and sacrifice their children at various points in history without being taken to task by the law. You claim that the authorities or 'the law' defines rights today, so by your own argument it should be obvious that these men did have these rights because their actions were supported by the laws at the time (either positively or by a lack of reaction against those actions).
"If social convention says that I can keep slaves, as it has done in many countries, does that mean that I have a 'right' to own slaves?"
ReplyDeleteYou have claimed that laws give people rights. According to the Yorke–Talbot slavery opinion of 1729, a slave travelling to England with or without his master does not become free and 'his master's property or right in him is not thereby determined or varied; and that baptism doth not bestow freedom on him, or make any alteration in his temporal condition in these kingdoms. We are also of opinion, that his master may legally compel him to return again to the plantations.'
This opinion was accepted in England as a definitive statement of the law at the time, so according to your definition of rights, you would legally have had the right to own slaves in England at that time.
"This opinion was accepted in England as a definitive statement of the law at the time, so according to your definition of rights, you would legally have had the right to own slaves in England at that time."
ReplyDeleteFor this reason I prefer my definition of rights to yours. Everyone has the right to do anything that does not harm another person or infringe the rights of another person. Laws can clearly be morally wrong yet you seem to prefer them.