All in the Family


When is it proper for the state to intervene in a family on behalf of a child’s well-being? Most Americans agree that the state can, and should, remove a child from physically abusive parents. What about parents who relentlessly mock the sexual orientation of their son? Or teach their daughter that women should never work outside the home? Or forbid their child’s exposure to any “secular” books, music, or art?

A refuge of intimacy and tenderness in a world frequently lacking both, the family has traditionally been shielded from state intrusion that, in deference to parental authority, still shapes American law. And yet every day headlines recount another heartbreaking story of a family that has served not as a refuge from suffering, but as the source of it.

The debate over the state’s role in regulating the family reflects a broader movement in the law’s treatment of the individual. Nearly one hundred fifty years ago, the English jurist and historian Sir Henry Maine famously summed up the history of law in Western society as a progression “from status to contract.” While past eras defined individuals according to group membership, modern law began recasting individuals as autonomous beings, free to arrange their affairs as they see fit. For all his foresight, Maine may not have imagined the extent to which our current law would pursue individual liberty. Today we ensure that individuals are not excluded...

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About the Author

Robert K. Vischer, a frequent contributor, is professor of law at the University of St. Thomas and the author of Conscience and the Common Good: Reclaiming the Space Between Person and State (Cambridge University Press).