Month: July 2020

by Martha Albertson Fineman & George Shepherd

Image by Mariana Anatoneag

“VII. PROHIBITING HOMESCHOOLING

Because of the harms homeschooling causes to children and society, it should be prohibited. We reach this conclusion  recognizing that even if homeschooling is prohibited, parents would still be the primary influences on children.

A. Prohibiting Homeschooling to Protect Children and Society

One strong reason for prohibiting homeschooling is the harm it causes the child and society. It is an unreliable way to ensure children gain the necessary resilience they need to take advantage of future opportunities in both education and the workplace. It also may impair their sense of solidarity and citizenship by eliminating empathy-building encounters with people who are different demographically or ideologically.

Although these arguments for prohibiting homeschooling are not often heard in the United States, where homeschooling has unusual support, they are mainstream in the many countries where homeschooling is prohibited. For example, the European Court of Human Rights used similar reasoning when it held that the CRC made homeschooling illegal in Germany. Germany is not alone in prohibiting homeschooling. Many other countries similarly prohibit or do not legally recognize homeschooling, including Argentina, Brazil, Bulgaria, Croatia, Greece, Kenya, Malta, Netherlands, Romania, South Korea, Spain, Sweden, and Turkey.  In  many other countries, homeschooling is legal but heavily regulated, often requiring home inspections and yearly exams. Such countries include Aruba, Czech Republic, Estonia, France, Hungary, Iceland, Malaysia, Norway, Portugal, and Slovakia. Even in the countries that do permit homeschooling, the number of children who are homeschooled is much smaller than in the United States, both as a fraction of total students and in total numbers.

Continue reading Homeschooling: Choosing Parental Rights Over Children’s Interests

by Martha Albertson Fineman

Image by Gerd Altmann from Pixabay

“In this Article, I want to explore the schizophrenic nature of the interaction between social ideals and empirical observations concerning dependency. I am particularly interested in the family as a social and political construct that facilitates this interaction. Specifically, I argue that continued adherence to an unrealistic and unrepresentative set of assumptions about the family affects the way we perceive and attempt to solve persistent problems of poverty and social welfare. In the normative conclusions that are generated and reiterated in political and popular discussions about family, we assess the “justice” of particular policies addressing societal problems with reference to concepts such as the individual and dependency.

Images of the traditional family pervade contemporary political and legal discourse. Rhetoric about this family’s form and function ignores or obscures the nature and extent of individual dependency. It also masks the costs of necessary caretaking of dependents, costs that are disproportionately assumed by women. Dependency should be understood to be both inevitable and universal. My argument that in a just society there must be a fundamental obligation for the community to provide for its weaker members is built upon this proposition. Of necessity, fulfilling that collective obligation in a society that has historically appropriated, rather than economically rewarded, caretaking labor will have some redistributive (or market correcting) consequences when those who currently care for dependents at substantial cost to themselves are finally compensated.

Continue reading Masking Dependency: The Political Role of Family Rhetoric

by Martha Albertson Fineman

Image via PublicDomainPictures

1. Introduction

Both law and bioethics are disciplines concerned with establishing principles, norms, and values to govern those subjects and situations within their jurisdictions.  The rules that emerge from discussions about necessary ethical principles must be considered just, and must also clearly define appropriate institutional practices and individual behavior.

The primary subject of both law and bioethics is the human being.  While the social and professional roles of the lawyer (and/or legislator and judge) and the bioethicists may be different, both professions are concerned with human beings and the societies in which they live.  Therefore, the fundamental question for both disciplines has to be: “What does it mean to be human?”  This question must be answered before a determination of what is just can be made in defining professional ethics and responsibility.

In law, vulnerability has been developed as a term of art, with a particular and specific meaning.[1]  Therefore, a legal theorist immersed in vulnerability theory would respond: “To be human is to be vulnerable.”  Vulnerability is the universal, continuous human condition.  It is the ultimate  characteristic that defines what it means to be human.[2]

Continue reading Vulnerability in Law and Bioethics