27 October 2017

"Natural" Affection: Louis Hensler Weighs in on the Charlie Gard Case

Former colleague Louis Hensler has published an essay titled “The Legal Significance of the Natural Affection of Charlie Gard’s Parents.” You can download it here.

Hensler provides a nice summary of the important place that the concept of natural affections played in the history of the common law. Through the deft handling of a few cases Hensler explains what “natural affection” meant in the common law: in short, an immunity. Schoolmasters and employers of youngsters, even though commonly thought be acting in loco parentis, were not immune from claims of battery to their young charges. Parents, however, given the presumption of natural affection for their children, could not be sued. Children did not “belong to” their parents. Unlike Roman law, in the world of the common law unemancipated children were not property. The immunity afforded parents—and not other adults—had to do with what struck everyone then (and almost everyone now) as obviously true—parents love their children and can be trusted not to abuse their power.

Hensler does not address what must have been obvious even during the long history of the common law: sometimes parents do abuse their power. Sometimes they exceed their parental authority. And sometimes the “immunity of natural affection” can produce unjust results. I suppose it was these sorts of phenomena that lead to statutory reductions in the scope of parental immunity.

In any event, Hensler also demonstrates that “everyone” in the common-law world attributed the natural affection of parents for their children to God who had implanted such affections in human nature. And such a take on the source of parental affection was not limited to Christian theologians and moralizers of duty; secularizing thinkers like Thomas Hobbes, Adam Smith, and David Hume agreed.

What source other than God could there be? With the progress of the nineteenth century an answer came: natural selection. Unpacking the implications of Charles Darwin’s full-on naturalization of human nature, subsequent thinkers have attributed the phenomenon of natural affection to successfully selfish genes. The offspring of parents who bore natural affection for their children were more likely to survive and reproduce. Thus, the genetic component of natural affection was more widely propagated. (This argument raises the question of whether there is a genetic component to natural affection and that it is not, say, a learned behavior. Of course, natural affection is an evolutionary advantage even if it is learned.)

I’ll leave it to my readers to download Hensler’s article. Reading it will help folks probe below the headline version of the efforts of Charlie Gard. Suffice to say that the British courts gave short shrift to the notion of natural affections.

Hensler also observes the justification for natural affection can make a difference. In other words, a divinely-implanted aspect of human nature isn’t going away. On the other hand, an evolutionary foundation for natural affection can, well, evolve into something different or simply disappear when its function has been replaced by a more effective means of genetic reproductive success.

I wish the article had addressed the limits of the immunity afforded by recognition of natural affection. Surely at some point the presumption of natural affection of parents for their children can be rebutted. For example, would natural affection have immunized Charlie Gard’s parents from liability had they refused medical treatment? Notwithstanding this quibble, I highly recommend “The Legal Significance of the Natural Affection of Charlie Gard’s Parents” to my readers.

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