Sunday, July 18, 2010

On legislating exceptions

It has become almost a cliché that the media more and more shape our view of things as a society. There is a particular peril in this, as G.K. Chesterton (himself a journalist) noted almost a century ago:

“It is the one great weakness of journalism as a picture of our modern existence that it must be a picture made up entirely of exceptions. We announce on flaring posters that a man has fallen off a scaffolding. We do not announce on flaring posters that a man has not fallen off a scaffolding. … Busy editors cannot be expected to put on their posters, "Mr. Wilkinson Still Safe," or "Mr. Jones, of Worthing, Not Dead Yet." They cannot announce the happiness of mankind at all. They cannot describe all the forks that are not stolen, or all the marriages that are not judiciously dissolved. Hence the complete picture they give of life is of necessity fallacious; they can only represent what is unusual. However democratic they may be, they are only concerned with the minority. (Emphases are mine. I apologize, blushingly, that I cannot identify the edition and page for this quotation, which I scribbled in a notebook while reading “The Ball and the Cross” some time ago.)

I might add, completing the idea, that we hear always of a minority comprised of those who do exceptional (and, often, exceptionable) things. Thus, we hear of parents who are negligent or abusive of their children; we do not hear of the vast majority who are not. Their stories are regarded as unexceptional, and therefore as un-newsworthy. We hear of someone committing suicide by jumping from a bridge; we do not hear of the hundreds of thousands who do not. Therefore we begin to form a picture of modern existence that is, indeed, fallacious.

The fallacy consists precisely in regarding the exception as the rule. Because we hear of certain parents abusing their child, and never hear of those who do not, all parents are regarded as potential abusers of children. Because we hear of one man who leaps from a bridge, and neglect the fact that hundreds of thousands do not, every bridge is seen as a venue for suicide.

We see this in the case of the abuse of children and vulnerable adults by certain priests. The media focuses our attention, appropriately enough, upon the abusers and the abused. But nothing is noticed of the fact that the vast majority of priests do not abuse. Rather, priests are regarded as potential abusers of children, and there develops a whole literature around why this is the case. Celibacy, we read, is unhealthy and will necessarily result in sexual abuse. The fact that, in the vast majority of cases, it does no such thing is not taken into account, because the only priests in regular public view are those same few who have abused. We are given the impression that a priest who lives his vow of celibacy without abusing others is almost certainly an exception. The exception has become the norm and, curiously, the norm has become the exception.

All of this would add up to little more than an amusing piece of folly except for the ominous fact that we began, some time ago, to legislate for exceptions. This means that the exception is no longer merely regarded as the rule, but that it is the law of the land that it must be the rule. Examples abound. It is, for example, the law of the land that the medical records of children (minors who are, in some cases twelve, in other cases thirteen years old) who are pregnant, who have been sexually assaulted, who seek or procure an abortion, who are diagnosed with HIV, or who have been diagnosed with a reportable (!) sexually-transmitted disease, cannot be disclosed to parents, except with the written permission of the children. The intent behind such laws is to protect children. Because, it is reasoned, it is conceivable that some parents might overreact in such cases as these, the state has determined that no parents are to be informed of the situation of their children, without the consent of the children. The exception has determined the rule, and the rule is state or federal law.

To legislate for exceptions produces, necessarily, bad legislation. What this particular legislation ensures is that a child who finds him or herself in any of these situations is required, by law, to give or withhold consent in the manner of an adult. Now the very definition of a child is that of one who does not yet possess the capacity to assume full moral responsibility for his or her own acts. That incapacity is manifested in the fact that children can –and very often do– exercise poor judgment. Yet to invoke the very relationship upon which the child most depends, that of his parents, is, by this sort of legislation, left at the discretion of the child, in the very moment that the exercise of right judgment in the matter at hand is most likely to be impaired. Every child is reluctant to confess his or her wrongdoing, and no child is fully capable of sorting out his or her responsibility for what has happened. It is therefore not the case that a reluctance to inform their parents is any evidence that children are at risk. It is, rather, evidence of the fact that they are children! The only conceivable cause for such legislation is that the reality of childhood (the most ordinary of ordinary things) was not, for a moment, considered. Rather, the possibility that certain few parents might react inappropriately –like the exceptions regularly depicted in the media– has driven the state to deprive all parents of access to critical information about their children.

Proper legislation would begin with the assumption that the vast majority of parents will act in the best interests of their own children, and that the parents who do not are exceptions, who therefore grab the attention of the media. When children are threatened with abuse or abandonment then, certainly, they require an advocate. But they require an advocate precisely because they are, as children, not yet fully capable of exercising full responsibility for themselves. They are dependent upon their parents and families who, by law, are kept in ignorance of their situation –unless their children have the judgment to realize that their parents are, normally, their first and best recourse.

What is saving in all of this is that ordinary, unexceptional parents abound, and that they are capable of caring for their children despite the obstacles that the state more and more insists upon placing in their way. What is regrettable is that the state was once thought to act for the sake of what is common –not what is rare and exceptional– and that we can anticipate many more obstacles in our unexceptional pursuit of ordinary things.


  1. For those interested: The quotation is from The Ball and the Cross (John Lane, 1910) pp. 68-69, reprinted in The Collected Works of G.K. Chesterton, Vol. VII (Ignatius Press, 2004) pp. 73-74. Chesterton's original text referred to marriages that have been "judicially dissolved", but the typesetter accidentally changed this to "judiciously dissolved" -- a big difference!

  2. In my opinion, another example of "legislating for the exception" can be seen in the tedious and demeaning screening that we now endure every time we fly on an airplane. I imagine that in fifty years' time we will still be making elderly passengers take off their shoes because once upon a time, one person boarded a plane with a (completely ineffective) bomb in his shoe.

  3. Lawrence:

    You'll be happy to know, that as a very frequent flyer, I've been told that new technology will soon make the "take-off-your-shoes" a thing of the past. Unfortunately, it may also mean that they see right through our clothing which I find very distasteful. I'll take off my shoes any day.

  4. Father - this is a comment on the part of your blog that addresses the law that children need to give permission to have records released to parents -- children who've more or less done something considered to be wrong - whether deliberately or not. I was reminded of a talk I heard some time back that addressed the ancient concept of getting rid of sins "on the cheap". Media seems to be fully filling primal shoes in a new age and continuing the practice of blood rites, with a twist. From what I understood of the talk, Christianity transformed ancient culture and has enabled man to empathize with victims as the innocent (this is not so in all parts of the world and was not so in ancient culture, where 'victim' is/was synonymous with guilt). With this in mind, a victim in the modern, Christian-influenced sense, is given moral superiority over the victimizing mob which is generally the proper thing to do (structural innocence). But when moral superiority is given to the victim what can happen is that juridical innocence is confused with structural innocence... so in your example, the child is valorized and given superiority over the adult (even though they're children and in a questionable situation). Media uses & magnifies instances of moral transgression and consequently irrelevant laws are created that expiate the public (the 'audience') of their sins "on the cheap". Someone is paying for this and that seems to be all that matters. Of course this has absolutely nothing to do with what's really going on! It's an ancient pagan blood rite in modern form.

  5. The legal maxim is: "Bad examples make bad law" - (quoting John Keenan OPL JD)

  6. The logic of the situation defies itself. If a child is a victim of incest or rape, and they do not have to get parental consent, then the child receives the abortion and goes back to the very environment where the crime occurred. Every case of underage abortion should be treated as a crime of sexual abuse to a minor.