Today we read about drug abuse, gang violence, child abuse, and the list of ills goes on. The enormous growth of social problems makes any analysis quite complex. But a look at the history and myths of violence in our country reveals the underpinnings of the problems we face today (Minow, 1993).
Much of family law can be traced back to ancient times, for example, the code of Hammurabi was written in 2150 B. C. . It had many sections devoted to parent/child relations and it established the father as sovereign of familial power. The child was viewed as the property of the father and could be pledged to pay off a debt. The Greek and Roman laws also followed this strict format of family unity under one executive, the father. This influence is seen today in American courts and in society’s general philosophy. The concept of the state having a right to intervene on behalf of children did not appear until the Visigothic Code emerged around 500 A. D. Children here had the rights to life, and were not seen as an economic unit to be bought and sold.
The turning point for children’s rights came in 1696, when the state concept emerged as “parens patriae”, which means father of his country. This English Law meant that the crown could intervene for a child if property was involved. This authority later grew to include children’s rights. As with some of our modern interventions, some of the state’s interventions did not help children consistently. The Elizabethan Poor Laws were written in 1601 to provide relief for the poor. Children were put into the work force or were apprenticed, with thousands of children sent to the American colonies. The English then tried workhouses and a “Pauper Apprentice System”. These were also abolished due to the cruelty the systems inflicted on children without parents (Davis 1987).
The “parens patriae” doctrine was adopted by the American legal system and is still used to intervene in the parent/child relationship but there are several difficulties with this doctrine. First, it outlines the child’s negative rights, as in the right to not be neglected, nor educated, and not physically beaten to the point of endangering his or her well-being. The parent is still viewed as having the child’s best interests at heart and the line for intervention remains fuzzy: it is legally held that the child is entitled to a “minimum, accepted community standard”. A third problem with the doctrine is the quality of service that occurs when the state is a provider. If one studies the best interests of the children, it becomes clear that no set of rules can delineate all the complexities of appropriate family functioning (Goldstein, Freud, Solnit, 1979).
But what can history tell us about the role of violence in the family?Children and their mothers were long subject to the father’s will in the name of family unity. The old saying, “a rule of thumb” comes from the rule that a man could not beat his wife with a rod thicker than his thumb. The children were not considered responsible for their actions under age seven and this common law of “doli incapax”also required children over seven to prove their competence (Melton, 1983). These rules and power patterns continue to influence the courts, our social institutions, and our myths about family life. It seems that our nation is putting the family in the repair shop for a multitude of problems without checking for the causes or thinking about a redesign.