A Study of “Parental Rights” : Taking Jeffrey Shulman’s Theory of Trust as a Cue

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  • いわゆる「親の権利」に関する一考察 : Jeffrey Shulman の信託論を手掛かりとして
  • イワユル 「 オヤ ノ ケンリ 」 ニ カンスル イチ コウサツ : Jeffrey Shulman ノ シンタクロン オ テガカリ ト シテ

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In the United States, parental rights have been recognized through the precedent of the Supreme Court of the United States. In Troxel v. Granville, 530 U.S. 57（ 2000）, it was held that “the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court”. Jeffrey Shulman criticizes the precedent in terms of the understanding of American tradition and the standards of constitutional review employed by courts, and argues that it should not be considered a parental right, but rather a trust model of parent-child relations. Shulman argues that it is inconvenient to consider the rights of parents and the usefulness of the trust model of the parent-child relations. In the past, the situations in which children, parents, and the state are involved have often been educational situations, and the state has often been considered as the infringer. However, there are also situations in which the child, parent, and state are involved, such as child abuse, in which the parent is the infringer. It is useful to examine Shulman’s argument, which also considers such situations.

Journal

  • 一橋法学

    一橋法学 22 (3), 5-22, 2023-11

    一橋大学大学院法学研究科

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