Licensing redux

Since the original post was accidentally published prematurely by my coëditor, I’ll take this post to look at some of the more common objections to licensing and argue that they’re lacking.

The first objection to parental licensing is the invocation of a “right to one’s children.” As Hugh LaFollette notes, any right one has to one’s children is far too limited to preclude a licensing regime. One has no right to abuse one’s children, and the law already allows that the state may remove children from parental custody in such cases. Licensing, moreover, is in many respects a less invasive remedy to the problem of parental incompetence than the current presumption in favor of the parent.

This argument, however, takes “competence” to be the quality in virtue of which successful parents are to be licensed and unsuccessful parents, to be denied. Lawrence Frisch, in his critical reply to Lafollette, offers four sufficient criteria by which parents may be found unfit to raise children:

  1. they may be ignorant a certain basic body of knowledge about the mechanics of childcare,
  2. they may be physically or mentally unable to act upon that knowledge,
  3. they may be unwilling to act upon that knowledge, or
  4. they may be willing at large, but lack the disposition or self-control to refrain from abuse when tried by circumstances.

While Frisch concedes that licensing programs may improve the lot of children cared for by parents of the first or second types (either by mandating that parents take the appropriate remedial actions or placing them in new homes), he doubts that parents of the third or fourth types will be meaningfully deterred from abuse by the kind of licensing regimes that regulate drivers, doctors and dentists.

The purpose of licensing in the traditional cases, Frisch argues, is to demonstrate the applicant’s possession of certain relevant knowledge, or the ability to perform certain tasks. Drivers’ tests have no predictive value to the state in identifying drivers most likely to prove extraordinarily dangerous. For a licensing program of LaFollette’s design to succeed, it must identify as likely to commit abuse parents who have never mistreated children. This feature, Frisch claims, stands at odds with the conventional purposes of licensing. He charges LaFollette with

hav[ing] shifted the focus of licensing from its traditional purpose of assessing knowledge to the realm of predicting future behavior and confronting issues of negligence and incompetence—areas in which licensing has no historical interest.

But the traditional concern in licensing for determining present competence, and not for predicting future performance, is primarily a problem with the state of the art of assessment. Examining applicants upon a body of relevant knowledge, or an array of tasks which simulate the specialized skills required in the licensed profession, just is the most reliable predictor of future performance, the tested knowledge and skills being indispensable to competent practice. Curiously, no one proposes for medical students the “wait and see” method of assaying competence that is current for parents; the claim that unlicensed proto-doctors have never actually injured a patient strikes us rightfully as ignorant of the elenchus.

If it became possible, perhaps under the purview of a mature and unified neuroscience, to develop licensing procedures which identified, with level of significance α, that a given parent would gravely abuse or neglect their children, how high would α have to be before the procedure should be administered? Alternately, if faced with a choice between medical licenses, and medical schmicenses which consisted in the licensing examination plus a time machine which allowed us to check for future malpractice, what is the argument for retaining licenses?

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