Advocatory Ethics and Sexual Politics
Every case law depends on generalisable versions of the legal norms, which can be interpreted and substantiated in the individual cases. The legal definition of the best interests of the child is negative: The best interests of the child can only be determined from the perspective of their endangerment. However, if legal discourses are mixed with popular and socio-political discourses, the norm of the welfare of children to be safeguarded, which is dependent on generalisation, can become independent in a highly problematic way. In the first part of this chapter, Micha Brumlik’s Advocatory Ethics are reconstructed, and in the second part, the current discourse in Germany on “Sexual Education of Diversity” is analysed, in which the protection of the welfare of the child is specifically referred to. I further argue that the systematically necessary abstraction from the concrete content of the only negatively determinable child welfare makes this concept susceptible to (political) instrumentalizations. Discussions of the best interests of the child are therefore indispensably dependent on their mediation with analyses of concrete, socially and historically always contingent constellations.
KeywordsAdvocatory ethics Child welfare Children's sexuality Sexual politics Primacy of the object
Child welfare as legally protected right of the German Domestic Relations Law, as normative reference point in international debates of social and educational policy, and as authoritative reference of pedagogical practice comes from a history of conflict(s) and is subject to intense dispute ever since. This shows in debates of the establishment of children’s acts within the German Basic Law as well as in international discussions about the status of the concept of child welfare and the role of “the child’s best interests” within the social sciences. More areas of conflict are apparent within the framework of Social Policy and institutions of Social Work, while children’s welfare is directly processed in family court hearings and trials deciding, whether this welfare is endangered – physically or psychologically – in a specific child’s life with her or his parents or legal guardians. The basic problem regularly comes up within the same constellation – in the history of the concept’s establishment as a valid social and a legal norm as much as within the aforementioned areas of conflict: Child welfare both as legal norm and as social norm necessarily requires reasonable justification, which again implies a particular social and juridical practice. However, conceptual and practical realization of this implication do not ensue automatically, but rely on an interpretation of the norm, as the realization of the articulated normative claim will always be dependent on the mediation within the very specific situation in which the child’s welfare is to be brought to recognition. Without mediation the norm will inevitably separate from the social practice it is meant to be applied to and from which it was actually developed in the first place. This tendency to autonomization [Verselbständigung] from the concrete social situation is inherent to the core of the norm of child welfare and enables its multiple instrumentalization and reification.
In this paper I will discuss this tendency of the norm child welfare to autonomize within the context of education, in which child welfare marks a central normative point of reference. To do so, I will firstly introduce Micha Brumlik’s Advocatory Ethics (1992). In the perspective of advocatory ethics child welfare can be understood as a challenge to the generational order by demanding to fulfill the obligation of encouraging and fostering minors1 whilst preserving their integrity. This furthermore includes to elicit educational processes, the exposed would ideally (and only later) be able to agree to (1). Subsequently, I will discuss the specific difficulty inherent within the concept of child welfare lying in its negative determinacy: inasmuch as child welfare can only be determined from the perspective of its endangerment, the concept becomes prone to instrumentalizations. This problem I will discuss considering the example of contemporary debates about sex education in Germany, within which child welfare is a recurring point of reference for both opponents and defenders, hoping this will shed some light onto similarly situated debates on the topic around the globe (2). Nevertheless, focusing on the necessary mediation of the norm of child welfare with the individual and specific, socially and historically contingent living situations of a certain child, the potential of the negative determinacy can be revealed, which opposes the instrumentalization problematized above. Ultimately, I will argue that the process of liberating this potential will always be dependent on the consideration of the “primacy of the object” (Adorno 2005, p. 249 ff., 265) in the mediation of norm and the child’s living situation (3).
Child Welfare and Advocatory Ethics
Child welfare’s role as a normative point of reference in juridical as well as pedagogical acts enfolds within the tension between institutionalized norm and the specific constellation of socially disadvantaged or otherwise suffering children. Therefore, consideration, assessment and as the case may be a juridical or socio-pegdagogical intervention in defense of the child’s welfare are based on the mediation of the stated normative aspiration to ensure children’s welfare with the individual and always specific constellations that are imprinted or endangered by prognoses of suffering. Hereby, a central aspect characterizing the realms of both the juridical and the pedagogical lies within the fact that such mediation can only be performed by experts acting as advocates for others, acting advocatory. While the reason for this for the juridical system lies within the legal form of law itself,2 the necessity of advocatory acts within the fields of social work and education is constituted through a different mechanism: Here experts act advocatory in the name of those not (yet or not any more) being able to agree or disagree with these acts. To be sure, in both areas the advocatory relation is justified through a decisive advance in knowledge on the part of the experts; yet, while this is justified within the realm of law by the law’s highly advanced specialization – thereby, at least theoretically, each client could acquire this knowledge in case the resources were available – the case is different for the realms of education and social work or policy: In pedagogical settings advocatory acts are justified by the constitutional inequality of children and adults.3
Micha Brumlik expounds in his foundation of pedagogical ethics as advocatory ethics that these are centered around the legitimization of pedagogical interventions in ‘the best interest of the child’. Brumlik intervened in the debates shaping the social sciences of the 1960s and 1970s in Germany: Firstly, he critically disputed the problematic separation of morality and ethical life in Karl-Otto Apel’s transcendental-pragmatic and Jürgen Habermas’ universal-pragmatic discourse ethics. Secondly, he went beyond advocates of anti-pedagogy and their cherished blueprints for a non-pedagogical relation free from hierarchies between children and adults.4
Discourses in social sciences of the 1960s in Germany were basically characterized by interventions of the New Social Movements and the reconsideration of theories proscribed during the times of national socialism, whereby psychoanalysis and marxism played the major roles. Educational scientists and philosophers therewith tried to meet the claim not least sharpened in the positivism dispute, that modern social sciences should rather be critique in the first place (cf. Horkheimer 1972a/1937a, Horkheimer 1972b/1937b; Adorno 1976; Habermas 1971a,b/1969; Mollenhauer 1968; Blankertz 1969). The focus was on the „objective interests shaping and thereby injuring the very ‘fact of development’ education (S. Bernfeld),5 only to veil them by giving them the consecration of advanced, abstract concepts“(Brumlik 1992, p. 7).6 Among the concepts now reconsidered from the perspective of ideology critique and in the sense of Ricœur's (1970) hermeneutics of suspicion7 were those of ‘help for self-help’, ‘pedagogic relatedness’,8 ‘principle of individuality’, ‘pedagogical autonomy’ and also the concept of ‘child welfare’. These fancy, but empty terms now lost their “already thinned out nimbus and were unmasked as an ideological expression of strategies of domination” (Brumlik 1992, p. 7). While the advocates of anti-pedagogy deduced thereof that education as a relation of domination should be abolished altogether, Brumlik rather engaged with the problem, that the necessary first step of unmasking should be followed by a second step: he was thinking about ways to determine everything beyond the functional demands of educational practice arising from the “fact of development” Bernfeld (1973/1925, p. 34) so prosaically stated. The problem intensifies as the sharp – and necessary – critique of the paternalistic implications of certain long-cherished concepts of social pedagogy (also eminent in social work and social policy debates) cannot eliminate the core problem of pedagogy itself: after all, the “basic moral, downright anthropologic scandal of begetting and giving birth to children” (Brumlik 2015, S. 226) lies within the fact that no child can ever choose the circumstances it is born into, and that she or he has no choice whether or not to grow up in these circumstances.
This problem not only regards the family situation as the place of growing up but extends deeply into the constitution of subjectivity, as both the objective and subjective conditions of the familial space provide the frame for the development of the subject coming into being. As Laplanche states the always asymmetric situation anthropologique fondamentale (Laplanche 1987) lies within the very fact that humans are fundamentally dependent on the help and care of significantly older primary attachment figures to survive and to deal with the challenge of Anankē9 while becoming a subject. Children cannot choose their primary attachment figures, whose individual and specific biography, as well as their position within the social order, will give both the individual and the social background for the ways they will confront the little humans with sociality – always mediated through their own subjectivity. Infants cannot choose for that reason alone that they lack the cognitive as well as emotional capacities to evaluate the situation; also, they lack the capability to articulate themselves to this question. Not questioning the level of self-initiated activity even in the earliest interactions with primary caretakers – the primary attachment figure’s dominance in these relations cannot be overlooked (cf. Lorenzer 1972). Accordingly, the subjects stay both stubbornly (cf. Butler 1997, p. 31 ff.) and “passionately attached” (ibid., p. 6) to the overwhelming conditions of their upbringing, the love and care of primary attachment figures become the uncircumventable existential condition. Brumlik recognizes this situation anthropologique fondamentale as underlying base for the core problem of pedagogical theory: How can educational interventions ‘in the best interest of the child’ be justified, when the child in question will only later and only possibly agree with the act legitimized through advocatory measures, especially as these acts will then be part of the past and cannot be reversed?
Discussing this problem Brumlik turns to Apel’s transcendental-pragmatic and Habermas’ universal-pragmatic discourse ethics, both striving to formulate sufficient conditions for an “ideal speech situation” (Habermas 1973; also 1971a, b/2001) as a fully inclusive and reasonable discourse. Alas, both theories prove disappointing regarding the problem of generational inequality: While Apel clearly states the problematic asymmetry between universalistic validity claims and particular generation of validity (cf. Apel 1976, p. 126), only to further omit it aborting the argument right there, Habermas (1995/1983) postulates to substitute the fully inclusive, reasonable discourse with an advocatory discourse in such cases. “Any content, no matter how fundamental the action norms in question may be, must be made subject to real discourse (or advocatory discourses undertaken in their place).” (Habermas 1995/1983, p. 122) However, as long as this advocatory discourse cannot be justified, it can hardly be considered as solved. After all, the assumption that the individuals represented through advocatory means would eventually agree to the action taken in their ‘best interest’ cannot justify the action ultimately. To do so the minors would have to “get the opportunity to become mature and responsible, to be able to take a stand towards the actions taken in their ‘own best interest’ – at least ex-post” (Brumlik 1992, p. 117). Brumlik sees only one other option to solve this problem: the representatives arguing in an advocatory manner would have to be convinced about the validity of their advice and intervention based on internal criteria to such an extent, “that the factual consent or rejection of the involved minors would be negligible” (ibid.). The latter – the definition of internal criteria – would nevertheless be strictly illegitimate within the framework of discourse ethics and thereby posing the exact opposite of a discursive solution in the sense of Habermas’: interests exercised in an advocatory manner are in no way truly exercised interests, which is why their equation would be a serious mistake of category. Now, according to Brumlik, the first option implicates a highly significant practical postulate regarding the problem of education that Habermas does not consider any further: “The minors should become mature and responsible and that means they should be educated and cultivated according to their developmental possibilities and the corresponding conditions.” (Ibid., p. 121).
Brumlik’s critique of discourse ethics results in pointing out their “self-misunderstanding” (ibid., p. 109) to postulate being able to solve moral problems by formal means alone. Accordingly, Brumlik’s initial point for his foundation of advocatory ethics is the problem of Apel’s and Habermas’ discourse ethics with the role of minors and overall people, who can not (yet) “build coherent and fully formed sentences, or who can not – and despite their capacity to articulate proper sentences, but due to lack of information or power of judgement – put forth acceptable arguments” (ibid., p. 112): universalist ethics always have implications of the ethical life they are meant to guide. The separation of morality from the ethical life can therefore – in both the transcendental-pragmatic and the universalist-pragmatic variant of discourse ethics – only be maintained at the cost of the claim to universality (ibid., p. 123).10
This insight is highly relevant to the debate on child welfare and the question of an advocatory discourse in the children’s ‘best interest’. Hereby, the concept of child welfare can not be stated juridically; based on the perspective of advocatory ethics it can be expounded pre-juridical by reconstructing “why these norms are strictly imperative even before they can be codified juridically” (Brumlik 2013, p. 2). Consequently, Brumlik (1992) defines advocatory ethics as “a theory of moral acts, clarifying under what circumstances or based on which legal titles persons have the right to act in someone else’s name without their knowledge or even against their declared intention” (ibid., p. 82).
The groundwork for these ethics are Kant’s deliberations in Metaphysics of Morals (1999a, b/1797) as in the Groundworks for the Metaphysics of Morals (1999a, b/1785). In the latter, Kant declares: “For, all rational beings stand under the law that each of them is to treat himself and all others never merely as means but always at the same time as ends in themselves.” (Kant 1999a, b/1785, p. 83) The Kantian principle proclaiming “[a]utonomy is therefore the ground of the dignity of human nature and of every rational nature” (ibid., 85) entered articles 1 and 2 of the Basic Law of the German Constitution: „Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.“ As well as: „Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.“ In the theory of law posed in the Metaphysics of Morals, Brumlik is further interested particularly in the rationale of the children’s “innate (not acquired) right to the care of their parents until they are able to look after themselves.” (Kant 1999a, b/1797, p. 429). Kant explains this rationale in § 28 Parental right – it also entered the German Basic Law, namely article 6, section 2: “The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty.”
In § 28 Kant argues that parents may not instrumentalize, destroy, or leave their child to chance, and that they may not think of their child as “something they had made” (ibid., p. 430), as she or he is a being endowed with freedom: “since they have brought not merely a worldly being but a citizen of the world into a condition which cannot now be indifferent to them even just according to concepts of right.” (Ibid.) After all, through their act of procreation they had brought “a person into the world without his consent and on our own initiative” (ibid.). Thereby, Kant cites the anthropological scandal of begetting and giving birth – which results in the core problem of pedagogy as has been shown above – as the reason for an education of the human endowed with reason.
Regarding to child welfare again: Advocatory ethics answer the question of the moral-ethical legitimacy of pedagogical interventions in the child’s ‘best interest’ by adding to the teleological model of Kant’s moral philosophy the deontological premise to treat humans endowed with reason “always at the same time as an end and never merely as a means” (Kant 1999a, b/1785, p. 80). Advocatory ethics therefore demand to recognize the basic asymmetry in the generational order that can neither be resolved by the means of anti-pedagogy nor by those of discourse ethics. These ethics thereby stress the moral and ethical responsibility of the elder generation in helping the younger ones to find their way in this world. The generational order hereby functions as the anthropological starting point of the asymmetric constellation within the educational relation. In its respective socio-historic configuration the generational order substantiates in different contexts the permanently contingent form of the social order.
Nevertheless, one question stays underdetermined in the perspective of advocatory ethics; namely the one of what should be guiding the advocatory experts in their practice. A determination of this has to be related to the ethical content of advocatory actions Brumlik systematically identified, which again can only be identified within its specific social and individual constellation. Advocatory ethics thereby provide in relation to child welfare the orientation framework for the mediation performed by individuals acting in the children’s names. While it remains clear with what the norm of child welfare is to be mediated with – the specific life situation and the individual perspective of the particular child –, the question remains how the representatives acting ‘in the child’s best interest’ can do justice to these interests. With regard to the norm of child welfare that can only be determined negatively via its possible endangerment the following question arises: how do the representatives acting ‘in the child’s best interest’ come to decisions that will not only be agreeable ex post facto, but also respect the contemporary needs and wishes of the represented instead of bypassing them by rigidly gazing at some distant educational goal in the future – as noble it might be as f.i. the child’s future maturity and responsibility.11
In the light of the above, contours of a weakness of the concept of child welfare emerge: not only is the concept not immune against instrumentalization. In its abstractness and due to the restricted possibilities of its determination from the perspective of its endangerment it shows a tendency to lose track of its actual content: the always particularly situated presence of a specific child’s welfare. To further focus this weakness, I will in the following analyze a contemporary discourse for such dynamics; a discourse that very clearly shows the problematic effect of this loss of the actual content within a rather obsessive concentration on the endangerment. This dynamic is highly evident in recent debates on sex education in Germany, in which Sex Education of Diversity [Sexualpädagogik der Vielfalt], pedo-sexuality and sexual violence are melted into one.
Child Welfare as Reference Point in Discourses on Sexual Politics
Downright passionate attacks against the program of neo-emancipatory sex education have been paradigmatically circling the so-called Sex Education of Diversity. Remarkably enough, the attacks were not initiated by just another marginalized far-right or ultra-conservative lobby. Quite the opposite, politicians of major parties and liberal journalists of nationwide papers of record voiced similar concerns as initiatives of self-proclaimed ‘concerned parents’. Set in motion by an op-ed article by Christian Weber (2014) in the Süddeutsche Zeitung, ‘concerned parents’ sought publicity and indeed gained national attention by organizing what they called ‘demonstrations for all’.12 Focusing on the menacing ‘gender ideology’ of deconstructive theory, they detected the goals of deconstructive pedagogics in the destruction of the nuclear family and in a totalitarian program of sexual reeducation.13 Several protagonists from different quarters addressed the topic of child endangerment: organized opponents of the curriculum in Baden-Wuerttemberg that since 2015 included acceptance of sexual diversity; the Independent Commissioner for Child Sexual Abuse Issues of the federal government, who in 2015 detected transgressive ‘sex offender strategies’ in the recommendations of the neo-emancipatory sex educationists; and Alternative for Germany14 candidate Tatjana Festerling, whose fixation on the gross endangerment of ‘plush penises’15 in sex education of kindergarteners and grade-schoolers made her a well-known, fervent speaker against ‘early sexualization’ on the above mentioned ‘demonstrations for all’. Ultimately, the bottom line of this otherwise very diverse and on many other topics disagreeing chorus was that Sex Education of Diversity was demoralizing16 and responsible for the ongoing sexualization of society.
In the light of this tremendously heated debate, it is worth reflecting on what was (and is) essentially addressed by the use of the concepts of child endangerment and early sexualization (which became a catchphrase of the whole movement). According to the discourse, the danger of sex education lies in the violent sexual harassment of children by providing inappropriate information and disturbing pictures. Leaving the fateful omission aside that the teaching materials of the most disputed textbook are based on actual questions of children and youths in sex educational practice (cf. Tuider et al. 2012, p. 7, 234) – what seems to be unthinkable is children’s interest in sexual matters and sexual activities. Especially the thematization of sexual content between children, youths and adult sex educationists seems to be imaginable only as highly abusive. This view is already mirrored in contemporary developments in early educational practice, where children’s remarks or questions about sex, and even more so children’s sexual activities arouse suspicions and alarm not just since the debates on Sex Education of Diversity. After all, sexually explicit activities of prepubescent children have sparked worries and suspicions for a long time (cf. Eich 2005, p. 169 ff.); sexual activity and children’s pleasure with their own and the bodies of others, and even sexually explicit children’s drawings with enlarged sexual organs17 are all to often seen as unchildlike from an adult perspective.
Under the impression of the discourse on Sex Education of Diversity in a problematic association with the important and necessary discourse on (pedo)sexual violence against children and youths in catholic and one very established school championing progressive education initiated four years earlier, institutions of early education saw themselves under immense pressure: Suddenly not only sex educationists, but generally kindergarten teachers and among them especially the male ones were suspected to probably follow dishonest intentions in their field of work. Many daycare centers already reacted with broadly implemented measures of prevention meaning to protect the children, but also the staff – thereby putting a lot of pressure on the staff to permanently explain themselves. This can be traced in instructions of youth welfare and child protection services as in the recommendations by the Commissioner for Child Sexual Abuse Issues Johannes Rörig: On the one hand he recommends sexual child abuse to be a topic of hiring interviews accompanied by the presentation of an extended criminal record and corresponding self-commitments by the educational staff, regularly parent-teacher conferences on the topic, and last but not least to inform the children about “their right to respect of their personal boundaries” (Rörig 2015) within regularly offered classes and prevention offers.18 On the other hand recommendations leave no doubt about the necessity to implement strict behavior rules for the pedagogical every day practice: Under the headline of “Specifics in dealing with bodily contact” (cf. Pfeifle 2013) child protection services in the state capital Stuttgart advise that bodily contact should only happen “as response to a child’s needs” and only with the child’s consent. “The smallest signs of resistance have to be respected immediately.” Furthermore, the staff should “take care to never touch breast, buttocks and the private parts of children – not even accidentally”. Diaper changing is mentioned as the only exception, whereas in this situation, too, “verbal and nonverbal signals of the child have to be especially heeded. They have to be met with the utmost attention” (ibid., p. 17).
The climate completely dominated by fear of bodily contact is easily imagined, when one thinks of kindergarten teachers trying to under no circumstances touch their entrusted children at their breast, buttocks or private parts while lifting the kids up and down, dressing and undressing them, while singing and playing in the morning circle, maybe while the smaller ones are sitting on their lap – kindergarten teachers, who react to any signs of (really not exactly unlikely) discomfort during diaper changes with immediate withdrawal. In the ‘best interest’ of the child she or he is not to be touched in any way that could – under the lens of the possible endangerment of the child’s welfare – be interpreted as a sexual transgression; this way the topic of endangerment becomes omnipresent in everyday practice. Arrangements from letting only the female kindergarten teachers change diapers or take children to the restrooms via having the doors of the restrooms permanently open to not provide settings for sexual misconduct through to placing the diaper changing station visible for everyone at any time behind big glass walls contribute to this social climate of suspicion and constant threat. Besides, the entrusted children are thereby confronted with a highly problematizing approach to bodily contact and closeness, which is furthermore massively gendered. The appeal of such measures of prevention certainly lies in the promise of safety and feasibility (cf. Cremer-Schäfer 1997, p. 34; cf. also Steinert 1995) and in their contribution towards the coping with contingency (cf. Bröckling 2008, p. 39): via these measures of prevention the threat of child endangerment seems to be effectively and deliberately avertable. Still, it cannot be omitted that the very danger that is meant to be mastered inwards by this scenario of control through prevention goes hand in hand with another ‘mastery’ of the same danger outwards: namely the projective turn towards the publicly and privately organized fierce hunt for actual or alleged (pedo)sexual offenders. Sadly, this hunt on a structural level tends to develop into a “moral panic” (cf. Cohen 2002/1972) or, as Sonja Witte points out, a “fear of everyman” (cf. Witte 2014, p. 98).
The constellation evident in the debate on Sex Education of Diversity is inextricably connected to two intermingling social dynamics: On the one hand, sexually explicit behavior of prepubescent children is often met with dismay and suspicions about sexual misconduct. On the other hand, and simultaneously we indeed witness an ongoing, heavy eroticization of childhood that the opponents of Sex Education of Diversity wrongly see as having been started by the alleged transgressions of deconstructive pedagogy. In the end the sex educationists – who know very well about the complex constellations around children’s curiousness, social norms forming and producing contemporary sexuality, as well as how difficult it can be to talk to youths about their superficial and probably incomplete sexual knowledge – take the blame. The function of this allocation of blame is easily detected: progressive sex education is placed in direct proximity of sexual violence against children. Nonetheless, other cultural objectifications show a deep sexualization of children’s worlds: this trend is f.i. highly evident in the so-called ‘pinkification’ of girls’ toys and accessories, and even more so in the omnipresent fetishization of prepubescent bodies that is mirrored in children’s fashion, just as it is vivid in the ever so youthful appearance of the models, that again inversely reflects in the fear of wrinkly skin. In so far, currently, there seems to be a massive fascination with the ambivalent construction of the erotically charged puerility and childlike nature of the ‘innocent child’, which can barely be articulated – and which is exactly for that reason an ideal base for powerful projections. (cf. König 2016).
How can this contemporary social constellation and in this constellation the reference to child welfare be understood and contextualized? From the perspective of sexual history, the public debate of sexual politics concerning children and sexuality has a long, conflicted past, which was in the twentieth century alone subject to major fluctuations (cf. Jenkins 2003; Herzog 2013). Changes and severe shifts also show in what was seen as appropriate in the field of family relations. While the family was organized patriarchal around the turn of the century at 1900, social movements proclaiming sexual liberalization have had – sometimes paradoxical (cf. Herzog 2013) – effects on the construction of the family. In the long run, these movements contributed to changed perspectives on aspects of sexuality that around 1900 were still classified as perverse. Throughout the century, one ‘perversion’ after the other gained social acceptance at least in a socially tolerated niche (cf. Sigusch 2008). With regard to intimate and sexual relations Volkmar Sigusch (2004) observes a profound, but completely unspectacularly progressing transition starting in the late 1970s subsequent to the new social movements; within this “neo-sexual revolution” (Sigusch 1998) Sigusch states the development of the nuclear to the microfamily, thereby intimizing and emotionalizing exclusive relationships. These arrangements have their downsides, too, that consist mainly of dependencies and restrictions harboring strong aggressive potential (ibid., p. 348 ff.). Nevertheless, dynamics of sexual liberalization all too often collide with traditional notions of the family – seen this way, it is certainly no accident that discussions of sexual politics often refer to child welfare and blame an allegedly misguided pedagogy when the liberalization is to be pushed back or at least stopped. As Jürgen Oelkers (2011) stated in the case of progressive education around 1900 in the Life Reform Movement both in the United Kingdom and in the German-speaking areas: pedagogy always casts itself into an uncertain future – and within this constellation the regulatory norm of child welfare is suited especially well as a venue for social conflicts.
Evaluating the dispute around child welfare in sex education in the present situation the following becomes apparent: scandals referring in various ways to both children, their ‘best interest’, and sexuality have accumulated during the last decade. The disclosure of sexual abuse in mostly sealed off but highly respected educational institutions that was apparently deliberately ignored for decades in 2010 (cf. Thole et al. 2012) was followed only a year later by the nationwide debate on the practice of circumcision of babies or small children in religious communities (cf. Brumlik 2015). The latter was discussed in an irrational equation with sex assignment treatments on intersex children – something that was until this point completely omitted in public discourse (cf. Zehnder 2010). One year after this a heated dispute erupted on the liberal sexual politics of the German Green Party (Partei Bündnis 90/die Grünen), that in the founding phase of the party in the milieu of 1968 highly idealized children’s sexuality and thereby endangered children by not protecting them enough from pedo-sexual activists (cf. Baader et al. 2017; Baader 2017; Walter et al. 2014). Eventually, in the spring of 2014, the above-mentioned attack on neo-emancipatory sex education occurred (cf. Tuider 2016). The one and only aspect all these debates have in common is the perception and corresponding construction of sexuality necessarily endangering child welfare as something hurtful that is imposed upon the children from the (adult) outside.
Notwithstanding the fact that in the vast majority of cases sexual transgressions and abuse of children indeed have devastating consequences,19 the starting point for the following analysis is the astonishment in the face of the fact that children in all of these debates are posited as rather asexual. The continuously evoked image of the ‘pure’ and innocent child that is endangered by sexuality bears the echo of the myth of romantic childhood installed at the turn of the 18th to the nineteenth century. This construction installed by Rousseau, Herder, Goethe, Schiller, Hölderlin, Schleiermacher, Schlegel, Novalis, Jean Paul, the romantic painter Runge and the foundation father of the Kindergarten Friedrich Fröbel echoes, as Meike Baader (2012) has pointed out, up till present times in both popular and educational ideas, even in contemporary interdisciplinary childhood studies. This echo contributes to the questionable fact that the existing sex research on children’s sexuality (cf. Bancroft 2003; Schmidt 2004) is completely ignored in the current debates. Furthermore, the everyday life experiences of adults living and dealing with children are hardly recognized, either. Following the astonishment about this omission, the question has to be asked, how the romantic idea(l) of the asexual child is reproduced in the efforts to secure the children’s welfare. Considering this, it has to be acknowledged that via the positing of the child as asexual the actual goal – to enable the child’s welfare – is inconsiderately missed.
Strikingly, the discussed debates of sexual politics during the last few years bear one improper resemblance in their reference to child welfare: the concept of child welfare is used to mark an asexual childlike nature as opposed to adult transgressive desires. In a situation indeed strongly characterized by the fetishization of childlike bodies and the omnipresence of the lure of the prepubescent, this lure is negated and instead projected outwards into an imagined dangerous exterior. Unfortunately (and fittingly), children’s sexual interests, wishes, phantasies and according acts are omitted likewise – thereby fiercely negating that all of these indeed and undoubtedly are a part of what also characterizes and even constitutes the wellbeing and the welfare of children.
Once sexual interests or wishes of a child pop up, within the framework of the endangerment discourse they can only infer that some sort of catastrophe must have happened, as the painstakingly asexualized child brings mayhem to the relation of the sexual and the generational order. As the genesis of the “confusion of tongues between the adults the child” (Ferenczi 1949) can be explained with recourse to psychoanalytic theories – and thereby on the psychosexual development, afterwardsness and the structural difference between infantile and adult sexuality (cf. Becker 2011; Eich 2005; Ferenczi 1949; Früh 2005; König 2015) –, the omission proves insightful for the lopsided reference to child welfare: the necessity of the negative determination of the concept demands to omit the complication of infantile sexuality and to substitute it with the phantasy of the ‘pure’ and innocent child. Admittedly, the latter is no binding implication of the concept, but the limited possibilities of the specific determination of child welfare from the perspective of its endangerment predispose the concept to an instrumentalizing approach. Clearly, the reference to child welfare then functions merely as a surrogate.
Here it proves highly problematic that children, whose welfare should be central, merely function as carriers of the role of the victim and not as individuals with sexual wishes and needs – as different they may be and qualitatively are to those of adults. The analysis of the debate on Sex Education of Diversity shows very plainly that the construction of the asexual, innocent child that cannot be endangered and will only have a chance to welfare as long as it stays unmolested by sexual confusions in a heterosexual nuclear family. The threat scenario hereby seems to come naturally from the perspective of child endangerment: only from there the heinous proximity of sex education to pedosexuality and sexual violence against children can be suggested. In such a constellation every expression of children’s sexual activity must be disturbing – thereby the reference to the norm of child welfare turns against its original goal: to enable and secure the child’s welfare. Thus, sexual curiosity, phantasies, and experience of children can not only not be seen from the perspective of threatening child endangerment. Furthermore, they draw suspicions – and with these an endless apparatus of investigations, at worst: interrogations, that can indeed be very discomforting for a child, while officially all of this happens in the ‘best interest’ of the child.
Problems and Potentials of the Negative Determinacy of Child Welfare
Challenges arise against the backdrop of the analyzed inversion of child welfare-oriented acts into situational acts being led by different ends. These ends lie in the defense of the sinister attraction of the fetishized children’s body, the fight against unwelcome sexual or family politics, and the stabilization of a certain generational order. In light of this, how can the effort to advocate for child welfare be judged when the concept itself becomes a venue for unrelated conflicts? To be sure, such acting does not comply with the frame of advocatory ethics that imply the overall goal of aspired maturity and responsibility of the persons represented, and that furthermore require the most delicate adjustment to the children’s living situation to make sure they would most likely consent ex-post to the actions now taken ‘in their best interest’. Anyhow, the debates criticized above could still be declared as an advocatory fight in the children’s ‘best interest’ – surely, this is exactly the discursive strategy practiced by the involved parties. The underdetermination of the guiding content in advocatory ethics addressed above leads back to the core task of mediating the norm of child welfare with the specific and individual constellation of the respective child’s living situation.
Focusing on the necessity of mediation I would like to address a second side to child welfare’s negative determinacy that does not just deepen the problem of the concept to autonomize and thereby detaching itself from the object, but at the same time contains the potential to deal with this problem. After all, the negative determinacy contains as the necessity for permanent re-interpretation possibilities of an enlightening and progressive way to deal with the “time core” (Adorno 1997, p. 316) of both the concept and the content of child welfare.
Advocatory ethics constitute the educational responsibility basically as “moral obligation the elder owes to the following younger generation” (Brumlik 1992, p. 3). How well this moral obligation is met cannot be measured by some sort of catalogue of certain criteria – it has to be interpreted again and again. This interpretation is oriented towards child welfare, while the conditions of what exactly helps to secure this welfare are only to be determined relationally. Multiple studies within the realm of childhood studies thereby show, how relative the standards and contents of what makes a good life for children is – historically, socially and from the different perspectives of actors of all ages.20 As Brumlik points out, in all of these specific situations the ethical life of the negotiated content in question has to be taken into account; and even the inclusion of children’s perspectives and the child’s self-will has to be framed by responsible adults, who interpret the child’s situation in the light of their own life experience, their specific knowledge of social circumstances and in part due to their professional expertise. These interpretations have to relate to the individual and specific situation, and at the same time take account of historical and social preconditions of what proves to be beneficial to children. The changes in what seems worthy of protection in children’s lives become very vivid in the light of the liberal and progressive developments in the field of sexual living conditions. The instrumental reference to child welfare by political actors of all shades should not belie the fact that the actual conditions for children’s welfare change within the overall social change. Obviously, this does not mean that what is thought of as beneficial for children in a certain time and place would be equivalent to what actually would be beneficial. Nevertheless, changing social circumstances always involve the conditions for sexual life, family structures, and (sex) education. Therein lies the reason for the impossibility to exactly spell out and objectify the meaning of child welfare: The social and historical constellations just as well as on the level of micro practice the relating individual and specific constellations always have a time core.
While the indeterminacy of the concept of child welfare, on the one hand, proved to be problematic as it enables instrumentalizing exploitation, the same indeterminacy turns out to be rewarding and maybe even necessary to a socio-historically enlightened educational practice. Thus, the indeterminacy provokes a permanent mediation of the regulatory norm with specific individual cases. The quality of the mediation, as well as its validity in accordance with advocatory ethics, will always be dependent on the critical and specific engagement with the object – with children’s perspectives and life situations. Hereby the “primacy of the object” (Adorno 2005, p. 249 ff., 265) proves vital und uncircumventable as the one guiding principle for the intended mediations of the norm of child welfare with the specific life situation. This aspect, that stayed underdetermined in Brumlik’s approach, indeed enables an orientation for the advocatory representation of what is ‘in the child’s best interest’, as children’s wishes, needs, and dreams of the future are not discounted by referring to a certain educational goal. Furthermore, the recognition of the primacy of the object in the mediation of norm and living situation will have to take the child’s perspective into account and communicate with the child about the questions at hand. Regarding the content of the debate about Sex Education of Diversity, it becomes clear that indeed children should get opportunities to talk about what interests or maybe unsettles them about sexual matters. Likewise, the importance of the recognition of the structurally different perspectives of children and adults onto sexual matters in these communications follows from the validity of the primacy of the object – as children and adults talk about the subject matter in question to better understand it and its implications for the child’s welfare as well as her or his future maturity and responsibility. The permanency of re-interpretation of specific constellations within the asymmetrical pedagogical relation considering the primacy of the object alone will make sure to not stifle the “living experience” (König 1996, p. 361, transl. by the author). Holding this living experience dear and alive is the only way though to prevent the norm of child welfare to freeze into a meaningless shell.
Brumlik uses the German term Unmündige, which means more than just minor children and adolescents. The term stems from the concept of Unmündigkeit, which is in English translations of Kant’s works translated as tutelage (Beck 1963), as immaturity (Ferrer 2013) or as minority (Gregor 1999). Kant’s own definition of Unmündigkeit, set out in the famous 1974 essay on the question of “What is Enlightenment?” reads as follows in the translation of Mary J. Gregor in the Cambridge Edition of the works of Immanuel Kant : “Minority is inability to make use of one’s own understanding without direction from another.” (Ibid., p. 17) Thus, the term is not only applied to children and underage adolescents, but also to all human beings not being able to speak fully for themselves – for whatever natural or social reasons. Consequently, Unmündige includes the elderly losing their abilities to live independently by themselves or people with disabilities in need of support and guidance by others – simply all people ultimately being subjected to tutelage.
Sonja Buckel (2007, 2016) has reconstructed the automatization of law in dogmatics and legal practice, the fact that both can only be handled by juridical intellectuals as well as the constitutive meaning of the legal form within which law alone can be litigated, within the framework of her materialistic theory of law.
Again, the case is different regarding social work and social policy; transferring principles and methods developed in the context of children’s education into the strikingly different context of social work and social policy is indeed highly problematic. I cannot further go into this at this point though.
In his polemic against the humanistic pedagogy dominant in the German-speaking world at the turn of the century Siegfried Bernfeld defines education – more broadly, “the entire educational complex” (cf. Bernfeld 1973/1925, p. 34) – drastically and simply as merely the societal response to the “fact of child development” (ibid.).
The translations of the quotations by Micha Brumlik are by the author herself as there is no translation of his works into English yet.
Ricœur acknowledges these hermeneutics of suspicion as developed in the “school of suspicion” (Ricœur’s 1970, p. 33) dominated by its three masters Marx, Nietzsche and Freud as a methodology doubting the status quo, a “battle against masks” (ibid.: 30), intended to lift the veil or tear off the (false) front of placeholders for a hidden truth. Opposed to these hermeneutics in the lines of the critique of ideology Ricœur sees the hermeneutics of faith trying to reconstruct meaning with as little distortion as possible (cf. Josselsen 2014).
The German term pädagogischer Bezug stems from Hermann Nohl’s (1982/1933) discussion of the basic conditions of educational processes. According to Nohl (ibid., p. 134 f.) this basis is the passionate relationship of a mature human being to a young, becoming human being for the sake of her or his own life. Thereby, the relationship of the educator to the child is doubly determined, namely by the love for the child in her or his real living situation and by the love for the ideal of the (future) child, the goal being to promote the child, guide her or him and ignite the higher life in her or him. All efforts, both of the educator and the child, serve to build the future of the young person through education and training and to lead her or him to independence and self-responsibility.
In Civilization and Its Discontents Freud speaks of Anankē as what he calls “vital necessity” (Freud 1964/1930, 97) [Lebensnot/Not des Lebens]; something Lacan later interprets as “pressure, urgency", or "the state of emergency in life” (Lacan 1992/1959–60, p. 46). Freud thinks of Anankē as necessary to form the subject, and he speaks of Anankē and Eros as “parents of human civilization” (Freud 1964/1930, p. 101), specifically of Anankē as a strict educator of the human drive. So it is Anankē forcing the newborn to become active and acquire means and ways to live and survive in the world she or he was born into. On the bodily as well as the social circumstances of “Lebensnot” cf. Kirchhoff 2014.
The problem of the separation of morality and ethical life still is an unsolved problem of moral philosophy though, while the strictly formal approach to moral problems is still widely practiced (cf. Hogh 2017).
This is not a question of whether advocatory ethics depend on the “anticipatable, possible consent of the individuals concerned” (Brumlik 1992, p. 110), because the fact that they do so is, as stated, Brumlik’s argument against the universalistic validity of the criticized transcendental and universal pragmatic ethics. The question rather refers to how the mediation of the norm can and should be carried out with the moral content concerned and the real constellations of relationships in childhood environments.
The misleading title here aims to undo the ‘gender-ideological’ exclusion of heterosexual small families and lifestyles that was allegedly already carried out and to reinclude the ‘worried’ who now think themselves marginalized.
An overview of the discussions in public media in the summer of 2014 following Weber’s vilification of Sex Education of Diversity as “negligent pseudo-sex education” (transl. by the author) cf. Bunt and Brenner 2014.
The Alternative for Germany (German: Alternative für Deutschland, AfD) is a far-right political party in Germany founded in 2013. While AfD narrowly missed the 5% electoral threshold to sit in the Bundestag during the 2013 federal election, they thrived off increasing anti-immigrant discourses all over Europe and became the third-largest party in the Bundestag in 2017. Representatives of the AfD have been linked to and some have openly been active in racist, anti-muslim, anti-Semitic and overall xenophobic as well as sexist movements.
The sex education programs in question include the possibility to have a look at dummies of sexual organs.
Cilly Kaletsch, Süddeutsche Zeitung, May 7th, 2014.
However, this does not need to irritate, as children simply do not yet draw proportionally and paint large in their pictures what they are currently preoccupied with (Eich 2005, ibid.).
This quotation by Johannes Rörig as well as the following quotations from the German Child Protection Services (Pfeifle 2013) are translated by the author.
Compliance with Ethical Standards
Conflict of Interest
The author declares that she has no conflict of interest.
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