A Response To Bob Murphy On Children in Libertarian Law

In Episode 182 of his podcast, Bob Murphy put forward a proposal for how children should be treated in libertarian law. This post is a response to his proposal.

Rothbard's Theory of Parental Ownership

As a background to the proposal, Murphy outlines some disagreements or concerns that he has with the ideas on the parent-child relationship set out by Rothbard in The Ethics of Liberty.

Murphy explains that he always found Rothbard's account of limited parental ownership of children to be unsatisfactory and "loosey-goosey" in its formulation. He mentions a variation of this parental ownership idea by Walter Block, who attempted to ground certain parental obligations in the rules of homesteading. Although Murphy is not convinced by this version either, he does think that some better grounding of the parent-child relationship in libertarian legal theory is needed.

Rothbard's Denial of Parental Obligations

In The Ethics of Liberty, Rothbard argued that parents do not have enforceable obligations towards their children:

the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights.

It is not clear to me whether Murphy agrees with this line of argument, but he does make it clear that he understands why Rothbard is concerned to avoid any principle that could justify positive obligations. Here's how Murphy puts it in the podcast:

There is a definite plausibility to what Rothbard is saying because once you open that door so that other people could have claims upon you even though you don't have a contractual arrangement with them, then it's hard to stop that principle.

Rothbard's Limits on Parental Authority

Murphy also objects to Rothbard's argument that parents cannot exercise authority over a child if the child chooses to run away. Murphy points out that this implies that if a stranger manages to persuade a child to go with them willingly (for example by bribing them with candy), the parent would just have to let the child leave.

Murphy's Proposal

Murphy suggests that the relationship between a parent and a child should be considered that of a trust, whereby:

• The child is the beneficiary of the trust, receiving parental care and guardianship as the benefit.
• The parent is the trustee (the person entrusted with responsibility for administering the trust) who provides parental care and guardianship to the child as an obligation of the role of trustee.
• The trustor (the person responsible for defining the terms of the trust) is the future adult that the child will become. The parents as trustees must do their best to imagine what the future adult-child would want them to do and act on those wishes.

A Response To Murphy

I agree with Murphy that Rothbard's theory of parental ownership is flawed. Here is a detailed critique. Like Murphy, I also disagree with Walter Block's ideas about homesteading children. Contrary to Block, children are not homesteadable property and parents are not "free to dump out" a child that they do not want. Parents cannot legitimately give up parental obligations.

What about Murphy's trust proposal? What Murphy is doing by conceptualising the parent-child relationship as a trust is asserting that parents have obligations and also that they have authority. If parents are trustees, then this implies that they have certain enforceable obligations. It also implies that they have authority in order to carry out their responsibility as trustees.

But why should a parent act as a trustee? In commercial trusts, the responsibilities of a trustee are governed by contract. It is clear why the trustee must fulfil this role, since he contracted to do so. Yet the analogy breaks down in applying this model to the family since the parent did not sign a contract (and the child is too young to consent to contracts anyway). So what obliges the parent to fulfil his duty? And what happens if a parent does not fulfil his duty? Does he have an enforceable obligation? Murphy does not say. He has not provided any grounding for the parenting-as-trust metaphor. He has just asserted it.

Similarly, why should one accept that a parent has the authority over a child to act paternalistically towards them? Since libertarianism is incompatible with paternalism in general, what makes paternalism justifiable towards a child? And why is it that a parent has authority to act paternalistically but others do not? Again, Murphy uses the concept of the trust as a framework, but does not provide a reason why this should be accepted.

Parents Have Enforceable Obligations

What is missing from Murphy's critique of Rothbard is for Murphy to take a view on whether parents have enforceable obligations and to explain why. One of Rothbard's great merits was a consistency that came from his willingness to accept the logical consequences of his ideas. However, in the case of parent-child relationship, Rothbard doggedly stuck to an idea that is simply wrong: the notion that parents do not have enforceable obligations. This insistence led to absurd conclusions, such as the legitimacy of starving a child to death. As I have argued elsewhere, the denial of parental obligations has been an enormous error in libertarian thinking and is by no means a requirement of libertarian theory.

Parents have enforceable obligations towards their children because they have causal responsibility for placing the children in a state of peril as a consequence of having created them. This is the causal theory of parental responsibility. Among the competing libertarian theories of the parent-child relationship, this is the only one that provides a clear grounding both for parental obligation and parental authority.

To illustrate the concept of causal responsibility for the creation of peril, imagine I decide to create an enormous "burning man" style bonfire in my garden. The flames begin to rage out of control, which creates a risk to the neighbourhood at large. If I find the whole situation is not as entertaining as I wished and instead is getting stressful, can I legitimately just walk off and do something different instead? Or do I have a positive obligation to take whatever actions are necessary to bring the fire under control? Despite the fact that the fire has not yet damaged anyone else's property, and despite the fact that I have no contract with my neighbours pre-arranging what must be done in the event of fires, I still have a strict liability for the consequences of my own dangerous acts and I am responsible for preventing the danger from turning into harm. This means that I have an enforceable positive obligation by tort (not contract) to control the fires that I start.

It is the actions of the parents themselves (regardless of intent) that grounds their obligation towards the child. Similarly, it is the obligation to relieve the child from peril that gives the parent authority to act on that obligation, and also sets clear limits for that authority.

Parental Obligation Does Not Imply General Welfare

Murphy seems to share the concern that Rothbard had that to accept parental obligations would open the door to accepting generalised obligations of welfare. Again, on this point Rothbard was unfortunately just wrong. There is nothing in libertarian theory that prevents an acceptance of tort liability for one's actions. Accepting that you are responsible for the consequences of your own actions does not entail a responsibility for humanity at large, nor does it imply responsibility for anyone at all except those directly impacted by the consequences of your actions.

The Principle of Parental Responsibility is Libertarian

Although still a minority position among libertarians, the principle of parental responsibility has the advantage not only of being correct but also of leading to all the reasonable conclusions that Murphy would expect from a theory of the parent-child relationship. Stephan Kinsella has advocated this principle in his book Legal Foundations of a Free Society. In the past, the principle was expressed by libertarians such as Doris Gordon and Nathaniel Branden (although Branden did not accept all the logical consequences). It has been set out by various philosophers as far back as the eighteenth century. I hope Bob Murphy becomes another libertarian advocate of this principle.

The Theory Of Acquired Rights Violates Hoppe's Specificity Principle

Libertarians disagree about whether rights are inherent or acquired. In order to judge which theory of rights is valid, both theories must be evaluated against libertarian meta-ethical principles.

A fundamental principle of libertarian meta-ethics is that all property rights must be specific to individuals at definite points in time. This means that any property rule must provide a way to clearly identify the particular individual who has a property right and also provide a way to clearly identify the points in time when this right is valid. Let's call this The Specificity Principle.

Hans-Hermann Hoppe identified this principle. It is one of the meta-ethical principles of his framework of Argumentation Ethics. All the meta-ethical principles put forward by Hoppe in this framework have two key features:

1. The principle must be accepted in argument, since it is logically derived from the act of argument itself and therefore is undeniable without contradiction:
2. Any proposed property right is demonstrably unworkable a priori unless it conforms to the principle.

Hoppe showed how both these characteristics apply to the specificity principle:

Nobody can wait and suspend acting until everyone of an indeterminate class of late-comers happens to appear and agree to what one wants to do. Rather, insofar as a person finds himself alone, he must be able to act, to use, produce, consume goods straightaway, prior to any agreement with people who are simply not around yet (and perhaps never will be). And insofar as a person finds himself in the company of others and there is conflict over how to use a given scarce resource, he must be able to resolve the problem at a definite point in time with a definite number of people instead of having to wait unspecified periods of time for unspecified numbers of people. Simply in order to survive, then, which is a prerequisite to arguing in favor of or against anything, property rights cannot be conceived of as being timeless and nonspecific regarding the number of people concerned. Rather, they must necessarily be thought of as originating through acting at definite points in time for definite acting individuals.

- Hans-Hermann Hoppe, A Theory of Socialism and Capitalism

The theory of acquired rights is not specific about when a child becomes a self owner

According to the theory of acquired rights, humans only have rights when they possess some characteristic or ability that confers rights-worthiness. However, there is no consensus on what exactly the characteristic or capability is. This fails to comply with the specificity principle because the theory of acquired rights is not specific about when a child becomes a self owner.

The specificity principle states that one must be able to point to a specific owner of a property right at any given time. Yet the theory of acquired rights does not do this. Almost all leading proponents of the theory of acquired rights acknowledge that their theory is ambiguous about when an individual becomes a self owner.

The ambiguity is shown in the way that they defend abortion. Their argument is:

1. Some abortions are not murder (because the child is not a self owner).
2. Some abortions are murder (because the child is a self owner).
3. There is not a clear boundary between these two categories.
4. In any disputed case, someone will have to determine whether or not an abortion is justified (the theory of acquired rights does not provide an objective basis to answer this a priori).
5. Therefore abortion is justified, unless someone determines that it is not.

This vagueness is not how rights work. A valid theory of rights is supposed to be deducible by the agents on the ground who are making moral decisions. Yet advocates of the theory of acquired rights are quite content to acknowledge that they don't know when a child becomes a self owner. Here are some examples.

Tibor Machan openly admitted that he doesn't know when an individual becomes "a human being":

Finally, something more must be said about the grey area of borderline cases. The best solution to this problem is probably to provide a forum for debate. Given the seriousness of what is at stake, the courts—the judicial system—would seem to be the appropriate forum. When someone believes that a planned abortion could involve the killing of a human being—for example, at a very late stage of pregnancy—it might be appropriate to ask for a hearing on the matter.

-The Morality of Non-Interference by Tibor Machan

Judith Jarvis Thompson, author of the most influential philosophical defence of abortion, openly conceded that some abortions are unjustifiable killings but failed to identify what determined the validity of any particular case. She defended abortion but abdicated all responsibility for providing a clear moral rule by breezily saying that there is "room for much discussion":

there are some cases in which the unborn person has a right to the use of its mother’s body, and therefore some cases in which abortion is unjust killing. There is room for much discussion and argument as to precisely which, if any. At any rate the argument certainly does not establish that all abortion is unjust killing.

-A Defense of Abortion by Judith Jarvis Thomson

Stephan Kinsella simply assumes that a zygote cannot have rights but that an unborn child in late pregnancy does have rights, but gives no rule as to how to determine when rights acquisition occurs:

it seems obvious to me that a one-day old zygote has no rights yet, even though it is a potential human person, and biologically a “human life.”It also seems obvious to me that infants have rights, so that infanticide is murder. And that there is little difference between late-term abortion and infanticide

- Legal Foundations of a Free Society by Stephan Kinsella

To make a valid property rule, you have to specify which individual holds the property right and identify the points in time when he has these rights. If you don't specify these things, you've done it wrong and your property rule is invalid. This is the case with the theory of acquired rights. The property rule "children come to own themselves at some point before birth but it is unclear when" is a badly-formulated and invalid property rule.

Advocates of the theory of acquired rights sometimes resort to the defence that it is not their fault that the start of personhood or rights is unspecific, this is merely a reflection of the nature of things. They argue that fetuses become rights-bearing individuals at some point, but there is no way to provide a clear cutoff since it is a gradual process that cannot be made into a binary in a non-arbitrary way. Therefore it is impossible to be specific about when the child becomes a self owner.

This is not true. The ambiguity in this theory is not imposed by nature, it is chosen. At least for some advocates, the choice seems to be the result of motivated reasoning. Whatever the reason, such ambiguity is objectively unnecessary since there is a valid formulation of rights theory that is unambiguous. It is possible to identify an objective point at which a child becomes a self owner. The theory of inherent rights does this.

The Theory of Inherent Rights Conforms To The Specificity Principle

According to the theory of inherent rights, individuals have rights from the moment they come into existence. Unlike the theory of acquired rights, there is no vague and unspecified transition between a parent "owning" a child and a child becoming a self owner. Every individual is a self owner from the moment he comes into existence without ambiguity.

The theory of inherent rights provides an objective and definite temporal start to rights, and therefore is in compliance with Hoppe's specificity principle. The objective start is conception. As the philosopher Richard Werner pointed out, there is a non-arbitrary difference between two gametes prior to conception and a zygote after conception:

unlike the fetus immediately prior to birth and the baby immediately afterward, there is a significant and important difference between the ovum or sperm immediately before fertilization and the zygote immediately afterward. Given the proper environment the embryo, qua itself, is a growing developing organism. All things being equal, the zygote will grow into a person. On the other hand, the ovum or sperm qua itself is neither growing nor developing no matter what sort of environment one should find it, or put it into. A gamete will not, by itself, grow into anything other than what it already is— a gamete. In this sense it is inert and, thereby, nonhuman. A necessary condition of the ovum becoming human is that it begin to grow and develop into a person, that it be fertilized by a sperm cell. Otherwise, it remains inert never developing or growing into anything whatever and, as such, is no more a human being than is one of my red blood cells. Admittedly an acorn is not an oak, nor is an ovum or sperm cell human, but an acorn germinated in the soil is indeed an oak and so is the impregnated ovum a human.

- Abortion The Moral Status of the Unborn by Richard Werner

Of the competing libertarian rights theories, only the theory of inherent rights is consistent with libertarian meta-ethical principles. Therefore rights are inherent, not acquired.

All Rights Are Human Rights and All Human Rights Are Property Rights

Parents who want to act ethically need to have a set of philosophical principles. They need principles to understand their role and to guide their actions towards their children. Here are some key philosophical questions that parents need answers for:

1. Do parents have enforceable obligations towards their children? Why?
2. Are children rights-bearing individuals (i.e. self owners)? Why?
3. Do parents have authority over their children? Why?

Libertarian philosophy, built on classical liberalism and the Enlightenment, ought to be able to provide parents with a clear framework to answer all these questions. However, for whatever reason, addressing questions related to children and the family has been the weakest aspect of libertarian thought. Attempts to apply libertarian theory to the family have been fraught with contradictions and sometimes justly subject to ridicule. This is strange, since it did not have to be this way.

Libertarianism can provide a coherent moral framework for parents. It can do this through the concept of rights. A core insight of the libertarian theory of rights is that all rights are human rights and all human rights are property rights.

The concept of property rights is the foundation of ethics. The root of all conflict is the fundamental problem of scarcity: in the nature of our universe, scarcity is unavoidable and therefore conflict over scarce things is always a possibility. Ethics enables peaceful cooperation within our universe of scarce resources through the mechanism of objective property rights. The function of property is to prevent conflict by assigning exclusive rights over scarce resources. Property rights are therefore necessary to make conflict-free interaction possible. You cannot have ethics without property rights. You cannot have a peaceful society without objective property rights.

Since property rights govern who can legitimately control scarce things, and human beings themselves are scarce, property rights also apply to human beings. Another great libertarian insight is that humans are self owners: each individual is the rightful owner of his body since he has the best objective claim to ownership. The implications of this insight for adults have been well established in libertarian thought, but there has always been a difficulty in applying the principles to family situations. Are children self owners? If so, what gives parents authority over children? If parents are self owners, how can children have a claim against their parents for obligations towards them?

In attempting to answer these questions, libertarians are divided among competing theories of the nature of parental obligations and competing theories of the nature of children's rights. My project on this blog is to assess these competing theories and identify which among them is both compatible with libertarian principles and indisputable in argument.

This project immediately gives rise to two questions:

1. How can one assess competing ethical theories? Any such assessment presumes some kind of meta-ethical rules for determining what makes an ethical theory valid. What should those meta-ethical rules be and why should anyone accept them?
2. Why should anyone accept any ethical principles relating to the family anyway, given Hume's insight that you cannot get an ought from an is.

These questions will be the subject of future posts.

Consequentialist Arguments Against Inherent Rights

In previous articles I have addressed two arguments against inherent rights: the presumption that inherent rights must be based on religious dogma and variations on the argument from incredulity. This article addresses consequentialist arguments against inherent rights.

All consequentialist arguments against inherent rights are variations on the following core argument: If it is true that individuals have inherent rights, I/we won't be able to do certain things that I/we deem very important. Therefore individuals do not have inherent rights.

I find this argument such a shameless case of motivated reasoning that I am surprised by how many people are willing to make it. Yet it can be seen on blatant display in consequentialist arguments against inherent rights. There are two main variants:

1. Recognising inherent rights would limit population control, therefore individuals don't have inherent rights
2. Recognising inherent rights would prevent abortion, therefore individuals don't have inherent rights

The Population Control Argument

The population control argument against inherent rights is essentially this:

1. Population control is important/necessary.
2. We need to use infanticide for population control.
3. Infanticide is not possible if rights are recognised as inherent.
4. Therefore rights are not inherent.

Jan Narveson makes the argument that it is "not reasonable" to recognise the inherent rights of "all and sundry newborns" because infanticide may be required for population control:

infanticide has been a recognized social practice in many human societies, not only in much earlier times but in a few societies even now. Infanticide as a method of population control has been frequent, and as a sort of rough eugenic practice perhaps even more so… whatever one’s instinctive reaction to the contemplation of infanticide may be, it is not a reflection of a universal human feeling, even in the sense of one that has been typical in every culture and society. This suggests that the circumstances of those societies have something to do with it. And that seems to me to be as it should be. In a society of very limited resources, where life is harsh, people cannot afford to devote those resources to the sickly or lame; in a society where the food supply is just equal to the population as is, expansion of population is everyone’s enemy. It is not reasonable to grant strong positive rights to life to all and sundry newborns in such circumstances. - Jan Narveson, The Libertarian Idea

In this excerpt, Narveson is attempting to bolster his consequentialist case for infanticide with a fallacious argument from authority, suggesting that infanticide should be considered legitimate since it has been a recognized social practice in many human societies. It is an appeal to social proof.

As an advocate of the theory of acquired rights, Peter Singer makes numerous arguments against inherent rights. Among these, he includes the consequentialist argument about population control. Like Narveson, Singer is also fan of the "other people do it" argument for infanticide. He invokes the argument from authority by noting that highly-regarded ancient philosophers justified infanticide on grounds of population control:

Not to kill a deformed or sickly infant was often regarded as wrong, and infanticide was probably the first, and in several societies the only, form of population control. We might think that we are more 'civilized' than these 'primitive' peoples, but it is not easy to feel confident that we are more civilized than the best Greek and Roman moralists, nor than the highly sophisticated civilizations of China and Japan. In ancient Greece, it was not just the Spartans who exposed their infants on hillsides: both Plato and Aristotle recommended the killing of deformed infants. Romans like Seneca, whose compassionate moral sense strikes the modern reader (or me, anyway) as superior to that of the early and mediaeval Christian writers, also thought infanticide the natural and humane solution to the problem posed by sick and deformed babies. The change in Western attitudes to infanticide since Roman times is, like the doctrine of the sanctity of human life of which it is a part, a product of Christianity. Perhaps it is now possible to think about these issues without assuming the Christian moral framework that has, for so long, prevented any fundamental reassessment. - Peter Singer, Practical Ethics

Singer combines both the population control argument and the abortion argument against inherent rights. He takes it as given that population control is necessary and argues that abortion is just as valid as any other method:

to argue against abortion on the grounds that it prevents beings of high intrinsic value coming into the world is implicitly to condemn practices that reduce the future human population: contraception, whether by 'artificial' means or by 'natural' means such as abstinence on days when the woman is likely to be fertile, and also celibacy. This argument does not provide any reason for thinking abortion worse than any other means of population control. If the world is already overpopulated, the argument provides no reason at all against abortion.

Singer is attacking a straw man of the argument for inherent rights. Abortion is not wrong because "it prevents beings of high intrinsic value coming into the world", it is wrong because it involves killing a rights-bearing individual who is already in the world. Individuals already exist inside the womb. When a baby is born it is changing location, not coming into existence.

Singer's consequentialist argument for infanticide via abortion comes down to this:

1. Population control is necessary
2. Everyone accepts some forms of population control as legitimate (e.g. contraception, abstinence, and celibacy).
3. Abortion is just another form of population control.
4. Therefore abortion is legitimate.
5. Abortion is incompatible with inherent rights.
6. Therefore rights cannot be inherent.

There is an obvious flaw in this argument. Just because contraception, abstinence, and celibacy prevent population growth and are morally legitimate practices, this does not imply that any practice that prevents population increase is morally legitimate. Shooting people at random prevents population growth; Singer would not apply the same logic to argue that this must also be legitimate.

Paul Ehrlich, loser of the Simon–Ehrlich wager, was responsible for an influential 1968 book The Population Bomb. Alongside its inaccurate assertions and failed predictions, the book called for "compulsory birth regulation" in pursuit of population control. Ehrlich saw abortion as a legitimate tool of population control and expressed outrage that the UN was not yet encouraging it at the time:

Abortion is a highly effective weapon in the armory of population control. It is condemned by many family planning groups, which are notorious for pussyfooting about methodology, despite their beginning 60 years ago as revolutionary social pioneers. The United Nations, for instance, does not include abortion in family planning. Quite the contrary, the U.N. justifies family planning as a method of combating abortion!

Ehrlich's consequentialist argument for abortion is that unwanted children will only lead miserable lives if allowed to live and will also contribute to the destruction of humanity, therefore it is good to kill them:

in many cases abortion is much more desirable than childbirth. Above all, biologists must take the side of the hungry billions of living human beings today and tomorrow, not the side of potential human beings. Remember, unless their numbers are limited, if those potential human beings are born, they will at best lead miserable lives and die young. We cannot permit the destruction of humanity to be abetted by a doctrine conceived in total ignorance of the biological facts of life.

Ehrlich's book was extremely influential, for example in the development of China's one child policy between 1979 and 2015. The one child policy included forced abortions.

The population control argument is based on false premises. The looming demographic problem is not population growth but population collapse. However, even if one were to accept the incorrect premise that population control is good or necessary, it simply does not follow that killing babies is ethically valid.

Infanticide is not required to prevent the creation of children. Preventing the creation of children is not something that requires action, on the contrary, it is the result of inaction. Children do not just show up, they are created by the actions of the man and woman- the mother and father- who make their gametes available for fusion. If you make your gametes available for fusion, you are responsible for the consequences of your actions. If you don't want to create children, don't make your gametes available for fusion.

When a man and woman create a child, they have put a child in a state of peril. The fact that they did not intend to create the child does not remove them from moral responsibility for the consequences of their actions. The fact that they cannot afford the consequences of their actions does not remove them from moral responsibility for the consequences of their actions. It may be unwise for some people to have children, but this fact does not justify denying rights to children who have nonetheless been created. It does not justify any form of infanticide. The population control argument against inherent rights is morally absurd.

The Abortion Argument

The use of motivated reasoning is even more blatant when it comes to arguing against inherent rights on consequentialist grounds relating to abortion. As a reminder, the basic form of all consequentialist arguments against inherent rights is this: If it is true that individuals have inherent rights, I/we won't be able to do certain things that I/we deem very important. Therefore individuals do not have inherent rights. The abortion argument tracks this format exactly. Laura Purdy set out the argument bluntly when she argued simply that unborn children cannot have rights because it would prevent abortions:

Consider the consequences for women if society grants equal rights to fetuses: most abortions would unjustifiably be prohibited. In general, then, despite the advantages of adopting more inclusive standards, we cannot be blind to the possibly overridingly bad consequences of doing so. -Laura M. Purdy, In Their Best Interest? The Case Against Equal Rights for Children

Mary Ann Warren provided a more detailed exposition of this argument against inherent rights:

we need to be careful not to burden human moral agents with obligations that they cannot possibly fulfill, except at unacceptably great cost to their own well-being and that of those they care about. Women often cannot complete unwanted pregnancies, except at intolerable mental, physical, and economic cost to themselves and their families. And heterosexual intercourse is too important a part of the social lives of most men and women to be reserved for times when pregnancy is an acceptable outcome. - Mary Anne Warren, “On the Moral and Legal Status of Abortion” in Ethics in Practice, ed. Hugh LaFolette

Warren's argument against inherent rights is essentially:

1. Men and women need to be able to have heterosexual sex without encountering the risk of having to raise a child as a result.
2. The removal of this risk requires abortion to be available.
3. Abortion is not compatible with inherent rights.
4. Therefore inherent rights are invalid.

There is an utter contempt for the lives of children behind all consequentialist arguments against inherent rights. This contempt is often somewhat disguised, but in some cases it is stated openly. Sharon Presley and Robert Cooke argued that a pregnant woman has the right to insist not merely on removal of the unborn child but also on the killing of it, because letting the child live would have "psychological significance" for the woman. These "libertarians" make an extraordinarily aggressive and bloodthirsty argument:

If the fetus is removed and raised independently, as Block suggests, the woman is still the biological mother with all the psychological significance that implies… But, we maintain, a woman's right to self-determination includes the right to refuse to bear a child as long as that choice is still physically open to her… If a woman has a right to abort a fetus at any point prior to birth, this also implies the right to terminate the life of the fetus as well. Abortion is not a discrete act; it is an ongoing process that begins within the woman's body and continues outside it. If she has a right to the procedure of abortion, she has a right to the entire procedure otherwise the so-called right is meaningless. Since the purpose of abortion is not just to terminate the pregnancy but to avoid bearing the child, what is necessary is not just the removal of the fetus (otherwise she could just bring it to term and give it up for adoption), but its death.  - Sharon Presley & Robert Cooke, The Right To Abortion: A Libertarian Defence

Presley and Cooke are asserting that unwanted children must die to satisfy the psychological needs of their mothers. The reprehensible contempt for the lives of children necessary to make such an argument is clear when it is stated so openly. However, the same contempt underlies all consequentialist arguments against inherent rights.

Motivated Reasoning

Underlying all consequentialist arguments about which rights to recognise is the positivist assumption that rights are essentially arbitrary. This is the belief that we may choose to recognise whichever rights we all agree to recognise. Consequentialists think they can choose which rights to recognise on the basis of which outcome they want (and think they will achieve). This is to misconceive the very purpose of ethics, which is to provide a means for the peaceful resolution of all potential conflict. In order to resolve conflicts without aggression one must appeal to objective rules grounded in incontrovertible arguments. Valid rights are not merely chosen arbitrarily, they are discovered through reasoned argument.

The whole line of argument- that children do not have inherent rights because that would prevent us from doing things we deem important- makes this positivist assumption that rights should be allocated arbitrarily on the basis of desired outcome. The approach starts with a desired outcome in mind and then arbitrarily retrofits the ethical rules that will create that outcome. When the desired outcome is infanticide for population control, the arguer works backwards to the conclusion that children do not have rights. Similarly, when the desired outcome is exterminating unwanted children with abortion, the arguer works backwards to the conclusion that unborn children do not have rights.

This is blatant motivated reasoning. The utility of a claim does not make it valid. Whether you desire a particular outcome has no bearing on whether you are justified to deny an individual's rights in order to create that outcome. Whether rights are valid or not depends on whether they are argumentatively indisputable without contradiction, not whether they lead to what you want.

Opponents of Parental Responsibility Cannot Help Conceding The Argument

Any author who writes about the philosophy of the family long enough ends up conceding the principle that parents have causal responsibility for their children. This principle is so undeniable that even those who oppose it cannot help eventually making the argument for it in spite of themselves. Here are some examples.

Judith Jarvis Thomson

Judith Jarvis Thomson's highly influential Defense of Abortion was based on the argument that parents have no causal positive obligations, they may only have voluntarily accepted obligations:

Surely we do not have any such "special responsibility" for a person unless we have assumed it, explicitly or implicitly. If a set of parents do not try to prevent pregnancy, do not obtain an abortion, but rather take it home with them, then they have assumed responsibility for it, they have given it rights, and they cannot now withdraw support from it at the cost of its life because they now find it difficult to go on providing for it. But if they have taken all reasonable precautions against having a child, they do not simply by virtue of their biological relationship to the child who comes into existence have a special responsibility for it.

This argument by Thomson was highly influential on Rothbard, Brake, and many other opponents of causal parental obligation. Yet in the very same article, Thomson concedes the principle that parents have causal responsibility for the children that they create (at least in some cases):

Suppose a woman voluntarily indulges in intercourse, knowing of the chance it will issue in pregnancy, and she does become pregnant; is she not in part responsible for the presence of the unborn person inside her? No doubt she did not invite it in. But doesn’t her partial responsibility for its being there itself give it a right to the use of her body? … there are some cases in which the unborn person has a right to the use of its mother’s body, and therefore some cases in which abortion is unjust killing. There is room for much discussion and argument as to precisely which, if any. At any rate the argument certainly does not establish that all abortion is unjust killing.

Having conceded the principle of causal parental obligation, Thomson's fallback objection is that it does not apply in all cases. Not only does she completely avoid the most essential question (what determines the exceptions?) but she tries to reverse the burden of proof by arguing that since abortion may not be unjust killing in all cases, therefore abortion is justified. On the contrary, since she has conceded that any given abortion may be unjust killing, it must therefore be considered prima facie illegitimate unless proven otherwise. Mary Meehan's hunter analogy illustrates the fallacy of Thomson's line of argument:

Hunters notice movement in a thicket, but don’t know whether it is caused by a deer or another human being. If they shoot without determining the facts, and kill a human, they are guilty of homicide. Many abortion supporters say they cannot find out, yet they are willing to shoot anyway.

Murray Rothbard

Murray Rothbard argued that parents have no enforceable obligations to their children, on the grounds that the combination of creating someone and them being helpless does not generate obligation. Yet he clearly set out the case for parental obligation based on responsibility for creating a child who is (as a result of being created) placed in a state of helplessness:

The moral duty or responsibility of the parents to their children stems also from their act of voluntary creation, from their responsibility for bringing helpless babies into the world. Their moral responsibility is to raise these children, to bring them from their natural state of infant dependency to the status of rational, self-owning, independent adults. Their moral responsibility is to rear the children to the status of independence. What, then, does this imply? It implies caring, provision of food, shelter, education, etc., to the best of the parents' love and ability.

When Rothbard used the words "moral" duty, he meant by this that the obligation is not enforcible. By this he means that it is a matter of personal virtue only. Why should this be only a moral duty and not an enforcible one? Rothbard does not explain. If you remove the word moral, Rothbard has set out the case for enforcible parental obligations.

Elizabeth Brake

Elizabeth Brake is one of the main advocates for the theory that parental obligations arise only as a result of voluntary acceptance, and not as a result of actions taken by the parents. Yet in setting out her case, Brake concedes the causal argument. She accepts that procreation creates obligations (she calls these "procreative costs"). She argues that since what she calls "procreative costs" may not be identical to the parental obligations that are socially accepted by modern American culture, this proves that parental obligations are not created by the causal actions of the parent. It proves nothing of the sort.

Brake thinks the decisive argument is whether or not causal responsibility would give rise to the same conventional obligations as those in any particular culture. On the contrary, the point is that the causal responsibility of parents gives rise to an objective standard for obligations. It doesn't matter what the particular fashions are for parental behaviour towards children. Cultural conventions can include all sorts of acts by parents that are philosophically unjustifiable, for example circumcising infants. What matters is the objective requirement of the child to be removed from peril by being raised to self-sufficiency in adulthood. Parental obligations are as extensive as necessary to meet that objective requirement, including a child's psychological needs such as love, affection, attention, safe boundaries, encouragement etc. Yet they would also exclude all local conventions that cannot be objectively justified.

Since Brake's objection that causal parental obligations might not map exactly onto local conventions is irrelevant, what is left is her admission that the principle of causal obligations itself is valid. Brake accepts parental "obligations entailed by moral responsibility for a child's existence". She concedes that "parental obligations arise… for having placed the child in a needy situation in which its right to a minimally decent life is threatened". The fact that she chooses her own terminology of "procreative costs" is immaterial. She has accepted the basic principle that parents do have responsibility for the consequences of their actions, regardless of their intentions.

Having accepted this causal principle, Brake's own logic should compel her to reject the validity of abortion, since abortion is incompatible with such obligations. Yet she accepts both parental obligations and abortion. Such a clear contradiction can only be maintained if one is to take the position that parents have not yet caused a child to exist until they decide not to abort the child. This is to pursue motivated reasoning into the realm of absurdity.

Roderick Long

Roderick Long is another opponent of the causal responsibility of parents. Like Brake, Long argues that parental obligations can only be voluntary. Yet he also sets out the causal argument. In creating a child, the parents have put him in mortal danger and this is why parenting is a positive obligation resulting from causal action. Long concedes the principle that if someone puts another in danger and fails to act, that would be a homicide, so he concedes the existence of an obligation created in this way:

If S voluntarily places O in a situation where S’s failure to take positive action on O’s behalf will result in O’s death, then such a failure on S’s part is a killing, not merely a letting-die.”

He acknowledges that one may acquire positive obligations as a result of the consequences of one's actions, even if those consequences were unintended:

negative rights generate derivative positive rights. If you (intentionally or accidentally) take my umbrella, you acquire an enforceable obligation to take positive steps to return it to me

He also sets out the case for how enforceable positive obligations can arise by the creation of peril:

suppose Frieda is careening around the corner in her Lamborghini and suddenly sees Roscoe ambling across the road a short distance ahead. At her current speed, she has only two choices: (a) she can run over Roscoe, or (b) she can swerve around him. Running over Roscoe would be a violation of his negative rights; so Frieda has an enforceable obligation not to run over him. In the circumstances, what that amounts to is an enforceable obligation to swerve around him. But that obligation is not an obligation to sit back and do nothing; it is an obligation to take positive action, and a very specific positive action at that: she must turn the steering wheel in order to avoid running over Roscoe. Here we have a case, then, in which Frieda has an enforceable obligation to take positive action on Roscoe’s behalf – but only because that is the only way she can avoid violating her negative obligation not to treat Roscoe as a mere means. Roscoe’s right against Frieda not to be run over has generated, in the circumstances, a further right against her that she turn the wheel in a certain way.

This logic applies directly to parents. If a man and a woman engage in consensual sex and create a child, whether they intended to or not they have changed the state of the universe from one in which no child was in mortal peril to one in which a child is in mortal peril. They are thereby just as obliged to remove the child from peril as Long's Lamborghini driver is obliged to avoid hitting the pedestrian.

These authors all oppose the principle of causal parental obligations even though they also inadvertently set out the argument for it. They oppose it because they are engaged in motivated reasoning. All four authors understand that accepting the principle of parental obligations is incompatible with abortion. They consider a defence of abortion to be a core principle, so they refuse to accept the principle of causal parental obligations. Even when they make the argument for it despite themselves.

A Critique of Rothbard's Theory Of Parental Ownership

Self ownership is a central principle of libertarian philosophy. Individuals own themselves and this ownership right is inalienable. Therefore, individuals cannot be owned as property. If this is a principle, it applies in all cases. However, many libertarians are unclear on whether the principle applies to children, especially infants. Do babies own themselves?

A minority of libertarian writers have advocated the theory that parents own their children as property. Benjamin Tucker stated the idea bluntly:

the unemancipated child is the property of its mother, of which, by an obvious corollary, she may dispose as freely as she may dispose of any other property belonging to her.

This position is clear: babies are property in the same way that slaves are. This is a bizarre argument for a "libertarian" to make and most other libertarians rightly criticise it. One critic of this position was Murray Rothbard, who wrote:

It is grotesque to think that the parents can actually own the child’s body as well as physical property; it is advocating slavery and denying the fundamental right of self-ownership to permit such ownership of others, regardless of age.

Yet Rothbard himself advocated a version of parental ownership, contradicting his own argument that children cannot be owned. This article provides a critique of Rothbard's theory of parental ownership.

Rothbard's Conflicting Arguments on Parental Ownership

The reason Rothbard gives for parental ownership is that children cannot be self owners:

First, we may say that the parents—or rather the mother, who is the only certain and visible parent—as the creators of the baby become its owners. A newborn baby cannot be an existent self-owner in any sense. Therefore, either the mother or some other party or parties may be the baby’s owner

Why can't a baby be a self owner? Rothbard does not elaborate but his reasoning seems to be that their inability to exercise control means that they cannot be rightful owners. In Egalitarianism As A Revolt Against Nature, he argues that rights come from the power to use them and babies don't have this power:

It is evident that the baby has no de facto power of self-ownership; and since adult rights in natural law derive from adult powers and faculties, who does own the baby? … During the early years of babyhood, when the child is helpless and has few if any powers of self-ownership, he indeed becomes a kind of property of his creators, his parents.

The fact that babies are unable to control their bodies in anything more than a rudimentary way does not invalidate their legitimate ownership of their bodies. One must recognise the distinction between legitimate ownership and de facto control to have a theory of property rights. Without this distinction one is left with the belief that might is right. If someone steals my car, I am not capable of controlling the vehicle at all. Nonetheless I am still the rightful owner. Therefore Rothbard's argument that rightful ownership comes from de facto control must be incorrect.

To complicate matters, Rothbard also argues that babies have a right to self ownership:

In short, every baby, as soon as it is born and is therefore no longer contained within his mother's body, possesses the right of self-ownership by virtue of being a separate entity and a potential adult. It must therefore be illegal and a violation of the child's rights for a parent to aggress against his person by mutilating, torturing, murdering him, etc.

So we have four conflicting propositions from Rothbard:

1. It is "grotesque" to think that the parents can own children
2. A newborn baby cannot be an existent self-owner in any sense
3. The mother is the rightful owner of the baby
4. Babies possess the right of self-ownership

Why did Rothbard seem to contradict himself by arguing that babies cannot be self owners and also arguing that babies have a right to self ownership? I believe that what he was getting at in an unclear way is that babies are unable to exercise effective self ownership and therefore somebody else has to be their owner for their own good.

However, as already discussed, being unable to exercise control over your property right does not invalidate your right to it. Babies are self owners, even when they are helpless and incapable ones.

Individuals Cannot Be Homesteaded

Rothbard assumes that a baby is something that can be homesteaded. He refers to the mother as "its natural or “homesteading” owner". Why does the mother get to homestead the baby but the baby not get to homestead itself? If homesteading were the way that ownership of babies is allocated then the baby's lack of ability to control itself would explain why Rothbard thinks the mother does the homesteading. Here is Rothbard's line of reasoning:

1. Property rights are allocated by the process of homesteading, whereby an individual takes ownership of a previously unowned resources through demonstrative physical acts. Examples of these demonstrative acts include physically taking hold of a resource or creating a border around it.
2. Infants are incapable of homesteading something since they cannot demonstrate taking ownership through physical acts.
3. Therefore infants cannot be property owners.
4. Therefore infants cannot be self owners.

The implicit assumption in this argument is that homesteading is the method of establishing self ownership. But homesteading is not the only way to allocate property rights. Property rights are rightfully assigned to the person with the best objective link. For unowned physical objects, the best objective link is demonstrated by first-use homesteading. However, homesteading cannot be used to establish self ownership since the acts required for homesteading presuppose recognition of self ownership.

Each individual has the best objective link for ownership of their own body. This is the objective rule used for establishing self ownership. Babies own themselves because nobody else has a better objective claim to own them. The best objective link is not dependent on the capabilities of the baby. It doesn't matter if babies cannot yet argue a syllogism or advocate for their rights, they still have the objectively better claim to be the owners of their own body simply because they are the inhabitants of that body.

Furthermore, the idea of a mother owning a baby and then the baby acquiring ownership is logically flawed. You cannot acquire ownership of yourself because you cannot homestead anything unless you already have self ownership. So how is a baby supposed to acquire self ownership? Self ownership must be presumed from the get-go as the only non-contradictory basis for libertarian ethics. All other libertarian principles, such as homesteading, depend on the assumption of self-ownership. There is no way to come up with a non-contradictory account of an individual starting as property and becoming a self owner.

Rothbard's Two Models Of Limited Parental Ownership

Rothbard goes on to argue that although parents own their children, they only have a limited kind of ownership:

But surely the mother or parents may not receive the ownership of the child in absolute fee simple, because that would imply the bizarre state of affairs that a fifty-year old adult would be subject to the absolute and unquestioned jurisdiction of his seventy-year-old parent. So the parental property right must be limited in time. But it also must be limited in kind, for it surely would be grotesque for a libertarian who believes in the right of self-ownership to advocate the right of a parent to murder or torture his or her children. We must therefore state that, even from birth, the parental ownership is not absolute but of a "trustee" or guardianship kind.

This leaves a lot of open questions. Firstly, Rothbard mentions two possible analogies of the parental ownership role: trustee or guardian. He does not specify which, and there is a difference in the implications for self ownership.

A trustee holds legal title to the trust property, albeit not beneficial title. This means that a trustee does "own" the trust property legally, but this ownership is not absolute. This sounds exactly like the kind of limited ownership model that Rothbard is advocating. If the parent is a trustee, the implication for the question of ownership is indeed that the child is not a self owner. This model would explain why Rothbard thought that he needed to argue that parents own their children.

In contrast, guardians do not own the assets of their wards; they merely manage them on behalf of the ward. The ward retains ownership of his property, but the guardian has the authority to manage the property on his behalf and is obligated to act in the best interests of the ward. If the parent is a guardian, the implication for the question of ownership is that the child is a self owner. The child remains a self owner even while he is temporarily under the tutelage of the parent. This is an accurate characterisation of the parent child relationship, but if Rothbard was thinking of this model then he would not need to argue that parents own their children.

What Was Rothbard Trying To Achieve?

Rothbard had three conflicting goals in his theory of parental ownership:

1. He wanted to protect the family from outside interference.
2. He wanted a mechanism for parents to have authority over their children.
3. At the same time, he wanted to deny enforceable parental obligations.

Despite denying parental obligations, Rothbard still wanted his theory to legitimate the relationship between natural parents and children. In developing his theory, he was addressing the problem of how to prevent others from taking children away from their parents. Since he also chose to argue that parents have no obligations to their children, he needed an alternative mechanism to bind the child to the parents. He uses parental property rights as the basis:

to assert that a third party can claim his “ownership” over the baby would give that person the right to seize the baby by force from its natural or “homesteading” owner, its mother. The mother, then, is the natural and rightful owner of the baby, and any attempt to seize the baby by force is an invasion of her property right.

Notice how, on Rothbard's account, the only victim in cases of child abduction is the parent (and not the child), since the crime is theft of parental property. On the contrary, when one recognises parental obligations, in child abduction cases the primary victim is the child, who is being kidnapped and deprived of his legitimate claim against his parents for care.

Rothbard also wanted to defend the concept of parental authority. The child liberation movement in the 1970s advocated the view that parents do not have any legitimate authority over their children. This is arguably the logical consequence of Rothbard's own theory of parenting as charity, but Rothbard himself saw the need for parental authority:

We see here the fundamental flaw in the progressive notion that parents should allow their young children unlimited freedom to do as they wish and not to "impose" training, values, or education on them. For the young child, still not in possession of knowledge, values, self-discipline, or much rationality, is hardly in a position to be able to decide what he should be doing or wishing. Failure to function as rational "authorities" or failure to provide that training and those values to the best of their ability, is a tragic abdication of the basic parental responsibility--which is not simply to provide food and shelter but also mental and moral training.

What justifies parental authority? Rothbard invoked parental ownership of the home as the primary basis of parental authority. Parents have the right to make rules for their children in the way that any property owner can make rules for those who occupy their property (in line with basic libertarian principles). But parental ownership of the child is another mechanism Rothbard appealed to in order to justify parental authority. For Rothbard, parental authority is derived from parental ownership of the child. It is a benefit of ownership. On the contrary, if one recognises parental obligations, then parental authority is a consequence of parental obligations. Parents may only use their authority to fulfil their obligations and the obligations provide both the justification and limit of that authority.

Parental Ownership Rights Are Merely Asserted

The hole in Rothbard's theory of limited parental ownership is that it lacks any justification. The right of parents to "homestead" a limited ownership of children is merely asserted. On what grounds did Rothbard believe that children come into the world as homesteadable property in waiting? This assertion contradicts the basic libertarian principle that individuals are self owners.

His reasoning seems to be this:

1. Children are incapable.
2. Therefore somebody has to take care of them.
3. There could be conflicts over who takes care of a child.
4. Therefore the role of parent is a scarce resource and is subject to the rules of homesteading.

But why should the helplessness of a child make them ownable property? Does the helplessness of an inveterate drug addict make him subject to ownership by someone else for his own good? If not, how does Rothbard differentiate between these cases? Rothbard is engaged in a circular argument that parents own children because children need to be owned by parents. To base a theory of parental ownership on the assumption that parents can own children is begging the question.

The Core Premise At Fault

Rothbard ended up arguing himself into this corner because of a faulty premise: he was determined to argue that parents have no obligations towards their children. If you start with this premise, it creates all these unresolved questions: who has responsibility for infants? Why shouldn't someone else be allowed to become the parent if the they want to? The theory of parental responsibility provides a clear answer to all these questions, and it all starts with parental obligation based on the action of parents putting children in a state of peril by creating them. Since Rothbard rejected parental obligation, he tried to resolve these questions with a convoluted theory of children as homesteadable property. It was incorrect.

The Correct Formulation Of The Parental Role

All of these problems are resolved if you drop the faulty premise that parents do not have obligations to their children. Here is the argument:

1. By creating children, parents are responsible for their state of peril.
2. Parents therefore have an obligation as a strict liability tort to remove their children from peril. This is achieved by doing whatever is necessary to raise them to become self-sufficient adults.
3. In order to fulfil this obligation parents must take on the role of guardian. Children can only be saved from peril if parents fulfil this role. The guardianship role is not a homesteadable property right, it is an obligation resulting from creation of peril.
4. Being a guardian involves fiduciary duty and the authority to act on the children's best interests. This includes the authority to coerce the child in limited and specific circumstances: each act of coercion is only justifiable if it is clearly in fulfilment of the best interests of the child.
5. None of the this changes the status of children as self owners.

Children are self owners, even when they are babies. You are the rightful owner of yourself from the moment you are created.

The Secular Justification for Inherent Rights

One objection to the theory of inherent rights is that this concept is based on religious dogma. This argument runs as follows:

1. The theory of inherent rights is based on the concept of the sanctity of life.
2. The sanctity of life is a concept derived from religious dogma.
3. Religious dogma is rationally indefensible.
4. Any philosophically sound system of ethics must be rationally defensible.
5. Therefore inherent rights are invalid.

Peter Singer is one of the most influential proponents of this argument. He makes the argument as part of his contention that infanticide is morally acceptable and that human newborns should have less rights than some animals. He argues that one should overcome the concept of all humans having a right to life because it is not based on rational argument:

The change in Western attitudes to infanticide since Roman times is, like the doctrine of the sanctity of human life of which it is a part, a product of Christianity. Perhaps it is now possible to think about these issues without assuming the Christian moral framework that has, for so long, prevented any fundamental reassessment.

- Practical Ethics by Peter Singer

Stephan Kinsella asserts that the only possible justification for inherent rights is a religious one:

Only religious theories that assume a soul inhering in the individual from conception can really justify attributing rights to humans from day 0, i.e. from conception. For they believe the soul is both necessary and sufficient for rights; and since we have it from day 0, we have rights from day 0.

This is false. There are numerous philosophers who have made secular arguments for inherent rights. For example, Richard Werner's 1974 article Abortion: The Moral Status of the Unborn was based on entirely secular arguments. The libertarian Doris Gordon, herself an atheist, based her opposition to abortion on the secular argument of parental obligations as a result of causal action, an argument she got from the atheist Nathaniel Branden (even though Branden himself refused to accept the logical consequences of his own argument).

I am an atheist who justifies inherent rights on an entirely secular basis. As discussed in a previous post, I accept that rights are inherent because only inherent rights are compatible with the principles of libertarian meta-ethics (principles that Kinsella himself has done important work clarifying). This has nothing to do with religion. Kinsella may not be able to imagine a secular justification for inherent rights, but that is not a proof against the existence of such a justification.

This objection to inherent rights is invalid for the following reasons:

1. The philosophical argument from inherent rights is entirely independent of Christian or any other religious belief.
2. Therefore, the fact that Christianity (or any religion) holds human life to be sacred is immaterial to the philosophical question of whether rights are inherent.
3. Just because Christians conclude that it is immoral to kill unborn children based on religious dogma, this does not invalidate the secular argument that unborn children have rights.

There is an entirely secular justification for inherent rights. The argument is as follows:

1. Property rights are required to prevent conflict over scarce resources.
2. Only certain property rights are valid. The criterion for determining if a right is valid is whether it conforms to the meta-ethical rules derived from the logic of argumentation and the requirements of non-contradiction.
3. These meta-ethical rules include (a) the requirement that no rule is conflict-promoting and (b) the requirement that there must be an objective and inter-subjectively ascertainable link between specific individuals and all scarce goods at every moment in time. An unborn child's body is an example of a scarce good.
4. The theory of acquired rights violates numerous meta-ethical rules, including (a) and (b) listed above.
5. The theory of inherent rights does not violate any meta-ethical rules.
6. Therefore, the correct rights theory is the theory of inherent rights.

The Argument From Incredulity Against Inherent Rights

Libertarians argue that individuals have rights but disagree over whether rights are inherent or acquired. As I have argued elsewhere, the theory of acquired rights is not logically defensible. Only the theory of inherent rights provides libertarianism with a coherent rights theory. However, this is not the majority view among libertarians, many of whom apparently cannot believe the implications of the theory of inherent rights.

The claim that a human embryo or fetus has rights seems to be astoundingly counter-intuitive to many libertarians. Some libertarians find this idea so unimaginable that they forget to actually make an argument and merely state their own incredulity as their refutation. The result is that one of the most common objections to the theory of inherent rights made by libertarians is the argument from incredulity. This article provides some examples.

Benjamin Tucker thought that children do not have rights because they are the property of their parents. He seemed to think it persuasive that if this were not the case then a pregnant woman could not commit suicide at will:

Certainly the mother’s title to the child while it remains in her womb will not be denied by any Anarchist. To deny this would be to deny the right of the mother to commit suicide during pregnancy, and I never knew an Anarchist to deny the right of suicide.

Walter Block made almost exactly the same argument. He considers the very idea that a pregnant woman may not ethically commit suicide so preposterous as to make his case with it:

Consider the case where the mother dies while pregnant, through suicide. Wisniewski would have to consider her a murderer as well, since she had invited in the fetus, and now leaves it in the lurch, unjustifiably killing it, too. In contrast, I am not logically forced into that conclusion.

Elsewhere, Block reiterates his disbelief that anyone could hold such an argument:

no one else would make this sort of legal judgment. More important, it is simply incorrect to regard the pregnant woman who commits suicide as a murderer

Neither Tucker nor Block could conceive that there are circumstances under which it is immoral for a parent to immediately kill themselves. One wonders if they would also be incredulous of anyone who thinks that it is immoral for someone driving a vehicle at high speed on a busy street to shoot himself at the wheel, or for the pilot of a passenger aircraft to commit suicide mid flight. Would they argue that the rights of the driver and the pilot to immediate suicide override the rights of innocent bystanders not to be killed by their actions?

Wendy McElroy demonstrated her incredulity when she pointed to the implications of inherent rights for pregnant mothers who want to take drugs or go parachute jumping:

if you admit the idea that the fetus is a human being for whom the woman is legally responsible, then the woman cannot take any action to imperil the life and well-being of the fetus. Almost everything she puts into her system is automatically introduced into the system of the fetus and, if the substance is harmful, it constitutes assault upon the fetus on the same level as strapping me down and forcing drugs into my body. Moreover, life-endangering acts, such as parachute jumping, would place the unconsenting fetus in unreasonable danger. If the woman has no right to kill the fetus, she can have no right to jeopardize its life and well-being.

Amazing though it seems to McElroy, yes, the principle of parental obligations combined with the inherent rights of children implies that it is not ethical to take heroin or go BASE jumping as a pregnant woman. McElroy provided another argument from incredulity at the idea that certain types of birth control may not be morally legitimate:

Since an individual with full human rights is said to exist at the moment of fertilization and since IUDs work by disrupting fertilized eggs, women who use these devices must be guilty of attempted murder, if not murder itself. Other forms of birth control which work not by preventing fertilization but by destroying the zygote would be murder weapons and doctors who supplied them would be accessories. As absurd as this sounds, it is the logical implication of considering a zygote to be a human being.

What exactly does McElroy find absurd? Some forms of birth control work by killing unborn children and other forms work by preventing pregnancy. If unborn children have rights, then those forms of birth control that work by killing unborn children are not morally defensible. Although she does not accept this argument, I don't think McElroy could say that the argument is logically absurd. Perhaps what she finds absurd is the enormity of the implications if she were to accept the theory as valid. This is to deny an argument on the basis that it cannot possibly be true because if it were, then the implications would be shocking. That itself is another form of the argument from incredulity.

Stephan Kinsella provided a very succinct argument from incredulity regarding inherent rights:

it seems obvious to me that a one-day old zygote has no rights yet, even though it is a potential human person, and biologically a “human life.” It also seems obvious to me that infants have rights, so that infanticide is murder.

He made a similar argument back in the 1990s, where he simply assumes the conclusion:

In the case of abortion we know the endpoints: zygotes have no rights; adult humans do. Somewhere in between we develop rights.

Conclusion

Since the argument from incredulity is a logical fallacy, it is self-refuting. It is remarkably fatuous of libertarians to resort to this argument. Edward Feser's comments on the shallowness of the argument are well made:

Appealing, as is often done, to what a fetus, embryo, or zygote “looks like” is unhelpful, and even philosophically frivolous: one might claim that a table “doesn’t look like” a collection of atoms swirling about, but that’s what a table is. And in fact, a table does look like that: that is exactly what a collection of atoms swirling about looks like when it is in the form of a table. Similarly, to the charge that a fetus, at whatever stage of development, “doesn’t look like” a person or a human being, one ought to reply, “Of course it does; that’s exactly what a human being or a person looks like at one month (or one week, or whatever) of development.”

Why Do Fathers Have Parental Obligations?

One of the important logical consequences of the causal principle of parental obligations is that both the mother and father are jointly and severally liable for parental obligations to the child. Parents have obligations because they placed their children in a state of peril by causing them to exist. This creates a strict liability tort. The children have a legitimate claim on the parents to remove them from peril, which is done by raising the child to self-sufficiency in adulthood.

The action that creates parental obligation is making one's gametes available for fusion. If a man or woman engages in consensual sex or voluntarily makes gametes available for any artificial procreative procedure, then he or she has responsibility for any resultant child. This is because one has responsibility for the reasonably foreseeable consequences of one's actions, regardless of whether those consequences were desired or not.

It is hugely significant that the causal principle is the only theory of parental obligation which applies equally to mothers and fathers. All competing theories fail to obligate fathers. Since most libertarians who have written on the subject of parental obligations do not accept the causal principle of parental obligations, it is not surprising that fathers have been invisible in libertarian writing.

Rothbard's libertarian theory of parenting- I call it a theory of parenting as charity- argues that parents do not have obligations. For obvious reasons, this theory can never hold a man responsible for any children he begets. Whether he takes any responsibility for his children is his arbitrary choice. This theory of ethics also holds that the mother has no obligations, but since biological reality is that the woman gets pregnant, the effective result of implementing this ethical system in practice would be that a woman always faces the risk that she will be left to raise the child alone, since men have zero obligation.

It is easy to argue neither parent has obligations, but the fact is that a father can walk away from his unborn child whereas a pregnant mother cannot. The net effect of Rothbard's theory is to legitimise the despicable behaviour of those men who create children and then refuse to take responsibility for them, leaving the mother with all responsibility. Rothbard's theory that parents do not have positive obligations has blatantly sexist practical implications, albeit unintentionally.

The advocates of this theory do not want the theory to have such radically different implications for men and women. This is why all advocates of this theory are staunchly pro-choice (as Rothbard was). The appeal of abortion for this theory is that it addresses the practical barrier women face in declining parental obligations compared to men. Abortion supposedly offers women the chance to remove themselves from obligation, like the men can.

But this is all false. Firstly, you cannot legitimately give up parental obligations and the men are at fault for trying to do so. Secondly, killing the baby is not a legitimate choice (this is itself another logical implication of the causal principle of parental obligations). Effectively Rothbard's theory legitimises men walking away from their responsibilities as fathers, and for women it legitimises the fallback option of committing murder. This theory has many other awful logical consequences, such as the idea that child abandonment, starvation, and any kind of negligence are legitimate.

Some libertarians such as Roderick Long and Steve Horwitz advocate an alternative theory of parental obligations, but this alternative theory also has no way to obligate fathers. They argue that parents voluntarily accept parental obligations by agreeing to a tacit contract with society at large. The obvious implication of this theory is that only the parent who agrees to the contract is obliged. This logically means that the father is never obliged unless he chooses to be. Most advocates of this theory refuse to accept this clear logical consequence.

A variant of this theory argued by Roderick Long is that a father may be obligated to his child as a result of having played a role in creating the child, but the father's obligation is entirely dependent on the choices of the mother. What started out looking like an acceptance of the principle that one is responsible for the consequences of one's actions ultimately collapses into advocating that the arbitrary decree of the mother is the determinant of a father's parental obligations. The motivation behind this reasoning is to leave women the chance to remove parental obligations by abortion but prevent men from declining obligations if the woman does choose to have the baby. Whereas Rothbard's theory had sexist implications against women, Roderick Long chooses sexism against men. According to the logic of Long's double-standard theory, there is no reason why a woman could not go one further and both deny parental obligations for herself while simultaneously stipulating obligations for the father.

The idea that fathers can legitimately create children without having any responsibility towards them is absurd. Very few people actually believe this. Libertarian theory should accurately reflect that both parents have obligations to their children.

What The Declaration of Independence Should Have Said

The US Declaration of Independence is one of the most influential documents in the history of libertarianism. The preamble has had a lasting impact on the philosophy of rights:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

However, the original text does not accurately reflect later developments in the libertarian conception of rights. If it did, it might read something like this:

We hold these truths to be self-evident, that all men are equally subject to universal law, that they have certain unalienable Rights, that among these are property rights to one's body and to anything acquired by homesteading or voluntary agreement, that opposing these rights is rationally indefensible.

Some notes on the original declaration:

• It is not self-evident that all men are created equal since they are obviously not equal physically, in aptitude, in family circumstances, nor in numerous other ways. What is self-evident is the principle that regardless of the circumstances of their birth, they are equally subject to universal law.
• Self ownership includes the right to one's life, since to damage a body is an assault on that person's property. Similarly, liberty is a derivative concept of self ownership.
• The reference to happiness was a compromise (originally it was supposed to be property which is much clearer). Since every individual can be said to pursue happiness by definition, referring to the pursuit of happiness is either superfluous or irrelevant.
• In referencing property instead of happiness, it is clearer to identify the legitimate sources of property rights: self ownership as the best objective link to the body, homesteading as the objective rule for new property, and voluntary agreement for everything else.
• The reason something is self-evident is because it cannot be denied without contradiction. That was not quite true of the original preamble but is true for the suggested revision above.

Abortion is Incompatible With Parental Obligations

The causal principle of parental obligations has radical implications. As outlined in an earlier post, this principle had first been expressed in the eighteenth and nineteenth centuries, but early proponents did not identify any of the far-reaching implications of the idea. In the twentieth century, these implications started to be expressed.

The first radical implication of the causal principle to be identified is that it refutes any justification of abortion in cases of consensual sex. This implication was implicit in the arguments of philosopher Richard Werner's 1974 article Abortion: The Moral Status of the Unborn. Werner did not reference any of the previous authors who discussed the causal principle of parental obligations and it is not clear if he was influenced by them or had deduced the principle independently. However, even if not discussed explicitly, many of his arguments were directly based on this principle.

Werner's article contains a critique of Judith Jarvis Thomson's influential 1971 article A Defence of Abortion. Werner refuted Thomson's analogy between a fetus and a burglar. He pointed out that the salient principle in both cases is that the individual who acts has moral responsibility for the consequences of their actions. In the case of burglary it is the burglar who acts and is responsible, but in the case of pregnancy it is the parents who act (and not the fetus):

In Thomson's case, the burglar is acting immorally by entering the window whether it be opened or closed, locked or unlocked, barred or unbarred. It is this fact which makes us decide that the burglar, rather than the window opener who has every right to open his window, is responsible for his own wrongdoing. On the other hand, the embryo cannot be held responsible for its conception nor is it under any moral obligation not to be conceived. Whether or not it is conceived is entirely dependent on the actions of its parents. It is this fact which should make us conclude that the parents are responsible for the conception and existence of the embryo.

Werner argued that a standard of strict liability tort applies to parental obligations by analogising with firing a gun:

Even if the two take the best possible precautions against pregnancy, they still know or are accountable for knowing that these precautions are not 100% effective and that the foreseeable and natural consequences of their actions may still be an unwanted pregnancy. So, by engaging in intercourse, they are responsible for and obligated to accept the consequences of their actions. This situation is analogous to that of a man who derives great satisfaction from taking target practice with his gun. Unfortunately, he lives in a very crowded community: so he builds the most elaborately protective shooting range possible in the basement of his home. He is. nevertheless, aware that it is only 99% effective in stopping bullets and that use of the range could eventually result in the death of some innocent human. But, because of the great satisfaction he derives, he begins firing his gun in the basement anyway. Now if this man eventually kills someone, surely he is still morally responsible for their death. In firing the gun he knew that one of the foreseeable and natural consequences of his actions may be the killing of an innocent human. Like the two engaging in intercourse, this man has created a special obligation through his actions: they by engaging in intercourse, he by firing his gun in a crowded community.

Doris Gordon was the first advocate of the causal principle of parental obligations both to explicitly identify the principle and to show how it refutes the justification for abortion. Gordon had been greatly influenced by Ayn Rand and the Objectivist movement. Following Rand's staunch defence of abortion, Gordon assumed that being pro-choice was a logical outcome of Objectivist ideas. But she began to question how this could be reconciled with parental obligations.

One of the most influential Objectivists, Nathaniel Branden, had put forward a short statement on parental obligations in the Objectivist Newsletter of 1962. Although he did not express the key role that creation of peril plays in the causal principle, Branden did argue that parents have positive obligations as a result of their actions:

The key to understanding the nature of parental obligation lies in the moral principle that human beings must assume responsibility for the consequences of their actions. A child is the responsibility of his parents, because (a) they brought him into existence, and (b) a child, by nature, cannot survive independently. (The fact that the parents might not have desired the child, in a given case, is irrelevant in this context; he is nevertheless the consequence of their chosen actions– a consequence that, as a possibility, was foreseeable.) The essence of parental responsibility is: to equip the child for independent survival as an adult. This means, to provide for the child's physical and mental development and well-being: to feed, clothe and protect him; to raise him in a stable, intelligible, rational home environment, to equip him intellectually, training him to live as a rational being; to educate him to earn his livelihood (teaching him to hunt, for instance, in a primitive society; sending him to college, perhaps, in an advanced civilization).

On reading Branden's article, Doris Gordon realised that the principle of parental obligations stated by Branden cannot be reconciled with a defence of abortion. The two positions are contradictory. Yet Branden was pro-choice, as all Objectivists were. When Gordon confronted Branden with this problem he refused to discuss it or to accept the contradiction.

Gordon became an anti-abortion advocate. She saw abortion as incompatible with libertarianism in numerous ways, but the central argument she used against abortion was that it violated the principle of parental obligations. She stated this argument in her 1979 article How I Became Pro-Life: Remarks on Abortion, Parental Obligation, and the Draft:

There is no conflict of rights between mother (or father) and child because parents have an obligation to care for their children and, therefore, children have a right to that care. … If children are children before as well as after birth, then parents have the obligation to care for them, also. This means women have no right to choose to kill their unborn or to evict them from their bodies. Mothers have the obligation, instead, to house and feed them and protect them in the womb. … Conceiving children may be unintentional on our part, but having sex is usually a voluntary act and most people know getting pregnant is a possible side effect. We have some choice in the matter of creating children. It is the children who have no choice about being affected when we experience the pleasures of sex. Not only are children not responsible for the consequences of a mother's pregnancy upon herself, neither are they to blame for their need to remain in the womb. This need is something we impose upon them when we create them. The child's life and needs are a package deal. Once having brought children into a state of dependency, we have the obligation to bring them safely out. This means we must wait until they are able to come "out" safely. This also means parental obligation continues after childbirth.

Gordon started the advocacy group Libertarians for Life, arguing against abortion on secular, libertarian grounds. Other contrubutors to Libertarians for Life made similar arguments against abortion based on the principle of parental obligations. For example, in his 1991 article Why Parental Obligation?, John Walker emphasised the that it is creation of peril, not harm, that obliges parents:

When we have sex, we know there is a possibility to bring someone into existence who will be in very grave danger, who will be in harm's way. …The responsibility of parents is, then, not to recompense for any wrong done, but to make sure it doesn't happen. Because they put their kids in that position. The kids are totally dependent upon them, totally subject to their control. They put them in harms way. Well, in some sense, there is no injustice committed by being put in harm's way. The injustice happens when they let the harm befall the kid.

Doris Gordon explains why abortion is incompatible with parental obligations:

Given that human offspring begin life when conceived, and then given parental obligation, it follows that parental obligation begins not at birth but at fertilization.

To deny this, one would have to argue that parental obligations begin only at birth, or at some later point in pregnancy. This position implies that an embryo or fetus does not yet qualify as a child to whom obligations are owed. However, to make this claim, one can no longer hold that parents are causally obligated to any child that results from making their gametes available for fertilization. Instead, one must hold that, at the moment of conception, neither parent owes anything to the offspring they have created.

Once this offspring– who is owed nothing– gains recognition as a "child" at some arbitrary later point, the cause of the child's existence, and any obligation towards the child arising from it, should logically be attributed to the decision not to abort, rather than to the act of having sex. After all, as already established on this view, sex that results in conception does not generate obligations to offspring.

This is the argument made by those who advocate a theory of parenting as voluntary social contract. In his version of a voluntary parental obligations theory, Roderick Long argues that the decision not to have an abortion gives rise to parental obligations for the mother:

if a woman gives birth voluntarily (where the availability of safe, inexpensive abortion may be among the criteria of voluntariness), she has an enforceable obligation.

But this is to argue for a theory of parenting as a voluntary choice, not a causal obligation. Therefore, one cannot deny that abortion is incompatible with parental obligations without abandoning the theory of causal parental responsibility.

Where Does The Causal Theory Of Parental Obligations Come From?

The causal theory of parental obligations had odd beginnings. In the eighteenth and nineteenth centuries, the basic principles of this theory were stated by three different thinkers, yet none of these early proponents explored the wider implications of the idea. It was not until the twentieth century that a few people started to realise the enormous significance of this theory. In this post, I will outline how the theory emerged.

The earliest presentation of the causal argument for parental obligations is by the legal theorist William Blackstone in his Commentaries on the Laws of England, published in 1765. Blackstone argued that creating a child entails the obligation to care for it:

The duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation, says Pufendorf, laid on them not only by nature herself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave the children life, that they might afterwards see them perish. By begetting them therefore they have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents.

In this brief passage, Blackstone captures some essential features of the causal argument:

1. It is the actions of the parents (in creating the child) that give rise to the child being in peril.
2. If the parents were to fail to care for their children, the result would be that the child will perish.
3. Therefore the parents have an obligation to prevent this happening.

Blackstone credits Samuel Pufendorf as the source of this causal argument, but it is not clear that his interpretation of Pufendorf was correct. In his On the Duty of Man and Citizen (1673), Pufendorf had made a slightly different argument that parental authority rests on natural law and the "tacit consent" of the offspring. It seems to have been Blackstone who first stated the causal argument clearly, although Blackstone himself only offers this brief statement of the argument and does not elucidate its further implications.

The first major philosopher to put forward the causal argument for parental obligations was Kant. There is no evidence that Kant got this argument from Blackstone. He may have read Blackstone or deduced the argument independently. In Fundamental Principles of the Metaphysic of Morals (1797) Kant argued parental obligation comes from bringing an infant into the world without consent and placing it in peril:

From the fact of procreation…, there follows the duty of preserving and rearing children as the products of this union. Accordingly, children, as persons, have, at the same time, an original congenital right — distinguished from mere hereditary right — to be reared by the care of their parents till they are capable of maintaining themselves; and this provision becomes immediately theirs by law, without any particular juridical act being required to determine it. For what is thus produced is a person, and it is impossible to think of a being endowed with personal freedom as produced merely by a physical process. And hence, in the practical relation, it is quite a correct and even a necessary idea to regard the act of generation as a process by which a person is brought without his consent into the world and placed in it by the responsible free will of others. This act, therefore, attaches an obligation to the parents to make their children — as far as their power goes — contented with the condition thus acquired. Hence parents cannot regard their child as, in a manner, a thing of their own making; for a being endowed with freedom cannot be so regarded. Nor, consequently, have they a right to destroy it as if it were their own property, or even to leave it to chance; because they have brought a being into the world who becomes in fact a citizen of the world, and they have placed that being in a state which they cannot be left to treat with indifference, even according to the natural conceptions of right.

Kant clearly set out the creation of peril argument. In this brief paragraph, he captured all the main points of the causal theory. Kant specifically repudiates the theory of parental ownership and argues that children have rights. He also argues against the idea of tacit consent of the child. Instead of a merely biological explanation of obligation, he is making a clear argument that obligation comes from the actions of the parents. However, like Blackstone, Kant did not explore the wider implications of this argument.

The causal argument for parental obligations was restated by the utilitarian philosopher Henry Sidgwick in the 1874 book The Methods of Ethics. Sidgwick had certainly read both Kant and Blackstone, so it seems likely that he knew of the causal argument for parental obligations from their earlier statements of it. He restated the principle in his own words, although this was again only a minor argument in the book and not the main purpose of the work. Sidgwick argued succinctly that parents have causal parental obligations based on creation of peril:

And this leads to what we may conveniently examine next, the duty of parents to children. This too we might partly classify under a different head, viz. that of duties arising out of special needs: for no doubt children are naturally objects of compassion, on account of their helplessness, to others besides their parents. But on the latter they have a claim of a different kind, springing from the universally recognised duty of not causing pain or any harm to other human beings, directly or indirectly, except in the way of deserved punishment: for the parent, being the cause of the child’s existing in a helpless condition, would be indirectly the cause of the suffering and death that would result to it if neglected.

After this brilliantly clear summary, Sidgwick begins to waffle that this issue is all very complicated, and then changes the topic. He did not explore the theory in any more detail. Nonetheless, many later writers who have made the causal argument from parental obligations have referred to Sidgwick as an influence.

What are the implications of this theory that all these early thinkers fail to remark on? This will be the subject of a future post, but one mind-blowing example is that you cannot give up parental obligations.

The Argument from Adoption Does Not Prove That Parental Obligations Are Voluntary

The theory of voluntary parental obligations holds that parents acquire obligations to their children by volunteering for those obligations. The claim is that only those who voluntarily accept the responsibility for parenting a child are obliged to do so, and only from the point that they accept this role onwards, and only unless or until they give it up for adoption. The justification made for this theory is based on claims about how adoptive parents gain obligations. The line of argument runs as follows:

1. Adoptive parents become parents by voluntary agreement.
2. Adoptive parents have the same obligations as biological parents.
3. Any parent (biological or adoptive) may legitimately divest themselves of enforceable parental obligation voluntarily by putting up their child for adoption.
4. Therefore all parental obligations arise from voluntary agreement.

As will be argued in this article, every premise in this line of argument is false, and the conclusion is false too.

1. It Is Not Voluntary Agreement That Obligates Adoptive Parents

The argument that adopters have positive obligations implies that adopted children have an enforceable claim against their adopters. How can this claim arise? It cannot be as a result of contract, since children cannot contract. One might argue over exactly when young adults may be able to consent to their own adoption, but there is no way a young child can be said to consent to being adopted.

Also, any agreement to adoption between the biological parents and the adopters is irrelevant since it cannot explain how the child has a claim on the adopter. It is the child that has the claim and the child cannot consent. The fact that the biological parents and adopters have both consented does not change that.

If the child does have a claim on the adopter, it can only be as a result of tort. A tort claim arises independently of consent or contract. A tort could impose obligations on the adopter as a result of the actions of the adopter. What actions could those be?

The only way that an adopter could have positive obligations to a child is through the adopter being responsible for a child being in a state of peril. As I have argued elsewhere, an adoptive parent effectively removes the child from the obligated caregiver in the child's life, which is the creation of a state of peril, and this gives the adoptive parent a positive obligation to act as the new caregiver.

Even if the biological parents were not fulfilling all their obligations, the adoptive parents are still effectively cutting off any chance that the child has of receiving care from the biological parent. This is the creation of peril, and it is mitigated by the adoptive parent meeting the obligations instead.

Finding an abandoned child and giving it shelter does not create an enforceable parental obligation on the rescuer from the child. Although a rescuer does not acquire parental obligations the minute he saves an abandoned baby, he is temporarily obliged to look after the child whilst in possession of it, and to pass on the child responsibly. This is because a rescuer is effectively precluding the child from anyone else's care in that time and is therefore temporarily responsible for relieving the child's peril during that time. The same temporary obligations apply to foster parents.

Formal adoption differs from rescue or fostering because it entails the exclusion of anyone else from parenting the child. Because of this, formal adoption creates enforceable parental obligations because the adopter is permanently excluding anyone else from caring for the child.

If you tell others not to attempt saving a non-swimmer who has fallen in to a pool because you intend to be the saviour, then you are responsible for relieving that non-swimmer from peril. Having prevented the non-swimmer from benefitting from any other saviour, you now have a responsibility to follow through otherwise you would cause the resultant drowning via creation of peril.

2. Adoptive Parents Do Not Have Exactly the Same Obligations as Biological Parents

The fact that biological parents and adoptive parents both have obligations does not prove that obligations are voluntary. It does not follow that biological parents acquire their obligations voluntarily because adopters volunteer for their role. On the contrary, as argued above, it is the other way around. Adoptive parents acquire obligations in a similar way to biological parents: by tort as a consequence of actions that result in creation of peril (albeit through different circumstances).

The premise that biological parents have exactly the same obligations as adoptive parents is merely an assertion and is not accurate. As I have argued in another post, a biological parent who gives up their child has not legitimately lost their obligation, but rather they have effectively instructed an agent to fulfil the obligation on their behalf. If the adopter failed to fulfil obligations on behalf of the biological parent, the child would arguably still have an enforceable claim against the original parent. In this way a biological parent always has a residual obligation that could be called upon, whereas an adopter has the obligations of a kind of agent. The two are not the same.

3. No Parent Can Legitimately Divest Themselves of Parental Obligations

The fact that the institution of adoption exists is not proof that parental obligation is legitimately optional. As I have argued elsewhere, parents cannot legitimately absolve themselves of their obligation solely by passing on responsibility to an adopter, because a parent's obligation is to the child.. However, if parents are not living up to their obligations, the first concern is the interest of the child.

Accepting the institution of adoption recognises that a bad situation is preferable to a catastrophic situation. If someone fails to comply with their obligations, it is better that they do so in a way that can be mitigated than if they do so in a way that leads to disaster.

It is not legitimate for the pilot of a passenger plane to choose to parachute out mid-flight, but I would still much rather that he made arrangements with someone to take over the plane safely than if he just let go of the controls, parachuted out, and let the aircraft plummet to the ground.

There is no contradiction between the argument that it is in the best interests of children for adoption to be legal and the argument that it is not morally legitimate for parents to give their children up for adoption. Rather, the rationale is simply that in cases where parental obligations are unenforceable, the interests of the children take priority over other considerations.

4. Parental Obligations Arise From Action Not Agreement

The theory of voluntary parental obligations is riddled with problems:

• Since children cannot contract, it relies on an imaginary social contract between parents and every other adult.
• It cannot hold men responsible for any children that they father.
• It cannot explain why the act of volunteering for obligations gives someone legitimate authority over any particular child.
• Lastly, as has been discussed in this post, it is based on an argument from adoption which is false.

The theory of voluntary obligations is wrong because parental obligations are not voluntary. They are the result of causal action. Parents are those who engage in actions that can cause the creation of a child in a state of peril. Parents are responsible for the state of peril and therefore have an obligation by tort to remove the peril.

Adoptive parents also acquire positive obligations through actions that result in creation of peril: adopters exclude a child from their legitimate claim on their biological parents.

But adoption is not exactly the same as biological parenthood. It is complicated by the fact that biological parents never legitimately lose their obligations, which implies that biological parents are always residually obliged, even when they have given up their children to adopters.

Adoption is a kind of damage control. It is a way of making the best of a bad situation. It does not prove the argument that parental obligations are voluntary.

The Theory of Voluntary Parental Obligations Cannot Hold Fathers Responsible for Their Children

Almost all recent philosophical writing on parental obligations is only comprehensible if you understand that it is written from the starting premise that abortion must be valid. The legitimacy of abortion is taken as a given, and all arguments concerning parental obligations or children's rights are made to conform with this assumption.

The fact that most people who write about the philosophy of the family hold the validity of abortion as a core value and starting premise explains the appeal of the theory of voluntary parental obligations. This theory has a big advantage for pro-choice advocates: it is the only theory which is compatible both with abortion and also with parental obligations. This seems to offer the promise of justifying two incompatible positions together.

If you accept the premise that abortion is valid, logically you cannot accept parental obligations, since the two positions are contradictory. Some pro-choice thinkers straightforwardly accept this inference and therefore deny that parents have any obligations. This was the position that Murray Rothbard and Williamson Evers took. Although I believe they were incorrect, at least their position was logically consistent.

However, many pro-choice thinkers do not want to accept the logical implications of denying parental obligations. Rothbard was honest enough to acknowledge that if you deny parental obligations, it logically follows that parents may legitimately starve their children to death. Although many pro-choice thinkers want a theory that justifies abortion, they do not want that theory to also justify abandonment or neglect.

But the theory of voluntary parental obligations seems to offer pro-choice thinkers a way to have their cake and eat it too. If parental obligations are acquired by voluntary acceptance, then it follows that abortion is valid. A woman can choose not to accept parental obligations, therefore she can legitimately abort a child. However, once a parent has volunteered for obligations, then they cannot later abandon or starve their children. So the theory promises compatibility with abortion but not with abandonment or negligence. This pair of positions is what most pro-choice thinkers want to hold.

However, there are many problems with the theory of voluntary parental obligations. One of the biggest problems is this: If parental obligations only come from voluntary acceptance, then there is no way to hold men responsible for any children that they father. Any man who becomes a father can simply declare that he did not intend to or does not want to have children, and the theory of voluntary obligations would imply that he is free of any enforceable claim on him for parental care.

The advocates of the theory of voluntary obligations are reluctant to accept this clear consequence of their theory. Elizabeth Brake is notable as the only advocate who accepts the logical consequence that men do not acquire obligations to a child by fathering the child. She tries to find a workaround to hold men liable towards the women they impregnate. Her argument is that since pregnancy creates costs to a woman, a man can have some liability for his role in causing her to be pregnant. This argument only relates to the mother and still leaves the child without any claim against the father for parental obligations.

Other advocates of the theory adopt contradictory arguments to maintain that obligations are always voluntary but nonetheless argue that reluctant fathers have obligations even if they do not volunteer for them.

Roderick Long has put forward a mess of double standards in an attempt to provide a theory of parental obligations that would somehow achieve three conflicting aims. On the one hand, he wants reluctant fathers to be on the hook for parental obligations as a result of having sex. On the other hand, he wants reluctant mothers not to be on the hook for parental obligations as a result of having sex (because he wants abortion to be a legitimate choice). And to complicate things further for him, he also doesn't want to legitimise abandonment after birth.

These conflicting aims led Roderick Long to a bizarrely inconsistent theory of parental obligations. He argues that whether a father has any obligation to his child is entirely the choice of the mother, but if the mother does wish it, then the father is positively obligated to provide care based on the father's tacit acceptance of obligations via his action of having had sex. On the other hand, a mother has no positive obligations to her child based on her action of having had sex, but rather if the mother chooses not to have an abortion then this is tantamount to voluntarily accepting the positive obligation not to abandon the child once born. Go figure.

Joseph Millum is another advocate of the theory of voluntary parental obligations who nonetheless tries to argue the contradictory point that reluctant fathers are still obligated even if they don't volunteer. His argument is that social conventions dictate what constitutes tacit voluntary acceptance. In his view, abortion is socially accepted but being a deadbeat dad is not. Similarly to Roderick Long, Millium argues that women can decline parental obligations via abortion but men always tacitly accept the potential of parental obligations by the act of having sex. So men have obligations even if they didn't want a child but women do not. Millum thinks that an explicitly double standard like this is fine as long as it is in line with social conventions, since that is what counts for him.

Why Fathers Have Obligations

There is a theory of parental obligations that has no problem explaining why fathers are accountable to their children. According to the causal theory of parental obligations, this is why parents have obligations:

1. Parents are those who voluntarily make their gametes available for fusion, usually through consensual sex or sometimes through artificial means.
2. A forseeable outcome of making your gametes available for fusion is the creation of a child.
3. A consequence of the act of creating a child is that the child is in a state of peril.
4. Therefore parents are responsible for the state of peril of their child. This creates a positive obligation as a tort to get the child out of peril. This means raising the child to the self-sufficiency of adulthood.
5. Since the obligation results from the consequences of the parents' voluntary actions and not their intentions or agreement, parents still have obligations even if they didn't intend to create a child or do not want to be parents (with some exceptions).
6. Since both parents made their gametes available, both are jointly and severally liable for parental obligations.

Parents have obligations to their children as a result of their actions, not their declared intent. This account of parental obligations is entirely consistent and non-contradictory. It obliges both mothers and fathers. It presents a challenge for most writers on this topic though, because accepting the logic of the argument would force them to reassess one of their most deeply held premises: the assumption that abortion is justified.

Why Libertarians Mistakenly Think Parental Authority is a Homesteaded Property Right

If you put an individual in a state of peril, you have a positive obligation to get them to safety. Not only must you take whatever reasonable actions are necessary to save them, you may also undertake these actions without their consent, if your actions are justifiable in fulfilment of your obligation. For example, if you push someone into a lake who cannot swim, you must get them out before they drown or you will have committed homicide. If you need to pull them back onto land, you must do this even if they are so panicked that they flail around and attempt fight you off while you do so.

This basic principle provides a clear logical grounding for both parental obligation and parental authority. If you accept that parents have a causal responsibility for the peril that children face as a result of creating them, then it is easy to understand why parents are justified in having authority over their children to undertake whatever steps are necessary to get them out of peril. In the case of children, peril ends when the child becomes a self-sufficient adult. So parents are obliged to undertake whatever care is necessary for a child to grow into a self-sufficient adult. This causal theory not only explains what parental obligations are, but also specifies which individuals are obligated to care for each specific child.

However, most libertarian theorists do not view parenting in this way because they have denied the existence of all positive obligations except those agreed to voluntarily (i.e. by contract). When it comes to parenting, this has resulted in libertarians either denying that children have any enforceable claim against their parents for care (as Rothbard and Evers did) or arguing that children only have a claim if parents voluntarily commit to assuming obligations for their children (as Steve Horwitz and Roderick Long did).

This has left libertarians with a big problem when it comes to explaining why parents have authority over their children. In the absence of a theory of obligation, what gives any person the right to claim authority over anyone else? Also, without a theory of explaining why specific parents must care for specific children, why should any particular person have the right to act paternalistically towards a specific child?

Libertarians have attempted to solve this problem by applying the concept of homesteading to parenting. Their line of argument is as follows:

1. There are no positive obligations, so people only have the role of parent if they voluntarily choose to assume it. All parents are volunteers.
2. For any given child, there could be competing claims to act as the parent of the child, since multiple people could volunteer for the role. This could lead to conflict.
3. Libertarianism solves the potential for conflict arising from rivalrous claims by assigning a property right using the principle of homesteading. The rule used is that the property right justly belongs to the first person to perform whatever acts are necessary to make a claim.
4. Therefore, the solution to who gets to parent a child is to consider parenting as a property right and identify the acts necessary to claim it.

Opinions differ among libertarians on various details, such as what act constitutes homesteading a baby. But all proponents agree on the basic proposition that parenting a child is a rivalrous good and homesteading is the rule used to allocate it.

Those who argue that parental authority is a homesteaded property right imply that parental obligation comes attached to the homesteading of that property right. This is because– according to this theory– everything to do with being a parent is a homesteaded property right. The idea is that one homesteads a bundle of rights associated with the role of parenthood, such as the right to exclude others from parenting the child and the right to exert paternalistic authority over the child.

However, if you accept that parents have causal obligations, then the concept of homesteading parental authority as a property right is nonsensical because parental authority derives from parental obligation. Parental obligation is antecedent to parental authority. Parental obligation provides both the justification of parental authority and the criteria to set limits on it. Therefore parental authority can only be secondary to and derived from obligation. It is only because libertarians do not understand this that they invented the idea of parenting as a homesteaded property right.

The entire theory of homesteading parental authority has been adopted by libertarians because they do not have a causal theory of parental obligation. If they had such a theory, it would be self-evident that the idea of homesteading a child is absurd.

The Idea of "Voluntary" Parental Obligations Is a Social Contract Theory

In an earlier post I described three theories of the relationship between parents and children:

1. The Theory of Parental Ownership: parents own their children as property.
2. The Theory of Parenting as Charity: any care that parents provide for their children is a result of the parents voluntarily choosing to be "good samaritans".
3. The Theory of Parental Responsibility: parents have enforceable obligations resulting from the creation of peril.

This post introduces a fourth theory of the relationship between parents and children: the idea of "voluntary" parental obligations. This fourth theory accepts the legitimacy of enforceable parental obligations, but argues that these obligations can only be voluntarily assumed. So parents do have enforceable obligations, but only if they have voluntarily agreed to them. Let's look at the two lines of argument used to justify this theory.

Argument 1: There Are Only Two Sources Of Obligation

The main line of argument for this theory is as follows:

1. Enforceable positive obligations can only arise from two sources: voluntary agreement, or as restitution for having committed an act of aggression.
2. Creating a child is not an act of aggression.
3. Therefore, parental obligations must be a result of voluntary agreement.

This argument was made by Judith Jarvis Thomson and has also been made by Elizabeth Brake. A voluntary agreement that gives rise to obligations is a contract, so this can be called a contract theory of parental obligations. Contracts can either be explicit or implicit.

Argument 2: Adoptive Parents Prove That Parental Obligations Are Voluntary

There is an alternative line of argument for this theory, which runs as follows:

1. Adoptive parents have the same obligations as biological parents.
2. Adoptive parents become parents by voluntary agreement.
3. Therefore parental obligations arise from voluntary agreement.

This second argument has been made by Williamson Evers and by Roderick Long.

The Problem: Who Is The Agreement With?

The problem for the theory is that any agreement or contract made by the parent cannot be with the child, since children cannot make valid contracts. Before the child comes into existence there is nobody to contract with, but even after the child has been created he cannot consent to contracts until he is an adult.

All theorists who have discussed this idea acknowledge that children cannot consent. Given that the contract is not with the child, it must be argued that parents are contracting with someone else. If parents were simply to declare to themselves that they choose to accept obligations, that would not create any kind of enforceable claim against them. They could change their minds at any time and nobody would be able to argue otherwise. So who are the parents contracting with?

Theorists attempt to resolve this problem with the following argument: by volunteering to be a parent, one makes an implicit contract not with the child but with society at large (i.e. with all other adults). By voluntarily taking on the role of parent, one commits oneself to society at large to assume obligations towards the child.

A Social Contract Theory

As should now be clear, the theory of voluntary parental obligations is a social contract theory. According to the theory, parents are making an agreement with society at large that obliges them to care for their children. It is not the child who has an enforceable claim on the parents, rather it is "society" that has the claim. Joseph Millum, a proponent of this theory, summarised the argument in his book The Moral Foundations of Parenthood:

parental responsibilities are acquired through the performance of certain voluntary acts that signify the taking on of parental responsibilities… Social convention determines both which acts have this significance and exactly what responsibilities are taken on … the core of parental responsibilities is the provision of certain goods that all children are owed as a matter of justice. Parents provide these goods on behalf of society.

The Libertarian Critique

Libertarians deny the validity of positive obligations to society at large. According to libertarianism, individuals only have negative obligations to society at large. An individual can have positive obligations with specific individuals arising from contract, tort, or restitution. But such positive obligations are not with society at large.

Therefore, the idea that parents contract with society at large should be viewed as a self-refuting idea by libertarians. Indeed for some it is: Williamson Evers and Murray Rothbard rejected this theory on these grounds.

As a side note, Evers and Rothbard went further to assume that all theories of parental obligation must be based on the illegitimate idea of social contract, so they thought that this refutes the idea of positive parental obligations as a whole. I argue that they were incorrect in that broader second conclusion. However, their first conclusion– that any theory based on the idea of a contract with the rest of society must be invalid– clearly follows from basic libertarian principles.

Libertarian Social Contract Theorists?

Some libertarians apparently didn't get the memo about the problem with social contract theories. They argue that this is indeed the basis of parental obligations. Steve Horwitz provided a version of the argument:

parental obligations come when parents engage in the positive act of treating the child as theirs by asserting their parental rights … “Treating the child as theirs” is a kind of public declaration of the exercise of parental rights … You can think of taking a child home from the hospital as analogous to homesteading: you are declaring to others (not to the child) that this child is yours and that you thereby accept the responsibilities to care that come with exercising those parental rights … accepting parental rights but refusing to accept the corresponding obligations to care for a helpless child is form of breach of contract. Again, the contract is not with the child, but with “the rest of us.” Given the helplessness of infants, someone has to provide that care and those who act in ways that exercise parental rights simultaneously announce their willingness to accept the obligation to care.

Walter Block advances a bizarre version of social contract theory as the basis of voluntary parental obligations. Whereas Horwitz put forward the idea plainly, Block uses extremely convoluted arguments that ultimately reach the same destination, whilst simultaneously denying that he has done any such thing.

Block asserts that parents cannot withhold care from children as they would be committing a kind of forestalling against other potential caregivers. His justification involves a lot of hand-waving about the rules of homesteading and the rules determining what constitutes abandoning something. He repeatedly denies that any positive obligations are implied in his argument, which seems like sophistry to me. Ultimately his argument amounts to this: if you choose to parent a child, you voluntarily take on an obligation to care for the child or else immediately inform everyone else that they can parent him instead. According to Block, this is because you are homesteading the child and this makes you bound by various rules governing homesteading and abandonment. However, the obligation you have is to the rest of society and not to the child.

Conclusion

Here are the key features of the theory of parenting as a voluntary social contract:

1. Parents only acquire obligations to their children if they choose to do so voluntarily.
2. Parental obligations are a result of agreement or contract. This can be a tacit agreement or implicit contract.
3. The contract is between the parent and the rest of society, not with the child.

The dependence on the idea of social contract is not the only problem with the theory of voluntary parental obligations. There are many other problems with the theory that refute it. I will address these in a future post.

You Cannot Give Up Parental Obligations

The theory of parental responsibility is a simple idea with profound implications. Parents are causally responsible for placing their children in a state of peril, as a result of having created them. This is why parents have enforceable positive obligations to their children. The obligations are to remove the peril by raising the children to the self-sufficiency of adulthood. One of the mind-blowing implications of this idea is that parents cannot legitimately give up or pass on their obligations.

Imagine the following scenario: I am your neighbour and I have decided to make a huge bonfire in my garden. The fire begins to burn out of control, at risk of spreading and setting fire to your house. I call the fire brigade, who arrive before the flames have reached your house. I decide I am not enjoying this stressful situation, so I leave the firefighters to their work and walk off. Despite their efforts, the firefighters fail to contain the blaze and you return home to find that your house has been burned down.

When you confront me about what I have done, I make the following argument in my defence:

Yes, I may have started the fire that created the risk to your house, but I called the fire brigade to deal with it, so I passed on the problem to them. When I left, your house was untouched. If the fire brigade didn't stop the fire from reaching it, it is their fault. As soon as I passed the problem on to them, I wasn't involved anymore. If you have a problem, you should take it up with them.

Clearly this is not a legitimate argument. You would be right to object that I am the one who caused the problem in the first place. Regardless of whether I sought help to address the problem, I am still ultimately responsible for creating the risk to your property. Even if some kind of negligence on the part of the firefighters contributed to their failure to stop the blaze, that might imply some additional liability for them, but that surely would not get me off the hook for my role in creating this mess.

Here is another scenario: I push you into a lake and you cannot swim. I am also unable to swim, so I could not rescue you myself even if I wanted to. However, my inability to swim does not mean that I am free of any responsibility to you for your predicament. As the one who pushed you into the lake, I am obliged to get you the help that you need, otherwise I will be responsible for homicide. I must find help, such as a lifeguard or some volunteer willing to jump in to save you. And if the lifeguard or volunteer tries and fails, I am still responsible for your peril. I don't get to just walk off. I'm not off the hook for the problem I caused just because I asked someone else to try to sort out the problem for me. It is still my fault that you are drowning.

The important point about these scenarios is that I do not lose my obligation to you, even though I delegated actions to someone else. Although I can legitimately engage an agent to act on my behalf, I am still ultimately responsible for the obligation. Regardless of any agreements I make with my agent about what they will do for me, that doesn't change the obligation that I still hold to you because you never agreed to release me from my obligations. The same logic applies to parental obligations towards children.

Unintended Parenthood

Applying the principle to cases of unintended parenthood shows that parental obligations cannot be simply given up. The principle is that obligations can be incurred for the consequences of one's actions if those consequences were reasonably foreseeable, regardless of whether the consequences were intended or not.

Even if I did not intend to let my bonfire get out of control and burn down your house, I'm still responsible if that happens. Furthermore, even if I did my very best to stop the fire once it got out of control, I'm still the one who created the risk of an enormous bonfire in the first place. I'm still responsible.

The same logic applies to parents who did not intend to have a child. Parents cannot absolve themselves of obligations on the basis that they never wanted to have kids, nor on the basis that they actively tried to prevent this outcome by using contraceptives. If you take actions that could result in the existence of a child (i.e have consensual sex) then you are responsible for the child, even if you didn't intend it or want it. As Nathaniel Branden put it;

The fact that the parents might not have desired the child, in a given case, is irrelevant in this context; he is nevertheless the consequence of their chosen actions–a consequence that, as a possibility, was foreseeable.

Even if one parent is willing to raise the child alone, the willing parent cannot legitimately offer to be a single parent and to relieve the reluctant parent of all obligation. This cannot be done since the obligation is to the child, not the other parent. Parents are jointly and severally liable to their children. The children have legitimate claims against both parents to fulfil parental obligations. In fact, what the willing parent in this scenario would effectively be "offering" is to collude in denying the child his legitimate claims on one of his parents. Regardless of whether or not the unwilling parent accepted such an offer, it would not relieve his or her enforceable obligations to the child.

Parents Who Give Up Their Child For Adoption

Parents cannot absolve themselves of their obligation solely by passing on responsibility to an adopter, because a parent's obligation is to the child. Since a child cannot contract, the child cannot be said to have agreed to give up his claim on his parents. Therefore, parents who give their child up for adoption cannot rely on this act removing their obligation under the objective rule of creation of peril.

If I push you into a lake, my inability to swim does not mean that I am absolved of my responsibility to save you from drowning. I must find someone to rescue you on my behalf. Similarly, if parents cannot raise a child, they must find someone else to do so. But this does not absolve them of obligation for the child's peril.

If parents give their child up for adoption, this act should rightly be construed as delegating the responsibility to the adopters to fulfil the obligation on their behalf. The biological parents still remain the ultimate obligation holders. Therefore, if the adoptive parents were to mistreat the child, the biological parents could share liability for this crime since they still have enforceable positive obligations to the child.

As I have argued elsewhere, a victim of rape does not have parental obligations and so may legitimately give up a resultant child for adoption. However, no parents who have obligations can legitimately lose those obligations with adoption.

Although a biological parent cannot absolve themselves of parental responsibility by giving up a child for adoption, there are some circumstances when they can legitimately pursue adoption as a form of delegating responsibility. If the parents are objectively unable to look after a child (for example, owing to debilitating or terminal illness) then it would be a legitimate act of fulfilling parental obligations to delegate responsibility to an adopter. If for some reason the parents are demonstrably incompetent to look after themselves, let alone a child, then it would be legitimate to delegate responsibility to adopters.

Even in such cases, the biological parents do not absolve themselves of enforceable obligation. Calling on adoptors is like calling the fire brigade to put out my bonfire or calling a lifeguard to save someone I pushed into a lake. The actions of such rescuers do not absolve the person who caused the peril from their ultimate responsibility.

Given that a child can never be said to consent to adoption, the biological parent has never really lost their obligation, but rather they have effectively instructed an agent to fulfil the obligation on their behalf. If the adoptive parent failed to fulfil obligations on behalf of the parent, the child would arguably still have an enforceable claim against the original parent for having failed to fulfil their obligations.

Whether it is legitimate or not, some parents do in fact give up children for adoption, and it may well be in the best interests of the children for everyone to support this process even in cases where the delegation is not justified. Supporting adoption does not change the fact that the biological parents are failing to fulfil their valid obligations, but adoption may just be the best way to address a bad situation and ensure that a vulnerable child receives care.

Many have argued that is best to recognise the institution of bankruptcy, even though they also think that it is wrong to default on debts that have been voluntarily incurred. In a similar way, I do not think that the practice of adoption should be banned even in those cases where it is a clear dereliction of parental duty, but that does not imply that it is legitimate for parents to fail to fulfil their obligations.

Even if adoption is in the best interest of the child, it is also in the best interest of the child for the unfulfilled obligations of the biological parents to remain actionable in case the child needs them. This could involve financial support, forced heirship, or other ways in which a biological parent's obligations could be enforced.

Gamete Donors/Sellers

Since parents cannot legitimately pass on their obligations, the practice of gamete donation/sale must be illegitimate. Gamete donation/sale involves an unjust abdication of parental obligation by the gamete owner.

As has been argued by James Lindemann Nelson and Rivka Weinberg, making one's gametes available is the crucial act necessary to create a child. Therefore, those who make their gametes available are the parents of any resultant child. In most cases the parents are simply those who made their gametes available through having sex. In the case of gamete donation or sale, the sperm or egg donors/sellers are parents. They may have used other means than sex, but they are nonetheless the ones who made their gametes available.

This means that gamete donors/sellers are parents who are not fulfilling their obligations to their children. It would be wrong for me, as your neighbour, to start a huge bonfire in my garden that I know will endanger your house, and then walk off knowing that I have created a risk to you. Similarly, it is wrong to take actions that you know will create a child who is in peril and then remove yourself from any responsibility for the peril that the child faces.

This is the most wantonly irresponsible kind of parenting, since the parents deliberately cause the creation of children whilst never having any intention of fulfilling their obligations. They do not even have any involvement in ensuring that the adopters are able to fulfil obligations on their behalf. They take no care of the children that they cause to be created.

Conclusion

Even if a different set of people are arguably better candidates to raise a child (by having more resources, a more stable home etc), this does not legitimate a transfer of obligation by biological parents. As James Lindemann Nelson has argued:

It is not so much a question of knowing that the biological parents can do a better job than possible replacements; it is more a matter of continually being at hand to answer for one's own responsibilities. With respect to anyone else, the best I can do is predict that they will fufill their duties, but my relationship to my own agency is categorically different; I can bring myself—at least sometimes—to perform my duties.

Parental obligations are only fulfilled once a child reaches the safety and self-sufficiency of adulthood. At this point, the peril that the child faced as a result of being created has been overcome. Once the child has become an independent person capable of taking responsibility for his own actions, the parents are no longer obliged to remove the peril associated with childhood as the peril has dissipated. But until they are grown up, you have enforceable obligations to any and all children that you create.

The Only Ideal of Libertarianism is Peace

Correctly conceived, the purpose of ethics is to provide an objective means for the peaceful resolution of all potential conflict over scarce resources. Ethics achieves this by identifying those objective rules that are consistent both with the logic of argumentation and with the limits set by reality.

The only ideal that underpins this ethical system is the desirability of peace itself. Therefore, this is the only ideal that libertarians need to agree on. All other goals that have been associated with libertarianism are merely a consequence of this single ideal and are not fundamental.

The popular idea that libertarianism is fundamentally about the ideal of individual freedom is therefore misconceived. Individual freedom is a consequence of the ethical system that requires respect for ownership of one's body and of other rivalrous objects. The goal is the peace created by objective property rights. Individual liberty is the effect of that goal's successful implementation.

Similarly, economic prosperity is not a goal of libertarianism, correctly conceived. One could be an ascetic who is entirely uninterested in prosperity and still be a libertarian in good standing. Empirically, it happens to be the case that people tend to enjoy prosperity and so, if left in peace, they will create it. But this is an empirical consequence of implementing the ideal of peace– a different ideal to prosperity.

Another ideal that is sometimes ascribed to libertarianism is the goal of eliminating deference, hierarchy, and tradition. This may reflect the historical origins of libertarianism in the Enlightenment, which challenged certain traditions and hierarchies of the time which were inconsistent with objective property rights founded in rational argument. However, there is no inherent incompatibility between objective property rights and the existence of deference, hierarchy, or tradition. It depends on the specific social practices and institutions. Those that violate objective property rights are incompatible with libertarianism, but those that do not are compatible with it.

Lastly, the ideal of the pursuit of happiness has often been ascribed to libertarianism. Although the actions of every individual can ultimately be said to be in pursuit of his or her happiness, this is irrelevant to the problem of ethics. When we are concerned with how to avoid conflict over scarce resources, we are asking how to determine who should have rightful control of each scarce thing. The pursuit of happiness doesn't come into it. You achieve peaceful coexistence with others by mutual respect for property rights. Whether or not everyone is happy is their own business.

The implications of this understanding is that libertarians should always focus first on those issues that concern challenges to peace. That is why opposition to war, or noninterventionism, is the most important cause for libertarians when it comes to international issues. Closer to home, opposing any challenge to peaceful enjoyment of property rights should be the focus for libertarians– whether that is from the State through taxes or government edicts, or from private criminals through violent crime, property crime, civil disorder, looting, and so on.

Abortion Is The Worst Violation of the Nonaggression Principle

In much of the world today, a similar proportion of pregnancies end in abortion as the fraction that in centuries past ended in infanticide… If abortion counts as a form of violence, the West has made no progress in its treatment of children. Indeed, because effective abortion has become widely available only since the 1970s… the moral state of the West hasn’t improved; it has collapsed.

- Stephen Pinker, The Better Angels of Our Nature

Worldwide, 73 million abortions take place annually. That is equivalent to the total deaths of the Second World War, taking place every single year. Over a third of all innocent children that start life in the modern world are killed by abortion.

Given these numbers, this single issue surely represents the worst violation of the nonaggression principle in our times. It is far worse than any government program. It is a more egregious violation of the nonaggression principle than war, taxation, or fiat currency. Yet libertarians not only fail to criticise it, they actually provide moral sanction for this practice.

If libertarians argue that abortion is justified, they cannot object to any particular motive for abortion. They cannot object to the extermination of children with down syndrome for eugenic reasons. They cannot object to the extermination of girls for misogynist reasons. From 1970 to 2010, approximately 105 million females were missing in China and India due to selective abortion. Their own logic compels libertarians to view such practices as perfectly legitimate.

In the late nineteenth century, the leading classical liberal thinker Herbert Spencer pointed to the improved protection of the rights of children as a sign of civilisational progress:

Thus an extreme contrast exists between those early states in which a child, like a brute, could be killed with impunity, and modern states in which infanticide is classed as murder and artificial abortion as a crime, in which harsh treatment or inadequate sustentation by a parent is punishable, and in which, under trust, a child is capable of valid ownership.

- Herbert Spencer, Principles of Ethics (1888)

Spencer specifically listed the criminalisation of abortion as one of these signs of civilisational progress. It is notable that this was such an obvious argument at the time that he felt no need to justify it. He saw abortion as a blatant and straightforward violation of the nonaggression principle.

In the twentieth century, abortion was decriminalised and there was a widespread cultural shift from abhorrence to acceptance. Libertarians not only went along with this moral and cultural change, they led it. In doing so, they did immense damage to libertarian theory.

Both for Western countries and for the world as a whole, the number killed since 1970 by abortion is at least 100 times greater than the numbers killed by murders, war, or democide.

In the West, abortion deaths are between 3 and 40 times greater than each of the top causes of early death by illness such as cancer, heart disease, stroke, respiratory disease, and diabetes. Abortion deaths are equivalent to roughly the top 6 leading causes of early death by illness combined. Worldwide, abortion deaths are between 3 and 20 times greater than each of the top causes of early death by illness and are equivalent to roughly the top 6 leading causes of early death by illness combined.

Not only is support for abortion incompatible with libertarian theory, it is arguably the worst thing that libertarians could possibly choose to support in present times.

Rights Cannot be Based on Physiological Characteristics

The theory of acquired rights holds that everyone starts life without rights and only qualifies for rights once he or she demonstrates some characteristic or ability. Different qualifying criteria for rights have been proposed, all of which have problems.

In previous posts, I addressed the issues with using potential for rationality and demonstrated rationality as qualifications for acquiring rights. This post discusses the problems with using physical or physiological characteristics as the qualification for rights.

Various physical or physiological characteristics have been proposed by adherents of the theory of acquired rights as criteria for rights. For example, Jason Sorens advocated having a brain that can sense pain and demonstrate sleeping and waking states. Wendy McElroy argued that being no longer attached to the mother (i.e. birth) is the qualifier. Whatever physiological criteria are advocated, the following problems apply.

Physiological Criteria Are Arbitrary and Irrelevant

Physiological criteria have no relationship to the problem that rights are created to solve. Therefore, they are arbitrary and irrelevant to the question at hand. The purpose of ethical norms is to prevent conflict over scarce resources. Any criteria for rights has to have some relationship to the problem rights are solving: the need for objective rules to avoid fighting in a world of scarcity.

This is why rationality must play some role in the criteria for rights. Since rationality is the tool used to create moral rules and the tool used to agree such rules, it makes sense to argue that rationality is in some way involved in determining rights (the exact way is discussed here). Rationality creates its own issues for rights theory, but at least it is not arbitrary. In contrast, what have physiological criteria got to do with rights?

Physiological Criteria Entail Both Animal Rights and Human Infanticide

If rights are based on physiological capability, the logical implication is that drawn by Peter Singer: higher mammals have a right to life and human newborns do not. Here is how Singer put it in his book Practical Ethics:

liberals usually hold that it is permissible to kill an embryo or fetus but not a baby. I have argued that the life of a fetus (and even more plainly, of an embryo) is of no greater value than the life of a nonhuman animal at a similar level of rationality, self-awareness, capacity to feel and so on, and that because no fetus is a person, no fetus has the same claim to life as a person. Now we have to face the fact that these arguments apply to the newborn baby as much as to the fetus. A week-old baby is not a rational and self-aware being, and there are many nonhuman animals whose rationality, self-awareness, capacity to feel and so on, exceed that of a human baby a week or a month old. If, for the reasons I have given, the fetus does not have the same claim to life as a person, it appears that the newborn baby does not either. Thus, although my position on the status of fetal life may be acceptable to many, the implications of this position for the status of newborn life are at odds with the virtually unchallenged assumption that the life of a newborn baby is as sacrosanct as that of an adult… I do not regard the conflict between the position I have taken and widely accepted views about the sanctity of infant life as a ground for abandoning my position.

Any merely physiological capability (as opposed to rationality) would include higher mammals. Some adult higher mammals demonstrate more physiological and mental capability than a human baby does.

Any rule granting rights to a human baby on the basis of its physiological capabilities would have to outlaw killing of animals, since the baby is less capable than a higher mammal.

Therefore, if rights are based on something physiological, you end up with Singer's conclusion that higher mammals are persons with rights and newborn humans are not. Animal rights are a logical consequence of demanding specific physical capability for rights.

If a theory ends up granting rights to animals, it is incoherent as a theory of ethics. We are no longer addressing the problem of how to create rules to avoid conflict over scarce resources, since animals cannot agree or uphold moral rules.