A Response to Wendy McElroy on Abortion and Retroactive Justice

Wendy McElroy opens her article On Abortion with this paragraph:

When I was eighteen, I chose to have an abortion. Accordingly, the question I am addressing here is nothing less than whether I have committed murder. If the fetus is a human being with individual rights, then I am among millions of women who have committed first degree, premeditated murder, and I should be subject to whatever penalties are imposed upon that crime. The fact that I did not know I was killing a human being is irrelevant, just as the state of knowledge of a racist who kills blacks while believing them to be animals is irrelevant to the fact that he has committed murder. If you shy away from such prosecution, you are shying away from the antiabortionist position.

McElroy makes numerous arguments about abortion that I disagree with, but here I want to focus on her argument that being against abortion logically entails advocating prosecution of millions of women for having previously committed the crime of murder. What she is saying is that if you want to oppose abortion on the principled grounds that it is an act of aggression, you must accept that you are advocating imprisoning millions of women for past abortions. Failure to acknowledge this, according to McElroy, is to be inconsistent or to obscure the implications of one's argument.

This is simply false. McElroy is conflating two entirely separate problems:

1. What are the correct principles that should be law in a libertarian legal order?
2. Once a libertarian law is established, how does one address justice or accountability for past wrongdoing?

McElroy assumes that you can only recognise a libertarian law if you are also advocating that it be retroactively applied. The abolitionists certainly did not think that way about slavery. They focussed on making slavery illegal and there was no push for ex post facto justice against former slaveholders. Ex post facto laws are prohibited by the U.S. Constitution and in many other countries, in line with Enlightenment legal principles.

Libertarians hold that the State is a criminal organisation based on theft. This implies that all the people who work for the State are part of a criminal gang. However, this does not mean that all current government employees would have to go to prison if a libertarian legal order were established. Some kind of retroactive punishment might be justified in some cases, but it is not a given. Getting the law right and accounting for past injustices are two distinct problems.

When it comes to outlawing abortion, there are many reasons for libertarians to argue that such a law should not be applied retroactively, especially since so many people do not yet understand or accept that abortion is wrong. The message of the current law is that abortion is a blameless act. Public education, the media, and most intellectuals (including libertarians) endorse abortion. Establishing a law against abortion would require a complete change in societal norms. Under these circumstances, it is not at all clear that retroactive punishment would be justified.

So, no, I can argue that abortion is homicide without arguing that Wendy McElroy has to go to prison because she had an abortion when she was 18. Just like the abolitionists, I can argue that it is time to recognise a crime without advocating retroactive punishment for what happened in the past.

Having dealt with the argument about retroactive justice, there is another implication in McElroy's statement. I think McElroy is emphasising that the very idea that millions of regular women have committed homicide seems alien and outlandish to her.

Yet the reality is even more shocking. McElroy only talks about women, but seeing abortion as a violation of the nonaggression principle implies that millions of men, too, have been accomplices or direct causal agents in homicide. After all, the men were also parents with responsibility for the child. If the men did not object or try to prevent the abortion, they were complicit in the crime. And beyond just complicity, no doubt countless of those men were in fact the ones pushing the women to get the abortion, so they were the instigators of the crime.

Indeed, this does all seem like a very hard pill to swallow. To recognise abortion as a violation of the nonaggression principle implies that approximately a fifth of the population has committed homicide against the most defenceless and innocent human beings of all. Even if those mothers and fathers who had aborted their child before a law against abortion was established understood that there would be no retroactive justice against them, they would still have to come to terms with the reality of what they have done.

Matriarchal Libertarians Believe in Gestationalism

Most historical examples of the bogus theory of parental ownership have been patriarchal. For example, parental ownership of children was recognised in ancient Roman law as "Patria Potestas"- a power held by the father over the rest of the family and household. In Patriarcha, Robert Filmer argued that a father has rightful power of life or death over his children just as a king has over his subjects.

In contrast, some libertarians adopted an odd variant of the theory of parental ownership in which the mother is the owner, not the father. They argue for a matriarchal theory of parental ownership, whereby mothers have a property right over their children (albeit a much more limited property right than the kind envisaged by patriarchalists like Filmer). These libertarians see this as a property right to occupy the role of the child's guardian. According to Roderick Long,

Another way to homestead guardianship of a child is to give birth to the child; the mother starts out as the child's guardian, a position to which no one else (not even the father) can have a claim unless the mother grants it.

Libertarians who think this are applying something like the labour theory of value to literal birth labour to determine that mothers have more of the rightful ownership of a child than fathers. Walter Block expresses it like this:

In effect, the mother “homesteads” the baby within her body, with a little initial help from the father … homesteading theory would still give primacy to the mother, not the father, in that she did far more of the “work” of gestating the baby than did the father.

Gestationalism

What these libertarians are advocating is the idea of gestationalism. Gestationalism is the argument that birth mothers have the only rightful claim to parenthood based on the fact that they did the work of gestating the baby and giving birth. It is a variant of the theory of parental ownership that gives ownership to the mother.

Gestationalism is wrong for two key reasons:

1. Parents do not own their children, as discussed in a previous post.
2. Gestation is not an act of creation.

James Lindemann Nelson gave a succinct refutation of the idea that gestating a child is an act of creation:

But doesn't the causal theory disturbingly suggest that parental duties are not as stringent for fathers as for mothers? After all, mothers seem to make a greater causal contribution to the existence of their children, and aren't those more causally responsible for a threat to someone generally presumed to bear greater moral responsibility as well? This implication follows only if the process of gestation is seen as contributing to the existence of the child. Another way to look at pregnancy is that it is, rather, the first kind of nurturing that mothers provide for a fetus which has already come into existence at conception.

Gestationalism is a bad argument to justify parental authority based on a theory of parental ownership via homesteading through the work of gestation. It is wrong on all counts:

• Parents do not own their children, they are the guardians of their children.
• They are obliged to be guardians because they put the children into a state of peril by creating them.
• Both the mother and father are jointly and severally liable.
• Parents have authority as a result of their obligation, not the other way around.
• And gestation itself is not creation, it is just one kind of nurturing that takes place for a child that was already created at conception.

Parental Obligations Stem from Causal Action, Not Mere Biology

One theory of parental obligations holds that the biological relatedness of parent to child is the basis for parental obligations. This view holds that parents have enforceable positive obligations simply because they are biological parents. In his article Abortion and Parental Obligation, Andrew J. Peach makes this argument citing Stephen Schwarz's book The Moral Question of Abortion:

Following Schwarz, then, I will be defending the theses that the being in the womb is a person from conception and that, contrary to Thomson, parents simply by virtue of the biological relationship do have a special responsibility to this being. Although voluntary sexual intercourse is the means by which virtually all conception takes place, Schwarz is arguing that it is the biological bond between parents and children itself that grounds the obligation. In other words, the act of sexual intercourse is not in itself the ground of the obligation; it is merely the act that brought about the existence of the child who is biologically connected to the parents. So, it is not so much the choice to have sex that obligates a couple as it is the reality, the relationship, that is brought about by that choice.

Peach argues in a footnote that a “biological bond” exists "between the parents as the natural authors of the child—their sperm and egg that unite to form this new human being," and that this bond "is really the crucial one for determining parental obligation."

This is not quite right. Parental obligation arises from the voluntary act of making one's gametes available for fertilization—whether through sexual intercourse, which entails the inherent possibility of fertilization, or through assisted reproductive technologies such as IVF. In both cases, the gamete providers bear ultimate causal responsibility for the creation of a child in a state of peril. Therefore, both the mother and father are causally obligated to remove the child from the state of peril by raising him to the safety of adulthood.

James Lindemann Nelson explains why this act creates causal obligation:

The making available of one's gametes is an act highly proximate to conception, and, in concert with the other parent's actions, is jointly sufficient for it. Our practice is generally to take proximity and sufficiency pretty seriously; a pair of coordinated actions which were proximate to and jointly sufficient for some event, and were not the result of forcing or fraudulent action on the part of others would be hard not to see as the cause of the event in question. Becoming a parent generally fits this model.

Peach is correct that it is not merely the act of sex that creates obligation, but he is mistaken in attributing the obligation to biology alone. It is action that creates parental obligations. Sex involves the act of making one's gametes available for fertilization. Obligation comes from the reasonably foreseeable consequences of this act.

Does a rape victim have parental obligations?

The huge difference between the causal theory and the biological theory is in the question of parental obligations for rape victims. Peach acknowledges an important logical implication of the biological theory:

If the biological bond is the true ground of parental obligations, then women who are raped also have maternal obligations because, as a point of fact, they are mothers; the same biological bond exists between the woman and child in the case of rape as exists between a woman and child of a voluntary conception. As Schwarz explains in regard to the woman who has conceived due to rape: “The child is her child; this remains true even when the child is conceived in violent intercourse and forced on her. The reality of the child as a person, and as entrusted to the woman as her mother, remains fully intact. The woman may not get rid of the child if this means child neglect, still less if it means killing, as in abortion.”

There is a lot to unpack here. Firstly, there are two arguments at stake:

1. Does a rape victim have parental obligations?
2. Is abortion justified in cases of rape?

Since Peach and Schwarz are concerned to argue against abortion, they both address these two questions only in connection with each other. But these are two independent questions.

Addressing the first question, unlike the biological theory, the causal theory of parental obligations does not imply that a rape victim has parental obligations. A rape victim did not act to make her gametes available for fertilization; she was coerced into doing so by an invasive act of aggression. Therefore, a rape victim does not have parental obligations to any resultant child.

The case of rape highlights the absence of a compelling argument for the biological theory of obligation. Why should biology alone impose parental obligations in cases of rape? Schwarz and Peach argue that the resulting child is "entrusted to the woman as its mother." The passive voice in "entrusted" leaves unclear who is doing the entrusting. Is it anyone in particular, or society at large, or God? It seems likely that they are making a religious argument.

It is true that abortion is incompatible with parental obligations in cases of consensual sex, but not in cases of rape. However, although a rape victim does not have parental obligations, it does not necessarily follow that abortion is justified in such cases. Peach and Schwarz could argue that abortion is not legitimate in such cases on other grounds. In trying to argue that it is parental obligation which makes abortion impermissible in cases of rape, they are forced to rely on a biological theory of obligation that ultimately lacks any philosophical justification.

Children Do Not Have Obligations to Their Parents

Recently when I presented the argument that parents have enforceable positive obligations to their children, someone asked whether children have similar obligations to their parents. Do parents have an enforceable claim against their children according to a libertarian legal order?

The short answer is no. Children owe their parents the negative obligation not to initiate aggression against them, just as they owe this to all others. They do not owe their parents any positive obligations, such as the provision of care in their parents' old age.

There are no legitimate unchosen positive obligations. Legitimate obligations only arise as a result of one's actions. One must also accept as "chosen” those obligations that come from the unintended but reasonably foreseeable consequences of one's actions. This responsibility for the consequences of one's actions is the basis of the positive obligations that parents have to their children.

However, a child has not acted in any way that gives rise to positive obligations to his parents. Children are brought into life without action on their part. The actions that created a child were undertaken by his parents. Children do not (and cannot) consent to their relationship with their parents. That relationship is something that is put upon them without agreement. Therefore, there are no grounds for parents to have any claim against their children for positive obligations.

Those that argue children have obligations to their parents must argue that there are legitimate unchosen positive obligations. Here is an example of the argument from Andrew J. Peach:

it is generally acknowledged that relationships and circumstances give rise to obligations that are quite independent of the wishes of the people involved in those relationships and circumstances. For example, children (simply in virtue of being children) have special responsibilities toward their parents, especially during the latter’s twilight years. Children who do not make special allowances for their elderly parents, by providing emotional, financial, or physical support or just being generally solicitous of their well-being, are as unjust as they are ungrateful.

Peach is correct that people can have obligations "independent of [their] wishes", but there is something missing in his account. One cannot acquire positive obligations independent of one's actions. A father who does not wish to have the responsibility of being a parent still has a rightful obligation to his child because of the father's actions. He had sex, which is an act that has the reasonably foreseeable risk of creating a child, even when that was unintended. However, that same man does not have a legitimate obligation towards children that he did not father, since he did not act in any way that would lead to such an obligation.

Peach does not justify the unchosen obligations, he just takes it as given ("generally acknowledged") that they exist. That's because there is no logical basis for justifying such obligations.

I wonder if those who think children have positive obligations to their parents argue that such obligations are enforceable. Should parents be able to use the law to make their children pay for their care in old age? What could possibly be the basis to justify such a claim?

Here's another question: if parents had been negligent or abusive to their children, would the children still owe them obligations? Of course, parents are obliged to look after their kids no matter how badly their kids behave towards them because that obligation results from the parents own actions. But I wonder if those who think that children have an obligation to their parents would also argue that such obligations are independent of how badly the parents treated the kids?

The only answer that makes sense of all this to me is that children do not have positive obligations to their parents. I wrote more about this topic in my response to Harry Browne's letter to his daughter.

Defence of Abortion Entails Defence of Infanticide

All arguments used to justify abortion also logically justify infanticide. Pro-abortion arguments such as that rights are acquired rather than inherent, as well as the numerous criteria that have been suggested to qualify for rights (such as achieving a level of rationality or certain physiological characteristics), all apply just as equally to newborn infanticide as they do to abortion.

This means that a defence of abortion logically entails a defence of infanticide. You cannot choose to defend abortion and not defend infanticide without contradiction. This is a matter of fact that influential pro-abortion philosophers explicitly accept. Here are some examples.

In Practical Ethics (1979), Peter Singer readily admits to the logical connection between arguments for abortion and infanticide:

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.

In Abortion and Infanticide (1983), Philosopher Michael Tooley acknowledges that pro-choice arguments are pro-infanticide arguments and he knows that this is a "difficult issue" to accept:

Most current discussions of abortion tend to treat it in isolation from the question of the morality of  infanticide. One of the central contentions to be advanced here is that it is very difficult indeed to arrive at a defensible position on abortion unless one is prepared to come to terms with the difficult issue of the moral status of infanticide.

David Boonin's 1998 book A Defense of Abortion evaluates various arguments in terms of how "attractive" they are to those wanting to defeat rights-based arguments against abortion. Having rejected one suggestion, he considers whether to defend abortion by defending infanticide, but decides that this is not "attractive" since to acknowledge that abortion is on a par with infanticide would delegitimise it:

A defender of abortion …. could agree that you and I have a right to life but deny that newborn infants do. If newborn infants do not have a right to life, then it will again be a simple matter to establish that fetuses lack such a right, and the rights-based argument against abortion will again be defeated. This suggestion is likely to strike most readers as hardly more attractive than the first. In the popular debate about abortion, at least, to say that abortion is morally on a par with killing newborn babies is simply to say that abortion is morally impermissible.

Having accepted that abortion may be on a par with infanticide and that, if so, this would lead many to consider abortion unjustifiable, Boonin chooses to simply ignore this problem without providing any defence or argument:

A number of philosophers, including such prominent figures as Peter Singer and Michael Tooley, have argued that human infants do not have a right to life. And these arguments deserve to be taken seriously on their own terms. But they need not be taken seriously here. For the purposes of this book, arguments for the claim that human infants do not have a right to life can simply be set aside.

Whereas Singer and Tooley at least accepted the logical consequences of their pro-abortion arguments openly, Boonin is less honest. He chooses to "set aside" those logical consequences of his argument that he knows many will find horrific.

The Inconsistency of Pro-Abortion Libertarians

A few oddballs calling themselves libertarians have openly argued for both a pro- abortion and pro-infanticide position. In his 1895 article L'Enfant Terrible, Benjamin Tucker accepted that if one considers abortion justified then one also considers killing a newborn infant justified:

If, then, the child is the mother's while in the womb, by what consideration does the title to it become vested in another than the mother on its emergence from the womb and pending the day of its emancipation? I think that no valid consideration can be shown; and if such is the case, then it is established that 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.

In a 2019 article Abortion and Infanticide a Triple Libertarian and Critical-Rationalist Defence, Jan Lester argues for "the moral permissibility of the abortion and infanticide of unwanted humans" and states that "abortion and infanticide are, in themselves, morally neutral". Although the mind boggles at how anyone can evince such a profound level of moral bankrupcy, he is nonetheless correct when he states that the two positions are inseparable:

It is common, however, for people to accept some versions of these arguments as applied to abortion but reject them as regards infanticide. And that is simply to be logically inconsistent.

Yet this is not the usual stance of pro-choice libertarians. Most libertarian defenders of abortion want to hold the untenable position that abortion is valid but infanticide is not. A common way of attempting to square this circle is to argue that a baby in utero is some kind of aggressor by way of trespass, but this position relies on an unjustifiable denial of causal parental responsibility.

Libertarians who have attempted justifications of this kind include Murray Rothbard, Williamson Evers, and Walter Block. Rothbard's determination to deny causal parental obligations led him to argue the odd position that infanticide is justified if by deliberate starvation but not if by physical assault.

Most other pro-abortion libertarians fail to grapple with the logical implication of their view when it comes to infanticide. Unlike Benjamin Tucker and Jan Lester who say the quiet part out loud– openly advocating infanticide– pro-abortion libertarians usually either ignore their own inconsistency by not talking about infanticide or declare arbitrarily that they do not support it (despite supporting abortion).

If you are pro-abortion, at least have the honesty to accept the logical consequence: all your arguments for abortion also justify infanticide.

Compulsory Schooling As A Strategy To Increase State Control Of Children

For ideologues who see parents as a barrier to State power, an extreme strategy to remove that barrier is abolishing the family, which translates to a policy of coercive communal child rearing by the State.

Since abolishing the family is practically impossible, a more realistic alternative strategy to remove parents as a barrier to state power is compulsory schooling. This is an effective strategy because it leaves parents with the responsibility for feeding and housing children but takes the kids away to be under the control of the State for large periods of time. This creates lots of time for indoctrination by the State and at the same time reduces the time that parents can spend influencing their children to a minimum.

The case for compulsory schooling as a tool of social control has been made by many philosophers and thinkers including Plato, Luther, Rousseau, Fichte, Horace Mann, and Dewey. Unsurprisingly, The Communist Manifesto advocated compulsory state education in point 10 of the programme. Marx and Engels were unrepentant in agreeing to the charge that they aimed to "destroy the most hallowed of relations when we replace home education by social".

The American Progressive movement of the early twentieth century was explicit about the need for compulsory education as a tool of State indoctrination. In Euthenics (1910), Ellen H. Richards argued for compulsory schooling as a way for the State to get obedient citizens:

If the State is to have good citizens… we must begin to teach the children in our schools, and begin at once, that which we see they are no longer learning in the home.

In Moral Education the influential sociologist Emile Durkheim argued for using compulsory schooling to instil collectivist morality in direct opposition to the values of the parents:

we have through the school the means of training the child in a collective life different from home life. We can give him habits that, once developed, wifi survive beyond school years and demand the satisfaction that is their due. We have here a unique and irreplacable opportunity to take hold of the child at a time when the gaps in our social organization have not yet been able to alter his nature profoundly, or to arouse in him feelings that make him partially rebellious to common life. This is virgin territory in which we can sow seeds that, once taken root, will grow by themselves.

Opposing Parental Authority As A Strategy To Increase State Control Of Children

Parents can and do abuse their authority over their children. Children have rights and should not be aggressed against, neglected, or denied the care and support from parents that they have a legitimate claim to. However, those who argue for children's rights do not always have the interests of the children in mind. Sometimes the advocacy of children's rights is a vehicle for promoting the interests of political authority.

As discussed in previous posts, one school of thought in philosophy of the family holds that the State is the rightful owner of children and that parents are a barrier to State power.

Those who see parents as a barrier to State power seek strategies to separate parents from children. One example is to advocate for communal child rearing. A related strategy is to seek ways to weaken parental authority.

In What's Wrong With Children's Rights, Martin Guggenheim identified two distinct goals within the children's rights movement of the 1960s:

Broadly speaking, the children’s rights movement since the 1960s has focused on two sometimes intertwined but often completely separate matters. One concerns the rights of children with respect to the exercise of state power; the other, the rights of children with respect to the exercise of parental authority.

Guggenheim argues that the goal of reducing state power over children was rapidly sidelined. Instead, reducing parental authority over children became the dominant goal. A key group driving the movement was lawyers involved in the emerging field of children's rights law. Guggenheim was himself a children's rights lawyer and he laments the fact that the movement came to focus almost exclusively on the reduction of parental authority as opposed to the reduction of state power.

In Parental Rights the Contemporary Assault on Traditional Liberties, Krason and D'Agostino argue that children's rights advocates use the existence of abuse as a pretext to justify the State taking authority over children instead of parents:

Some of the most influential advocates of children’s rights begin with observations that some parents are not protecting their children. Then they use instances of child abuse to justify a general transfer of authority from the parents to social workers and lawyers.

As an example, they cite Cohen's argument in Equal Rights for Children that the existence of child abuse justifies restructuring of all relationships between parents and children:

we must be ready to accept the idea that dealing with child abuse will mean changing the structures of all relationships between adults and children—not merely the bad ones. If we can not say in advance which adults are likely to abuse children and which are not, then we can not reduce child abuse by treating parental problems case by case. We would be too late—and probably do too little as well. To treat the problem seriously, then, we would have to find a way to build checks against child abuse into all our relationships with children.

This opposition to parental authority is characteristic of all Statists who see parents as a barrier to political authority. From the early Progressive movement, parents were seen as a problem that children need to be liberated from. In The Home: Its Work and Influence (1903), Charlotte Perkins Gilman argued for recognition of children's rights as a way for the State to gain more influence over them and the parents less:

There is no more brilliant hope on earth today, than this new thought about the child .… the recognition of 'the child,' children as a class, children as citizens with rights to be guaranteed only by the state; instead of our previous attitude toward them of absolute personal ownership—the unchecked tyranny, or as unchecked indulgence, of the private home.

Many intellectuals have made the argument that only people approved by political authority ought to have the right to parent children, and that unapproved should never be left with parental authority. This is set out as a policy goal of licensing of parents, or restricting of parenting to only those approved by the State. One of the anthropologist Margaret Mead's proposals was that children be taken from natural parents and assigned to couples specially trained and certified for parenthood. This idea was also advocated by Alvin Toffler in Future Shock (1970) and by the academic Hugh LaFollette in his 1980 paper Licencing Parents. LaFollette argued that if any unlicensed parents have unapproved children then the State should "remove the children and put them up for adoption.”

Communal Child Rearing As A Strategy To Separate Parents From Children

In a previous post I outlined three schools of thought on the relationship between parents and political authority. One of those schools of thought sees parents as a rival power base to political authority that must be overcome. This is the perspective of communist and leftist movements that view the influence of parents on their children as a barrier to State power.

This group sees children as property of the State. By separating parents from their children, parents can be more easily controlled and children more easily indoctrinated by the State. One strategy of those who want to separate parents from children is to advocate communal child rearing.

The earliest advocate of communal child rearing was Plato, who set this out in The Republic. Plato wanted the State to become the central focus of commitment instead of the family, possibly influenced by the example of Sparta using this policy for the same goal.

The abolition of the family has been an explicit goal of all communist movements and is stated in The Communist Manifesto by Marx and Engels (1848). It was also advocated by pre-Marxist communists such as Morelly in his La Code de la Nature, (1755). Although Rousseau did not call for full communal child rearing, his critique of the family led many that he influenced, such as Morelly, to see this as a solution.

The goal of abolishing the family was advocated by Shulamith Firestone in The Dialectic of Sex (1970) and by various others since as a perennial aim of radical leftist movements. What the abstract goal of "abolishing the family" means in terms of specific policy is compulsory separation of children from their parents and raising of children in communal groups organised by the State.

Anthropologist Margaret Mead argued for removing the children from parents as part of her critique of the nuclear family. She presented a positive depiction of Samoa where she argued that the "large family community" of communal child-rearing "diffuses" affection and prevents the formation of the "crippling attitudes which have been labelled Oedipus complexes, Electra complexes, and so on". Mead's goal was "to mitigate… the strong role which parents play in children's lives."

Contemporary philosophers Brighouse & Swift advocated breaking the relationship between biological parents and their children in pursuit of egalitarianism. Rather than specifically advocating communal child rearing, they make a more general argument against the view that children should be raised by their biological parents. They argue that "adults have no fundamental right to parent their own biological children". They see being a parent as a benefit that should ideally be distributed in a more egalitarian way, so they argue that non-parents such as homosexuals, single people, and polyamorous groups should have access to children to experience the benefit of raising kids too. They argue that the claim children have a right to be raised by their biological parents should be opposed as prejudice.

Moderate leftists such as Brighouse & Swift advocate incrementally more separation of children from their biological parents, whereas radicals such as Marx want total abolition of the family.

There may be other motivations for the advocacy of communal child rearing, but for some it is a conscious strategy to separate parents from their children and thereby attack the family as rival power base to the State.

The Theory of State Ownership of Children

One theory of the parental role is that parents are troublesome barriers getting in the way of a more fundamental relationship, that between the State and children. This is the theory of State ownership of children. Like the theory of parental ownership, this theory sees children as subject to ownership rights. However, instead of parents this theory posits the State as the rightful owner.

According to this theory, parents are subversive to the political authority of the State and this is seen as a problem. Parents cannot be trusted to inculcate loyalty to the state and therefore the State must take steps to separate children from parental influence. Advocates of the theory also believe that the State owns the adult citizens that the children will become, but they see childhood as the key stage in which this ownership right must be indoctrinated.

The idea that the State is the rightful owner of children goes back to antiquity. Plato’s Republic famously advocated for the abolition of the family and its replacement with communal, class-based child-rearing for the good of the State. In The Laws, Plato claimed that children “belong to the state first and their parents second.” in Politica, Aristotle claimed that children “all belong to the state.” He criticized Athenian education because "every one looks after his own children separately, and gives them separate instruction of the sort which he thinks best." The legislator "must mold to his will the frames of newly-born children".

Rousseau openly advocated the idea that the State owns its citizens from childhood. In Discourse on Political Economy he wrote:

From the first moment of life, men ought to begin learning to deserve to live; and, as at the instant of birth we partake of the rights of citizenship, that instant ought to be the beginning of the exercise of our duty. If there are laws for the age of maturity, there ought to be laws for infancy, teaching obedience to others: and as the reason of each man is not left to be the sole arbiter of his duties, government ought the less indiscriminately to abandon to the intelligence and prejudices of fathers the education of their children, as that education is of still greater importance to the State than to the fathers: for, according to the course of nature, the death of the father often deprives him of the final fruits of education; but his country sooner or later perceives its effects. Families dissolve but the State remains.

The French Revolutionaries were highly influenced by Rousseau, including in regard to the idea that the State owns children. Danton claimed “The time has come to establish the principle that children belong to the Republic before they belong to their parents".

Given how Hegel exalted the State and saw individuals as subservient to it, it is not surprising that he also advocated State ownership of children. For Hegel, the purpose of education was “to break down the child’s self-will” and, like Rousseau before him, he believed that “society’s right here is paramount over the arbitrary and contingent preferences of parents.”

The Progressive movement in the US, highly influenced by Hegelian ideas, was another group advocating State ownership of children. American progressive Jenkin Lloyd Jones argued that all children were children of the state: "The state is but the coordinated parentage of childhood, yielding to the inexorable logic of civilization that will compel co-partnership, co-operation, corporate life and conscience."

Most sociology, as it developed in the twentieth century, took this view implicitly or explicitly. In Moral Education, Durkheim argued that the collective (epitomised by the State) is an independent organism and source of all moral and intellectual substance. He argued that the State would eventually take the place of the family:

The center of gravity of moral life, formerly in the family, tends increasingly to shift away from it. The family is now becoming an agency secondary to the state.

More recent Statist philosophers Brighouse & Swift deny any limits on State interference in the family, arguing that "adults have no fundamental right to parent their own biological children". In Family Values they make it clear that they see their role as intellectuals to be one of providing advice the State in its exercise of power over the family:

The state decides what parents should be free to do to, with, and for their children; indeed, it sometimes decides who should be permitted to become parents in the first place. We set out a theory that aims to guide the state in its delibera­tions

Three Views of the Relationship Between Parents and Political Authority

Most philosophy can only be understood as motivated reasoning in furtherance of political aims. Even something as seemingly neutral as the philosophy of the family has deep political implications.

The perennial problem for political elites is that there is no good justification for compulsory obedience to the State. Why should the masses do what their rulers tell them to do? Everyone ordered to pay taxes and obey State edicts asks themselves this question at some point. If the masses do not believe that they should obey, then the elites have to resort to forcing them with violence. This is hard, since the elites are always outnumbered by the masses. It is much easier for elites if the masses are convinced to obey by arguments.

This is where intellectuals like philosophers come in. The main role of intellectuals throughout history has been to provide persuasive arguments to justify power. This is ultimately why intellectuals are subsidised by the State. Their most important task is to convince the masses to obey their rulers. As long as intellectuals do this, their other activities are tolerated by the State. Only a very small group of anti-intellectual intellectuals have been skeptical or opposed to political power.

This means that even if a philosopher is making arguments about something like the nature of the family, a good default assumption is that he has a political agenda. That agenda is almost always to make arguments that imply that it is good to obey the political rulers he is obedient to.

One of the ways in which the masses can be persuaded of the legitimacy of political authority can is if they are indoctrinated as children. If children can be convinced that they owe obedience to the State during their most suggestible years, then the adults that they become will be obedient. What role would parents play in this process?

Interestingly, there are competing views about the best way to indoctrinate children into obedience to the State, especially regarding the role of parents. Although many philosophers have had the goal of justifying political rule to children, they have disagreed about how to treat parents within this goal.

• One school of thought sees parents as allies of State power that can usefully help to justify the authority of political order. This school is represented best by the philosophy of patriarchalism of the historical period of absolutist monarchies.
• Another school of thought sees parents as barriers to State power that should be overcome. This is best represented by the communist and leftist movements in their goal to abolish the family.
• A much smaller dissident school of thought is skeptical of State power and sees parents as subversive of political authority. Like the communists, this group sees parents as a barrier to State power but, unlike the communists, they view this as a positive. This is represented in some strains of classical liberalism and libertarianism.

In future posts I will discuss each of these schools of thought in more detail.

The Dark Side of the Children's Liberation Movement

The children's liberation movement emerged in the 1970s, drawing inspiration from the feminist movement and other social changes of the period. Two of its most influential manifestos were Escape From Childhood by John Holt and Birthrights by Richard Farson. David Archard summarised the movement's core propositions:

The basic claims of the children’s liberationists are that the modern separation of the child’s and adult’s worlds is an unwarranted and oppressive discrimination; that this segregation is accompanied and reinforced by a false ideology of ‘childishness’; and that children are entitled to all the rights and privileges possessed by adults.

My aim in this article is to point out the dark side of the children's liberation movement. Before doing so, I acknowledge that the movement also had some good ideas. In particular, I have learned a great deal from John Holt. His book Escape from Childhood contains many entirely valid critiques of the abuse of power over their children by parents. His book Instead of Education is an excellent critique of schooling with useful suggestions for alternative ideas for education.

Justifying Sexual Abuse of Children

The children's liberation movement was highly skeptical of parental authority. The core idea that came out of the movement is the view that parents have no right to act paternalistically towards children and that paternalism is itself a kind of abuse of parental power. As a corollary of this view, parents (and other adults) should treat children in the same way that they would treat a rights-bearing adult.

There are numerous problems with this theory but I want to focus on the most significant implication of this view: the idea that children can consent.

People are responsible for the reasonably foreseeable consequences of their actions. Since children have not yet reached a level of rationality that enables them to foresee the consequences of their actions, they are not able to meaningfully consent to contracts, medical decisions, sexual activity, or other agreements.

The child liberationist movement denied this. Since restrictions on children were seen as illegitimate, child liberationists argued that children are able to consent to contracts and, most significantly, to sex. Richard Farson clearly states this in Birthrights:

What it does advocate is the freedom for children to conduct their own sexual lives with no more restrictions than adults. Further, that all sex activity be decriminalized so that sexual experimentation and sexual acts between consenting people can be enjoyed without fear of punishment. If all this sounds too open and free, we must recognize that in this society—when it comes to matters of sexuality—we are not likely to err in the direction of too much freedom.

If "all sex activity" is decriminalized, this means that adults would be able to have sex with children. This is justifying, defending, and excusing such evils as pedophilia, incest, and the sexual abuse of children. This is the dark side of the children's liberation movement and it can be seen in all the writings of the period.

The theorists of the movement do not deny that their views logically entail that adults should be able to have sex with children. Instead, they make a range of excuses and minimisations.

The argument child liberationists used to defend their views on child sex was as follows:

1. The child liberationists claimed that society has an unrealistic view of children as asexual or innocent.
2. They argue that children have sexual feelings.
3. They conclude that since children are sexual beings (and not innocent), therefore sex with children should be allowed.

Whether or not society has an unrealistic view of children's sexuality is irrelevant to the moral question of whether a child can consent. Whether a child has sexual feelings is beside the point: children cannot meaningfully consent. The presence or absence of sexual feelings in the child has no bearing on whether they can consent. The declared consent of a child has no bearing on whether an adult who has sex with the child has committed a crime because a child's consent is not meaningful.

Grooming

What the children's liberation advocates argue is that there is no such thing as grooming. This follows logically from their argument that children can consent. According to this idea, all that a pedophile would need to do is persuade a child that sexual activity is beneficial to the child, and then the pedophile would not be committing a crime, since the child "consented".

John Holt dismisses the risk of grooming by asserting that children are capable of sexual desire and therefore are not victims. In Escape from Childhood he writes:

Some people have voiced to me the fear that if it were legal for an adult to have sex with a consenting child, many young people would be exploited by unscrupulous older ones. The image here is of the innocent young girl and the dirty old man; few worry about the young boy having sex with an older woman. Here, too, we are caught with the remains of old myths–in this case, that only men were sexual, that women were pure and above it–from which it follows that any young girl having sex with an older man must necessarily be his victim.

Holt entirely dismisses the sexual abuse of boys by adults as either non-existent or socially acceptable. He then asserts that the problem of grooming is merely based on old myths and argues that if children are persuaded to have sex by adults then it is not a crime.

Pedophiles seek out children who are vulnerable precisely because such children will be much easier to persuade and so the pedophile can commit their crime with much less resistance from the child. Vulnerable children are highly suggestible because they are not being cared for and protected by their parents. This vulnerability is exploited by pedophiles. This evil exploitation of children who have already been neglected and harmed is what grooming is. Yet child liberationists deny the existence of grooming.

Incest

How can children's liberation advocates seriously defend an evil such as the sexual abuse of children by their parents? The main defence is to minimise the gravity of this crime by claiming that it is not a big deal and kids turn out fine. Here is how Richard Farson argues it:

Incest and sexual activity within the family, whether it be father-daughter, mother-son, brother-sister or any homosexual combination of those partners, is far more common and far less traumatic than we have always been led to believe.

In a horrific passage, Farson agrees with someone he cites who argues that fathers should be able to have sex with daughters in order to preserve the family if the mother is unable to have sex:

Sometimes incest occurs because it becomes functional to the preservation of the family, for example, if the wife is an invalid. When a family member, as Bagley puts it, "is socialized in the norms of incest, whether it is seen by the family to be functional for the survival of the family or because it is desired for some other reason by some dominant family members, the evidence from case histories shows that incest can be accepted by the younger partner with equanimity." This is literally arguing that parents may use their children as sex objects and that the children will be fine.

Citing Child Sexual Abuse of Babies As Evidence

As part of the argument that children should be viewed as sexually active, Farson cites the crank Alfred Kinsey's 1953 book Sexual Behavior in the Human Female:

Full display of physiologic changes which are typical of the response of an adult have been observed in both female and male infants as young as four months of age.

This citation is itself evidence of sexual molestation of babies that was undertaken by Kinsey in his research. Kinsey did experiments on children to see how many orgasms they could have within 24 hours. He documented this in a table in his book.

Pedophilia

Farson uses a long quote from Karl Menninger's 1942 book "Love Against Hate" to argue that pedophilia has positive benefits for the child:

The assumption is, of course, that children are irreparably ruined by such experiences. Without intending in the least to justify or excuse such criminal behavior I may nevertheless point out that in the cold light of scientific investigation no such devastating effects usually follow (a fact which I hope will be of some comfort to certain anguished parents). Two psychiatrists (Lauretta Bender and Abram Blau) recently made a careful follow-up study of such cases and concluded that children exposed to premature sexual experiences with adults frequently turn out to be "distinguished and unusually charming and attractive in their outward personalities." The conclusion to be drawn from such observations need not be shocking; they simply bear out our contention that sexuality is not the evil and horrible thing it is generally conceived to be. Such experiences are traumatic to the child only when connected with deep hostilities; the furtive and desperate nature of such attacks, combined with the attitude of society toward them, tends entirely in the direction of unbearably stimulating the child's hostilities so that he conceives of sex as brutality. But when the experience actually stimulates the child erotically, it would appear from the observations of the authors cited just above that it may favor rather than inhibit the development of social capabilities and mental health in the so-called victims.

Menninger asserts that he doesn't intent do justify or excuse pedophilia, but immediately goes on to do both. The implicit assumption in this despicable quote is that the child has consented to sex. Again, children cannot meaningfully consent.

Menninger assumes that children who have been abused are fine because they are "unusually charming and attractive". His skill as a psychiatrist doesn't seem to be enough to make the obvious connection that children in such circumstances may appear charming because they have had to adapt their personalities to please adults as a matter of survival.

The contemptible nature of his arguments can be seen by making the same argument more clearly using the word rape (which pedophilia is): e.g. rape is not such a big deal because the victims have better "social capabilities" afterwards etc. Whether or not rape is wrong does not depend on how devastated the victim is. If the victim survives and ends up thriving, that does not mean that rape was acceptable.

Farson has another argument to justify pedophilia: the claim that children enjoy sex with adults and that it is really hurting the child to treat pedophilia as wrong. He quotes Germaine Greer, who minimised the issue and claimed positive benefits:

One woman I know enjoyed sex with an uncle all through her childhood, and never realized that anything unusual was toward until she went away to school. What disturbed her then was not what her uncle had done but the attitude of her teachers and the school psychiatrist. They assumed that she must have been traumatized and disgusted and therefore in need of very special help. In order to capitulate to their expectations, she began to fake symptoms that she did not feel, until at length she began to feel truly guilty about not having been guilty. She ended up judging herself very harshly for this innate lechery.

Note that Greer simply assumes that the child could legitimately consent to sex and so it doesn't even occur to her to address whether the adult had done anything wrong.

Increased Child Sexualisation

Another bizarre argument by child liberationists is that if there were increased sexualisation of children, this would protect children from sexual abuse. The argument is essentially that society is too repressed about sex and that if everyone just lightened up then children would be able to resist sexual advances because sex would not be such a big deal. John Holt argues this in Escape from Childhood:

A mother of three daughters told me once that because she, speaking for society, was able to tell one of her daughters that she could not sleep with a young man who wanted to sleep with her and was using various kinds of blackmail in order to get her to do it; the daughter was protected. She did not have to say no for herself. She could even say things like, "I'd like to but my mother would kill me." But this is all in the context of a society in which men exploit women as sex objects. In a society such as I propose, the dangers (to the daughter) of sex would be less. At the same time the pressure on the young man to make a conquest would also be much less. If sex were not seen as dangerous, romantic, and ecstatic, and at the same time dirty and disgusting, there would be less need to protect people from it, and they would be more able to protect themselves. Women who did not feel that their worth depended on their being sexually attractive to men would not be swayed by the kind of blackmail boys use on girls today--indeed, they would be turned away by it. A young man who tried it would soon be out of luck.

Did Holt seriously think that children can defend themselves from manipulative sexual aggression simply by being more familiar with sex?

Abortion

One of the things John Holt advocated as a solution to pregnancies arising from children having sex (including sex with adults) was ready access to abortion for children:

If we also developed and made available safe, easy, and cheap ways to end such unwanted pregnancies as did occur, there would be very few unwanted children. Then at least this reason for thinking that we have to protect inexperienced young girls from the perils of sex would no longer have weight.

He does not seem to view a child getting an abortion as anything particularly significant. Even if one leaves aside the morality of abortion (which I have written about elsewhere), an obvious point here is that abortion is a hugely significant act with long term psychological ramifications. The idea that children can rely on it to remove the risk of unwanted pregnancies from increased sexual activity is irresponsible in the extreme.

The Wider Movement for Legitimising Child Sexual Abuse

It was not only Farson and Holt who made arguments to legitimise pedophilia. Many other thinkers of the postwar period also argued for this.

Shulamith Firestone's influential radical feminist tract The Dialectic of Sex had a chapter on child liberation in which she called for "The sexual freedom of all women and children" so that "now they can do whatever they wish to do sexually". She explicitly defends incest, stating:

Thus, without the incest taboo, adults might return within a few generations to a more natural polymorphous sexuality, the concentration on genital sex and orgasmic pleasure giving way to total physical/emotional relationships that included that. Relations with children would include as much genital sex as the child was capable of – probably considerably more than we now believe

In 1977, Jean-Paul Sartre, Jacques Derrida, Michel Foucault, Simone de Beauvoir, and other intellectuals signed a petition to the French parliament calling for the decriminalization of all "consensual" sexual relations between adults and minors below the age of fifteen, the age of consent in France at the time.

Conclusion

The children's liberation movement was at its best when criticising the abuse of power by parents and by the State. It went seriously wrong when suggesting alternative norms for relationships between adults and children.

The core philosophical problem with the children's liberation movement is that the authors had no real theory of what the parental role is. In particular, they did not have a coherent theory of parental obligations or parental authority.

Do parents have enforceable obligations to their children? If so, what should those obligations be? Both Holt and Farson were vague on this question.

Do parents have any basis for parental authority? Holt and Farson were skeptical but never fully repudiated parental authority. They were not advocates of abolishing the family like Shulamith Firestone. Yet they never clarified what parents should have authority to do. Holt accepted that parents have authority to make rules about what goes on in their own home as homeowners, but he left it at that.

Since they lacked a theory of the parental role, the children's liberation advocates viewed parents as if they were merely some benevolent friends of the children and children as if they were just small adults.

Neither Holt nor Farson thought about the causal responsibility parents have for the state of peril that children are in. Nor did they consider the implication of this principle: that parents have an enforceable obligation to remove their children from a state of peril by raising them to the safety and self sufficiency of adulthood.

If they had thought about the parental role in light of this principle, they would have argued that parents have a clear obligation to protect their children from sexual predators, as part of their more general obligation to get their kids out of peril. And they would have argued that in order to fulfil that obligation, parents have authority to act as guardians of their children, including protecting their children from predators, dangers, and consequences that their children do not yet fully comprehend.

Why Don't Parents Own Their Children?

One ancient theory of the parental role is that parents own their children as property. The vast majority of classical liberal and libertarian thinkers have been against this theory ever since Locke published the Two Treatises in 1689. Locke spent the whole of the first treatise arguing against Robert Filmer's Patriarcha. Whereas Filmer had argued for unlimited parental (patriarchal) ownership of children, Locke argued that parental authority has limits and children have rights.

Locke faced a major problem in opposing parental ownership that dogged libertarian thought for centuries: Locke’s own theory of homesteading— if applied to determine the ownership of bodies— logically implies that parents own their children. The homesteading rule states that the rightful owner of a resource is the creator or first user of it. In the case of children, parents are the creators. Locke tried to resist the implication of homesteading theory that parents own children but did not have good arguments. So why don't parents own their children?

The core premise of the theory of parental ownership— that homesteading is the method of establishing ownership over bodies— is incorrect. 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 indeed demonstrated by first-use homesteading.

However, when it comes to human bodies, each individual has the best objective link for ownership of their own body. This is the objective rule used for establishing self ownership of bodies. Babies own themselves because nobody else has a better objective claim to own them. The best objective link is also 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.

The fact that self ownership is the best objective link is irrefutable. Anybody who wanted to claim that their parents (or anyone else for that matter) have a better claim to their own body than they do would be contradicting themselves in the very process of arguing. This is because one must accept self ownership in order to use one's own body to argue, so one cannot refute it.

Furthermore, the theory of parental ownership is logically flawed because there is no way to account for an owned child becoming a self-owning adult. You cannot acquire ownership of yourself because an individual cannot homestead anything unless he already has 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 because one cannot homestead oneself.

In short, parents do not own their children because humans cannot be owned. Humans are self owners.

A Response To Tom Woods on Parental Obligations

Among libertarians, there are four competing theories on the nature of parental obligations:

1. The Theory of Parental Ownership: parents own their children as property. This has been advocated by Benjamin Tucker and Jan Narveson.
2. The Theory of Parenting as Charity: parents have no enforceable obligations so any care they provide is akin to charity. This was advocated by Murray Rothbard, Harry Browne, Wendy McElroy, and many others.
3. The Theory of Parenting as Voluntary Social Contract: parents do have obligations, but only after they voluntarily take on this commitment by tacit contract with society at large. This has been advocated by Roderick Long and Steve Horwitz.
4. The Theory of Parental Responsibility: parenting is an enforceable obligation that arises by creation of peril through causal action by the parents. This last theory has been advocated by Nathaniel Branden, Doris Gordon, and Stephan Kinsella.

In Episode 733 of The Tom Woods Show, Tom Woods set out a brief defence of the principle of causal responsibility for parents. This makes Woods another libertarian who supports the theory of parental responsibility.

The theory of parental responsibility has radical implications. One clear implication is that abortion is incompatible with parental obligations. Therefore, if you accept the principle of enforceable parental obligations as a result of causal action, you must deny the legitimacy of abortion (at least in cases of consensual sex). Doris Gordon made this point effectively in her writing. Some libertarians have been willing to accept the principle but nonetheless refuse to accept the logical consequence on abortion- Nathaniel Branden and Stephan Kinsella are two examples of this position. In his podcast, Tom Woods not only set out the principle but also showed that he clearly understands and accepts the logical implication that abortion is indefensible.

I believe that the theory of parental responsibility is correct, so I am glad that Tom Woods agrees with this theory. For anyone who is interested, the theory has a history with roots in the work of Blackstone, Kant, Sidgwick, and others. The theory also has other radical implications which Woods might not be aware of. Here are just two as examples:

1. Both the mother and father are jointly and severally liable for their obligations (this is not true for other libertarian theories about parenting).
2. You cannot give up your parental obligations. This means that parents cannot legitimately absolve themselves of all obligation by giving up a child for adoption. It also means that gamete donation cannot be justified.

Circumcision: Chesterton's Fence vs. Self Ownership

There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, "I don't see the use of this; let us clear it away." To which the more intelligent type of reformer will do well to answer: "If you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it." - G. K. Chesterton

There are numerous problems with Chesterton's Fence argument, but the most important one is explained succinctly by a Reddit user:

The logic of Chesterton’s Fence literally says; "If you cannot defend my position, my position must be correct."

This is a fallacy. It is a sophist rhetorical strategy that attempts to transfer all responsibility for argumentation to the person you disagree with. It is not the responsibility of your opponent to make your argument for you.

I understand the motivation behind Chesterton's analogy. He was arguing against those who want to use the power of the State to coerce changes on everyone else. He was opposing the zealous midwits who act as if reality is completely malleable to coercive policy. These are people who have no regard for unintended consequences. But the correct principle to appeal to against such changes is not Chesterton's fence, it is private property rights.

Chesterton's fence argument only works if you ignore the existence of property rights, which solve the supposed problem. Who is the presumptuous busybody in Chesterton's analogy? Is it the person who sees a fence on the road and says "let us clear it away," or is it the person who says "I certainly won't let you clear it away"? It is impossible to say without knowing who rightfully owns the fence or the road.

The principle is that the property owner gets to decide what to do with his property. Obviously his choices are constrained by the requirement to respect other people's property and by any restrictive covenants or contracts that he's agreed to. But other than that, it is nobody else's business. In the case of both fences and roads, any change or continuity should be the choice of the rightful owner (and the State is not a rightful owner).

Neonatal Circumcision

The stupidity of using Chesterton's fence as a principle can be seen by applying it to the example of neonatal circumcision. In his book Circumcision A History of the World's Most Controversial Surgery, David L. Gollaher points out that the more you know about the history of circumcision the less sense it makes:

It is far easier to imagine the impulse behind Neolithic cave painting than to guess what inspired the ancients to cut their genitals or the genitals of their young.

I do not understand the motivation behind neonatal circumcision. I find the stated arguments for it to be absurdly unconvincing. It looks like sadism to me, but I don't claim to be able to see into the minds of parents who do this. Yet Chesterton's fence implies that until I can completely explain the institution and show why it exists, I should support it. Gollaher suggested a thought experiment about circumcision that applies the opposite principle to Chesterton's fence:

Imagine, for a moment, that circumcision had never caught on in America as a neonatal routine. In other words, suppose the United States were, say, like Norway. Next, imagine that a physician were to urge, in a talk at the annual meeting of the American Academy of Pediatrics, doctors to begin operating on the genitals of all baby boys shortly after birth in order to achieve marginally lower incidence of urinary tract infections and perhaps some other diseases. Of course no physician would dream of proposing such a thing today. The threshold for demonstrated effectiveness in surgery, particularly surgery on infants, is far too high. Indeed, as the history of female circumcision suggests, if male circumcision were confined to developing nations, it would by now have emerged as an international cause celebre, stirring passionate opposition from feminists, physicians, politicians, and the global human rights community. If routine medical circumcision didn't exist today, no one would dare to invent it.

My objection to circumcision is based on the principle of self ownership- the most fundamental property right. Children are self owners and circumcision is an act of aggression against their bodies. As Walter Block and Patrick Testa put it:

neonatal circumcision is a violation of the right to bodily integrity, an overreach of religious freedom, and a coercive act on the most helpless of us all.

Applying the principle of self ownership also yields the compromise that circumcision is legitimate as a voluntary practice for consenting adults, just not as a coercive act performed on children. Here's Block and Testa again:

All we need do is not eliminate circumcision but rather postpone it. Instead of imposing it on helpless babies, too weak and immature to object to this invasive medical procedure, adults can choose for themselves whether or not to avail themselves of circumcision. Those convinced of its benefits would be free to do so; others need not.

A Critique of Nozick's Comments on Parental Obligations and Children's Rights

Robert Nozick made astute comments on one of the most important philosophical problems: what are the obligations of parents and the rights of children? Nozick's comments show that he understood the causal principle of parental responsibility. Yet at the same time, Nozick does not seem to have cared about trying to solve the problem of children's rights and some of his later comments on the topic are inane.

Nozick's insights into the philosophical problem of children's rights can be seen in his commentary on John Locke's theory of homesteading. Locke was a staunch opponent of the ancient theory of parental ownership of children. He spent the whole of the first treatise arguing against Robert Filmer's Patriarchia. Whereas Filmer had argued for unlimited parental (patriarchal) power over children, Locke argued that parental authority has limits and children have rights.

Locke faced a major problem in opposing parental ownership: his own theory of homesteading logically implied that parents own their children. The homesteading rule states that the rightful owner of a resource is the creator or first user of it. Who owns the body of a baby? Since parents create their children, this implies that parents own their children. In Anarchy, State, and Utopia (1974), Nozick explains Locke's problem:

Locke must discuss Filmer in detail, not merely to clear the field of some alternative curious view, but to show why that view doesn't follow from elements of his own view, as one might suppose it did. … Ownership rights in what one has made would seem to follow from Locke's theory of property.

Locke tried to resist the implication of homesteading that parents own children. Although he was correct to deny parental ownership, unfortunately Locke's arguments for this conclusion were flawed. Locke's two arguments for why parents don't own their children were:

1. You can only own something that you create if you control and understand everything about the process of creating it.
2. God is the creator of all humans, therefore parents cannot be said to create their children.

Nozick showed that both these arguments fail. He pointed out that it is an impossible standard to hold that one can only own something one made if one completely understands it:

Surely most of what most of us do is to intervene in or originate processes whose complete operation we do not understand, yielding a result we could not completely design. (Who knows all of what physicists say is relevant to materials having the properties they do and to forces working as they do; and who knows what the physicists don’t know?) Yet in many such cases, Locke does want to say that we own what we produce.

Nozick also refuted Locke's fallback argument that God is the real creator of children, not parents, since this could be applied to everything and would therefore invalidate the whole concept of homesteading:

If the point is that God, far more than a child’s parents, is the maker of a child, this applies to many other things that Locke thinks can be owned (plants, nonhuman animals); and perhaps it applies to everything.

It is at this point in his commentary on Locke that Nozick makes two key insights into the problem of children's rights.

Nozick's First Insight: Locke Conceded That Children Are Ownable

Nozick shows that despite Locke's intention to defend and extend children's rights, Locke's argumentative strategy actually undermined them. By relying on the argument that it is really God who owns children, Locke was conceding the principle that the creator of a child owns that child, and merely shifting the debate as to who the rightful creator is. Locke was therefore unable to argue that human beings are not ownable. As Nozick explained:

Note that Locke is not claiming that children, because of something about their nature, cannot be owned by their parents even if these make them. He does not claim that something about people (who have not done anything unjust for which their lives are forfeit…) bars ownership in them by their maker, for he holds that God owns man by virtue of making him in all his exalted natural properties.

Nozick's Second Insight: Locke Denied Causal Parental Responsibility

Nozick pointed out that the arguments that Locke chose had the implication of denying that parents have enforceable obligations as a result of their causal action. If parents are not the cause of a child's existence, they cannot be held liable for a tort responsibility of putting the child in a state of peril as a result of creating them. Locke was forced to rely on a much weaker appeal to natural law to ground parental obligations. As Nozick explained:

Note that Locke’s strong denial that parents make their children, causing these beings, removes one base on which to found the responsibility of parents to care for their children. Thus Locke is reduced to saying that the law of nature requires such parental care (sect. 56), as a brute moral fact, apparently. But this leaves unexplained why it requires the care from the parents, and why it isn’t another case of someone’s receiving “the benefit of another’s pains, which he had no right to”

This short passage reveals a lot about Nozick:

1. He understood the argument for a causal principle of enforceable parental obligations
2. He realised that Locke's approach undermined this principle

What Did Nozick Argue About Parental Obligations?

Did Nozick agree that parents have enforceable parental obligations? Having identified the problem that Locke had created on this topic, Nozick avoided setting out his own position or defending it. One brief passing comment from his 1981 book Philosophical Explanations suggests he did think parents have such obligations:

The father, by abstaining from feeding the child, does cause and is responsible for its death, but not merely because he could have prevented it--he had a special responsibility to feed the child

This comment suggests that he disagreed with Rothbard's theory of the parent-child relationship (Nozick was influenced by Rothbard so almost certainly knew of what Rothbard had written on this). However, Nozick did not elaborate or provide any justification for this statement, he merely asserted it in passing. He does not specify whether he is arguing that the "special responsibility" of parents is an enforceable obligation or merely a duty of virtue. Most importantly, he does not explain whether he views this as a responsibility resulting from causal action or from voluntary agreement.

What Did Nozick Argue About Children's Rights?

In Anarchy, State, and Utopia, Nozick set out four argumentative strategies one could use to argue against parental ownership of children:

1. Arguing that children are unownable
2. Arguing that homesteading does not apply to the case of assigning ownership of children
3. Arguing that parents are excluded from this specific property right
4. Arguing that parents are not really the creators of their children and therefore cannot homestead them

Nozick pointed out that Locke had prevented himself from arguing that children are unownable and had failed in his use of the other approaches. But Nozick declined to reveal his own solution to this problem or to explain where his own efforts at solving it faltered. He was content to give others the homework instead:

We have seen problems with Locke’s attempt to work 2, 3, and 4. The latter two being unpromising, someone of Lockean persuasion would have to work out a variant of 1 or 2.

Wasn't Nozick "someone of Lockean persuasion"? Why didn't he put forward his own answer? If he could not justify children's rights, why didn't he at least explain where he had got to and identify the challenges that he was unable to overcome?

In another passing comment in Philosophical Explanations Nozick did assert that children have rights:

even if the parents' only purpose was to produce a slave, and a slave's life is better than nonexistence, the offspring does not owe to his parents acquiescence in being enslaved. He is under no obligation to cooperate, he is not owned by his parents even though they made him. Once the child exists, it has certain rights that must be respected (and other rights it can assert when able) even if the parents' very purpose was to produce something without these rights. Nor do children owe to their parents whatever they would have conceded in bargaining before conception (supposing this had been possible) in order to come into existence.

But he declined to justify this assertion. Nozick never explained how or why children have rights. He never explained whether the rights of children are the same as those of adults.

In later years, the quality of Nozick's thoughts on the status of children seriously degraded. In stark contrast to his earlier insightful comments on how to refute parental ownership, The Examined Life (1989) contains half-baked and self-indulgent thoughts about children being an extension of their parents:

The children themselves form part of one’s substance … part of a wider identity you have.

The majority of his chapter on Parents and Children in that book is a series of speculations about ways he thinks the government could regulate inheritance laws to achieve various ends such as preventing wealth inequality. What a disappointment compared to his commentary on Locke.

Maybe Nozick Just Didn't Care

It is clear what John Locke was trying to say in his writings on children. He argued for children's rights. He argued for limiting the authority of parents. He argued against the idea that parents own their children. Locke made significant errors along the way, and Nozick's commentary on those errors is clever.

But what was Nozick trying to say? His own words in Anarchy, State, and Utopia on how he thought about philosophy are quite revealing:

One view about how to write a philosophy book holds that an author should think through all of the details of the view he presents, and its problems, polishing and refining his view to present to the world a finished, complete, and elegant whole. This is not my view. At any rate, I believe that there also is a place and a function in our ongoing intellectual life for a less complete work, containing unfinished presentations, conjectures, open questions and problems, leads, side connections, as well as a main line of argument. There is room for words on subjects other than last words.

Hans-Hermann Hoppe described the effect of this attitude on Nozick's writing:

The book was a series of dozens of disparate or loosely jointed arguments, conjectures, puzzles, counterexamples, experiments, paradoxes, surprising turns, startling twists, intellectual flashes, and philosophical razzle-dazzle

The result of his approach is that Nozick's work reads like a kind of intellectual showboating. He didn't seem to view it as his responsibility to contribute to solving the ethical problem of children's rights and parental obligations. Rather, it reads as if Nozick's exploration of questions concerning children's rights is just a game of making clever points, without trying to get to any resolution.

Hoppe's assessment of Nozick's writing on libertarianism could equally be applied to Nozick's comments on the ethics of parents and children:

Nozick did not claim that his libertarian conclusions proved anything. Even though one would think that ethics is--and must be--an eminently practical intellectual subject, Nozick did not claim that his ethical "explorations" had any practical implications. … He did not insist that his libertarian conclusions were correct and, for instance, socialist conclusions were false and accordingly demand their instant practical implementation … Rather, Nozick's libertarianism was, and claimed to be, no more than just an interesting thought. He did not mean to do any real harm to the ideas of his socialist opponents. He only wanted to throw an interesting idea into the democratic open-ended intellectual debate, while everything real, tangible, and physical could remain unchanged and everyone could go on with his life and thoughts as before.

A Response To Kerry Baldwin on Fetal Self Ownership

Whilst doing research for a forthcoming book about libertarianism and parental obligations, I was interested to come across the work of Kerry Baldwin. This post is a response to the ideas that Baldwin put forward in her two-part podcast series on libertarianism, abortion, and fetal self-ownership as well as her debate with Walter Block on evictionism.

Abortion

On this blog, I have written about how support for abortion has corrupted libertarian theory. Baldwin makes an excellent point in this regard. She argues that the belief that abortion is legitimate undermines the principle of self ownership. The logical implication of assuming that abortion is valid is that individuals only have rights if their mother decides to grant them rights. As Baldwin puts it, this is not a theory of self ownership, it is a theory of "matriarchy".

In a recent post, I argued that the theory of acquired rights violates Hoppe's specificity principle. Although she used different terms and argued it a little differently, Baldwin made a very similar point in her series on fetal self ownership.

In her debate with Walter Block, Baldwin made an important objection to Block's evictionism. She pointed out that Block's characterisation of abortion as "eviction plus killing" is not accurate. As she noted, in fact most abortions are a process comprised of "killing plus removal of a dead body". This objection applies to Judith Jarvis Thomson's defence of abortion too, which also relies on the idea that abortion is legitimate because it can be categorised as an example of letting die not killing.

If Block is concerned to allow eviction but deny killing as he says, the logical consequence would be for him to argue that only extractive abortions (for example, hysterotomy) are legitimate and all non-extractive abortions are illegitimate according to evictionism. Extractive abortions are arguably examples of letting die, not killing, which is central to Block's justification. Yet Block seems entirely uninterested in such details. He provided no defence to Baldwin's objection in the debate, saying "I don't know as much about this as she does so I defer to what she said".

Parental Obligations

Baldwin is one of the few libertarians who argue that parents do have enforceable obligations towards their children as a result of their own causal actions. She argues that since pregnancy is a known possible outcome of consensual sex, parents have responsibility for the consequences of their actions and therefore they have obligations towards the child. This argument is of great interest to me, since I believe that among the competing libertarian views about parental obligations, only the principle of causal responsibility is correct. It seems that Baldwin might accept this principle.

However, Baldwin seems to have a much narrower definition of parental obligations. If I understand her correctly, she holds that a mother has the obligation to provide life support (gestation) during the period of non-viability of a fetus, and if the baby is unwanted then the mother also has the obligation to find a suitable caregiver once the baby is born.

If parents have an obligation to their children because they have responsibility for the consequences of their actions (in cases of consensual sex), then the obligation is far greater than Baldwin seems to accept. Children have a rightful claim against their parents not only for life support during pregnancy (as Baldwin argues), but also for whatever else is necessary to get the child out of peril and to a position of safety and self-sufficiency. This involves raising the child (and all that this entails) to the independence and self-sufficiency of adulthood.

According to this principle, parental obligations apply to both the mother and the father and both are jointly and severally liable towards the child, since both are responsible for putting the child in a state of peril as a result of creating the child. Baldwin makes the case for some limited enforceable obligations of the mother, but it is not clear to me whether she thinks that fathers have enforceable parental obligations or what these are.

Baldwin argues that it is a legitimate choice to give up a child for adoption. She emphasises that "there are many good reasons for not wanting to have a child". There are some cases in which parents do not have obligations, such as pregnancy resulting from rape. However, apart from those exceptions, you cannot legitimately give up parental obligations.

Parents who place a child in peril have a tort liability until that child is out of peril. Adoption is at best a delegation of this obligation, but even then the parents can never fully rid themselves of the legitimate claim that the child has on them (since it is not their claim to give up or nullify). It may be beneficial to support the institution of adoption for purely pragmatic reasons (making the best of a bad situation). Even if adoption should be supported for the sake of children, it is not a legitimate choice for the parents in terms of libertarian theory.

Finally, Baldwin seems to argue that the nature of pregnancy is significant for the role of women within libertarian theory, although it is not clear to me exactly what her argument is. She likens pregnancy to an act of production, with the mothers being "the producers of new self owners". Perhaps she is advocating some form of the theory of gestationalism (the idea that gestation is the primary basis for parental rights and obligations). This idea is not compatible with her support for children as self owners from conception because the unborn self owner already exists during gestation. Gestation is not an act of production since it does not contribute to the existence of the child. Rather, gestation is the first form of nurturing for an already existent unborn child that is developing. This idea of the mother as the "producer" is therefore incompatible with inherent self ownership.

Although I have outlined some disagreements, Baldwin is one of the few libertarians making philosophical arguments for inherent rights and for parental obligations and I appreciate her work.

Three Questions Philosophers Do Not Want To Answer About Parenting

Why are most books on the ethics of parenting so boring? Family life is a topic that touches everyone, so this is one area where philosophy could engage with highly relevant moral concerns. Instead, the vast majority of books on the philosophy of the family are horribly dull.

There are many reasons for this blandness, but one reason is that the authors are engaged in strategic omission. They are skirting around a number of contentious ethical questions related to the family. When your writing is hampered by a list of things that you must avoid discussing, it makes your book boring and waffly because you (deliberately) don't get to the point. Instead, you spend a lot of time on uncontentious issues that are far less relevant to everyday life.

The topics that philosophers of the family studiously avoid discussing have two characteristics:

1. They are widely accepted parental practices.
2. They are ethically indefensible.

Here are three questions about topics that share these characteristics and so are strategically omitted by philosophers writing on the family:

1. Is corporal punishment a legitimate practice?
2. Is circumcision a legitimate practice?
3. Is abortion a legitimate practice?

Open any book that claims to be about the ethics of parenting (or any variation on this general theme) and you will probably not even find these topics discussed. Search a digital version of the book for these words and you usually find nothing. Of the three topics, abortion is sometimes mentioned briefly, but even then it is usually only to state that the ethics of this practice are outside the scope of the book.

Philosophers who have written on the topic of abortion have not addressed it from the perspective of the ethics of parenting, but rather from the perspective of the ethics of action towards a stranger who may be a trespasser or aggressor. They don't think of the topic as belonging to the philosophy of the family since they do not even view abortion as an action of a parent.

All three practices- corporal punishment, circumcision, and abortion- constitute acts of aggression by parents that violate the rights of their children. Philosophers who agree with this statement prefer to avoid having to state it openly or defend it. Philosophers who disagree with the statement are also apparently reluctant to defend their views.

In his book Corporal Punishment: A Philosophical Assessment, Patrick Lenta discusses the silence of philosophers on this topic:

with very few exceptions philosophers have not engaged in a sustained moral assessment of the corporal punishment of children. … It is reasonable to infer from what we know about the near-ubiquity of corporal punishment that most philosophers will have been subjected to it and many will have resorted to it. This in itself may explain some philosophers’ reticence about confronting the practice. … For some who have experienced it, corporal punishment may be too personally disturbing, too deeply and troublingly a constituent of their psyches, to be confronted directly. …Loyalty towards one’s care-givers and defensiveness about one’s own use of corporal punishment as a care-giver, as well as, and perhaps more importantly, the weight of historical support for it, may make the practice appear natural and not in need of moral justification.

Lenta's hypothesis could equally apply to the silence of philosophers on circumcision and, with minor differences, on abortion. Walter Block and Patrick Testa remark on the lack of ethical debate about circumcision:

The reality of the debate on neonatal circumcision is that it hardly exists at all. … Even for many of those who disdain violence and the struggle to retain archaic social norms, it is almost as if circumcision is a topic off-limits to debate—perhaps out of denial or an appealing sense of conformity. But underneath the guise of culture, neonatal circumcision is a violation of the right to bodily integrity, an overreach of religious freedom, and a coercive act on the most helpless of us all.

In avoiding discussing these issues, philosophers of the family are conforming to regnant intellectual taboos. They understand which topics are not supposed to be mentioned and they comply. This is cowardice and an abdication of the most basic responsibility of a philosopher. In The Silent Subject: Reflections on the Unborn in American Culture, Brad Stetson describes how the taboo around the topic of abortion works:

Civilized and thoughtful people are expected to step around the violent death of the unborn accomplished by every abortion. To mention it in dialogue or debate is to solicit angry glares, impatient sighs and apparently learned expressions of skepticism about knowing when "human life begins." … There is no such thing, in the agora of public opinion, as being compassionate to the unborn. Not only are they not accorded the legal status of persons, but they are not even admitted into public discourse as legitimate objects of concern.

For anyone not interested in the ethics of parenting, if is fine to choose not to engage in these topics. But if you write a book about the ethics of parent-child relationships and avoid discussing these issues, you are engaging in strategic omission. Any practice that is widely accepted yet ethically questionable is exactly what philosophers of the family should discuss. Even if such topics are not the central focus of their books, they should at least spend a couple of paragraphs explaining why they think these practices are either justified or not justified according to their understanding of the ethics of parent-child relationships.

Here are links to my posts about abortion, corporal punishment, and circumcision.

I highlighted these three topics because they are longstanding practices and therefore even books about the ethics of the family written some years ago should have addressed them. There are many other parenting practices that are widely accepted and ethically unjustifiable which have become prevalent more recently, for example:

• The use of psychotropic drugs on children
• The use of puberty blocking drugs on children
• sex-change surgeries undertaken on children.

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.