George H. Smith wrote more about the question of children's rights than almost any other libertarian. His historical survey Children's Rights in Political Philosophy (published as a chapter in his book Atheism, Ayn Rand, and Other Heresies) is excellent. In it, he includes a brief summary of Kant's version of the argument that parents have enforceable positive obligations towards their children grounded in causal responsibility for placing their children in a state of peril. Smith was therefore aware of at least one version of the theory of causal parental responsibility that justifies enforceable parental obligations as a tort, although he did not mention the other proponents of this theory, such as Sidgwick or his libertarian contemporary Doris Gordon.
Smith did not present a critique of the causal theory in his historical review. Smith wrote that he never published his own ideas about children’s rights before summarising them in a 2013 article on the Cato Institute's Libertarianism.org website. When he did come to set out his own argument for parental obligations, he presented a version of the theory of parenting as voluntary social contract.
Smith rejects the idea that parental authority is some kind of property right, stating that Rothbard "was wrong to view this as a type of limited ownership claim. It is nothing of the sort". He criticised Rothbard for doing "a poor job analyzing the nature of guardianship rights and duties."
But Smith simply asserts out of nothing that "voluntarily to accept the enforceable right of guardianship entails accepting an enforceable duty as well, specifically, the duty to maintain the life of the infant in the guardian/ward relationship." That sounds nice, but why exactly does it entail this? To whom is a parent contractually obliged? What is the basis of this contract?
Smith asserts that parents have an enforcable claim against other adults to prevent those others from interfering in their parenting decisions. Somehow, this "right" (which he says is not a property right) is only valid if the parents are providing care to their children. So he views parental authority as a contractual relationship between parents and society at large, with the contract being that the parents get authority over the child as long as they care for it.
This is nothing but a version of the voluntary social contract theory of the parental role, which has been put forward by many others. I have addressed the fatal weaknesses of this theory elsewhere, especially in this JLS article.
Although Smith knew of the causal theory, he never mentions it in regard to his own views or explains why he ended up advocating the competing theory of parenting as voluntary social contract. Smith does not even address the question of whether a child has an enforceable claim on his parents. Rather, he views the child as a mere third party in the relationship between parents and other adults. The rights and duties in parenting all belong to parents vs all other adults (i.e. society at large).
Like all proponents of the theory of parenting as voluntary social contract, Smith thinks that there is no rights violation if a parent decides to give up a child:
A guardian may terminate (or transfer) her guardianship rights, but she must do so in a way that will not violate her fundamental duty to sustain the life of the infant. To leave an infant to starve in its crib is to renounce all guardianship rights to the infant, after which the former guardian can no longer prevent a third party from caring for him. And from this it follows (after some steps that I won’t mention) that the original guardian must make a good faith effort to find another guardian (which is usually not a difficult thing to do).
So for Smith, if parents get bored of their task of raising a child, they may unilaterally abandon this obligation simply by passing the child on to someone else and the child would have no basis to object. In this way Smith denies the clear logical consequence of parenting as causal responsibility that one cannot legitimately give up parental obligations.
Smith wanted to defend libertarianism against the criticism that it implies that parential neglect–even to the point of deliberate starvation–is justified. Mounting such a defence was the reason that he finally set out his own theory of the parental role in the Cato article. He was uncomfortable with the implications of the theory of parenting as charity advocated by Rothbard. As I have argued elswhere, the theory of causal parental respomsibility successfully defends libertarianism against the false charge that it implies parental neglect is legitimate. Smith had encountered the argument for causal responsibility. He could have advocated this as the one theory of the parental role that is both sound and compatible with libertarian principles. But he did not.
Why did Smith end up instead advocating the flawed theory of parenting as voluntary social contract? My conjecture is that Smith held it as axiomatic that abortion is justified and he understood that this position is untenable if one accepts causal parental responsibility. In a 1980 Libertarian Forum article, Smith praised The Right To Abortion: A Libertarian Defense by Sharon Presley and Robert Cooke as "one of the most persuasive defenses of the right to abortion yet to appear." He took issue with various technical details but did not voice any disagreement with the extraordinarily aggressive and bloodthirsty argument presented by Presley and Cooke in that article that a woman not only has the right to remove an unborn child from her body but also to insist that it be killed for her own psychological benefit.
There is a great cultural demand for a theory of the parental role that asserts both the following propositions:
- Parents cannot legitimately neglect their born children, but also
- Parents may legitimately kill their children before they are born, if they want to.
The fact that these propositions cannot be logically reconciled does not change the fact that many people dearly want to believe both. This is the post-sixties mainstream intellectual view. Smith belonged to this generation. The theory of parenting as voluntary social contract seems to offer the promise of supporting both propositions. Perhaps that is why Smith landed on this theory, despite its unsoundness and incompatibility with libertarian principles. If so, it would be another example of how support for abortion has corrupted libertarian theory.