Argumentation Ethics Entails Self Ownership From the Beginning of Life

Thank you Stephan Kinsella for your comments on my blog post about your approach to rights theory. I'm not proposing an alternative rights theory. I accept the same Hoppean rights theory as you. My point is that one assumption you make- that rights must be acquired- is an error and inconsistent with the rest of your own theory because the meta-ethical norms that determine rights logically entail self ownership from the very beginning of life. You can't have an indeterminate period where a human doesn't own their own body, and then somehow comes to own it. That's inconsistent with meta-ethical norms. They can't homestead it, as you yourself have noted. Also, one cannot have a consistent rule whereby others determine when a child attains self ownership by others choosing to recognise it, since that would be a rule allocating self ownership rights by fiat, not by objective rules. The only consistent, objective rule is the universal one that each individual has the best claim to their own body from the beginning.

Below is a response to your specific comments, but I welcome a discussion of this if you are open to it:

it's not clear what he disagrees with in my conclusion.

I disagree that an individual's self ownership right is only acquired once recognised by fiat by someone else at some vague and unspecified point in the early life of that individual. Human beings have rights from the moment that an individual human being exists. That is the only position consistent with the rest of Hoppe's (and your) rights theory.

Does he thinks that we do not have rights at all, or that we never acquire them?

Neither, obviously, since this is a false dilemma. I think we have rights from the moment we come into existence. If you really want, you could say we "acquire" rights when we "acquire" a body (at conception), but it would be incoherent to use that word in that context since nobody is obtaining rights for themselves in the same way that nobody obtains a body for themselves- we just have one from the start.

I'd be curious to see where he thinks my motivated reasoning was wrong, or what about it is incorrect other than how I got there.

Your presumption that rights are acquired conflicts with your own theory of rights (after Hoppe). Your theory has a number of clear implications that you yourself have set out:

1. The individual with the best objective claim to a body is the body's inhabitant himself.
2. One cannot homestead one's own body, since one has to have a body to do the homesteading. So you can't "acquire" ownership of yourself.
3. If ownership only comes into effect because it is "recognised" at some point by someone else, that would be by fiat. Such a rule is not objective, not intersubjectively ascertainable, and would be conflict promoting (invalidating it as a norm).
4. Any theory of rights must always give a definitive and intersubjectively ascertainable answer at any point in time as to who owns what. There cannot be any ambiguity otherwise it fails to prevent conflict (which is the whole point of rights).

The only rule that prevents conflict over scarce resources about body ownership is self ownership from the very beginning. Any rule which involves a human not owning themselves and then at some vague and ill-defined point owning themselves is inconsistent with all 4 above.

I think a case can be made for rights, that they have to do with our nature as rational agents, and so on.

Hoppe and you have already made a case for rights: rights are the rules humans use to avoid conflict over scarce resources. Why should we have rights? To avoid fighting. What if someone disagrees with rights? Then they are contradicting themselves in the very process of arguing that position. What if someone doesn't care about justification and just wants to fight? Then they are merely a practical problem and no discussion is necessary. What is missing from this "case" for rights that Hoppe and you have already made? You simply don't need this vague stuff about based on rationality. Argumentation ethics has given rights a far clearer justification.

You also don't seem to realise that the logical implication of basing rights on rationality is Peter Singer's position that newborn infanticide is legitimate because newborns are not rational actors, not cognitively capable, etc. If you argue for acquired rights on the basis of rationality/cognitive ability/language/etc, you must accept the legitimacy of infanticide as that is the logical implication of your position. This is openly recognised by the more consistent pro-choice philosophers. Some, like David Boonin, just uncomfortably acknowledge the problem and move along swiftly. Others, like Michael Tooley and Peter Singer, choose to bite the bullet and accept that one cannot deny the legitimacy of infanticide if one accepts the legitimacy of abortion. Your acquired rights argument logically entails this position.

I was talking to libertarians who already accept humans (a) have rights, and that (b) they must have them for some reason, and thus, (c) they must arise at some point.

There is no logical reason that we must presume that you come into existence without rights and then acquire them. That is just an unwarranted assumption.

If you want to deny humans have rights, that rights can be justified, or that aggression can be justified, or that we have right but never acquire them or that we have them for no reason at all…. okay, let's see it. Have at it.

Um what? Obviously I don't deny rights or support aggression. I agree with 99% of your views on rights, just not your argument that rights are acquired.

Rights are justified since denying them results in self contradiction. We have rights to avoid conflict with each other: that's the "reason". We can only avoid conflict if we start with the presumption of rights for everyone (and rights are only denied with due cause). It has to be a universal rule to be workable. So humans have rights from the moment an individual comes into existence. What's missing from that?

I do not know what he means that rights are inherent. Inherent in what? In being human? What about other forms of intelligent life?

Yes, of course inherent in being human. We are humans discussing this, trying to live together without conflict, so obviously we are talking about human rights. We are not debating with monkeys and sharks about how to come to a peaceable coexistence. Rights only arise as part of argumentation among humans about how to get along in a world of scarce resources without fighting. Inherent doesn't entail given by a god or anything, it just means rights must be presupposed for all humans who have not committed any crime.

So, yes, we are humans arguing about this, and we are making rules for humans. There are no donkeys or whales involved in this debate. The rules we agree for peaceful coexistence must be objective, i.e. intersubjectively ascertainable. It so happens that one must include all humans in these rules- they must be universal rules- to meet this criterion. So rights do apply to all humans, not just those engaging in the rational debate about rights. That includes humans when they are babies, foetuses, or zygotes.

Contrary to your assumption, this does not imply that intelligent aliens would not have rights. If we could negotiate with intelligent aliens about how to live in peace, then they would have rights. Again, this would mean that those rights would have to be universal, so the babies or eggs or nymphs, or whatever form undeveloped aliens take would have rights, even though those babies would not yet be developed enough to argue a syllogism and demonstrate rationality. Would you argue that only the adult aliens (the ones capable of reason) have rights? Would the baby aliens be fair game for us to hunt and kill? If not, then you're not really basing it on rationality, are you? You're basing it on membership of the species that contains members who are capable of agreeing objective property rights.

What Is a Person?

A reader asks:

I read your article on “What Is the Libertarian Theory of Parental Obligations?” I liked it very much, and I agree with almost everything. I just have one concern: is a person a person from conception?

My dictionary defines person as a human being regarded as an individual. If that is the definition, then yes- clearly both a zygote and a foetus are persons, since they are human beings and can be regarded as individuals. One can also define person in terms of a normative claim: a person is a human being with rights. On this definition, also yes: zygotes and foetuses are "persons" since they are self owners and have rights.

Some people use the term person differently, to imply something along the lines of a human who demonstrates certain capabilities or behaviours. If, for example, you think that one is not a "person" until one demonstrates rational thought, then neither zygotes, foetuses, nor newborns would be "persons" on that kind of definition.

What happens in the debate about abortion is that pro-choicers equivocate between this alternative definition and their own normative claim, thereby smuggling in their normative claim so that it looks like a neutral description. They use a (sometimes hidden or just assumed) premise that rights are based on the acquisition of certain capabilities or behaviours (such as rationality). Following this, they define person as a human who demonstrates the required capabilities or behaviours to be granted rights.

Since I deny the premise, I also reject this definition. But those who do want to use this definition need to bite the bullet and accept that not just foetuses but also newborns cannot be persons, according to their definition. This is why any justification of abortion is also a justification of infanticide because you cannot logically deny rights to the unborn without also denying them to newborns.

The only coherent framework of rights is inherent rights. Human beings start out as self owners from the beginning because an individual always has the best claim to his own body (even when he is still a zygote). Everyone must start with the presumption of rights for all other individuals they encounter. One can only deny rights to another legitimately if that other individual has committed an act of aggression.

The Boomer Contradiction on Children's Rights

Since the 1960s, a combination of views towards the rights of children has become prevalent in the West. This view combines no acknowledgement of children's rights before birth with a strong acknowledgement of children's rights after birth.

Boomers and subsequent generations have desired a moral code that tells them aborting children before birth is morally legitimate but– at the same time– they do not want a moral code that would justify infanticide, or child abandonment, or starving a child to death, or beating, or any other mistreatment of children after they are born. In the contrary, they profess moral horror at such thoughts. They want parents to have enforceable obligations to look after children after they are born. Yet they also want parents to have the option to kill any children–blamelessly– before they are born, if they choose to.

People who hold this view start with moral conclusions that they want to hold, and then seek to retrofit some foundational principles that would justify these conclusions. Roderick Long gives an explicit example of this kind of motivated reasoning. After setting out the propositions that women can always legitimately choose abortion, and that child abandonment is wrong, he states:

I regard it as a desirable constraint on any theory of positive rights that it give (what I regard as) the “right answer” to the questions raised by [these] propositions.

The majority of intellectuals in the West today really want these contradictory positions about children to be justifiable, but sincerely desiring something to be true doesn't make it so. The problem is that each proposition refutes the other, creating a contradiction:

1. Any justification for granting newborns rights logically entails granting rights to unborn children.
2. Any justification for denying rights to unborn children logically entails denying rights to newborns, infants and sometimes even older children.

It is impossible to justify killing a child before birth unless one is also willing to justify many acts towards newborns that most intellectuals do not want to justify. Justifying abortion logically entails justifying infanticide. Intellectuals are usually not called out on this contradiction in polite company. If they are pushed to confront it, there are four possible responses:

1. Give up the boomer contradiction by acknowledging rights for both unborn and born children. This was the position of the libertarian Doris Gordon . I agree with it.
2. Give up the boomer contradiction by denying rights to both the unborn and born children. This is the position of the more consistent pro-choice philosophers such as Peter Singer and Michael Tooley.
3. Defend the boomer contradiction by conceding that it does indeed seem to be some contradictory, but argue that it is not really contradictory. Versions of this position have been argued by Walter Block and Roderick Long.
4. Deny that there is any problem with the boomer view on children's rights at all. This position is best represented by Ayn Rand.

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

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Jake Desyllas

Hans-Herman Hoppe

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

-The Morality of Non-Interference by Tibor Machan

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

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

-A Defense of Abortion by Judith Jarvis Thomson

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

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

- Legal Foundations of a Free Society by Stephan Kinsella

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

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

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

The Theory of Inherent Rights Conforms To The Specificity Principle

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

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

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

- Abortion The Moral Status of the Unborn by Richard Werner

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

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

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

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

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

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

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

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

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

This project immediately gives rise to two questions:

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

These questions will be the subject of future posts.

Consequentialist Arguments Against Inherent Rights

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

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

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

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

The Population Control Argument

The population control argument against inherent rights is essentially this:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Abortion Argument

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

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

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

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

Warren's argument against inherent rights is essentially:

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

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

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

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

Motivated Reasoning

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

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

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

A Critique of Rothbard's Theory Of Parental Ownership

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Jake Desyllas

Murray Rothbard

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

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

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

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

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

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

Rothbard's Conflicting Arguments on Parental Ownership

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

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

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

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

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

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

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

So we have four conflicting propositions from Rothbard:

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

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

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

Individuals Cannot Be Homesteaded

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

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

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

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

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

Rothbard's Two Models Of Limited Parental Ownership

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

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

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

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

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

What Was Rothbard Trying To Achieve?

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

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

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

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

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

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

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

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

Parental Ownership Rights Are Merely Asserted

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

His reasoning seems to be this:

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

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

The Core Premise At Fault

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

The Correct Formulation Of The Parental Role

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

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

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

The Secular Justification for Inherent Rights

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

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

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

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

- Practical Ethics by Peter Singer

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

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

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

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

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

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

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

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

The Argument From Incredulity Against Inherent Rights

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

What The Declaration of Independence Should Have Said

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Jake Desyllas

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

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

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

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

Some notes on the original declaration:

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

Abortion is Incompatible With Parental Obligations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Doris Gordon explains why abortion is incompatible with parental obligations:

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

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

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

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

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

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

Why Libertarians Mistakenly Think Parental Authority is a Homesteaded Property Right

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

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

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

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

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

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

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

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

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

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

Rights Cannot be Based on Physiological Characteristics

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

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

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

Physiological Criteria Are Arbitrary and Irrelevant

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

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

Physiological Criteria Entail Both Animal Rights and Human Infanticide

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

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

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

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

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

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

Rights Cannot Be Based on Demonstrated Rationality

According to the theory of acquired rights, an individual starts life without rights and only qualifies for rights once he or she demonstrates some characteristic or ability. One of the many problems of this theory is defining the qualification criterion.

One version of the theory is that an individual has rights when he has the potential to be rational in future. As discussed in a previous post, this argument actually supports the theory of inherent rights, not acquired rights.

Another version of the theory holds that the qualification required to have rights is demonstrated rationality. As Stephan Kinsella puts it, "rights are bound up with human rationality and the capacity to understand, agree with and respect others’ rights".

The logical implication of this version of rights theory is that an individual acquires rights once he demonstrates rationality. Therefore, before an individual acquires rationality, he has no rights. This theory is logically indefensible for the reasons set out below.

It Permits Infanticide

If an individual's ability to reason is his qualification for rights, then children have no rights because children are not rational. A newborn baby cannot be said to demonstrate rationality any more than a newborn foal does. Children cannot be said to exhibit rationality until some significant period of time after birth, unless rationality is redefined so broadly that it would have to include all higher mammals (making the theory incoherent).

A norm of withholding rights until an individual demonstrates rationality would logically permit infanticide, since a newborn child cannot be said to demonstrate rationality. This implication is not one that most advocates of acquired rights theory are willing to accept, yet this must be accepted if one is to argue that children only qualify for rights once they demonstrate rationality. Most advocates of the theory choose to ignore this implication and thereby contradict themselves. Occasionally, one chooses to accept the reductio and make an absurd "libertarian" case for infanticide.

It Is a Conflict-Generating Norm

A norm of respecting rights only once an individual has demonstrated any capability would lead to conflict, and is therefore an invalid norm. It is invalid as a moral rule because of the presumption of rights: you can't demand proof that someone deserves rights, you must presume they do until proven otherwise.

It Is a Non-Universal Norm

Any rule for withholding rights until a specific capability is demonstrated breaks the universality requirement of norms as inter-subjectively ascertainable based on relation of person to physical thing. This is another reason that it is invalid as a moral rule.

The failure of a norm to comply with the universality requirement always has disastrous implications. In this case, the idea of rationality as the qualification for an individual's rights implies justification of class rule by a self-declared elite who may judge the rights-worthiness of others (i.e. the self-declared rational judging whether others meet their definition of rational).

Reason Is Intermittent, Rights Are Not

Reason is by nature an intermittent capacity, so basing rights on demonstrated rationality logically entails removing rights from everyone at numerous points in their lives, or else the theory requires an endless list of arbitrary exceptions. Does someone lose their rights whilst asleep? Does someone lose their rights whilst intoxicated? What about if they are in a coma? People in all these cases fail to demonstrate rationality, so the theory would deprive them of their rights or else fall into a mess of contradictions.

Conclusion

Although reason does play an important role in determining the scope of rights, demonstrated rationality cannot be a criterion for rights. The correct role for reason in rights theory is in the theory of inherent rights, described here.

The Role Of Rationality In The Theory Of Inherent Rights

Rationality is what enables humans to create norms for the avoidance of conflict over scarce resources. Norms allow for peaceful cooperation between people in a universe of scarcity. The validity of any proposed norm is determined through reasoned argument by the logic of argumentation itself. Rationality is the necessary tool in this endeavour.

Although norms are developed and validated in the course of rational argument by those engaged in argumentation, these norms apply to all humans, not just those doing the arguing. Norms are universal for two reasons:

1. The logic of argumentation entails universal applicability of norms to all those who are in principle capable of agreeing them.
2. All humans are in principle capable of agreeing to norms at some point in their lives.

These norms do not apply to animals, since animals are not capable of agreeing to or upholding norms.

In short, humans need norms in order to avoid conflict and rationality is the tool used by humans to create and validate norms.

This is how the role of rationality is understood in the theory of inherent rights.

Support for Abortion Has Corrupted Libertarian Theory

Rightly conceived, libertarian philosophy can provide a beautiful moral understanding of parental responsibility. It provides a philosophical foundation for parental authority, as well as delineating the limits of that authority. Only libertarianism provides a sound philosophical basis for respecting children as individuals with rights.

It is utterly strange that modern libertarian theory does none of this. Modern libertarianism denies parental obligations, denies parental responsibility, and has nothing coherent to say about parental authority. Libertarian positions on family matters are often criticised and ridiculed. Unfortunately some of the criticisms are well founded, but not because of a fault of libertarian principles.

As I tried to understand why libertarians have adopted some absurd positions on parenting, I realised that many of the worst ideas can be traced back to one key assumption. What seems to have happened is that libertarians adopted a huge error in the mid-twentieth century that has profoundly distorted their principles. For whatever reasons the error was made, it has had devastating consequences on the wider libertarian theory of the family.

The error is the assumption that libertarian theory necessitates a defence of abortion. This is incorrect. On the contrary, libertarians departed from their own principles in significant ways in order to accommodate a justification for abortion.

This article identifies a series of errors in modern libertarian theory and shows how each one can be traced directly back to the position libertarians adopted on abortion in the mid twentieth century.

The Denial of Parental Responsibility

Support for the right to abortion is one of the main reasons that libertarians give for denying that parents have positive obligations to their children. One cannot accept the validity of both parental obligations and the right to abortion without contradiction: the two arguments are incompatible. Libertarians who have written on the subject have chosen to deny parental obligations.

For an intellectual tradition that is supposed to emphasise taking personal responsibility for one's actions, this has led libertarians to adopt truly bizarre arguments on parenting. Their denial of parental obligations has logically compelled them to conclude that

• deliberate starvation of children is permissible,
• all forms of neglect are permissible, and
• parents can legitimately abandon their children whenever they want. Libertarian principles do not demand such conclusions. There is a coherent libertarian theory of parental responsibility which does not imply any of these positions. It is just not compatible with abortion.

The Distortion of Rights Theory

Libertarianism draws on a long-established argument that rights are inherent and inalienable. This argument was made as far back as the Levellers and is famously expressed in the Declaration of Independence.

In order to accommodate abortion, libertarian rights theory had to be changed from inherent rights to acquired rights. The only way to justify abortion is if there is a window of time in which a child does not have rights, and the only way to achieve this window is to change your theory from one in which rights are inherent to one in which rights are acquired. This is what libertarians have done.

Adopting a theory of acquired rights has terrible logical implications. It implies that children can be owned, at least for a period of time. This means that libertarians must concede that the ancient, illiberal idea of parental ownership is valid in some circumstances.

In order to accommodate abortion, libertarians have had to concede that killing innocent children can be justified in certain circumstances. Having conceded such a vital principle, libertarians are unable to provide consistent theoretical grounds for opposing infanticide. Any theory that states a child may be owned logically permits infanticide. The point at which a child is said to acquire rights in this theory is arbitrary (which is why libertarians can't agree on when this takes place). There is no objective reason under the theory of acquired rights that a newborn infant can't also be treated as property. How can libertarians who advocate a theory of acquired rights give a principled rebuttal to Peter Singer's argument for the legitimacy of infanticide? Singer's justification is grounded in the same theory of acquired rights that pro-choice libertarians have adopted.

The correct libertarian theory is that rights are inherent and inalienable, and that humans cannot be justly owned under any circumstances. The crucial error preventing libertarians from theoretical clarity on the subject is their support for abortion.

The Abandonment of The Presumption of Innocence

Libertarian theory holds that the burden of proof is always on those who wish to deny an individual's rights, just as the burden is on those who wish to deny the legitimacy of an existing owner's property rights. Rights are only forfeited through criminal act. If there is any doubt as to an individual's rights, he or she must be presumed to be innocent. Denying rights to the innocent is always unjust.

The only way to accommodate support for abortion is to abandon the presumption of rights. Libertarians are engaged in a reverse burden of proof fallacy whereby they presume to ask for proof of rights for an unborn child, despite the fact that the burden of proof is always on those who deny rights. Abandoning the presumption of rights undercuts the philosophical basis for such liberal principles as the presumption of innocence. It leads libertarians to advocate a conflict-generating norm: the idea that it is legitimate to start from the assumption that strangers are non-persons (and therefore fair game for aggression) unless and until their rights-worthiness is proven.

The Invisibility of Fathers in Libertarian Theory

Another logical consequence of support for abortion is that libertarians must deny that men have any responsibilities as a result of fathering children. This is a consequence of rejecting parental obligations in order to accommodate abortion. It is ironic that although libertarians distorted their principles in support of an ostensibly feminist cause (abortion), this has ultimately led them to adopt the position that however many children a man fathers, he has no obligation to support them or their mothers.

The distortions of libertarian theory has also led libertarians to exclude fathers from any authority over their children. Having been forced to deny parental obligations, libertarians have had a problem with how to explain parental authority. They have adopted a muddled version of homesteading theory applied to children, arguing that children come into the world with a right to authority over them available for homesteading. Most theorists end up arguing that this right applies only to the mother who homesteads authority over the child through the act of giving birth. Fathers don't get a look in.

If you follow the logic of current libertarian theory, fathers have no responsibility for their kids and no parental authority. Any involvement in their children's lives only comes by contract with the mother (and only if desired by her).

The correct application of libertarian theory to parenting acknowledges parental obligations for both mothers and fathers as a consequence of responsibility for their actions. It also provides a justification for parental authority of both mothers and fathers and objective criteria for the limits of that authority. The main barrier to adopting a correct libertarian theory of parenting is the theoretical compromises that have been made to accommodate abortion.

Conclusion

Rather than developing a view on abortion that is consistent with libertarian principles, libertarian principles have been deformed until they are consistent with abortion. Accommodating one error has led to a propagation of errors that reach far beyond the issue of abortion itself.

Libertarianism can provide a coherent and beautiful moral philosophy of family relationships. At present, it does not. As long as libertarians start from the assumption that abortion must be justifiable, they will be unable to apply their own principles correctly to parental obligations or children's rights.

A Child's Potential for Rationality in Future Is an Argument for Inherent Rights

As discussed in a previous post, the theory of acquired rights asserts that a child qualifies as a rights-bearing person once he or she demonstrates possession of some characteristic or ability that confers rights-worthiness.

One version of this theory argues that when a child has the potential to be capable of reasoning at some point in the future, he qualifies for rights. Whatever this argument's merits, it does not support the theory of acquired rights. If rights are based on a child's future capacity to reason, then rights are inherent, not acquired.

If rights come from the potential to reason in future and not from the ability to reason now, then the current characteristics and abilities of the child are irrelevant. It does not matter what a child looks like or can do at present, since this argument for rights is based entirely on something that a child could potentially do in future. The logical implication of this argument is that a child has rights from the moment he comes into existence, since from that moment onwards there is the potential of a future in which the child is capable of reasoning.

Advocates of the theory of acquired rights refuse to accept this logical implication. They attempt to argue that an unborn child only has rights once it reaches certain developmental milestones that are related to a future ability to reason, but not before it has reached those milestones. For example, Jason Sorens argues that an unborn child only acquires rights at six and a half months because at that point the child has various features including "a recognizably human brain" which gives it the "potential for rationality".

However, any arbitrary milestone is completely irrelevant to the basic premise of the argument. As a reminder, the argument is that a child has rights despite his current inability to reason. Rather, he has them because he has the potential to reason in future. The logical implication is that rights are valid from the moment of conception, not from any point in brain development, since from the moment of conception a child is unable to reason but has the potential to reason in future. There is no philosophical basis for arguing that a child acquires rights because of any developmental milestone if that milestone isn't actually changing the child from a non-reasoner to a reasoner.

Advocates of this version of the theory of acquired rights are trying to argue that the potential for reasoning in future is a valid criterion for rights, but it should only be taken into account once some arbitrary developmental milestone has been reached by a child. The entire endeavour is nonsensical. It appears to be motivated reasoning with a particular conclusion in mind: to set aside a window of time in which a child does not have rights so that abortion is not considered a rights violation.

The Theory of Acquired Rights Is Incorrect

There are two competing theories of the origin of children's self-ownership rights: the theory of inherent rights and the theory of acquired rights. If self-ownership rights are inherent, then a child has rights from the moment he or she comes into existence. If self-ownership rights are acquired, then a child starts life without rights, and then acquires rights at some later point.

Over a series of posts, I will make the argument that only the theory of inherent rights is logically defensible, whereas the theory of acquired rights is logically indefensible. To begin, I will outline the main points of the theory of acquired rights.

The Theory Of Acquired Rights

The theory of acquired rights holds that a child does not have rights until he exhibits some characteristic or ability that only rights-bearers have. Here is the argument:

1. Not all humans have rights (for example, criminals don't).
2. Therefore, rights do not come from being human.
3. Rights come from possession of some characteristic or ability that confers rights-worthiness.
4. Therefore, a child qualifies as a rights-bearing person once he or she demonstrates possession of this characteristic or ability.
5. Existing rights-bearers (adults) do not have to respect the rights of the child until the child exhibits this characteristic or ability.

Implications

An important implication– according to this theory– is that children can be legitimately owned, at least for some period of time. If children start life without rights and only acquire rights at some later point, then there is nothing stopping them from being treated as property during the period when they have no rights. The theory of acquired rights supports the theory of parental ownership.

Another implication of this theory is that every adult may behave as a kind of rights-granting authority, in the sense that he may judge a child to be worthy or not yet worthy of rights, depending on whether the child meets the adult's qualifications.

Based On Assertion

The argument used to justify this theory is invalid. It simply does not follow that since some humans do not have rights, rights cannot be inherent and must be acquired. The existence of criminals does not refute the idea that rights are inherent for humans. On the contrary, criminals did start out with rights but then forfeited their rights because of a criminal act. To deny rights to the innocent is wrong, and the principle of the presumption of rights is valid. Therefore, the argument that rights are acquired and not inherent is merely asserted.

The Problem of a Qualification for Rights

The big problem for the theory of acquired rights is defining a rights-qualifying characteristic or ability that is logically defensible. There is no consensus on this. Some advocates simply choose to leave this part of the argument vague or unspecified (and thereby render the theory incoherent). For those who do specify the qualification, the arguments fall into some variant of these three:

1. When a child has the potential to be capable of reasoning at some point in the future, he qualifies for rights. (This argument does not support acquired rights, it supports inherent rights, as outlined here.)
2. When a child demonstrates the capacity to reason, he qualifies for rights. (This is logically indefensible, as outlined here.)
3. When a child acquires some other physiological feature that is not related to rationality, he qualifies for rights. (This is logically indefensible, as discussed here).

Each of these rights-qualifying criteria present insurmountable logical problems for the theory of acquired rights.

Any norm that would generate conflict is invalid

A norm of withholding respect for another individual's rights until he has demonstrated some specific trait would create conflict, obviating the very function of norms. The purpose of ethics is to prevent conflict over scarce resources. Since we live in a universe of scarcity, there is always the possibility of conflict over who can use each scarce resource. The role of ethics is to provide objective rules for handling scarcity without resorting to aggression. Any norm that would generate conflict (instead of avoiding conflict) is a priori invalid.

A norm that others do not deserve rights until they demonstrate some qualifying trait implies that aggression is permissible until proven otherwise. It would imply that strangers are fair game for aggression until they show good reason to respect their rights. This is the equivalent idea of guilty until proven innocent for rights. This is why it is a conflict generating norm and is invalid. The only workable norms are those that conform to the presumption of rights.

Any norm that is not universal is invalid

All valid ethical norms must be universal because the logic of argumentation implies a universality norm. A universal norm of rights must start with the presumption that rights are inherent (ie universal) and only identify specific, objective actions that— if undertaken— would forfeit rights.

Ethical claims that purport to apply to only one group and not another discriminate in a way that falls foul of logic. The theory of acquired rights has exactly this problem. The theory of acquired rights assumes that nobody starts life with rights. One group then asserts that they are the ones who have qualified as rights-bearers and that another group do not qualify for rights. The problem is that the discrimination is logically indefensible. This means that it does not meet the criteria of a valid moral rule.

The Presumption of Rights

The presumption of rights is a central principle within libertarian ethics. Here is a short summary of its meaning and implications.

The Question

Some starting presumption of a strangers' rights status is required in order to act in any way towards them. In the absence of other information, one must either start from the presumption that a stranger is a legitimate self owner (i.e. a rights-bearing person) or with the presumption that they are not a legitimate self owner. Your view of a stranger's rights status can change in light of evidence, but before you know anything else about them you must start with some presumption. Which is the ethically correct starting point? This is the question that the presumption of rights addresses.

The Purpose Of Norms

To answer this question, one needs a valid ethical rule or norm. Any ethical norm must conform to the rules of norm formation and justification. The purpose of ethical norms is to prevent conflict over scarce resources. Ethical norms are rules for handling scarcity without resorting to aggression. Norms must strictly adhere to the laws of logic and reasoned argument in order to provide an objective method for determining who legitimately controls each scarce resource, and thereby prevent conflict. Therefore, any norm that would not prevent conflict over scarce resources is an invalid norm.

A norm of starting with the presumption that a stranger is not a self owner would immediately lead to conflict. Under this norm, an individual X could legitimately assume the right to attack another individual Y on sight, unless given evidence as to why he should not. Conversely, Y could assume the right to attack X too. This would be a conflict-promoting norm.

The Presumption of Rights

Therefore, the only ethically valid starting presumption regarding a stranger's rights status is that the stranger is a legitimate self owner. Absent any evidence to the contrary, the starting presumption must be to respect the other individual's rights. This is called the presumption of rights.

The presumption of rights provides the philosophical justification for the related legal principle of presumption of innocence. It is also similar to the related principle of the presumption of an existing property owner's legitimacy (an existing property owner's title must be presumed legitimate in the absence of evidence to the contrary, otherwise conflict would be promoted).

The presumption of rights reflects the principle that property rights are rightfully assigned to the individual with the best objective link. Since each individual has the best objective link for ownership of his or her own body, all humans are rightfully self owners or persons.

Rights can be forfeited through acts of aggression. An individual can lose the right to control his body as a consequence of his actions (criminal or tort). He ceases to be a rights-bearing person when this happens. However, absent any evidence of aggression, the presumption must be to respect his self ownership.

Implications

This principle has a number of important logical implications:

1. The burden of proof is always on those who wish to deny an individual's rights. (Just as the burden is always on those who deny the legitimacy of an existing owner's property rights).
2. If there is any doubt as to an individual's rights, he or she must be presumed to be a legitimate self owner.
3. A norm of only respecting an individual's rights once he or she has demonstrated a specific capacity (such as rationality) would conflict with the established valid norm of the presumption of rights.
4. Denying rights to the innocent is always unjust.

I will discuss these implications in more detail a future post.