I was initially motivated to write this post after reading Matt Zwolinski’s “Six Reasons Libertarians Should Reject the Non-Aggression Principle” and the subsequent discussion it generated. While children’s rights were but a small part of the overall discussion, I found Zwolinski’s understanding of children’s rights under a strict interpretation of the Non-Aggression Principle to be the most interesting.
For starters, I make a few assumptions (NAP, etc.) before coming to a usable libertarian philosophy with respect to children’s rights. To make this post more readable, I have moved those to a separate post.
The interesting quote is this:
“It’s one thing to say that aggression against others is wrong. It’s quite another to say that it’s the only thing that’s wrong – or the only wrong that is properly subject to prevention or rectification by force. But taken to its consistent extreme, as Murray Rothbard took it, the NAP implies that there is nothing wrong with allowing your three year-old son to starve to death, so long as you do not forcibly prevent him from obtaining food on his own. Or, at least, it implies that it would be wrong for others to, say, trespass on your property in order to give the child you’re deliberately starving a piece of bread. This, I think, is a fairly devastating reductio of the view that positive duties may never be coercively enforced. That it was Rothbard himself who presented the reductio, without, apparently, realizing the absurdity into which he had walked, rather boggles the mind.”
This example given by Zwolinski is one of six examples in defense of his claim that the Non-Aggression Principle should be rejected by libertarians. Basically, if the NAP is so obviously unworkable, it should not be a foundational principle of libertarian ideology.
First of all, citing Rothbard and only Rothbard and then dismissing the entire principle is rash. Libertarianism with a lower-case “L” is as “big tent” as any other political ideology. Self-proclaimed libertarians can be, on one end of the spectrum, “left-leaning” and pro-social justice-types, and at the other end of the spectrum, anarchists. And, of course, everything in between. The idea that a fundamental axiom of libertarianism should be rejected simply by virtue of the fact that one person’s view, taken to its (apparent) logical extreme, seems untenable (even if that one person is Rothbard) is simply unfair. If the NAP should be rejected by libertarians, it probably should be shown how every reasonable interpretation of the NAP is flawed – rather than just one person’s view. Just because it’s (allegedly) Rothbard’s view does not mean it’s everyone view, and does not mean it’s right.
Second of all, even if we assume that the NAP stands for the proposition that “positive duties may never be coercively enforced,” a child’s right to be sustained by his parents is not a “positive duty,” per se, under NAP analysis. Libertarianism holds that negative duties are enforceable, while positive duties are not. That is, I have the right to be free from violence and coercion, so you have a duty not to use violence or coercion against me. This is a negative right/negative duty, because it only requires inaction from you. This negative right is enforceable because it makes no demands on you. Just leave me alone. Conversely, a positive right is one which requires action – i.e. provide for my welfare by giving me your money. This “positive right” is unenforceable because it actually requires you to do something against your will and without your consent. I have no moral right to force you to work against your will, or give up your property against your will. This dichotomy is, basically, the NAP. The negative rights/duties are enforceable, while the positive rights/duties are not. Zwolinski’s error is in placing children’s rights in the category of a positive duty/positive right under the NAP. The NAP’s relevance to the negative rights/duties v. positive rights/duties dichotomy is only in relation to moral rights/duties. That is, under the NAP, there are no positive moral rights/duties, and thus only negative moral rights/duties can be enforced. Recall, however, that there is an entire group of further rights, both positive and negative, that can be created between people and are enforceable. These are not moral rights/duties, but legal ones. And legal rights can be coercively enforced (by the government, if necessary), because they exist due to prior consent.
Legal rights and duties can be created in a number of ways. First, they can be created by express agreement. For example, you have no positive moral duty to build my house (or pay for my house to be built), and I have no positive moral right to compel you to build my house (or pay for its construction). If I tell you to build my house, you can say “No.” But, what if you say, “Yes”? What if we enter in to a contract to build my house? I agree to pay you an amount of money, and in exchange you agree to build me a house. I give you the money. You now have a positive duty to build my house and I have a positive right to have my house built by you. This claim is enforceable, even though enforcing it would require you to either build my house or return money I freely gave you, because you previously consented to build my house. The positive duty and the corresponding positive right were created without the use of any coercion. This positive right is enforceable. There is no violation of the NAP. The NAP stands unscathed.
Secondly, legal rights and duties can be created by violations of the NAP. The NAP holds that aggressing against me is morally wrong (or unjust, if you prefer), but “holding” that something is “morally wrong” rarely prevents it from happening. So, what happens when you do aggress against me? Simple. If you aggress against me you must compensate me for my losses. Your violation of the moral duty not to aggress against me creates a legal right for me to be compensated by you. For example, if you crash your car in to me and destroy my car and/or injure my person, you have committed an act of aggression against me and you must compensate me (pay for my car, my hospital bills, etc.). This is pretty straight-forward. However, the NAP does not require that the aggression be intentional to be compensable. What if you crash in to me, not intentionally, but by accident, on account of you speeding, or because you were drunk, or because you were simply not paying attention? The NAP would still hold that you must compensate me for my damages. It would be completely inequitable to say that you do not need to compensate me simply because your aggression was unintentional. It is axiomatic that there are certain risks involved when taking part in certain activities, and when those activities result in an accident via one of those foreseeable risks, the party who has caused the accident is held to bear the loss – or the cost – of the accident vis-a-vis the injured party. Basically, when actions have costs, who should bear the cost? If I break your window with my baseball, should you bear the cost, or should I? Equity says I should bear the cost, not you. Thus, intentional – i.e. wanton – initiation of physical force against persons or property (non-consensual) is considered aggression and is compensable, but so is the initiation of physical force against persons or property that is unintentional, but is a result of an intentional act (i.e. driving a car) where the risk is foreseeable to a reasonable person.
As you can see, an enforceable positive duty (in this case, to compensate me) can be created either by explicit consent (contract) or by implicit consent (intentional behavior with foreseeable risks). In no way is the NAP “defeated” or in any way compromised, either.
So how do children’s rights fall into this?
Every child is born in to this world with three (relevant) things in common: (1) they did not consent to be created/born; (2) they are, at birth, completely helpless and reliant upon caretakers if they are to survive; and (3) their creation is based on an intentional act of which the consequences (the risk of conception) are well known.
First of all, children do not ask to be born. The process of being conceived and born is completely outside the control of the child itself. There is nothing consensual about a child being brought in to the world, so their initial situation cannot be said to be of their control or volition. Someone else brings them there against their will. But, despite their not-so-consensual beginnings, they are born, as human beings, with all of the negative rights of individual self-ownership. That is, no one “owns” them or can aggress against them. They are 100% self-owners.
Second of all, despite being fully self-owners, children are completely helpless when born. If children were brought in to this world against their will, but then were immediately free to run off and live their own loves, the story of children’s rights would end right there. Children, however, once born, are completely incapable of self-support. Children are born without the knowledge or understanding of how to care for themselves, much less the actual physical capabilities to do so. They will not develop the knowledge, understanding, or physical capabilities to care for themselves for many years. They are, at birth, potentially capable of taking care of themselves sometime in the future. Thus, although they are self-owners and cannot be owned, they are incapable, initially, of actually directing their own lives, or even providing for their own basic needs.
Third of all, the risk of conception/pregnancy/birth are well known when it comes to sex. When you engage in the intentional act of driving a car, you are well aware of the risk of accident. As noted, if you intentionally or negligently cause an accident, you must compensate the other party for the costs the other party incurs. Likewise, the risk of pregnancy is foreseeable, so once again you are responsible for any costs that must be born (no pun intended) by any other parties. In fact, while the intentional act of driving is done with a peripheral risk of accident, the risk of pregnancy is quite direct when it comes to sex.
In sum, the child is in a position not of his volition, he is a self-owner yet not capable of self-direction and self-support (only “potentially” so), and the child’s position is directly related to the intentional acts of at least one adult. So who should bear the costs? Like the window broken by the thrower of the baseball, equity demands that the cost should not be born by an innocent party, but by the person who created the cost (by an intentional act wherein the cost was a foreseeable risk).
But how do we define this relationship? How do we determine what, if any, rights/duties exist vis-a-vis the biological parents and child? Simply put, the parents’ act of conceiving the child creates a legal duty to the child to provide for the child’s well-being until the child is able to care for itself. That is, a fiduciary duty is created wherein the parents become “guardians” and the children “wards.” The parents have a positive legal duty to provide for the child’s needs, but because the child is a self-owner, the scope of that duty is limited to what is necessary. The parents thus have the duty to act in the child’s best interests and rear it until it is able to fend for itself. The situation is really no different than if the parents had injured a child with their car. Who must bear the costs? True, the legal duty under the “car accident scenario” is easily discharged by the one-time payment of damages to compensate the injured child, while the legal duty under the “sex makes a child” scenario requires years of action and more than just financial support. This difference, however, is only one of scope. As noted, injuring another person is an attendant risk of driving a motor vehicle. Conceiving a child is not. Conversely, conceiving a child is an attendant risk of having sex. Thus, the level and extent of damages are differences in scope only, directly related to the foreseeable risks (or foreseeable costs) of intentional acts.
Put in the context of the child, the child thus has positive rights – the right to be reared during their infancy and youth until they are no longer only “potentially” capable of self-support. These rights are enforceable against the guardian who has assumed that legal duty by virtue of their actions. The full scope of enforceable rights are beyond the scope of this post, but what of a child being starved to death in Zwolinski’s scenario? The child has the positive right to be supplied with those things necessary to live and flourish. The guardians have a legal duty to supply them. The guardians (in most cases, the parents, but, in any event, anyone who has accepted custody of a child) are not within their rights to let the child starve.
But what about the second part of the theoretical – the right of the passers-by to trespass to feed the child if the guardian is, in fact, violating his/her duty to the child (and permitting the child to starve)? Generally speaking, children, especially infants, cannot enforce their own rights. Children’s rights are thus enforced by their guardians. If I injure a child in a car accident, the child’s guardian would seek compensation for the child (and, in fact, would be compelled to do so as a fiduciary). Damages payable to the child would be paid to the guardian for the benefit of the child. In fact, in cases with multiple guardians, when one guardian fails to do his or her duty, the other guardian has the legal right (and duty, as a fiduciary) to hold the first guardian accountable. But if the guardian enforces the child’s rights, what happens when, like in Zwolinski’s scenario, the guardian has forsaken his or her guardianship duties? Who enforces the rights on behalf of the child vis-a-vis the guardian, as when the guardian is refusing to feed the child? As I mentioned, when a person is in the position of a guardian, the person has a fiduciary duty to the ward. As George H. Smith mentions in his lecture on the subject, this also means that the guardian has an exclusive right to do what’s best for the ward. The guardian may exclude third parties who may believe they know what is better for the ward. The guardian is permitted to use his or her judgment and exclude the judgment of others. However, if the guardian is refusing to feed the child, or is otherwise endangering the child’s life, then the guardian has breached the fiduciary duty owed the child. Among other things, the guardian would then lose his or her ability to exclude others from exercising guardianship rights over the child, and a third party could step in as guardian and fulfill the guardian’s fiduciary duty to provide for the child.
This still leaves us with the problem of the child being on someone’s else property. Just because the guardian has lost his or her rights to exclude others from exercising guardianship rights does not mean the guardian has suddenly granted to third parties the right to enter upon his or her property or commit a trespass (or worse). So while the guardian has lost the ability to be the exclusive guardian, and while third parties may make a claim to be the guardian, can they trespass or commit criminal damage to property to do so? That is, can they violate the guardian’s property rights because the guardian is violating the ward’s rights? Considering that property rights are negative moral rights, while the ward’s rights are positive legal ones, this is no small question.
The answer requires us to return to the NAP. We recognize that if I see an assault or theft taking place, I have the right to initiate immediate force on behalf of the victim to repel the assault or theft. But, if I saw someone breach their contract to build your house, there is zero support for the proposition that I could run in and exercise your right to have your house built. So, what is the difference, and is the case of the starving child like the former or the latter? True, the first right is a moral one, the second, a legal one. But that distinction is not relevant when it comes to explaining the disparate treatment in enforcement. The reason why you can, as a third party, immediately initiate force to stop the assault, but cannot, as a third party, or immediately, initiate force to prevent the breach of contract, is simply a recognition of what is necessary for the protection of the right itself.
Defining something as a “right” is simply a way of articulating its status as an entitlement that is enforceable, and rights exist for the protection of life and property. In this respect, whether that right is moral or legal is irrelevant. Once the right has been created, it can be enforced. So why do we recognize the ability to immediately enforce certain rights, but not others? Because some rights require immediate action to be enforced, and some do not. And since enforcing rights often means using force, you should only enforce the right with physical force when necessary. What is being protected when we recognize a “right” to be free from assault? It’s protecting your body from harm. It is protecting your life. Not enforcing the right immediately will result in injury or even death. It’s too late, so immediate force, by anyone, is just in order to repel the assault. But what about the right to have your house built? If someone refuses to build your house, there is no immediate damage to the right itself. You can hire someone else to finish the house and sue the first party who breached the contract. Thus, the actual victim can take the breaching party to court. The use of immediate force, and by a third party, is thus not justified. When it comes to starving a child, well…that’s not a very good example, actually. Starvation takes a long time, and if you noticed a child was becoming malnourished, there would be plenty of time to initiate an action against the guardian. For the sake of argument, however, if you saw a child being starved, and had but a few moments to save him, yes, you could initiate force to save the child’s life. What right is being protected? The child’s right to life, and if you wait, it could be too late. As for the right that would be otherwise infringed, like a trespass? The trespass can be litigated at another time. Damages can be paid to make the owner whole at a later time. Now, I recognize that this will necessarily set up a hierarchy of rights, so to speak. You can invade some rights in order to protect others, for example. How that hierarchy will be determined is a bit beyond the scope of this post, so I will return to it at a later time. But the protection of life is greater than the protection of property, with abuses of discretion being litigated in civil court.
I think it is also important to note what I have em>not done here: I have ignored all the considerations with respect to who has first claim as guardian, when can a guardian relinquish their duties, when can a third party step in, etc. Those don’t seem to be “children’s rights” issues, but more parental duties issues. In any event, George H. Smith’s lecture does a good job of covering those bases. I have also ignored any discussion about when, and under what facts, the child is capable of self-support and the guardian is released. When the child can reason? When the child can legally work to support itself? For a good discussion of the rights of older children, begin here.
I had also planned to critique Rothbard’s view here, but I’ve noticed it’s been critiqued plenty. Suffice to say, Rothbard’s view that you could let your child starve is flat out wrong. As an aside, this entire discussion is, conceptually-speaking, silly. It should not take 4000 words to explain whether or not we, as parents, can morally let a 3-year-old child starve to death as long as we do not technically prevent the child from feeding himself. But, practically-speaking, these types of intellectual exercises are important. People don’t have much use for a political ideology that would say it is wrong for them to trespass to save a starving child, or that it is OK to starve your child as long as you do not physically prevent the child from nourishing itself. We know it’s not right to permit a child to starve to death. If critics can tell people that libertarian “principles,” when taken to their logical extreme, would permit the starvation of a child, libertarians have lost the battle of ideas.
As a further aside, it is also a mistake to treat the NAP as something that prohibits or bans aggression. It does not. The NAP declares aggression to be morally wrong, or unjust. In that respect, the NAP is simply a useful tool for determining when actions are unjust or illegitimate. If they are unjust – i.e. they violate the NAP – they are compensable, not prohibited. You do not have the right to assault me or steal my money. If you do, you must compensate me. Whether something is “illegal” or “prohibited” is a matter of criminal code, and not the NAP. The NAP is simply a way to evaluate your actions and the actions of others. When there is a disagreement (i.e. trespass to save a child), the local court or other dispute resolution body can hear arguments.