Getting Principles Right Is A Different Task To Convincing People Of Them

Objective property rights enable humans to live together in peace and properity. We have civilisation to the extent that we have both peace and prosperity. Therefore, civilisation is built on objective property rights.

For civilisation to be saved and advanced, two tasks need to be achieved:

1. Develop a fully consistent set of principles for determining objective property rights in rivalrous resources.
2. Convince so many people to become dedicated to these principles that the legal order reflects and protects them.

Task 1: Getting A Consistent Philosophy

Identifying the correct principles is the first task. It has to be done independently of any concern with how to convince the masses of them. Whether or not principles are correct has nothing to do with whether or not these principles will be popular. Someone will have to make them popular, but that is a completely different challenge.

Task 2: Convincing Enough People

Once you have a consistent set of principles, someone does need to find ways to convince others to adopt the them. But this is a totally separate challenge to identifying the principles. Convincing the masses is a political and rhetorical challenge.

You cannot choose your principles on the basis of whether or not they will be popular. This will never achieve a consistent set of principles since you will end up catering to the demand of the masses, which will be whatever set of prejudices are currently regnant. That might get you influence, but not a consistent philosophy.

My focus is entirely on the first task. I ignore the second task completely.

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.

A Critique of Walter Block's Theory of The Parental Role

There are four competing philosophical theories of the parental role, only one of which is sound and compatible with libertarian principles. Rather than adopting the one correct theory, unfortunately Walter Block, chose to combine the three unsound theories in his own theory of the parental role.

A Summary of Block's Theory

Here is a summary of Block's theory:

1. Parents have no positive obligations to their children.
2. If one becomes a parent, one is homesteading a special kind of limited ownership of a child as a property right.
3. Taking on this property right over the child makes parents bound by various rules that govern homesteading and abandonment, including a rule that parents must care for the child (not neglect him) whilst they have ownership of him.
4. If the parents fail to care for the child whilst they have ownership of him, they are committing the crime of forestalling against other people who might be interested in acquiring this property right in the child.
5. Parents can give up a child whenever they want, but only if they notify all other potentially interested parties first so that other parties have the opportunity to take over ownership. Failing to notify is again to commit the forestalling crime against other potential owners.

Block's Contradiction

Block's theory of the parental role starts out by building on Rothbards' ideas on this topic. Like Rothbard, Block defends both the theory of parenting as charity (arguing that parents do not have positive obligations) and the add-on variant of the theory of parental ownership (arguing for parental authority as a homesteaded property right).

At this point Block departs from Rothbard because he is unwilling to accept the permissibility of negligence implied by the theory of parenting as charity. Rothbard famously acknowledged that since parents have no positive obligations, there is nothing to stop them starving their children to death. Block sees this implication as an "embarrassment" to libertarianism and wants to negate it.

So Block has two mutually contradictory claims:

1. He wants to keep Rothbard's claim that parents have no positive obligations.
2. Yet at the same time he wants to claim that parental negligence is illegitimate.

How does he resolve the contradiction?

Smuggling In Positive Obligations

Block's challenge is to explain why the ownership of children entails providing care to them. He can't argue that parents have an obligation to provide care, since he denies parental obligations. He can't argue that it's because children need maintenance, since the mere fact of neediness does not impose any duties on others.

Block asserts that parents cannot legitimately withhold care from children because to do so would be committing a kind of forestalling against other potential caregivers. His justification involves an appeal to his conception of the rules of homesteading and the rules that determine what constitutes abandonment. His denial that any positive obligations are implied in his theory is not a sustainable claim.

Despite his protestations to the contrary, Block himself does argue for positive parental obligations, but he does so in an extremely circuitous way. Ultimately, his argument amounts to this: as part of becoming a parent, you voluntarily take on an obligation to care for your children, because (according to Block) you are homesteading a child and this makes you bound by various rules governing homesteading and abandonment.

Block's assertion does not explain why a property owner must not neglect his property without abandoning it. I can just assert that all car owners must look after their vehicles properly or else give them up or sell them to other potential owners, since failing to do so would be an act of forestalling against the other potential owners. But both Block's assertion about parents and my assertion about car owners are false. There is no duty of maintenance as part of property ownership. If I let my car slowly degrade until it is no longer drivable, I have not committed an act of aggression against any other person who might want to own the car instead of me.

Given Block's claim that parents are "owners" of children, he cannot treat parents who choose to neglect a child without giving it up differently from a car owner who chooses to neglect his car without giving it up. So his argument denying the legitimacy of parental negligence doesn't work on its own terms. It is a surreptitious attempt to introduce positive obligations under a different guise.

Obligations to Society, Not The Child

Since Block argues that parents don't owe their children anything, but also that parents are obliged to look after their children, there must be some other party to whom a parent is obligated to if they have an obligation to care for their child.

To whom do parents owe this obligation to care for their child whilst they "own him", according to Block? The positive obligation that Block is arguing for is an obligation to the rest of society—to every other person on planet earth who might otherwise want to raise the child—and not to the child.

In making this argument, Block is invoking a variant of social contract theory as the basis of voluntary parental obligations. Whereas Horwitz puts forward a social contract argument plainly, Block uses extremely convoluted arguments that ultimately reach the same destination, while simultaneously denying that he has done any such thing.

Motivated Reasoning

In a footnote of one of his articles, Block provides an insight into his strategy of argumentation:

If it came to it, I would rather concoct an implicit contractual obligation that arises out of land ownership to notify of abandonment, than to concede that there is a positive obligation to notify, and I would prefer to do either than allow it to be legal that the mother could starve the baby without notification.

Here Block shows his motivated reasoning: he begins with the conclusions he wants (no parental obligations, no neglect) and is willing to "concoct" whatever argument will deliver them. He goes on to argue that "happily, it does not come down to this" as he thinks these conclusions can be deduced rationally without him having to force them. He doesn't seem to realise that this is exactly what he has done.

From Denial to Absurdity

Block is so concerned to reject the claim that parents have enforceable positive obligations towards their children that he is willing to deploy arguments leading to absurd implications. For example, he argues that parents cannot be liable for any obligation as a result of having placed their child in a state of peril by creating him, since in creating him they already gave him a net benefit.

The denial of liability for parents on these moral offsetting grounds implies that parents have a sort of blank check to do anything to their children. Since the gift of life is so valuable, there is nothing that a parent could ever do that could outweigh the net benefit in a cost-benefit calculation. The reductio ad absurdum of this idea is the argument that because it is of a higher net benefit to be created and then killed than not to be created at all, parents have no obligation to refrain from killing their children.

This reductio is not merely theoretical. Block bites the bullet and applies it directly in his defence of abortion. He argues that since it is better to be created for a few months and then killed via abortion than to not have been created at all, abortion cannot be a rights violation. As he puts it, "At least the fetus lives for a little while, which, if we hold life as better than death, or, in this case, non existence, must be counted as an enhancement, not a deterioration." This is absurd.

Block's denial of parental obligation leads him to hold other bizarre ideas about children and their rights. For example, Block thinks that an unborn child is an "aggressor" and "trespasser" if the mother changes her mind about wanting to have a baby. This is akin to claiming that the unconscious pedestrian you just ran over is a trespasser if, while driving him to the hospital, you decide you no longer feel like helping him.

Block has a strangely callous way of emphasising his belief that parents can give up their children for adoption at any point blamelessly. As Block puts it, they are "free to dump him out". This is itself evidence of the attitude that results from thinking that parents have no obligations. Block does not understand that one cannot legitimately give up parental obligations.

Yet for all his bizarre views regarding children, Block is also one of the few libertarians to denounce circumcision as a violation of the nonaggression principle–an argument I greatly respect. His article on this subject is excellent and provides an example where he does apply libertarian principles consistently to a children's rights issue.

A Better Alternative: Causal Parental Responsibility

The irony is that if Block adopted the theory of causal parental responsibility, he would achieve much of what he wanted without all the convoluted and false arguments that he had to make in order to combine three unsound theories together.

Defending Against Welfare Claims

In order to defend against the claims of socialists for positive obligations like welfare, Block thinks he has to deny that there are ever any legitimate positive obligations (including parental obligations). As Block himself puts it:

Once we open up the floodgates of positive obligations, there is no logical stopping place. We will be logically obligated to accept a right to food, clothing, shelter, medical care, etc. Welfare ‘rights’ cannot be far behind.

This is an unprincipled objection by Block. If it were true that parental obligations are valid and truly imply general welfare obligations, then consistency would require us to accept welfare too. One cannot deny a truth on the grounds that it refutes a theory that one holds dear. However, this is a non-issue. Parental obligations are valid and they do not entail welfare obligations.

Causal parental responsibility does not entail general welfare obligations because the justification of parental obligations is specific, not general. Also, the justification is based on responsibility for an individual’s own actions, not some general responsibility for humanity arising from membership of the human race.

Without contradiction, we can both acknowledge the validity of chosen positive obligations (including those obligations one must accept as “chosen” as a consequence of one’s actions) and deny the validity of unchosen positive obligations.

Justifying Parental Authority

Block wants to legitimise parents having authority to look after their children, so he argues for a false property right in children with all the errors that this entails. Causal parental responsibility provides a justification for parental authority without appealing to the indefensible concept of parental ownership of children.

Denying The Legitimacy of Negligence

Block wants to deny the validity of parental negligence, so he appeals to a false obligation to other potential "owners" to get this result. Causal parental responsibility provides clear grounds for denying the validity of negligence without appealing to a fallacious social contract.

The Wrong Starting Point

Block mistakenly thinks that he must deny parental obligations in order to save libertarianism from the argument for welfare. This false premise led him to construct elaborate arguments to deny obligations while simultaneously rejecting the logical consequences of doing so. The result is a conceptual mess.

By denying parental obligations outright, Block set his project on a false path. The theory of causal parental responsibility achieves what Block was aiming for– grounding parental authority and rejecting the legitimacy of negligence– while at the same time preserving coherence and avoiding the contradictions that plague his approach. More importantly, it provides the only sound libertarian theory of the parental role.

A Response To Michael Huemer on Abortion

Michael Huemer's article on abortion starts out with this framing of the debate:

Very few people think either that all fetuses have a right to life from the moment of conception, or that no fetuses have a right to life even one second before birth. Almost everyone has some intermediate position. Which means… [whether fetuses have a right to life] becomes, for most, a line-drawing question; most "pro-life" people are people who draw the line relatively early, while "pro-choice" people draw it relatively later.

This is a misrepresentation of the debate. Most pro-life groups argue that all fetuses have a right to life from the moment of conception. Just look at the position of the Catholic Church as an example of this view. It is not accurate to say that most pro-life people draw a line "relatively early". To view the debate as a line-drawing exercise means that one has already conceded that there is a point before the line at which abortion is legitimate. This is precisely what most pro-life people deny: they reject the legitimacy of abortion outright.

The line-drawing exercise that Huemer is describing is really the debate among pro-choice intellectuals. Pro-choice advocates do have to argue about where to draw an arbitrary line because any defender of abortion must address the question of until what point they think abortion is legitimate.

It is also very odd for Huemer to frame the debate in terms of what most people believe. Why should he be guided by what most people believe? Surely the decisive question for a philosopher like him is what are the best arguments on either side of this debate? Huemer wrote a book making the case that political authority is illegitimate. Should he have saved himself the trouble since very few people believe that argument?

Having misrepresented the terms of the debate, Huemer also misrepresents the basic pro-life argument. Huemer states:

Some say that the moment of conception is special, because it is at that point that there is first an entity with a genuine potential to become a person. But this is not true. An egg cell and a sperm cell, where the sperm cell is swimming toward the egg, also have the potential to become a person.

This is a straw man. The basic pro-life argument is that conception is the beginning of a human being's life, and all human beings have a right to life, therefore abortion cannot be justified. This is a well-known argument and whether or not he agrees, he ought to at least represent it fairly. Instead, Huemer couches his "potential to become a person" argument in the same language that pro-choicers adopt in their own internal debate. It is pro-choicers who talk about when to recognise personhood, by which they mean when to recognise that a human being has rights. Pro-lifers argue that all humans have rights. Huemer's counter-arguments to this straw man are therefore irrelevant. Gametes are not human beings, zygotes and fetuses are.

Huemer presents his article as a review of both sides of the abortion debate, but he fails to engage with any pro-life philosophers. While he directly addresses the arguments of pro-choice philosophers such as Tooley and Thomson, he does not cite a single pro-life philosopher. Instead, he creates his own version of pro-life arguments which, as discussed in the conception example, are weak. The basic pro-life argument about conception discussed above is made clearly in the article Abortion: The Moral Status of the Unborn by philosopher Richard Werner. Huemer should have responded to Werner rather than setting up his own straw man to respond to.

Another pro-life argument that he does not address properly is the question of the compatibility of abortion with parental obligations. Huemer states:

Many people think that parents have special obligations to their children, such that you would have to do much more to save your child than you would have to do to save a stranger. Does this mean that a mother has special obligations to her fetus?

This is a perfunctory treatment of a very important argument. It is not that "you would have to do much more to save your child than you would have to do to save a stranger", rather it is that parents have acquired an enforceable positive obligation towards their child based on their causal role in placing the child in a state of peril. Failure to remove the child from peril constitutes an act of aggression. This means parents have a legitimate enforceable positive obligation to protect the child, whilst they have no such enforceable obligation to strangers. Abortion is completely incompatible with this obligation.

This argument was dealt with in depth by Doris Gordon, a fellow libertarian whose work Huemer should know but whom he doesn't address. She made a range of secular pro-life arguments which were inspired by and grounded in her realisation of the fundamental incompatibility of abortion with parental obligations. Huemer also doesn't attempt to rebut the argument from parental obligations, he just leaves it hanging as an open question. Does he agree with the argument? If not, why?

We have seen that Huemer fails to represent pro-life arguments properly and therefore does not engage with them. What about his treatment of pro-choice arguments? Here he does address various problems with arguments made by leading pro-choice philosophers. But he fails to address the most important problem: every argument used to justify abortion also justifies infanticide. This is an issue 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. If Huemer wants to argue that the abortion question is difficult then he should have addressed the most difficult issue pro-choicers face.

Huemer argues that the abortion debate is "difficult" because the legitimacy of abortion is a "subtle, complex question" that is "highly intellectually interesting". I agree with Huemer that the debate about abortion is difficult, but not for the reasons he states. I think it is difficult because abortion is deeply ingrained into Western culture, yet what is being debated is whether this widespread practice constitutes the murder of innocent children. This debate makes people incredibly uncomfortable because it is a moral question with enormous personal consequences, not because it is "intellectually interesting" and "subtle".

For libertarians in particular, abortion is difficult because if you accept that it is not justifiable then you must accept that the widespread practice of abortion represents by far the worst violation of the nonaggression principle in the world today, far worse than any government program, yet most libertarians do not speak out against it.

Another thing that makes this debate difficult for someone like Huemer is that, among the intelligentsia, there is in fact no debate on abortion, there is only one socially acceptable opinion. Being explicitly pro-life is more likely to get you ostracised in academia than being an anarchist will. As Brad Stetson described in The Silent Subject: Reflections on the Unborn in American Culture: 

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

At least Huemer does not actively defend abortion, which makes him unusual among libertarian academics. Yet instead of taking a position, he counsels against strong views, suggesting that certainty would mark one as a "dogmatic ideologue" unable to appreciate a "subtle, complex question." On one level this reluctance sounds like philosophical caution; on another, it sounds like an excuse for avoiding taking a stand against a profound injustice.

A Critique of Roderick Long's Theory Of Parental Obligations

Many libertarians wrongly believe that there are never legitimate positive obligations except by contract or as restitution for a crime. This is incorrect. One can also acquire positive obligations as a tort if one does something that has a reasonably foreseeable consequence of putting another person in peril. The positive obligation of parents is a clear example of this principle.

Children have rights. The most important right they have is the claim against their parents for all assistance necessary to get them out of danger. A child has this claim because his parents' actions resulted in him being in danger. This child's right has the corresponding enforceable positive obligation on the parents. The parents acquire this positive obligation because their un-coerced actions had the reasonably foreseeable consequence of creating the circumstance that a child is in a state of peril. Whether the parents intended to create this consequence is irrelevant. They must still accept any consequences as "chosen" if that consequence was reasonably foreseeable.

Roderick Long is one libertarian who seems, at first glance, to understand all this perfectly. He sets out the philosophical principle clearly:

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

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

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

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

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

One might assume from these quotes that Long is a trenchant advocate of the principle of causal parental responsibility. He is not. Despite setting out the causal principle so clearly, Long ends up advocating something quite different when it comes to parental obligations.

Men Have Responsibility For Their Actions, But Women Don't

When it comes to men, Long does think that fathers have obligations as a result of their causal actions, even if the consequences were undesired:

 if (as I believe) fathers have responsibilities with regard to pregnancies that they cause, even when those pregnancies are the result of failed contraception, then such pregnancies cannot be treated as mere bolts from the blue. It seems that fathers could have such responsibilities only if engaging in intercourse with knowledge of the risks somehow made even pregnancies resulting result from failed contraception voluntary in Aristotle’s broad sense.

So far, this sounds like a clear defence of the causal principle. But Long then explains that he holds women do a different standard:

And if they are voluntary for the father, are they not voluntary for the mother? I need not decide this issue, however, since I shall argue that pregnancies may be terminated whether or not they were (initially) voluntary.

Long openly admits that he has a double standard, then gives himself permission not to resolve this problem because he has a justification for abortion. Apparently, his justification for abortion will be so amazing that it will override the requirement of logical consistency and absolve him of any need to justify contradicting himself. What could this justification be?

Pregnancy Creates Special Exemptions For Women Being Responsible For Their Actions

Long explores a range of arguments to justify abortion and finally lands on this: being pregnant is so deeply intimate and personal that a woman may always change her mind if she decides she no longer wants to be pregnant. Whereas Long thinks men have an obligation towards children created as a result of their voluntary actions (even if those children were undesired), women are always allowed to change their mind and evade responsibility for their actions because being pregnant is intimate and personal:

What gives a woman the right to kill as rapist in self-defense, then, is not that he threatens her with pain or injury, but that he uses her body in the most deeply intimate and personal way, without her consent (even if she originally consented, then changed her mind). And it is precisely this same fact that gives Miriam the right to kill her unwanted fetus Joshua: not that he threatens her with pain or injury, but that he uses her body in the most deeply intimate and personal way, without her consent (even if she originally consented).[

So for Long, a woman has parental obligations not because of her causal actions leading to the creation of a child, but rather she has an obligation because she decided not to un-obligate herself. He even spells this out, clarifying that the basis of parental obligation is the choice not to abort a child:

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.

For Long, a man acquires obligations if his actions have the reasonably foreseeable consequence of placing a child in a state of peril, but a woman acquires obligations only if she chooses to accept obligations, which is supposedly evidenced by her refraining from killing her child.

An obligation is something that binds the will. Why (for women) does the act of not having an abortion bind the will but not the act of placing a child in peril? Clearly, if you only have an obligation because you want to accept it–and you are only obliged unless and until you no longer want to accept it– then your will is in no way bound. It's a senseless way of defining obligation. Also, if after birth one can give up a child for adoption blamelessly anyway, in what meaningful way is one obligated?

Reversal of Responsibility

Long argues that if a pregnant woman changes her mind about wanting to be pregnant, then her unborn child is "using" her body without her consent. This makes no sense as it implies an action on the part of the child. But the child is not capable of action, so it cannot said to be "using" her in any meaningful way. The parents are the only ones whose actions led to the child being inside the womb, so the parents have causal responsibility for the entire situation. The child is blameless.

A pregnant mother is in the same moral position as a motorist who knocks a pedestrian unconscious out on a wilderness road. That motorist has responsibility to get the unconscious pedestrian to safety. If the motorist puts the unconscious pedestrian in the back of his car and starts the long drive to a hospital, he cannot legitimately just change his mind mid-journey and decide to ditch the pedestrian. Furthermore, the motorist's change of mind does not transform the unconscious pedestrian into a trespasser "using" the car seat without the motorist's consent. Similarly, if the mother changes her mind, that does not mean that the unborn child is "using" her or trespassing, since he cannot act.

A Matriarchal Theory Of Parental Ownership

Another deviation from the principle of parental responsibility is Long's advocacy for a version of parental ownership. Like many libertarians, Long argues that parents have a kind of homesteaded property right in their children. His version of the parental ownership theory is a matriarchal one, in which the mother is always the owner, and the father may only share ownership if allowed by the mother:

How are guardianships acquired? Presumably in the same way as other property rights: by homesteading or transfer. The simplest way to homestead a guardianship would be finding an abandoned infant and undertaking to provide care for it. Another way to homestead guardianship of a child is to give birth to the child; the mother starts out as the child's guardian, a position to which no one else (not even the father) can have a claim unless the mother grants it.

So Long thinks a father acquires parental obligations as a consequence of his action in having sex (even if he did not intend to become a father), but only if the mother wants him to act as a father. If she does not wish it, the child is deprived of his rightful claim on his father for parental care, in which case the father has no parental obligations.

Dismissing Parental Obligations As Mere Sexism

If Long understands the principle that one may acquire positive obligations as a result of one's causal action, how does he respond to his libertarian contemporaries such as Doris Gordon, who applied this principle to parental obligations? He does not respond to them at all. He makes no reference to Gordon, he just resorts to an ad-hominem dismissal of one of her arguments as mere sexism:

The “parental obligations” objection to abortion, like the refusal to recognize rape in marriage, appears to stem from a traditional attitude that refuses to acknowledge women as autonomous individuals, and regards their bodies as mere resources to be used by family members. On this view, a woman is not an independent moral being worthy of respect in her own right, but instead exists only for the sake of her family relationships, and has her moral identity and standing only within that context.

The idea that Doris Gordon, a staunch libertarian and former Objectivist, was driven to her conclusions by "a traditional attitude that refuses to acknowledge women as autonomous individuals" is ridiculous.

Conclusion

Roderick Long clearly understands the principle that creation of peril generates positive obligations. He wrote about this principle back in the 1990s. At that time, there were contemporaries within the libertarian movement such as Doris Gordon arguing that this principle grounds the positive obligations of parents towards their children. Long must have encountered this idea and, given his philosophical training, he could have been a strong advocate for the theory of causal parental responsibility.

Instead, he is an advocate of a bizarre double-standard of parental obligations. He argues that whether a father has any obligation to his child is entirely the choice of the mother, but if the mother does wish the father to be obligated, then the father is positively obligated to provide care based on the father's action of having had sex (even if he didn't intend to create a child). On the other hand, a mother has no positive obligations to her child based on her action of having had sex, but rather if the mother chooses not to have an abortion then this is tantamount to voluntarily accepting the positive obligation not to abandon the child once born, although he thinks parents can also legitimately give up a child for adoption at any point if they want to. This is a bizarrely inconsistent theory of parental obligations.

Why didn't Long advocate for the far more consistent principle of causal parental responsibility? My guess is that Long could not accept the logical implication that abortion is incompatible with parental obligations. Long explicitly states this about the question of whether women can always legitimately choose abortion:

I regard it as a desirable constraint on any theory of positive rights that it give (what I regard as) the "right answer"

It seems that Long is axiomatically committed to affirming the legitimacy of abortion, even at the cost of contradicting principles that he has himself understands. He also seems to be committed to a kind of matriarchalist feminism that holds women to a different standard to men. His commitments to supporting abortion and to this kind of feminism evidently override his commitment to consistency of principles.

What Does It Mean to Be "Pro-Family"?

What does it mean to be "pro-family"? The term is vague and contested. I suggest a philosophical definition: being pro-family means acknowledging the legitimacy of enforceable parental obligations. This means accepting that both biological parents have a positive obligation to raise their child to the self-sufficiency of adulthood.

The obligation of parents arises from the voluntary act of making their gametes available for fusion, either through sex or through assisted reproductive technology. This generates an obligation because one is responsible for the reasonably foreseeable consequences of one's actions (even if those consequences were not desired). A foreseeable consequence of making your gametes available for fusion is that you bring about the circumstance that a child is in a state of peril. Parents are obliged to get the child out of peril as a matter of justice, not just personal virtue.

Here are some logical consequences that follow from this principle:

1. Both the mother and father are jointly and severally liable for their obligation.
2. Both parents have obligations to every embryo that they allow to be created from their gametes.
3. Neither parent can legitimately deprive the child of the protection of the other parent, since it is the child that has the claim on both.
4. Neither parent can legitimately give up their parental obligation (although they may be able to delegate it in some circumstances).

Given these logical consequences, meeting their parental obligations requires the biological mother and father to raise the child together. So being "pro-family" means supporting the idea that both a mother and a father raise their children. Practically, this almost always requires them doing so together in one household, in a so-called "traditional" family.

Pronatalism is not the same as pro-family

On this definition, being pro-family is not the same as being pronatalist. A deadbeat dad with 10 kids by different women all over the place could qualify as a pronatalist, but not pro-family. A sperm donor whose gametes are used to create 100 babies would also qualify as a pronatalist, but his actions are not pro-family since he is not fulfilling his parental obligations.

Given the distinction between being pronatalist and pro-family as defined here, one can be pro-family without choosing to have children oneself. To be pro-family means to affirm that those who create children must fulfil their obligations. It does not mean that one must choose to have children in the first place in order to be pro-family.

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 Critique of Roderick Long's Comments on Circumcision

Libertarians claim that institutions and practices are only legitimate if they do not contradict objective property rights. It does not matter if an institution is an ancient tradition common to every society on earth (as, for example, chattel slavery was); if it violates objective property rights then it is illegitimate.

Similarly, it does not matter if a practice has widespread support or acceptance (as taxation has now and conscription has had in the past); libertarians still hold these practices to the standard of objective property rights and find that they clearly violate self-ownership.

The fact that libertarian condemnation of popular practices or institutions is controversial or unpopular is irrelevant. What matters is the veracity of libertarian principles.

With this in mind, it is interesting to review how libertarians have tackled the subject of circumcision. Some libertarians have made the obvious point that circumcision (despite being a widely-accepted practice) violates objective property rights, specifically the self-ownership of the child.

Parents must make numerous decisions on their child's behalf (and even sometimes against the child's will) as part of the parents' responsibility to remove the child from peril by raising him to the safety and self-sufficiency of adulthood. However, cutting off the child's foreskin is in no way justified by this responsibility. Most people accept that a parent has no right to tattoo their child, yet circumcision is a more egregious act of aggression than a tattoo.

The best article setting out the libertarian case against circumcision is this article by Walter Block and Patrick Testa. Other libertarians who have spoken out against circumcision include Wendy McElroy and Bryan Caplan. I have set out my own opposition to circumcision previously here and explained why I think any philosopher tackling issues relating to the family has a responsibility to speak out about circumcision here.

Very few other libertarians have written on the ethics of circumcision, but I did find this comment by Roderick Long in a discussion about what parents may reasonably do to their children:

when it comes to abusive procedures like female genital mutilation (popularly known by the euphemism “female circumcision,” falsely conveying the impression of being comparable in seriousness to male circumcision), we generally think parents do not have the right to do this, even though women who have had this procedure done when young will usually endorse it in retrospect when they are grown, because they have been inculcated with the relevant cultural attitudes and values. - Beyond Patriarchy A Libertarian Model of the Family by Roderick Long

There is a lot to unpack here. Long points out that the genital cutting of girls is an "abusive" practice. This is true: as a matter of principle, any genital cutting of a child by an adult is an act of aggression. No child can consent to such an act, girl or boy. So why doesn't Long also acknowledge that the genital cutting of boys is an abusive practice?

Long argues that the genital cutting of girls is so much more serious an issue that it is false to use the same word to describe it as the word used for the genital cutting of boys. Why is the core issue for Long the need to differentiate the cutting of girls as compared to boys? Whether or not cutting girls genitals is worse than cutting boys genitals is a bizarrely irrelevant distraction to the principle of the matter. All genital cutting is an act of aggression.

Long argues that genital cutting of girls should be called "mutilation". The definition of mutilation is the infliction of a disfiguring injury. This is indeed true for female genital cutting, but obviously it also applies directly to male genital cutting. Why then is it so important to apply this term to girls but not boys?

Lastly, Long makes the argument that if a child grows up to later endorse what was done to her by the parents, this cannot necessarily be taken as consent because the child may have been inculcated into this belief during her formative years. He makes this argument exclusively about girls. However, his argument obviously applies to male circumcision in exactly the same way. If he doesn't accept the later consent of grown girls to what was done to them, how can he accept the later consent of grown boys?

It seems like Roderick Long's aim in his comments on circumcision is both to denounce female circumcision and at the same time signal acceptance of male circumcision. There is nothing wrong with calling the genital cutting of girls "female genital mutilation" and denouncing it, although it takes no courage to do so since it is merely to voice an opinion already unanimously accepted in the West. But Long clearly doesn't apply the same standard to male circumcision. He does not want to call it "male genital mutilation" and he does not denounce it.

Libertarian philosophers should subject all social institutions and practices to the same question: does this violate objective property rights? If the answer is yes, then the libertarian philosopher ought to point this out. This is especially important in cases where such institutions or practices are widely accepted as legitimate, as male circumcision is. This is the most basic responsibility of a libertarian philosopher.

The Objection That Parental Obligations Are Too Onerous to Result From Sex

The philosopher Francis Schrag wrote a chapter titled Children: Their Rights and Needs in the book Whose Child? Children's Rights, Parental Authority, and State Power by William Aiken & Hugh Lafollette.

Schrag provides a summary of the aargument for causal parental responsibility:

The gist of this argument is this: people are responsible for the predictable and avoidable consequences of their actions. If two adults (recognizing the possibility that a helpless child might be conceived) have sexual relations and such a child is indeed born nine months later they are responsible for its existence and have to care for it. She later refers to Sidgwick's version of this argument, demonstrating that she is aware of other philosophical defences of the causal principle.

But Schrag disagrees with this principle. In an extraordinary paragraph, he throws the kitchen sink at it, firing off diverse objections in rapid succession. Each one of his objections could be the subject of an entire post. I will address just one here. Schrag states:

Why should a perhaps spontaneous act of love and passion which takes but a few minutes give rise to an enormously taxing and complex duty extending over perhaps decades?

He does not answer her rhetorical question but leaves it to stand as the objection. This is an argument from incredulity. Schrag is arguing that he can't imagine why doing a small thing should result in having a big responsibility. He is appealing to the notion that reality cannot be so unfair as to make one bear huge consequences for doing something short-lived and fun.

This argument is just a confession that the objector lacks the capacity to understand why something she views as insignificant can have significant consequences. It is the same objection to say "how can such a trivial thing as me exerting some pressure with my finger on a gun trigger be enough to make me guilty of murder?".

We live in a time when the actions of a few individuals could destroy human civilisation with nuclear weapons. Would we accept from them the defence that "surely merely talking and pressing buttons cannot make us responsible for so much murder"? It is an infantile objection.

A Critique of George H. Smith's Theory of Parental Obligations

George H. Smith wrote more about the question of children's rights than almost any other libertarian. His historical survey Children's Rights in Political Philosophy (published as a chapter in his book Atheism, Ayn Rand, and Other Heresies) is excellent. In it, he includes a brief summary of Kant's version of the argument that parents have enforceable positive obligations towards their children grounded in causal responsibility for placing their children in a state of peril. Smith was therefore aware of at least one version of the theory of causal parental responsibility that justifies enforceable parental obligations as a tort, although he did not mention the other proponents of this theory, such as Sidgwick or his libertarian contemporary Doris Gordon.

Smith did not present a critique of the causal theory in his historical review. Smith wrote that he never published his own ideas about children’s rights before summarising them in a 2013 article on the Cato Institute's Libertarianism.org website. When he did come to set out his own argument for parental obligations, he presented a version of the theory of parenting as voluntary social contract.

Smith rejects the idea that parental authority is some kind of property right, stating that Rothbard "was wrong to view this as a type of limited ownership claim. It is nothing of the sort". He criticised Rothbard for doing "a poor job analyzing the nature of guardianship rights and duties."

But Smith simply asserts out of nothing that "voluntarily to accept the enforceable right of guardianship entails accepting an enforceable duty as well, specifically, the duty to maintain the life of the infant in the guardian/​ward relationship." That sounds nice, but why exactly does it entail this? To whom is a parent contractually obliged? What is the basis of this contract?

Smith asserts that parents have an enforcable claim against other adults to prevent those others from interfering in their parenting decisions. Somehow, this "right" (which he says is not a property right) is only valid if the parents are providing care to their children. So he views parental authority as a contractual relationship between parents and society at large, with the contract being that the parents get authority over the child as long as they care for it.

This is nothing but a version of the voluntary social contract theory of the parental role, which has been put forward by many others. I have addressed the fatal weaknesses of this theory elsewhere, especially in this JLS article.

Although Smith knew of the causal theory, he never mentions it in regard to his own views or explains why he ended up advocating the competing theory of parenting as voluntary social contract. Smith does not even address the question of whether a child has an enforceable claim on his parents. Rather, he views the child as a mere third party in the relationship between parents and other adults. The rights and duties in parenting all belong to parents vs all other adults (i.e. society at large).

Like all proponents of the theory of parenting as voluntary social contract, Smith thinks that there is no rights violation if a parent decides to give up a child:

A guardian may terminate (or transfer) her guardianship rights, but she must do so in a way that will not violate her fundamental duty to sustain the life of the infant. To leave an infant to starve in its crib is to renounce all guardianship rights to the infant, after which the former guardian can no longer prevent a third party from caring for him. And from this it follows (after some steps that I won’t mention) that the original guardian must make a good faith effort to find another guardian (which is usually not a difficult thing to do).

So for Smith, if parents get bored of their task of raising a child, they may unilaterally abandon this obligation simply by passing the child on to someone else and the child would have no basis to object. In this way Smith denies the clear logical consequence of parenting as causal responsibility that one cannot legitimately give up parental obligations.

Smith wanted to defend libertarianism against the criticism that it implies that parential neglect–even to the point of deliberate starvation–is justified. Mounting such a defence was the reason that he finally set out his own theory of the parental role in the Cato article. He was uncomfortable with the implications of the theory of parenting as charity advocated by Rothbard. As I have argued elswhere, the theory of causal parental respomsibility successfully defends libertarianism against the false charge that it implies parental neglect is legitimate. Smith had encountered the argument for causal responsibility. He could have advocated this as the one theory of the parental role that is both sound and compatible with libertarian principles. But he did not.

Why did Smith end up instead advocating the flawed theory of parenting as voluntary social contract? My conjecture is that Smith held it as axiomatic that abortion is justified and he understood that this position is untenable if one accepts causal parental responsibility. In a 1980 Libertarian Forum article, Smith praised The Right To Abortion: A Libertarian Defense by Sharon Presley and Robert Cooke as "one of the most persuasive defenses of the right to abortion yet to appear." He took issue with various technical details but did not voice any disagreement with the extraordinarily aggressive and bloodthirsty argument presented by Presley and Cooke in that article that a woman not only has the right to remove an unborn child from her body but also to insist that it be killed for her own psychological benefit.

There is a great cultural demand for a theory of the parental role that asserts both the following propositions:

1. Parents cannot legitimately neglect their born children, but also
2. Parents may legitimately kill their children before they are born, if they want to.

The fact that these propositions cannot be logically reconciled does not change the fact that many people dearly want to believe both. This is the post-sixties mainstream intellectual view. Smith belonged to this generation. The theory of parenting as voluntary social contract seems to offer the promise of supporting both propositions. Perhaps that is why Smith landed on this theory, despite its unsoundness and incompatibility with libertarian principles. If so, it would be another example of how support for abortion has corrupted libertarian theory.

IVF Is Incompatible with Parental Obligations in Almost All Cases

Parents have obligations to their children because parents are causally responsible for placing their children in a state of peril as a result of creating them. Parents are responsible whether they intended to create children or not, since one must accept the reasonably foreseeable consequences of one's actions as chosen, even if those consequences were undesired.

The act of placing a child in a state of peril (by creating the child) makes the parents liable to remove the child from peril. Failing to do so is tantamount to an act of aggression. In this way, parents have an enforceable positive obligation towards their children.

Fulfilling this obligation turns out to be an enormous responsibility, since removing a child from peril involves whatever actions are necessary to raise that child to the safety and self-sufficiency of adulthood. This comprises countless millions of small acts required to keep the child safe, clothed, fed, sheltered, educated, and so on.

Since a new human being is created when two gametes fuse, it is the voluntary act of making one’s gametes available for fertilization that gives rise to parental obligation. The obligation is incurred whether one makes one's gametes available through sexual intercourse, which entails the natural possibility of fertilization, or through assisted reproductive technologies such as in vitro fertilization (IVF). James Lindemann Nelson explains the basis for this act being the source of causal obligation:

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

A clear logical implication of the principle of parental obligation is that parents have obligations to every embryo that they create, since every embryo is the result of the voluntary act of making their gametes available for fertilisation. This also entails that parents have obligations to every embryo created using IVF.

Although it is technically possible to transfer every embryo created during IVF, the process typically results in many more embryos created than are used. One cannot be precise about how many embryos are unused, since this data isn't directly available, so it can only be inferred or deduced from other statistics. An AI asked to make an estimate gives a figure of more than 95% of IVF treatments resulting in more embryos created than are transferred.

What happens to these unused embryos? They are either discarded (destroyed) or cryopreserved indefinitely. Destroying an embryo entails the killing of a child that the parents have responsibility for. This is an act of aggression that is unjustifiable and incompatible with the obligation of the parent to remove the child from peril.

Of those embryos that are preserved, some may eventually be donated to others, destroyed, or remain frozen with no clear future. Donating or selling an embryo is an unjustifiable abandonment of parental responsibility. The child has a claim on the parent and the parent cannot just sell or give that child away to someone else because parents cannot give up their obligations. Leaving an embryo frozen to an uncertain fate is a clear failure to fulfil the obligation of removing the child from peril.

Some proportion of IVF cases rely on gametes purchased from (or donated by) others who will not parent the resultant child. Since making one's gametes available for fertilisation is the act that gives rise to parental obligation, gamete sale or donation cannot be justified because it constitutes an unjust abandonment of parental obligation.

All these typical practices during IVF are incompatible with parental obligations. Although IVF could be compatible with parental obligations if every embryo was transferred, this is not done in the vast majority of cases. Additionally, some proportion of IVF cases involve gamete sale or donation. Therefore, IVF as currently practiced is almost always incompatible with parental obligations.

For a more detailed explanation of the principle of causal parental responsibility see my JLS article here.

My Article on Parental Obligations Now Published in the Journal of Libertarian Studies

My article What Is The Libertarian Theory of Parental Obligations? has been published in the peer-reviewed Journal of Libertarian Studies. Here is the abstract:

This article examines four competing philosophical theories of the parental role within a libertarian framework: parental ownership, parenting as charity, parenting as voluntary social contract, and causal parental responsibility. It critically analyzes each theory, evaluating its logical implications–particularly concerning the legitimacy of enforceable parental obligations–and its compatibility with libertarian principles. The article argues that the first three theories are unsound and incompatible with libertarianism. In contrast, it defends the theory of causal parental responsibility as the only sound framework consistent with libertarian philosophy, grounding enforceable parental obligations in the creation of peril. This analysis seeks to resolve long-standing debates and establish a coherent libertarian theory of parental obligation.

You can view the article here and download the PDF here. It is an honour to have my article appear in the world's leading journal for libertarian philosophy. This is the most important issue libertarians need to confront; I hope they are willing to.

A Critique of Stephan Kinsella's Approach To Rights Theory

Stephan Kinsella has explained the thought process that led him to overturn the libertarian theory of Intellectual Property. Initially, he accepted the starting premise of almost all other libertarians that IP is valid. Pro-IP libertarians began with this premise and then looked for ways to justify it as a foregone conclusion, but Kinsella noticed that they only came up with bad arguments:

I still assumed IP rights were, somehow, legitimate property rights… So I dove deep into the literature and tried to find a way to justify IP rights, only to keep hitting dead ends. Every argument I could come up with was as flawed and shaky as Ayn Rand’s.

Kinsella then took a different approach. He explored the hypothesis that arguments for IP are weak because IP is incompatible with libertarian theory. This was a decisive step in coming up with a different approach:

No wonder I had been failing in my attempts: I had been trying to justify the unjustifiable!

Rather than prejudging the conclusion and looking for supportive arguments, he identified sound arguments and then accepted whatever conclusion those arguments led to. The result was that he corrected a long-held error in libertarian theory and showed that IP is invalid.

The Problem Of Motivated Reasoning

Pro-IP libertarians were using motivated reasoning when thinking about IP. They knew the conclusion they were supposed to reach and tried to retrofit their arguments to it. Kinsella did not use motivated reasoning, so he was able to come to a sound conclusion.

I give this background because I now want to point out that Kinsella explicitly uses motivated reasoning when it comes to his theory of acquired rights and his dismissal of the theory of inherent rights. As can be seen from the title of Kinsella's main article on the origin of rights, "How We Come To Own Ourselves", he starts out with the assumption that rights must be acquired at some point rather than being inherent: Kinsella says we "come to" own ourselves. Given this assumption, he thinks that the only remaining question to answer is exactly when rights acquisition takes place.

In this way, Kinsella has prejudged the validity of acquired rights theory much like the pro-IP libertarians prejudged the validity of IP. He openly admits to using motivated reasoning when thinking about rights theory and does not seem to be aware of any problem with the admission. He says:

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

How does Kinsella know the end points? He prejudged them. This reasoning would be equivalent to saying "we know IP is valid, now we just need better arguments to show why." This approach cannot lead to a sound conclusion.

If Kinsella used the same approach to rights theory as he did to IP, he would instead start with the premise that for any rights theory to be valid, it must be compatible with sound meta-ethical principles derived from the logic of argument. He would then evaluate theories of inherent vs acquired rights against this criterion. The conclusion would be whatever is supported by the arguments.

Ironically, Kinsella believes that advocates of inherent rights are themselves the ones using motivated reasoning. He thinks one would only claim that rights are inherent in deference to religious dogma. He does not seem able to imagine that there could be secular arguments for inherent rights. However, there are lifelong atheists who have concluded– for entirely secular reasons– that rights are inherent. I am one of them.

Pointing out that Kinsella has used motivated reasoning does not constitute a detailed critique of his arguments for acquired rights or a defence of inherent rights theory (although that may be a topic for a future post). My goal in this post is just to point out the overall problem in the way that he has approached the question until now. I hope Kinsella will rethink the question of inherent vs acquired rights without prejudging the conclusion.

A Response to Wendy McElroy on Abortion and Retroactive Justice

Wendy McElroy opens her article On Abortion with this paragraph:

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

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

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

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

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

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

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

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

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

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

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

Matriarchal Libertarians Believe in Gestationalism

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

In contrast, some libertarians adopted an odd variant of the theory of parental ownership in which the mother is the owner, not the father. They argue for a matriarchal theory of parental ownership, whereby mothers have a property right over their children. A blunt version of this argument was made by Benjamin Tucker:

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.

However, Benjamin Tucker is not representative of other matriarchal libertarians. Most matriarchal libertarians argue for a much more limited property right in children when compared to Tucker or the kind of right envisaged by patriarchalists like Filmer. These matriarchalist libertarians see this as a property right to occupy the role of the child's guardian. According to Roderick Long,

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

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

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

In Legal Foundations of a Free Society Stephan Kinsella argues that mothers own their unborn children during early pregnancy:

initially, before the child has rights (say, as a very early stage fetus), the mother owns the growing fetus that is part of her body and that was produced by her body.

Gestationalism

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

Gestationalism is wrong for two key reasons:

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

Gestation is Not an Act of Creation

A new human life is created by the fusion of male and female gametes at conception. This is a basic biological fact independent of rights theory. From this point onward, the new life has already been created. Although the new human is inside the mother's body and is attached to it, he has a body of his own and is not merely a "part of hers". What a mother is doing during pregnancy is not "producing" a life: gestation does not contribute to the existence of the life. Rather, she is providing the first stage of parental nurturing to a life that already exists. Therefore she is not producing the child any more than a father is "producing" his infant by spoon-feeding the child food that belongs to the father.

As James Lindemann Nelson explains, it is an error to think that the process of gestation contributes to the existence of the child:

Another way to look at pregnancy is that it is, rather, the first kind of nurturing that mothers provide for a fetus which has already come into existence at conception.

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

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

Parental Obligations Stem from Causal Action, Not Mere Biology

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

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

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

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

James Lindemann Nelson explains why this act creates causal obligation:

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

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

Does a rape victim have parental obligations?

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

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

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

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

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

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

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

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

Children Do Not Have Obligations to Their Parents

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

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

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

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

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

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

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

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

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

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

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

Having established that there is no justification for grown children to have an obligation to their parents, what about a child's obligations during childhood? Does a child have an obligation to obey his parents? In some conditions, yes. A parent must sometimes act paternalistically (against the expressed wishes of the child) in order to fulfil his obligations. For example, if a child wants to walk across town in the middle of the night, a parent may justly prevent him from doing so for his own protection. This logically entails that in such cases a child should obey his parents. In this sense, a child does have a positive obligation to his parents. But this is not an enforceable obligation: a libertarian legal system could not enact just laws against children failing to comply with their parents. So a child may have a moral obligation to obey in such cases, but not an enforceable one.

Furthermore, it should be clear that a child does not have any obligation to obey his parents in situations where they are aggressing against him. Any action against the child's consent that cannot be reasonably justified as necessary in fulfilment of parental obligations to remove the child from peril is not something a child has a moral obligation to obey.

Defence of Abortion Entails Defence of Infanticide

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

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

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

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

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

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

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

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

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

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

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

The Inconsistency of Pro-Abortion Libertarians

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

If, then, the child is the mother's while in the womb, by what consideration does the title to it become vested in another than the mother on its emergence from the womb and pending the day of its emancipation? I think that no valid consideration can be shown; and if such is the case, then it is established that the unemancipated child is the property of its mother, of which, by an obvious corollary, she may dispose as freely as she may dispose of any other property belonging to her.

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

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

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

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

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

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

Compulsory Schooling As A Strategy To Increase State Control Of Children

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

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

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

Society possesses an original and fundamental right to the education of children. … We must accordingly reject without compromise and brush aside the claim of parents to impart through family education their narrow views to the minds of their offspring … the qualifications for educating children are rarer than those needed for bringing them into the world.

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

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

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

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

American philosopher Alexander Meiklejohn explicitly argued that teacher and pupil are agents of the State:

Education is an expression of the will of some social organism, instinct with one life, moved by one mind. Teacher and pupil … are both agents of the state.

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

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

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

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

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

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

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

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

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

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

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

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

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

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