Stephan Kinsella argues that even though parents do have rightful positive obligations, these obligations could be largely unenforceable for practical reasons:
a parent who needs to be forced to care for their kid will not be a good parent, so probably best to let a third party adopt the kid. It could be the case that the positive obligations we think parents have assumed in the case of kids, are simply mostly unenforceable, except for some narrow cases like forced heirship law or legal obligations of financial support, and so on.
Are parental obligations practically unenforceable? And if they are practically unenforceable, what do we infer about any failure to meet such obligations?
Are Parental Obligations Practically Unenforceable?
Some positive parental obligations do present enormous practical challenges to enforce. For example, there are sociopathic or incompetent people who are so dangerous to children that presumably they could never be forced to provide even the bare minimum survival care required for any child.
There are workarounds for enforcement even in these cases. A dangerous parent could be rightfully forced both to give up custody of their child to a responsible party and/or to provide financial support, as Kinsella suggests.
The ultimate consequence of enforceability is that adults should be able to sue their parents for a failure to meet parental obligations to them back during their childhood. There are still practical barriers to enforcement in these cases. The passage of time would work against the plaintiff. Also, the fact that the plaintiff is a functioning adult is prima-facie evidence that their parents did deliver them to adulthood safely, so this would also work against the plaintiff in many cases.
However, if such barriers were overcome, a parent could be held liable for damages. For example, if it could be demonstrated that a child suffered sexual abuse as a result of a parent leaving them with in the care of the abuser without exercising reasonable diligence to check the safety of the person they were entrusting the child to, that parent should be considered liable of a failure to protect the child (and protection is a parental obligation).
What Do Practical Barriers Imply About Justice?
It is incontestable that- at least in some cases- positive parental obligations may be practically impossible to enforce. What are we to make of this? There are three competing inferences that one might draw from this:
- Since the practical barriers to enforcement are insurmountable in some cases, it cannot be defined as an injustice if parents fail to meet their positive obligations.
- It may be an injustice if parents fail to meet positive obligations, but since we can't practically do anything about it, it is meaningless to even talk about it.
- Justice matters, even if there is no practical way to redress an injustice at present.
For me, the correct inference to draw is 3: justice still matters even if we sometimes can't enforce it for practical reasons.
Rothbard once made the point that is valid to have a goal like the eradication of murder even if you do not ever expect that goal to be achieved. Similarly, it is valid to have the goal of eradicating the neglect and abuse of children, even if you never expect this to be achieved for practical reasons.
There are insurmountable practical barriers to achieving a 100% enforcement on the prohibition of murder, but the injustice of every murder still matters. Similarly, there are insurmountable practical barriers to enforcing every parent to fulfil all their positive obligations to their children, but the injustice of child neglect and abuse still matters.