Why Libertarians Mistakenly Think Parental Authority is a Homesteaded Property Right

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

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

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

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

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

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

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

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

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

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

Rights Cannot be Based on Physiological Characteristics

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

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

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

Physiological Criteria Are Arbitrary and Irrelevant

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

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

Physiological Criteria Entail Both Animal Rights and Human Infanticide

If rights are based on physiological capability, the logical implication is that drawn by Peter Singer: higher mammals have a right to life and human newborns do not.

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

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

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

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

Rights Cannot Be Based on Demonstrated Rationality

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

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

Another version of the theory holds that the qualification required to have rights is demonstrated rationality. According to this version, an individual acquires rights once he demonstrates rationality. Therefore, before an individual acquires rationality, he has no rights. This theory is logically indefensible for the reasons set out below.

It Permits Infanticide

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

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

It Is a Conflict-Generating Norm

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

It Is a Non-Universal Norm

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

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

Reason Is Intermittent, Rights Are Not

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

Conclusion

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

The Role Of Rationality In The Theory Of Inherent Rights

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

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

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

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

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

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

Support for Abortion Has Corrupted Libertarian Theory

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

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

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

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

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

The Denial of Parental Responsibility

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

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

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

The Distortion of Rights Theory

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

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

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

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

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

The Abandonment of The Presumption of Innocence

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

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

The Invisibility of Fathers in Libertarian Theory

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

The Theory of Acquired Rights Is Incorrect

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

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

The Theory Of Acquired Rights

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

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

Implications

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

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

Based On Assertion

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

The Problem of a Qualification for Rights

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

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

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

Any norm that would generate conflict is invalid

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

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

Any norm that is not universal is invalid

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

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

The Presumption of Rights

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

The Question

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

The Purpose Of Norms

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

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

The Presumption of Rights

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

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

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

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

Implications

This principle has a number of important logical implications:

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

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