Libertarianism and Self-Ownership
Today I’m going to talk about children. What does a post about children have to do with libertarian philosophy? As I hope to show here, children pose a special problem for libertarians (and, more broadly, for other liberalisms). Murray Rothbard’s discussion of children’s rights in his book The Ethics of Liberty well illustrates the problem (Note: page references to Rothbard’s book will be cited parenthetically) . The conclusions that Rothbard points us to–conclusions that he argues are the necessary, inevitable consequences of embracing libertarianism–border on the absurd. They may even cross that border, as I hope to convince you. The absurd conclusions that Rothbard defends grate against some of our deep intuitions about children, enough so that in my view they point to some deeper problems in the libertarian theory he espouses.
To get at the problem that children pose, we need to have in front of us the simple, elegant logic of Rothbard’s libertarian ethic, stated as follows:
- Every person has a natural right to their own body.
- Every person has a natural right to the fruit of their labor.
These rights are inalienable. For libertarians, self-ownership is the essential principle upon which a just society is founded. One can just as well frame these principles negatively, a statement of what justice prohibits:
- No person has a right to use another person’s body against their will.
- No person has a right to take the fruit of another’s labor without their consent.
Thus, an ethic of liberty places limits on what we can rightfully do to one another. It is strictly negative. Law serves a legitimate role in preserving the space wherein individuals can make choices about their lives. Law also properly constrains individuals from infringing on individual property rights.
Furthermore–and this is key for where my argument is going–an ethic of liberty does not entail that there are any positive, legally-enforceable obligations that I have to anyone else, apart from those obligations I incur through my explicit consent. You might desperately need a kidney, and I might have a spare that could fulfill this need, but the kidney is rightfully mine, and your need for my kidney does not give you a right to it. The fact that you need financial assistance to feed your family is regrettable, but my property is my own, and your need does not change this fact. It might be morally laudable were I to give to a charity that assists families like yours. My charity is an extension of my self-ownership, simply another choice that I have a right to make but that no other person can demand from me. It would be reprehensible for you or the state to force me to do so without my consent. To do so violates my liberty.
On their face, these libertarian principles are both plausible and compelling. Consider your own life. Were somebody to threaten you with a gun and force you to work for them, would you not feel that you have been done a grave injustice? When you labor at a full-time job for an hourly wage, do you not feel that the money is rightfully yours? Self-ownership seems morally basic to us. Libertarians like Rothbard are unbending in their commitment to the principle of self-ownership. My body and my property belong to me. Your body and your property belong to you. I can consent to give you my property as a gift, or I can consent to enter into an agreement with you for us to exchange our property with one another. But–and this is key–no person has the right to force me to do anything with my body or my property without my consent.
Letting Your Child Die: Your Legal Right
But what about children? Rothbard argues that the principle of self ownership is founded on the fact that adult humans have the rational capacity to choose from among the multiple ends available to them. But newborn children do not (yet) have this capacity. They are not self-owners in the sense that Rothbard describes; they are only potential self-owners (97). What does an ethic of liberty suggest, then, about the rights of children? How do these rights relate to the inalienable right of self-ownership that Rothbard asserts is the cornerstone of an ethic of liberty?
To his credit, Rothbard acknowledges the special challenge that children pose to his argument, devoting an entire chapter in The Ethics of Liberty to the problem. Beginning with the principle of self-ownership, Rothbard first discusses how his ethic speaks to the question of abortion. Rothbard concludes that a woman’s right to her own body entails a consequent right to choose abortion:
“The proper groundwork for analysis of abortion is in every man’s absolute right of self-ownership. This implies immediately that every woman has the absolute right to her own body, that she has the absolute dominion over her body and everything within it. This includes the fetus. Most fetuses are in the mother’s womb because the mother consents to this situation, but the fetus is there by the mother’s freely-granted consent. But should the mother decide that she does not want the fetus there any longer, then the fetus becomes a parasitic ‘invader’ of her person, and the mother has the perfect right to expel this invader from her domain. Abortion should be looked upon, not as ‘murder’ of a living person, but as the expulsion of an unwanted invader from the mother’s body. Any laws restricting or prohibiting abortion are therefore invasions of the rights of mothers” (98).
Rothbard’s conclusion will be discomforting to anti-abortion critics, but it’s not hard to see how his conclusion is the logical extension of the argument for self-ownership. Remember, if my body is my own, then the fact that any other being needs my body does not give them a right to it. The abortion debate often revolves around disagreements about the moral status of embryonic human life. Notice that Rothbard’s argument completely sidesteps the question of whether a fetus is a person. From his vantage point the question is irrelevant. Even if the fetus is a person the fact that the fetus needs the body of the mother does not give the fetus a right to it. The mother has made no explicit contract with the fetus (how could she? The fetus is not a rational agent capable of choosing ends), and even if the fetus is conceived through consensual sexual activity this fact does not mitigate the right of the woman to her own body. If I consent to give you my shiny Lexus sport car but then change my mind, this is my right, and I don’t violate your rights when I reassert my property claim. The same holds for a pregnant woman. The mother’s right to self-ownership is inalienable.
At first glance, then, Rothbard’s libertarianism seems reasonable, corresponding to a commonly held, albeit contested, view in the abortion debate. But when we move beyond debates about embryonic human life to discussions about children that have already been born, Rothbard’s argument devolves into absurdity. Let me try to make this point more clearly by using a far-fetched illustration. At birth infants are squalling bundles of neediness. Imagine for the moment that scientists have invented an Infant-Speak Translation System (ISTS), a machine-learning style robot that when placed in a room with an infant learns how to interpret the cries and facial expressions of the child, translating them into verbal language. Over time as the ISTS learns how to translate the cries, laughs, and groans of the infant to the parent the ISTS also makes it possible for the parent to communicate with the child, translating the complex verbal expressions of the parent into nonverbal cues that the child can easily grasp. Thus, the ISTS makes it possible for parents to carry on verbal conversations with their young infants.
Todd is father to a newborn infant, Claire. One morning Todd is awakened by the cries of his daughter. He enters Claire’s nursery, and with the ISTS translating their messages back and forth, they begin a conversation.
Claire (Crying): “Dad, I’m really hungry. I’ve been lying in this crib all night. Can you get me some baby formula?”
Todd: “Goodness, Claire, you need food again? The fact is, Claire, I’ve grown weary of the sleepless nights you inflict on me, your constant nagging for attention, your never-ending demand for more food. I find your neediness to be an unbearable burden. Furthermore, I hold self-ownership to be an inalienable right and the foundation of a just society (I know you’re too young to have heard of Murray Rothbard. If you live long enough to learn how to read you should really check him out). I own myself, and your constant demands infringe on my right to choose my own ends. It’s really sad that you aren’t able to take care of yourself, but the fact that you need my attention, my food, and my care doesn’t give you a right to these things!”
Claire (Crying): “Okay dad, but I still need some formula, and if you don’t respond to me soon you know I’m going to starve to death, right? Are you trying to kill me? If you don’t feed me aren’t you afraid you’ll get in trouble?”
Todd: “Look, I’m not going to kill you. It would be wrong for me to take active steps to end your life. I’m fundamentally opposed to aggression. But just because it would be wrong to take steps to kill you does not mean that I have any legal obligation to take positive steps to sustain you. Why should I be afraid of punishment? If you starve to death simply because I choose to assert my right to self ownership, what right do other people have to say that I should be punished? It would be wrong for anyone to punish me! I haven’t violated anyone’s rights. I’ve simply asserted my own inalienable right to what is mine.”
Claire (Crying): “Okay, dad. Now, about that formula?”
The conversation illustrates the challenge that children raise for an ethic that gives primacy to self-ownership. This ethic suggests that no individual has a positive, legally enforceable obligation to other persons. But if this is so, then it suggests that Todd’s reply to Claire is exactly correct. Claire, whose life at the moment is defined not by her capacity to choose ends but by her neediness, has no rightful claim to make on Todd. For her to insist that he feed her without his consent is just another infringement of his right to self-ownership.
The conclusion seems absurd and disturbing, right? The implication is that Claire is asking of her father something that she has no natural right to expect. As intuitively implausible as it might seem, this is precisely the conclusion that Rothbard points us to. Says Rothbard,
“[E]very baby, as soon as it is born and is therefore no longer contained within his mother’s body, possesses the right of self-ownership by virtue of being a separate entity and a potential adult. It must therefore be illegal and a violation of the child’s rights for a parent to aggress against his person by mutilating, torturing, murdering him, etc. On the other hand, the very concept of ‘rights’ is a ‘negative’ one, demarcating the areas of a person’s action that no man may properly interfere with. No man can therefore have a ‘right’ to compel someone to do a positive act, for in that case the compulsion violates the right of person or property of the individual being coerced….
“Applying our theory to parents and children, this means that a parent does not have a right to aggress against his children, but also that the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights. The parent therefore may not murder or mutilate his child, and the law properly outlaws a parent from doing so. But the parent should have the legal right not to feed the child, i.e., to allow it to die. The law, therefore, may not properly compel the parent to feed a child or to keep it alive” (100).
Rothbard goes on to argue that while we might well deem allowing a child to starve to death an immoral action this conclusion does not entail that we make feeding the child a legally enforceable requirement. In context, it seems that Rothbard has in mind circumstances when a child is suffering from a severe disability. In his view parents should have the legal right to allow the child to die. But his argument for self-ownership offers no clear justification for denying this same right to parents who simply find themselves too burdened to continue caring for their child. If Todd grows weary of Claire’s cries, Rothbard’s conclusion seems clear: Todd should have the legal right to allow Claire to starve to death. It would be a violation of Todd’s rights for the state to intervene and punish him for allowing Claire to die.
The absurdity of Rothbard’s argument will be made even clearer if one considers what it implies in a range of scenarios. Consider the following two scenarios:
Scenario 1: Weary of caring for Claire any longer, Todd takes his infant daughter and drowns her in a bathtub.
Scenario 2: Weary of caring for Claire, Todd happens upon his infant daughter who has slipped in the bathtub and lies submerged under the water, unable to raise her head. Todd allows her to drown.
What should we say of Todd’s actions? Scenario 1 seems a clear example of aggression. Todd is taking action so as to cause the death of Claire. He is acting immorally, and by Rothbard’s standard he is legally culpable for violating Claire’s right to self-ownership. But what about scenario 2? Notice that in this case Todd is not actively causing Claire’s death. Her imminent death is a byproduct of circumstance. Todd is a bystander, and when he chooses to not rescue his daughter he is simply asserting his own right to choose his own ends. Outside parties (e.g. the state) would act unjustly were they to discover what happened and subject Todd to punishment. We might frown upon Todd’s refusal to save Claire, but in scenario 2 our moral judgment does not offer any basis for holding Todd legally culpable for Claire’s death.
Or consider two more scenarios:
Scenario 3: Weary of caring for Claire any longer, on a cold winter day Todd takes his daughter from his house and throws her into a snow drift where she freezes to death.
Scenario 4: Weary of caring for Claire, Todd discovers that his daughter has crawled out of the house and now finds herself shivering, stuck in snow bank from which she cannot extricate herself. Todd stands at his door and watches her freeze to death.
Here again, Rothbard’s argument would suggest that scenario 3 qualifies as an act of aggression because Todd is acting so as to cause the death of his daughter Claire. But scenario 4 is different. Claire is freezing to death not because Todd forced her into the cold, but because she left the house. Todd is simply a bystander asserting his right to self-ownership. And according to Rothbard this should be his legal right.
Now to be clear, Rothbard is not arguing that parents should allow their children to die. No doubt libertarians like Rothbard would deem child starvation an immoral act, though a legally permissible one. Libertarians are keenly resistant to using law as a basis for enforcing moral norms, but Rothbard’s anarchist utopia still needs some way to address Todd’s neglect. Because there is no state available to enforce law, what would happen when Todd’s neighbors discover Claire’s emaciated corpse in the crib? Though Rothbard does not directly answer this question, here’s my best sense of what Rothbard envisions:
- After Claire dies of starvation, Todd’s neighbors, who in an anarchist utopia will enter into voluntary restrictive covenant with one another that regulates their community, would hire a firm to investigate the circumstances of Claire’s death. These agents would be responsible for determining whether or not Claire’s death resulted from Todd’s aggression or some other event.
- If the investigators discover that Todd did not act aggressively but simply allowed Claire to starve to death, there would be no legal basis for punishing Todd retributively. Retributive justice is appropriate only in circumstances when an individual violates the rights of another person. But Todd has not done this; he has simply asserted his own self-ownership rights. Thus, the investigators would inform Todd’s neighbors that the circumstances do not warrant legal punishment.
- However, the fact that Todd is not legally culpable does not mean that he will escape the consequences of his immoral action. When his neighbors discover that he allowed his child to starve to death, they will point out to Todd that the voluntary contract he entered into with his neighbors prohibits immoral acts like starving children (moral prohibitions are enforceable contractually as long as individuals consent to them when they contract with their neighbors). Because Todd has violated the terms of his homeowners agreement, he will suffer the very grave consequences of his violation: excommunication from the community. Todd will live as an exile, a fitting end for a parent who allows his child to die.
In short, while Todd might escape legal sanction, he is still subject to the voluntary commitments he has made to his neighbors and will suffer the consequences of violating his homeowner’s contract. In an anarchist utopia, their moral sanction is the best that a squalling bundle of neediness can hope for.
Alas, how much easier the world would be if children didn’t infringe so regularly on one’s right to self ownership.
Don’t Want Your Child? Sell Her to the Highest Bidder
There is one more absurdity that deserves mention. Rothbard argues that up until the point that Claire becomes a rational being capable of asserting her own ends that her parents are “trustee-owners” of her. Claire has an “absolute right to run away” from home,” and when she asserts this right this signals an end to the parents trustee jurisdiction (103). Prior to this time, parental ownership of the child entails a right to sell ownership to others. Yes, according to Rothbard a free society should permit parents to sell their children on a vast babyselling market:
“Now if a parent may own his child (within the framework of non-aggression and runaway-freedom), then he may also transfer that ownership to someone else. He may give the child out for adoption, or he may sell the rights to the child in a voluntary contract. In short, we must face the fact that the purely free society will have a flourishing free market in children. Superficially, this sounds monsterous and inhuman. But closer thought will reveal the superior humanism of such a market. For we must realize that there is a market for children how, but that since the government prohibits sale of children at a price, the parents may now only give their children away to a licensed adoption agency free of charge” (103-104).
Rothbard asserts that because parents are prohibited from selling their children a gap exists between the demand for adoption (which is great) and the supply of children (which cannot meet this demand). Allowing parents to sell unwanted children would balance supply and demand (i.e. by creating incentives for parents who do not want children to sell them to those who do). Here as elsewhere, free markets are the solution to our social woes.
And consider the social benefits that attend the commodification of children! In a society that permits parents to sell children to the highest bidder, poorer families struggling to sustain themselves will have available to them a new avenue for improving themselves. If we’re open to selling those unwanted infants who already exist, why stop there? A free society would surely permit women to bear children for the purpose of selling. How could it be otherwise?
I find Rothbard’s conclusion philosophically principled. If self-ownership is the sole foundation of a social ethic, then Rothbard’s logical conclusion seems inescapable. At the same time, I find Rothbard’s conclusion patently absurd. Admittedly, this could be because my moral intuitions about children’s rights, the social obligations that communities have to protect the vulnerable, and the corrupting effects of treating children as market commodities are grating against the conclusions that Rothbard insists I should embrace. Beckoning back to my last post on reflective equilibrium, perhaps my intuitions need to change.
But I think not. In the end, Rothbard’s argument is open to two fundamental objections. The first is that Rothbard prioritizes liberty at the expense of other moral values that are no less important to a just society. Self-ownership is a critical moral value, but so is child welfare, or so I would argue. In lifting up self-ownership as the Summum bonum of a just society, Rothbard’s ethic of liberty relies on what can be charitably described as a distorted view of human nature and community. In his book Politics & Passion, Michael Walzer observes that the “hero” of liberal theory, the unencumbered self whose identity is defined wholly by the choices that (s)he makes, is a sociologically naive creation that encourages the pursuit of a “bad utopianism” (P&P, 1). Crusoe, that man on Rothbard’s island, epitomizes the illusion. Suffering from amnesia and unburdened by social connections of any kind, Crusoe is free to map his destiny. With Crusoe as the standard-bearer for an ethic of liberty, we journey toward a future in which parental neglect is legally permissible while morally reprehensible and where children may function as commodities for trade. Bad utopianism indeed.
Our lives are not this way. The trouble with children–and we were all children once–is that they are so needy, so dependent, and so inextricably connected to those “involuntary associations” they had no hand in choosing. Our families, the cultural and (yes) the political communities in which we are born shape our affections and our loyalties, and they also serve as the basis for the positive obligations that we have to one another. Rothbard’s ethic of liberty falls short in accounting for how the enforcement of these positive obligations might well be within the purview of the state, especially when addressing the welfare of the community’s most vulnerable members.
While some might fault Rothbard’s ethic of liberty for prioritizing liberty too much, I actually think the second criticism is more accurate and more pressing. The problem with Rothbard is not that he values liberty too much. The problem is that he does not value liberty enough. How can that be so? That’s the focus of my next post.