Some libertarians reach definitive conclusions that directly contradict each other. For example, in an article entitled “Taking Children Seriously & the Future of Liberty,” Sarah Fitz-Claridge wrote, “I certainly do not think that children should be controlled by the state instead of parents. I think that they should control their own lives, just as adults do. Indeed, TCS [her children’s rights organization] advocates raising children not just without beating them but without doing anything to them against their will.” Meanwhile, the 19th century individualist anarchist Benjamin Tucker believed parents owned their children and could kill them at will. On this sliding scale of opinion, I am in the unfamiliar position of being a moderate.
My purpose here is to state what I believe is true about children’s rights and to present some points with which I am decidedly uncomfortable. The latter have kept me from addressing this subject for years. I think other theorists have been similarly discouraged, which may account for the relative dearth of writing on children’s rights.
Beginning with the obvious: an infant is an autonomous individual with the same rights against aggression as an adult possesses. Killing an infant is murder in precisely the same moral and legal sense as killing an adult. In short, infants have what libertarianism calls “negative rights” which impose a duty upon others to not aggress.
But do infants have “positive rights” which impose obligations for assistance upon others? The question springs from the helplessness of an infant for whom negative rights are not sufficient to sustain its life. It cannot cultivate a field to grow food or drive to a grocery store. An infant is utterly dependent upon others for sustenance and protection. Someone must exercise protective control in order to ensure the infant’s survival.
But who? The question moves us temporarily from children’s rights to parental ones. It is commonsense that parents should have a presumptive right of guardianship over an infant they created. And, generally speaking, no one else has as much incentive to provide the necessary care.
When the parents contest each other for guardianship, however, it is not obvious which one has the primary claim. Nineteenth century libertarians viewed the status of children as “a woman’s question” because the mother was deemed to be the primary guardian. Father’s rights advocates today make compelling arguments for “the presumption of shared custody.” But the person lost in both claims is the child itself. Neither parent has a property claim in the child; that would be slavery. And, so, once it is past infancy, the definitive answer should be — “whomever the child prefers is the proper guardian.”
The implementation or content of a guardianship should consist of “anything that is peaceful,” In the “Kid’s Lib” chapter of Egalitarianism as a Revolt Against Nature, Murray Rothbard explained when the child can properly rebel against a guardian’s peaceful rules. “The answer is: when he leaves his parents’ household. When he gets out of his parents’ property, he then removes himself from his parents’ property jurisdiction. But this means that the child must always have, regardless of age, the absolute freedom to run away, to get out from under. It is grotesque to think that the parents can actually own the child’s body as well as physical property; it is advocating slavery and denying the fundamental right of self-ownership to permit such ownership of others, regardless of age. Therefore, the child must always be free to run away; he then becomes a self-owner whenever he chooses to exercise his right to run-away freedom.”
Rothbard’s answer is a cold one. It misses the love and nurturing, the tenderness and unbreakable bond that most parents feel when holding their child. But it is a sound political analysis. If a child cannot tolerate the household rules, then it is free to seek another willing guardian as soon as it can. And at that point, the parent has no right to take the child back because the act would be kidnapping and a violation of the child’s self-ownership.
If those are the basics of parental rights, what are parental responsibilities? Morally speaking, the answer is simple. To care for the infant or child to the best of their ability. Neglect and cruelty are morally intolerable and should be discouraged by every possible peaceful sanction, such as peer pressure, shunning and shaming.
As a legal matter, neglect and cruelty present a problem. Common decency rebels against abusing an infant, even non-violently. But the fact remains that the bad treatment is non-violent. If a parent does violently aggress against a child, then it is criminal matter and a 3rd party has the same right to intervene on the child’s behalf as on the behalf of someone being mugged in an alley.
The uncomfortable fact, however, is that libertarianism does not recognize positive legal obligations except as established by agreement. That is to say, there is no positive obligation that legally forces a parent to provide sustenance or shelter. Only if the parent has entered into an agreement with the infant can such positive obligations be enforced. But, clearly, until the infant reaches the age of consent, an agreement with it is not possible. Positive obligations cannot be enforce. The best that can be done is for someone willing to assume guardianship to rescue the infant. I am not fond of this conclusion but I see no way around it within libertarian theory.
Rothbard observed, “[S]uppose some parents do not perform such moral obligations? Can we say that the law — that outside enforcement agencies — have the right to step in and force the parents to raise their children properly? The answer must be no. For the libertarian, the law can only be negative, can only prohibit aggressive and criminal acts by one person upon another. It cannot compel positive acts, regardless of how praiseworthy or even necessary such actions may be.”
The burning question becomes, “what will become of abandoned or abused children?”
First of all, a libertarian society would have far fewer such children. Single women would not be given welfare based on the number of offspring they had; they would support their own children themselves. In other words, the current financial cost-benefit of having a baby would be reversed. The financial incentive to be a single mother as opposed to marrying would also be eliminated, and the more stable the home, the less likely abuse. As long as birth control and abortion were readily accessible, women would be able to have only the children they wanted, only the ones they could afford.
One obvious solution to the unwanted children who occur is adoption. In libertarianism, adoption is a personal matter with the only restriction being the same one placed upon natural parents – no injury to the child can be inflicted. Payment for adoption would make the option attractive to natural parents who were inclined toward neglect, abuse or abandonment. Rothbard explained, “parents who now neglect or dislike their children would be able to sell their offspring to those parents who would desire and care for them properly. Every party involved would gain by the actions of such a market: the child would be shifted from cruel or neglectful parents to those who would desire and care for it.”
I am describing an imperfect system that could be manipulated for bad purposes but the same could be said of any system under any ideology. Libertarianism will not bring utopia; it merely solves social problems better than its competition. Of one thing I am certain. The libertarian system of children’s and parental rights is infinitely preferable to the current one that encourages irresponsible parenthood through welfare, that rigidly and unreasonably restricts adoption, that prohibits profit from adoption, that denies ‘children’ individual rights until the age of 18, and allows Child Protective Services almost unlimited power to place children into monstrous state institutions. Nothing is so important to children rights as removing the state from their lives.
Nevertheless, it is uncomfortable to think of even one child slipping through the cracks of a libertarian system into the personal hell of abuse. That discomfort is yet another protection extended to children. It causes people to donate money, to volunteer time and to build the private charities that have traditionally cared for abandoned or orphaned children. Charities that depend on donations are more likely to be humane than state institutions that receive tax money no matter how they perform.
One last question remains: what is the age of consent for a child at which it becomes able to exercise full individual rights?
I don’t know. I do know that the age of consent at which a ‘child’ can enter into a contract is lower than the state-established 18-years-old. Perhaps it is much lower. Frankly, I suspect the age of consent varies from child to child and should not be judged by an arbitrary number. It should be judged by the actions of individual children themselves; there should be a litmus test that is not bound to age. Rothbard believed the age of consent was when the child was no longer under “the property jurisdiction” of the parent. In this scenario, the child is akin to a a ‘guest’ in the parent’s home and, so, subject to household rules until it leaves.
I prefer the approach of the 19th century individual anarchist Josiah Warren who was, by all accounts, a loving and kind father. He advocated making children both responsible for their own needs and capable of satisfying them at the earliest possible age. And he used the ability of a child to contract as the litmus test of individual rights. For example, Warren contracted with his children to exchange their labor in return for food and the other necessities with which he provided them. It was not hard labor but chores like washing dishes. Through these contracts, his children learned independence, self-respect, and the value of money and labor. It was part of their education for life. It was part of his love for them.
Too many parents neither love nor like their children. This is a brutal, merciless fact of life and it will not change under libertarianism. I do not like dealing with this issue because I recoil from cruelty toward children and have a deep, almost instinctive desire to lash out at callous parents. But, as long as those parents fall short of committing violence against children, libertarianism offers no solution under law. It offers only active alternatives such as adoption or the child seeking out a new guardian. It offers moral suasion and other effective social pressures.
The bottom line, however: Rothbard proclaimed, “It cannot be emphasized too strongly that there is a host of moral rights and duties which are properly beyond the province of the law.”
I can only hope that a libertarian society would share my deep moral and emotional discomfort at neglectful or cruel parents and, so, use every private alternative (including new ones) to protect children.