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The Essence of Libety

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Liberty knows no compromise

by Murray N. Rothbard

Chapter 14. Children and Rights

Compiled and Edited

by

Dr. Jimmy T. (Gunny) LaBaume

A newborn babe is not an existing self-owner in any sort of natural sense. However, it is a potential self-owner. So, when (or in what way) does a child acquire his natural right to liberty and self-ownership?

What is the mother's property right in the fetus? The conservative Catholic position holds that the fetus is a living person, and abortion is an act of murder. The counter-argument is that the child cannot be considered a living person.

(Editor's Note: You “right to life” conservatives, please just hold your breath for the next few paragraphs. What Rothbard is trying to establish is not the morality of abortion [which may or may not be moral on other grounds], but its legality. What he is concerned with is people's rights to do [or not do] various things—not whether they should or should not exercise such rights. For example, every person has the right to purchase and consume Coca-Cola but that does not necessarily mean that he should [or should not] actually make such a purchase.)

Every man's absolute right to self-ownership provides the proper groundwork for the analysis of abortion. Every woman has the absolute right to her own body. Most fetuses are in the mother's womb because of her freely-granted consent. Should the mother decide that she does not want the fetus it becomes a parasitic “invader.” Thus, abortion is the expulsion of an unwanted invader.

Since the mother originally consented to the conception, the mother has …“contracted” …a mere promise is not an enforceable contract…contracts are only …enforceable if their violation involves implicit theft …Secondly, there is …no “contract” here, since the fetus …can hardly be considered a voluntarily and consciously contracting entity. …thirdly as we have seen above…is the inalienability of the will …the impermissibility of enforcing voluntary slave contracts.

Another argument is that the fetus is a living human being. Rothbard concedes. But, he asks, does any human have the right to be a coercive parasite within the body of an unwilling human host? Obviously, no born human has such a right. Therefore, all the more certainly , a fetus can have no such right either.

Any proper rights implied by the “right to life” are included in the concept of the “right to self-ownership”—the right to have one's person free from aggression. It is impermissible to interpret the term “right to life” as giving anyone an enforceable claim to someone else's property to sustain that life. That would be a viola­tion of the other person's right of self-ownership.

Then, after the baby is born, the mother, as the only certain and visible parent, becomes its natural and rightful owner. And, any attempt to seize the baby by force is an invasion of her property right.

Ownership of the child is not in absolute fee simple. If it were then a fifty-year old adult would be subject to the jurisdiction of his seventy-year-old parent. Thus, the parental property right must be limited in time as well as in kind (It would be grotesque to advocate the right of parents to murder or torture their children.)

Thus, the parental ownership is not absolute but of a “trustee” or guardianship nature. Every born baby has the right of self-ownership. The concept of “rights” is a “negative” one. In other words, no man has a “right” to compel someone to do a positive act because such compulsion would violate the right of the person being coerced. To elaborate, a man does, indeed, have a right to his property. However, no man has a “right” to a “living wage.” That would violate the property rights of the people coerced into providing that wage. No man has any legal obligation to do anything for another. His only legal obligation is to respect the rights the other man's rights.

This means that a parent does not have the right to aggress against his children. But, it also means that the parent has no legal obligation to feed, clothe, or educate his children. Again, Rothbard is referring to a legally enforceable, rather than a moral, obligation. That is another question.

What are the implications of the doctrine that parents have a legally enforceable obligation to keep their children alive? There are two components of this argument: 1) that the parents created the child by a freely-chosen, purposive act and 2) that the child is temporarily helpless and not a self-owner. To maintain that someone's needs impose coercive obligations on someone else is a philosophical fallacy. Why would a helpless child impose legal obligations on just its parents? Why not on someone else?

But, the parents are the creators of the child which brings us to the second argument. This immediately rules out any obligation of a mother to keep a child alive who was the result of rape. It also rules out any such obligation by a step-parent, foster parent, or guardian. Furthermore, if creation creates an obligation to maintain the child, why should it stop when the child becomes an adult?

What about when scientists become capable of creating human life in the laboratory? Must the scientist have a legal obligation to keep the child alive? Suppose the child is deformed and ill. H ow much of time, energy and/or money should he be legally required to keep the child alive?

At what point, and by what criterion, does the parents' legal obligation properly cease? A common argument holds that the voluntary act of the parents creates a “contract.” But this would also entail the alleged “contract” with the fetus that would prohibit abortion and suffers all the difficulties with contract theory.

Consider a person who voluntarily rescues a child from a flaming wreck that kills the child's parents. Does the rescuer have a binding legal obligation to keep the child alive from then on?

So, the mother is a trustee-owner and is legally obliged not to aggress against the child as long as the child lives at home. During the time the child is living at home, comes under the jurisdiction of the parents since it is living on property owned by those parents.

So, when does this trustee ownership end? To set any particular age would be completely arbitrary. The child has his full rights of self-ownership when he demonstrates that he has them in nature—e.g. when he leaves home. Regardless of his age every child the absolute right to runaway. Although the parents may attempt to persuade him to stay, to use force to compel him would be totally impermissible enslavement.

If parents own a child they may transfer that ownership to someone else—e.g. give the child up for adoption or sell it under a voluntary contract. So, a purely free society would have a free and flourishing market in children. Superficially, this sounds monstrous and inhuman. But after some thought we can see that such a market would provide a superior humanism. There already is a market for children. But the government prohibits sale of children at a price. Thus, parents can only give their children to a licensed adoption agency. In this manner, the government enforces a maximum price control of zero and restricts the market to a few monopolistic agencies. The result is typical of any commodity where the price is set below the free-market price. This always results in a shortage and the demand for children greatly exceeds the supply. Thus, we have a large unsatisfied demand for children coupled with a large surplus of unwanted, neglected and/or maltreated children. A free market would eliminate this imbalance. It would allocate… children away from parents who do not care for them and toward adoptive parents who deeply desire them. Everyone , especially the children, would be better off.

Both the rights of parents and children are systematically violated by the State under present juvenile law. Children may be seized by the State. This might be plausible if it were done solely for physical abuse (parental aggression) or voluntary abandonment. However, despite the publicity given to “battered children,” only a small percentage of “child abuse” cases involve physical aggression.

Other grounds for seizing children come under the broad category of “child neglect:” This might involve failure to provide children with the “proper” food, shelter, medical care, or education; or to provide them with a “fit environment.” The state may seize children if it decides that the “optimal development” or the “best interests” of the child are not being promoted. These are so vague that the State can seize almost any child. This is especially true because it is the State that defines what is “fit, proper, or optimal.” All of these violate parental rights.

In reality children's rights have been invaded by the state more than have those of parents. Child labor laws have forcibly prevented children from entering the labor force, prohibiting them from working and earning a living. Likewise, compulsory school attendance laws have forced children into schools they dislike or are not suited for. These children often become “truants” which is a charge used by the state to justify placing them into penal institutions for actions that would never be considered “crimes” if committed by adults. This clearly amounts to aggression against person and property--the only “crime” being the exercising of freedom in ways disliked by the minions of the state.

Furthermore, juveniles are deprived of elemental procedural rights accorded to adult. For example, children are often deprived of the right to bail, the right to a transcript, the right to appeal, the right to a jury trial, the burden of proof to be on the prosecution, and the inadmissibility of hearsay evidence.

In addition, indeterminate sentencing has resulted in juveniles frequently receiving longer sentences than adults would have for the same offense. Such a sentence may leave a juvenile in jail until he reaches the age of majority. Some states separate juveniles into two categories—criminals (called “delinquents”) and “immoral” children who are called “persons in need of supervision”—who often receive longer sentences than the actual criminals.

Note that calling incarceration “civil” or “custody” or “treatment” or the “rehabilitation” does not make it any more pleasant or any less incarceration for the victim.

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