[Editor’s Note: The following is a guest contribution by Adam Gurri. Adam is a founder of Sweet Talk and a writer at The Ümlaut. He is currently working on a book on the role of virtue in a life of commerce.]

The reader who frequents Bleeding Heart Libertarians is no doubt familiar with the storied divide between “first principles” libertarians, who usually subscribe to some theory of natural rights, and consequentialist libertarians, who usually situate themselves somewhere in the family of utilitarian theories. Rarely discussed is a third, more Hayekian approach, which emphasizes civil and political relations that are grown rather than designed. They are discovered not as axiomatic or universal truths but as casuistically discerned approaches which are stable over generations. It is from this perspective that I intend to critically engage with Andrew Cohen’s arguments for parental licensure.

Cohen states that the harm principle is the “core” of his libertarianism, putting him within the personal rights tradition—though his reasoning often resembles consequentialist reasoning in that it deals with the calculus of minimizing harm. Based on the fact that doctors and patients are in a relationship that both have entered voluntarily, and because market competition in theory provides a baseline of quality from the former, he is against medical licensure. Because children don’t have the power to pick who their parents are, and there’s no similar competitive mechanism to make sure they’re more likely to end up with good parents, he argues that parenting should be licensed for the sake of children’s safety.

Most libertarians bristle at the idea of state licensing, especially with an activity so intimate and private. But it’s not merely his conclusions which are inimical to the organic libertarian—it’s the whole style of analysis. Whatever the merits of his argument, he starts from the assumption that right policy is derived from right philosophy, and calmly lays out a blueprint for radical, historically unprecedented change on that basis.The organic libertarian does not see himself as standing above the processes that shape civil association and the body politic; rather, he is a part of them and of his community. He can participate in the discussion and actions that constitute those processes, but he understands it as participation, not engineering. So, for instance, even as radical as the changes the founding fathers proposed were, they proceeded by appealing to lasting and valuable traditions shared by English-speaking peoples of their day.

Personally, I  found Cohen’s proposal quite shocking. The family is the oldest, most durable institution that humanity has. It is also the most sacred; rare is the picture of the good life that does not include the bonds of family. Demanding that all parents justify their merit to a central political body up front is an act of rejecting a set of values that is not only time-tested like no other, but also as close to universally held as is perhaps possible in an era of errant ideologies. Responding to a thick and rich history with something as simple as the harm principle  is to do injustice to that history. A system evolves and grows out of the cumulative choices and actions of generations of people with minds and motivations of their own. To think that the people who inherit that system today can be directed by the motivations of one man, a philosopher-designer, is to become Adam Smith’s “man of system”. This is how Smith describes this character:

He seems to imagine that he can arrange the different members of a great society with as much ease as the hand arranges the different pieces upon a chess-board. He does not consider that the pieces upon the chess-board have no other principle of motion besides that which the hand impresses upon them; but that, in the great chess-board of human society, every single piece has a principle of motion of its own, altogether different from that which the legislature might choose to impress upon it.

In particular, Cohen’s plan requires an army of evaluators who will behave in precisely the way he wishes them to. But how do we know that actual evaluators will behave in the way that Cohen hopes? On what criteria will their decisions actually be based? Here, in full, is what Cohen has to say on that question:

I’m inclined to think there are two tests that are involved. First, a means test—that is, no one that cannot afford to raise a child should have a child. Importantly, though, this is fully consistent with having any number of charitable or state welfare programs that provide the means for the parent. If Susie is pregnant and broke but The Sisters of All Children commit to providing her housing, food, etc. until the child is 18 years old (or Susie gets on her feet), she passes the means test. Similarly, if the state has a program to help poor people with children, they will pass the test (if the state provides the means for all those who have the need, there is no reason to actually test means since all would have it). The second, and more important, test would be a psychological exam that indicates whether the individual (a) understands how to parent and (b) can handle the stress a child brings. Regarding (a), the point is to make sure the person doesn’t think its OK to leave a child in closet, to starve it, to have sex with it, etc.—the point is not to require that every parent raise their child in the same way. Someone might suggest that (b) is impossible to test, but I see no reason to believe that. When the military accepts soldiers into special forces units, they are tested. The soldiers sent to Pakistan to capture or kill Osama Bin Laden had undergone tests (formal or not) to be sure that they would not “crack” under the pressure. We could surely do the same for parents-to-be. Indeed, people that adopt children or provide foster care now must go through some training and can be denied if they appear unstable.

His test thus boils down to means, competency, and stress-resilience. And as for plausibility: hey, we do it for the special forces, how hard could it be to do it for parenting?

The problem is that all three criteria are, by necessity, thinly specified. They cannot be defined scientifically; they are inseparable from ethics. And so making judgments about them is going to come down to the ethical judgment of the evaluators who will be the people on the ground of this system. And the nature of these judgments leaves a lot of wiggle room within which many, many parents who Cohen might personally believe should be allowed to raise their children might be left out. But that’s the problem at hand—Cohen cannot control the ethical context that evaluators draw on to further specify what it means to “understand how to parent” or “handle the stress a child brings”. And this isn’t a problem that can be solved with oversight—the same lack of control would come up with the evaluators of the evaluators, and on. And once you set up a system in which every single potential parent in the country has to go through this process, small deviations from what Cohen or I or any of the readers here might consider reasonable specifications would mean flooding child care services with children of perfectly capable parents. Never mind large deviations!

Subjecting parenting to central scrutiny by default also risks creating an ethical monoculture. Such top-down enforced monoculture of ethics and lifestyles ought to be anathema to libertarians and liberals of all sorts, but it is especially heinous to the organic libertarian. Monocultures and one-crop economies are large-scale violations of the ancient wisdom to never put all your eggs in one basket; to force a society into monoculture is to plant a time bomb under its feet. What ground level knowledge, what positive externalities will be lost when the long tail of lifestyles is cut off? Does anyone seriously think that such a central body would tolerate radically different parenting styles such as the Amish for very long, especially if they don’t have the accumulated local political clout that the Amish have?

Moreover, from where I’m sitting, there are no governments on Earth which deal humanely with children that are in their care. And if there are such governments, they certainly are not the federal government of the United States, nor any of our state or local governments. These are the people who would have to run Cohen’s proposed licensure system; even if you created a whole new agency to do it they would almost certainly be the “talent pool” from which such an agency would build its roster.

Cohen is one of far too many political philosophers to attempt to understand and engineer ideal human systems outside of their human context. Both consequentialist and rights-based libertarians have this problem. What I’m suggesting here is that the only way to affect change of human systems is as a participant, not an architect. And participation begins with a healthy respect for the nature of the thing of which we are a part.