Rothbard's Ethics of Liberty, Rights Theory

Parental Rights and the Obligation to Care

Murray Rothbard famously argued that parents have the right to neglect or abandon their children because they have acquired no obligation to care for them.  In my forthcoming book, I take on Rothbard’s specific argument, but this way of viewing things unfortunately lives on among other libertarians. A good example of this kind of misguided thinking about children’s and parental rights is this passage from a 2012 blog post by Wendy McElroy, even as she tries to avoid earlier in the post the very conclusion Rothbard came to:

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 enforced.

This way of thinking of the matter is wrong-headed. The parents’ obligation to care for the child isn’t about making an agreement with the child, and the lack of such an agreement with the child does not mean the parents have no obligations. The parental obligations come when parents engage in the positive act of treating the child as theirs by asserting their parental rights, and thereby accepting the corresponding obligations. This is most obvious with the legal acquisition of parental rights in adoption, but is no different when biological parents bring a child home from the hospital, or make other positive steps to exercise parental rights by treating the child as theirs. “Treating the child as theirs” is a kind of public declaration of the exercise of parental rights, and those rights come with corresponding responsibilities and obligations.

You can think of taking a child home from the hospital as analogous to homesteading: you are declaring to others (not to the child) that this child is yours and that you thereby accept the responsibilities to care that come with exercising those parental rights. If you created that child and do not wish to care for it yourself, you have an obligation to arrange for its care by finding someone else who wants to acquire those rights.

Children must be cared for, and infants cannot consent to their caregivers.  Therefore the “agreement” parents enter into is not with the child, but with “the rest of us” by engaging in de facto exercises of parental rights that then create de jure obligations to care for (or to arrange for the care of) those children. With great rights come great responsibilities, and such is the case for parents too.

And this is the reason that even “non-violent” (as if violence is the only form of aggression, I might note) abuse or cruelty or neglect should be actionable in a libertarian world. Infants are helpless, and this is relevant not just because it means they can’t consent to their caregivers. It is relevant because it means that accepting parental rights but refusing to accept the corresponding obligations to care for a helpless child is form of breach of contract. Again, the contract is not with the child, but with “the rest of us.” Given the helplessness of infants, someone has to provide that care and those who act in ways that exercise parental rights simultaneously announce their willingness to accept the obligation to care.

In essence, exercising parental rights and accepting parental responsibilities is one or more adults publicly saying to the rest of the adults: “I/we am/are agreeing to care for this child.” Throughout history, we’ve seen various religious traditions capture this idea through ceremonies such as baptisms, baby-namings, and namakarans. Those have endured because of the importance of that public declaration of acquiring parental rights and accepting parental obligations.

It says something about the nature of much libertarian thought that the helplessness of children is understood primarily as relevant to their inability to consent to an agreement to be cared for, rather than as requiring that someone take on the obligation to care for them.

Published on:
Author: Steve Horwitz
  • Aeon Skoble

    Yep. Indeed, more than “those who act in ways that exercise parental rights simultaneously announce their willingness to accept the obligation to care” – they are _actually incurring_ that obligation. This is the best approach to dealing with this issue I’ve seen.

  • Fritz

    “The parental obligations come when parents engage in the positive act of
    treating the child as theirs by asserting their parental rights, and
    thereby accepting the corresponding obligations.”

    This is barely an improvement on Rothbard’s idiotic position. Parental obligations come when parents engage in sex that results in children. That’s personal responsibility, which is (or is supposed to be) a primary value of libertarianism.

    • Theresa Klein

      Except when they get raped, of course …

    • John

      “Parental obligations come when parents engage in sex that results in children.”

      Do you have an argument, or is that just your intuition?

  • Ted_Levy

    I recall in one of his anthologies George H. Smith both developed a nice theory of parental guardianship (not ownership) based on libertarian principles and also provided a long history of parental/child rights theories as they developed over time. I don’t know why GHS’s contribution hasn’t received more attention, especially relative to Rothbard.

  • Seattle Steve

    This is an interesting issue! In the not too distant past when most economic activity was farming, children were for growing your “staff,” and they are considered your property, with all the rights that came with ownership. It was just good sense to take good care of your tools if you want them to perform at maximum efficiency. Now we have an evolving economic relationship with our children, as they seem to be an ever growing economic liability to parents.

    • Sean II

      “Now we have an evolving economic relationship with our children, as they seem to be an ever growing economic liability to parents.”

      And as any good economist (or biologist) would predict…people have responded by having fewer of them.

      Rothbard’s idea may be morally caustic, but as an evolutionary strategy it beats the theory of unlimited parental liability all to hell.


    McElroy’s refusal to recognize the existence of an enforceable obligation not to grossly neglect your children might be excusable if the little bundles of joy were dropped through windows by storks. Of course, bringing children into the world is a voluntary act, and it comes with the duty to care for them, which a just society will enforce. A failure to see this can only be the result of a fatal attraction to an implausible interpretation of libertarian principles.

    It shouldn’t be this way, because there is nothing in natural rights theory that implies that the negative duty not to aggress is the only moral value in the universe. It certainly is not, which is why only the most dogmatic libertarian will deny that, given the forced choice between torturing one innocent person to death and allowing a billion other innocent person to die, we should pick the former. This perspective is known, of course, as moral pluralism.

  • rhanneken

    It’s a peculiar sort of agreement where one party (“the rest of us”) is an unorganized group of people with no expressed will or interests. It also seems like an awfully one-sided agreement when one party gets to dictate how the other party must use its own time and property, and in return offers nothing.

    When and where does this agreement take place? Do people ever have a opportunity to opt out of the agreement? You suggest that parents enter into the agreement when they signal that they’re taking responsibility for a child, but then say, “If you created that child and do not wish to care for it yourself, you have an obligation to arrange for its care by finding someone else who wants to acquire those rights.” Where does that obligation come from?

    To me, it seems like this “agreement” is merely notional, a way to get to a desired conclusion (parents are obligated to see that their children are cared for) without straying from the libertarian framework of rights, contract, and consent.

    I think of the matter differently. IMO, libertarianism, with its highly-developed ideas about rights, property, and contract, was invented to cope with the problem of how to promote peace and prosperity in a world of increasing trade and division of labor, where people increasingly need to deal with strangers (or at least non-kin). It amends, but does not entirely supplant, older theories about the obligations people have within their own family or clan.

    What does libertarianism have to say about the obligations parents have toward their children? IMO, not much. Libertarianism isn’t about that. Yes, this implies that libertarianism is not a comprehensive political philosophy that exhaustively describes the enforceable obligations people have. I think that’s fine.

    • Tedd

      I agree that the “agreement with the rest of us” argument is problematical. But it isn’t essentially libertarian, it’s only being advanced because the voluntary-agreement model of rights is being employed. If natural rights are applied then the “agreement with the rest of us” argument is no longer necessary. The parents simply have the obligation to treat the child as the adult that the child will become would voluntarily agree to, if he or she were there to make the agreement. Obviously, there’s some room for interpretation there, so adjudication is required. But that’s the case with all rights and liberties.

    • Sean II

      What libertarianism brings to this question is…we have the best method for getting helpless kids into the hands of people willing to care for them.

      It’s called pricing.

      It doesn’t work perfectly, but it does work better than any reverse engineered contractarian hooey designed to salvage a moral intuition which in any case has very few dissenters.

    • Theresa Klein

      In ancient times, it was common practice for a parent to simply kill an infant at birth, if it was not wanted. Generally by exposure. Hence, all the stories about infants being picked up by strangers or raised by wolves.
      Later, parents would drop a baby off at the local monastery or convent, where the monks or nuns would either raise it or send it to an orphanage or find adoptive parents.
      In our modern society, parents can instantly place a child for adoption or submit it to state care. So I don’t see why there isn’t always some moment where the parent can make a decision to abandon or assert their parental rights, with no obligation to do anything other than signing a form.

      • Again, your argument does not change the theoretical arguments at all. Parents “may” be able to abandon their parental rights, but only “if” someone is willing to take them on. If you and I have a contract to sell/buy a car, and I decide to back out, I cannot claim I should be able to abandon my duty to buy (and your right to be compensated) simply because there may be another person willing to buy the car. If I find someone willing to take on my responsibility, and if you consent, then, yes. Someone else can make the payments in exchange for the car. Same with parents: the theoretical argument remains unchanged. Parents have the duty to take care of their child for the reasons as previously stated. If they can find someone to agree to accept that duty (convent, etc.), then they can delegate their duty. This does not in any way affect the theoretical argument as to whether the parents owe an initial duty.

        • Theresa Klein

          Well, no I’m arguing that parents should be allowed to abandon their kids at birth, *even* if nobody is willing to adopt. We can be more humane about it today, because there are lots of prospective adoptive parents, but I wouldn’t force parents to raise a child they did not want even if there weren’t any. Ultimately, as a last resort, it should be legal to kill an unwanted child at birth if there is really no other alternative.

          But once the parent makes the decision, say, within a week, to raise the child, then they lose that right and have undertaken the obligation to care for it.

          • But what is the theory you are espousing? The rights and duties either exist (via implied contract, etc.) or they do not. How can the parents have both the right to be parents but also the right to not be parents? That’s illusory. It’s unenforceable and unworkable. Then you end up having to simply invent something like “they have a week to to decide to raise the child or they lose it.” Why? Why not 1 day? Or 1 month? You’re basically just saying “this sounds good to me.” That’s not a workable theory.

          • Theresa Klein

            I think they have the right to claim the child initially, with a duty to assert such a claim in a timely fashion. After asserting the claim, they assume the duties. If they don’t assert a claim, there are no duties.
            Obviously, timeliness is vague, but that’s not really different from many other principles where in practice you have to put in place some sort of reasonable time limit, like a statute of limitations. Whether it’s 1 day or 1 week isn’t really important. Maybe it should be determined by how long the child can go without being fed.

          • But that’s not a working theory. That’s just making an arbitrary rule – like a statute of limitations. The government just says “you have 2 years to file a claim.” The article is addressing the issue with parental rights – theories by which parents can abandon their children (reasons for accepting the proposition that there are not positive rights) or theories by which they must raise their children (pseudo-contractual theories, etc.).

          • Sharon Presley

            This is just sophistry. Humane people don’t let children die. I don’t give a damn about what tortured rhetoric you use. If you want to live in a humane society, you must, as libertarian philosopher Tibor Machan has suggested, act in generous and humane ways.
            As for adoption, if the child is not white and healthy. it has few options. But leaving them to die is a violation of human decency. No amount of rhetoric changes that. I certainly don’t want to live in a society that thinks it’s alright to let children die. And I don’t even have children. But Jesus, you don’t kill them!

    • “I own this” is sort of a similar kind of thing. If you just abandon your property with no means of identifying your ownership to it, anyone else can come along and take it.

      Of course, that framework can be gamed pretty easily, so we developed clearer rules about property. Ironically it’s only after we stop viewing children as property that we can figure out better rules for parental rights/obligations.

  • Echoing rhanneken, the following two claims are patently false:

    ‘the “agreement” parents enter into is not with the child, but with “the rest of us” by engaging in de facto exercises of parental rights that then create de jure obligations to care for (or to arrange for the care of) those children’

    ‘the contract is not with the child, but with “the rest of us.”‘

    There are no such agreements; there are no such contracts. Why does it seem reasonable to you to defend a proposition by showing that it follows from propositions which we can all see are blatently false? What kind of a strategy is that? It is like saying that cheese exists outside of the earth’s atmosphere because the moon is made of cheese.

    • martinbrock

      Parent rights and corresponding obligations are far more natural than other nominally “natural” rights, like a homesteader’s property in a parcel of land or a right to contract with another adult, so while I agree that casting parental rights and obligation in terms of an “agreement” with others is unnecessary, these rights and obligations are as meaningful as property rights, more meaningful in fact.

      On the other hand, free persons need not associate with parents who abuse or neglect their children. They need not respect any property right or any other right of such a parent. They may exclude such a parent from their the community and its standards entirely without also excluding the child.

      • Theresa Klein

        Here’s an idea. If the parents of a particular infant are not taking care of the child, then other adults in the community may claim the child and take it.
        A child is a valuable commodity with a significant potential for future economic benefits (at least in a farming community it would be), but the child won’t reach it’s maximum potential unless properly cared for. So if the parents aren’t doing that others have the right to step, in assert rights, and claim it for themselves. Perhaps with some compensation paid to the original parent.

  • Tom Nor

    I think that one of the most common problems in libertarian
    thought is the extension of a model/theory beyond those conditions under which
    it was originally derived. An analogy is in the application of a scientific empirical
    model. A model is developed by collecting data from experiments and/or passive
    observations and then making correlations, ultimately to produce a model. This model is then useful to predict future behavior
    of a system based on input variables. The model can be reasonably successful
    only if applied to systems and conditions that resemble and are within the
    range (scale) of the original data and observations that were used to derive
    the model.

    Similarly, when people first start thinking about political
    philosophy, rights, and obligations, we usually have ADULTS (and maybe
    ourselves) in mind, either subconsciously or explicitly, as we are creating/solving
    thought experiments and trying to wrestle with certain ideas and moral
    intuitions. Eventually, still with adults at the forefront of our minds, we may
    come up with a pretty good ethics or political philosophical theory or model.
    We libertarians do this. I think our standard libertarian theories and ethics
    rules were originally derived from thinking about “normal” cases, those with
    adults. Therefore, it is not necessarily the case that such models and theories
    should be extended to non-adults, children. Doing so would be applying a model
    to a set of conditions that are different from the original set of conditions
    that were originally used to derive that very model, and this is not logical.

    I disagree with the attempt that most libertarians make of improperly
    extending standard libertarian principles to the treatment of children. I don’t
    claim to have a good set of theories for the treatment of children. But, if we
    want to produce good theories/models, then we need to start all over again from
    scratch and create thought experiments and reflect on moral intuitions, all
    explicitly with children at the forefront of our minds. This may form a theory that
    is different and separate from standard libertarianism. After doing so, we may (and
    I suspect we will) find out that parents actually have enforceable positive
    obligations to sufficiently care for and not neglect their children, even if
    their neglectful actions are still technically noncoercive and peaceful.

    Lastly, I’m not at all convinced of Horwitz’s contract
    theory. It sounds like he’s trying hard to create some sort of mythical implied
    contract that doesn’t really exist. He’s trying hard to somehow fit standard
    libertarianism themes into the case of children. I recommend abandoning that
    effort and starting over with a whole new theory. So, although I agree with
    Horwitz’s ultimate conclusion, I don’t agree with his justification.

    • Ron

      The historical conditions under which classical liberalism was developed (and by consequence contemporary libertarianism) was that in which the nature of man itself was less understood. It was before Darwin and before we understood natural selection, DNA, and the role that genes play in determining our nature. Our nature is a phenotype of our DNA which is formed through natural selection. Self-interest is an important attribute of our nature and paramount to our ability to pass on our genes, however, it is not the only attribute at play in that process and therefore not the only attribute of our nature. We have only just begun in recent decades to understand some of those other attributes and as we learn more about our nature this should inform the evolution of our theories.

  • From the perspective of a family lawyer, I see some problems with this:

    1. It still allows for negligence. Let’s say you give birth in an alley and no one is around. You don’t want to assert parentage so you leave the child there, likely to die. Under this theory, since you never asserted parentage, your positive duties to the child never arose and everything is fine.
    That’s clearly wrong. I think most people would say that, even if you are going to abandon your child and never try to parent it, you have a duty to leave it in a safe place first. That is, the duty to take care of the child’s health exists even before you take any steps to assert parental rights.

    2. It allows for parents to get out of parenting much more easily than they currently can. For example, deadbeat dads could just say they never asserted nor wanted to assert parental rights, so they don’t owe the child a duty of care (assuming they never took the child home, signed a birth certificate, etc). Maybe that’s as it should be, but it is not currently as things are. At least in my state, a parent trying to get their duties and rights to the child terminated must show it is in the child’s best interest.

    3. It doesn’t explain why biological parents get a right of first refusal. If the biological parents have no rights and no duties to the children until they assert them, can someone else swoop in and assert them first? After all, wouldn’t the right to get first swing at being the parent be a preexisting right arising out of the parent-child relationship, not a bundle of rights and duties created by anyone’s positive action?

    Let’s say, as sometimes happens, a man says “this is my kid” and signs the birth certificate and takes the child home. Then another man says “no, you are not the biological father, I am and I want the kid.” Who gets primary rights to the child is currently solved by a DNA test. Under your theory, it looks much more like the first father should win by default.

    4. It isn’t really a libertarian position. If people can assume parental rights and duties just by actively asserting an intent to, why can’t people assume governmental rights and duties just by actively asserting an intent to? Can I assume the rights and duties of someone with an obligation to ensure an equitable distribution of society’s resources just by asserting an intent to? Etc? Is there a reason a bundle of pre-defined parental rights and duties is just lying there for anyone to take up, but all other rights and duties require agreement?

    For good or ill, the “you owe duties to a child from conception because you made it, idiot” point another commenter brought up seems to be a lot closer to how society works, with the caveat that people fight about the exact nature of those duties (IE, is abortion ok).

    • GardenHomeBoy

      IIRC, Many places have special drop zones for unwanted children. Often its at a firehouse or hospital where parents can ditch their kids without legal penalty.

      • Theresa Klein

        Correct. And for a long time before that it was legal to abandon a newborn infant in the wild, where it was expected to die of exposure.

    • Theresa Klein

      Some good points here.
      I don’t think 1 is that much of an issue, as I’ve mentioned elsewhere. We can make it more humane to abandon children by providing means for people to easily give them to someone else, but it’s not actually universally regarded as immoral to abandon infants.
      Number 2 I think should only be a problem if there was an implied contract to care for children (i.e. common-law marriage, engagement). If the woman gets preganant in a non-committed relationship and chooses to care for the child anyway, I don’t see why the father shouldn’t be able to just walk away from his parental rights at birth. In a rape or abuse case, the father should be charged with that, and gets no parental rights.
      3 is an interesting one. I agree there are some issues to be worked out here, because libertarian theory does not account for genetic relationships.
      4. I think you could use the theory of abandoned property here. If someone leaves a piece of property around, uncared for, in some systems anyone else may assert a claim to it if they plan on using it and/or properly maintaining it. Taking up governmental rights and duties would be something more – asserting claims over something that has NOT been abandoned. But arguably an abandoned child should be fair game for anyone to claim and assume parental rights and duties.

  • stevenjohnson2

    Parental rights are not implicitly purchased by exercising parental responsibilities. Implicit contracts aren’t valid. It is not reasonable to assume that undefined parental “rights” are an equitable exchange with parental responsibilities. It is unclear that libertarianism doesn’t actually consider children as a species of property.

    Although I understand the desire to explain away libertarianism in regards to treatment of children, I don’t think you can do it by assuming that their need is a claim on someone else’s time, money, property. It seems to me that libertarianism is very much about rejecting the very possibility of such a claim. After all, if a child is helpless to meed the physical hardships of life, and therefore some nebulous we are magically obligated to care for it, how is that fundamentally different from a man (and his children,) helpless before the storms of a complex business cycle or a prolonged structural readjustment?

  • “The parental obligations come when parents engage in the positive act of
    treating the child as theirs by asserting their parental rights”

    No, it begins before that. Cliffs notes version: The risk of conception/pregnancy/birth are well known when it comes to sex…. When you engage in the intentional act of driving a car, you are well aware of the risk of accident. If you intentionally or negligently cause an accident, you must compensate the other party for the costs the other party incurs – no further “acknowledgement” required. No one would claim you can negligently crash your car into others with impunity. Likewise, the risk of pregnancy is foreseeable, so once again you are responsible for any costs that must be “born” (no pun intended) by any other parties. In fact, while the intentional act of driving is done with a peripheral risk of accident, the risk of pregnancy is quite direct when it comes to sex. Children are helpless, do not consent to be born, etc. I think it’s pretty simple to establish enforceable rights/duties.

    My version of the Guardian-Ward Model I wrote a few years ago.

    • GG

      “[D]o not consent to be born.”

      Bingo. Contra some of the other commenters the contract is not between parents and “society”, but between parents and the child (if you don’t require my consent to have children you sure as hell can’t impose that responsibility on me [in the state of nature etc.]). However, by virtue of the mechanics of the process, the child cannot consent to the contract; how do you interpret a contract with only one contracting party? Easy… children have no obligation to take care of themselves whereas their parents have essentially unbounded responsibility to take care of them (or find suitable replacement care).

      Interestingly, I arrived at the above purely through consideration of contract/consent, but I subsequently arrived at the same position via Kant as well. If the parent is not prepared to universally subjugate their own interests to the interests of their child they have made that child a means to their own fulfillment. Making someone a means to your ends, without their (perhaps tacit) consent, is inherently immoral.

    • Theresa Klein

      FOr the umpteenth time, not all sex is consentual. Especially for women.
      If you get raped and get pregnant, how did you knowingly consent ot the risk of pregnancy?

      • Who said you did? Obviously, we are making the assumption, for the sake of argument, that sex is consensual, since most children are the products of consensual sex. Now, you want to object because of an “outlier” scenario – rape. Ok. That doesn’t change anything, theoretically-speaking. If one party did not consent to the sex, then that party can pretty clearly argue that they do not have an obligation to the child. Pretty simple to follow the logic on that one.

        • Theresa Klein

          Ok, so parents who get raped don’t have any duties towards their children? How does that make any sense? Wouldn’t that lead to all the same supposedly immoral consequences that would result from parents who had consentual sex not having duties towards their kids?
          No, the morality of child neglect can’t be dependent on whether the parent consentually had sex or not.

          • If you subscribe to a view that says parents have duties to children because they consent to the act of creating the children, then the outlying circumstance of “rape” is an occasion where the parent who was the victim of rape does not have any duty to the child. As I said before, you cannot have it both ways – that parents have duties to their children (and must raise them) but at the same time have no duties to their children (and can abandon them). That is illusory.

          • To clarify, I am not saying parents have any “rights” to their children. Children are not possessions. Children have rights, and parents have duties to those children based on the fact that they brought the children in to the world. Does a woman who was raped have a legal duty to care for a child she did not consent to bring in to the world? No. Does she have some moral duty? Maybe. Theoretically, the rapist has the legal duty to care for the child, however. Make him pay child support to the biological mother who decides to keep the child.

          • Theresa Klein

            I’m agreeing with the original post, that parents assume the duties to the child when they assert parental rights. The only right they have initially is the right to claim their own biological children. This right does not come with any duties to the child, and it also doesn’t come with any parental rights to control the child. It is only a right to make the first claim. ONLY if you make such a claim do you get the full parental rights and the duties.
            In the case of rape it works the same way as consentual sex. When the child is born, the mother has no duties, she can claim it or not, and IF she claims it THEN she has duties.
            Seems to me that granting a rapist parental rights and duties would establish some really horrifying outcomes – especially if the rapists purpose was to get some woman pregnant – which is not unheard of.
            Honestly, I’m not sure that biological fathers ought to have any parental rights that the mother doesn’t consent to. It’s really only biological mothers that have any natural right to their offspring. (Not counting surrogate mothers which are in a contractual arrangement).

          • “The only right they have initially is the right to claim their own
            biological children. This right does not come with any duties to the

            How can you have a “right” to another human being? How can rights exist without corresponding duties? A child is a human being the same as the parent. How can the parent choose to “claim” another human being and have no duties to that human being? Again, you are not espousing any workable theory. You’re just saying “I think they should be allowed to claim them if they want.”

            Based on what theory would a parent have a “right” to claim a biological child? Positive rights? Implied contract?

          • Sharon Presley

            Ask any woman if she wants the rapist to have anything whatsoever to do with the child if carried to birth. This is so unrealistic in the real world that it is laughable. Don’t make policies about women’s bodies when you don’t know how they think or what they might want.

          • I said the rapist has a duty to financially support the child. What is unreasonable about that? It’s akin to paying restitution for any other crime, which is very, very common.

      • Sharon Presley

        In this, I agree with you, but none of this makes it OK for a child to be abandoned. Sam argument as I made above.

      • Faucon

        This problem is easy to solve.
        If a woman get raped, she has a choice: either she abort and has no duty toward the child. Or she accept to give birth and then she have responsibilites toward the child.

  • purple_platypus

    “The parental obligations come when parents engage in the positive act of
    treating the child as theirs by asserting their parental rights, and
    thereby accepting the corresponding obligations.”

    This seems to imply that complete abandonment of one’s children is fine and dandy, surely not the conclusion you want here.

    • Theresa Klein

      Why not? If you totally abandon your child, you give up all parental rights indefinitely, and someone else gets to assert those rights. How is that any different than putting the child up for adoption?

      • “If you totally abandon your child, you give up all parental rights indefinitely”

        That implies there are initial parental rights to begin with – and, obviously, corresponding duties to the child (for how can their be rights vis-a-vis another person without corresponding duties?). This acknowledges the initial rights/duties between parents and children.

        “How is that any different than putting the child up for adoption?”

        Because in the case of an adoption, someone is agreeing to take on the rights of a parent while being responsible for the corresponding duties.

        • Theresa Klein

          There is an initial right to claim the child and assume full parental rights and duties. Call it “first dibs”. If you give up that opportunity, no more rights or duties.

          • Where does that right to “first dibs” come from? Does the family dog have first dibs, or is it only humans? If it is only humans, can the neighbor have first dibs? The child molester down the street? Or is it only biological parents? If only biological parents, where do they derive the right to “first dibs” vis-a-vis other humans? By virtue of their biological similarities to the child? If biology is the determiner, is not the child also a human being with biological ties to the biological parents? Doesn’t the child have rights then, too (consider it is helpless and brought into the world without its consent)? Does the child not then have the right to be cared for by the biological parents?

          • Theresa Klein

            I would say the biological mother has first dibs. Because it comes out her body, so by definition she has first possession of it.

          • “it comes out her body, so by definition she has first possession of it.”

            How can you have possession of another human being? Under what theory?

            “Why would anyone have the right to be cared for by a specific person?’

            I didn’t consent to being brought in to the world, so those who brought me in have a duty to care for me until I can care for myself. Just like when I don’t consent to having my vehicle damaged by yours. No express agreement exists between us, but you should be forced to bear the cost of crashing into my vehicle since between the two of us I am blameless and your actions are responsible.

          • purple_platypus

            So just tossing the child in a trashcan is fine and dandy with you? After all, anyone can in principle come along and reclaim those rights. Is that really what you’re claiming? Because that may not be the specific, conscious intention here but I’m having a hard time seeing how it isn’t an implication of your words.

            If there’s a structure in place – state-sponsored or otherwise – for transferring those rights, that I have no problem with. That’s essentially what adoption is. I don’t think anyone involved in the discussion objects to that.

            (Although I’d caution against expecting it to be a panacea for various parental woes, for the same reason it isn’t in real life. Adoption runs up against our biological urges, and while that obvious isn’t insurmountable, it’s a serious obstacle to making the practise widespread. As in so many other areas, if you try to fight human nature, you will lose. I don’t think that poses a problem specific to libertarians in this case, though, unlike in many others.)

          • Theresa Klein

            I think in these days, if there is an alternative to tossing it in the trash can, they are obliged to take it. There are lots of prospective adoptive parents happy to take newborns. But if this was a primitive society, or nobody wanted the child because of some severe disability, then euthanasia should be morally permissible.

  • Ron

    If I stand next to a tall cliff and you drop an anvil off the cliff, then as the anvil speeds toward my head you walk away and say, “Not my problem”, you’re still morally responsible and obligated to intervene even though it’s gravity that’s doing the harm. Once you have set in motion the actions that could result in the eventual harm, you are obligated to intervene to mitigate or eliminate the potential harm. The question here is the difference between me, next to the cliff, one who thinks rationally, and a baby, who has not yet obtained that ability. Is the latter a moral patient? Rothbard says “no” because she can’t think rationally and therefore can’t form agreements. But the attribute for determining the status of a moral patient is not rationality; rationally is the attribute for determining moral agency. The attribute that distinquishes a moral patient is harm. Can she suffer harm? If so, then she is subject to moral consideration.

    • Faucon

      And that’s why non-human animals do have rights as well. 🙂

  • the obligator

    I guess that I don’t feel very libertarian-y on this issue… Since the consequences of sex should be plenty clear to everyone, it’s implicit to me that people engaging in sex also admit liability for the consequences.

    If coercion is involved, then the party who did the coercion receives the liability.

    Passing onto others your parental responsibilities is something doable only if someone consents to receiving them.

    Otherwise, until the child is legally an adult, as far as I’m concerned, the parents are on the hook – financially responsible for housing, feeding, clothing and education.

    If someone would dump their child at the fire station, I’d say fine, let the state raise it – but be sure to track the parents down and present them the bill. If they cannot pay, prison or neutering would seem appropriate, since they inflict an externality on the others.

    • Theresa Klein

      Not all sex is consentual.

    • Theresa Klein

      Also, a child can be a positive externality. It’s only relatively recently that anyone would have regarded an extra potential helping hand as a liability.

  • CE

    Let’s suppose no one else was willing to care for my neglected child. Maybe because the child is disabled, or of some popularly despised ethnicity. Or maybe because some recent crisis has created enough orphans to overwhelm the normal flow of charity.

    In this case I wouldn’t need “parental rights” to exclude others since they willingly exclude themselves. But common sense would say that I still have parental obligations and that these should be legally enforceable.

    How too avoid such tricky hypotheticals? Acknowledge that obligations to children are to the children themselves and not part of some social contract with strangers outside the family.

  • Krinein_ev

    The fact that is a matter of controversy among libertarians is symptomatic of a sociopathy that turns off the vast majority of normal humans. Even this article can’t come out and say “it’s wrong to let an infant starve,” but must instead resort to bizarre homesteading analogies. Are libertarians some bizarre subspecies lacking in basic human empathy and decency?

  • stevenjohnson2

    It should be remarked that family is one of the social institutions least formed by the state and law, and is one of the few that can claim to be human universals. (Those who disagree are in a minority, even if their disagreement is only that the different forms shouldn’t be treated as synonymous.) You would think then that libertarians who are committed to the proposition that the state is inherently immoral and/or capable only of bad effects, would take a little more interest in the time honored results of non-state, organic, Hayekian emergence of law in a market society.*

    I think the verdict is fairly clear: In all the previous societies that count, children are the property of the family. Libertarians stand for nothing if they don’t stand against state interference with property rights, which are the essence of humanity, no? A human being is an owner of a body, right?

    *I’m pretty sure libertarians view all societies as fundamentally market societies, since markets are inevitable outgrowths of natural law or biologicial human nature or something like that, and any unpleasantries such as slavery are always results of state hubris in defying the decrees of the market.

  • Theresa Klein

    The parental obligations come when parents engage in the positive act of treating the child as theirs by asserting their parental rights, and thereby accepting the corresponding obligations. This is most obvious with the legal acquisition of parental rights in adoption, but is no different when biological parents bring a child home from the hospital, or make other positive steps to exercise parental rights by treating the child as theirs.

    Correct. Everyone has a choice about whether to be a parent. These days, if you don’t want a child, it is not difficult to put it up for adoption.

    I do find the argument that it should be legal to kill children at birth has some merit though, especially in cases of gross disability. In pre-historic societies, this was common practice. Allowing this would also make explicit that the parent always has a choice, even when there is noone who wants to adopt, and if they choose to keep and raise the child then they undertake a legal obligation to care for it.

  • Don Sharp

    Why is it automatically accepted that the non aggression principle is not just an important value, but the most important value by an infinite amount? I value oranges more than apples, but at some point I would take a whole apple over a half slice of orange. Similarly, I value non aggression, but also value the obligation of parents to take care of their children. Both are subjective value statements. How and why does Rothbard seem to think that non aggression is the the only standard?

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  • Sharon Presley

    I agree, Aeon. We are happy that Steve is in our libertarian feminist anthology (almost done) writing about parental rights. His is a sensible approach. This is not theoretical BS but rather something that is both human and humane. Rothbard’s position was so silly, it was embarrassing. We also have two sensible essays on children’s rights, one by Roderick Long and one by Kevin Currie-Knight and Rachel Davison. The political is the personal. Libertarian ideas applied to the family..

  • Sharon Presley

    How many of you actually have children? Because some of you are talking nonsense that has nothing to do with any reasonable or humane position in the real world. Rothbard had no children and came up with a crackpot theory. However I also don’t have children but I have enough sense to know that children cannot be allowed to die of neglect in any world I would want to live in. This is the kind of discussion that makes me wonder if a humane libertarian society is possible.

  • jtkennedy

    A woman gives birth and more or less immediately abandons the child in a trash can or dumpster. At what point did she engage in Steve’s social contract with “the rest of us”?

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