Self ownership is a central principle of libertarian philosophy. Individuals own themselves and this ownership right is inalienable. Therefore, individuals cannot be owned as property. If this is a principle, it applies in all cases. However, many libertarians are unclear on whether the principle applies to children, especially infants. Do babies own themselves?
A minority of libertarian writers have advocated the theory that parents own their children as property. Benjamin Tucker stated the idea bluntly:
the unemancipated child is the property of its mother, of which, by an obvious corollary, she may dispose as freely as she may dispose of any other property belonging to her.
This position is clear: babies are property in the same way that slaves are. This is a bizarre argument for a "libertarian" to make and most other libertarians rightly criticise it. One critic of this position was Murray Rothbard, who wrote:
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.
Yet Rothbard himself advocated a version of parental ownership, contradicting his own argument that children cannot be owned. This article provides a critique of Rothbard's theory of parental ownership.
Rothbard's Conflicting Arguments on Parental Ownership
The reason Rothbard gives for parental ownership is that children cannot be self owners:
First, we may say that the parents—or rather the mother, who is the only certain and visible parent—as the creators of the baby become its owners. A newborn baby cannot be an existent self-owner in any sense. Therefore, either the mother or some other party or parties may be the baby’s owner
Why can't a baby be a self owner? Rothbard does not elaborate but his reasoning seems to be that their inability to exercise control means that they cannot be rightful owners. In Egalitarianism As A Revolt Against Nature, he argues that rights come from the power to use them and babies don't have this power:
It is evident that the baby has no de facto power of self-ownership; and since adult rights in natural law derive from adult powers and faculties, who does own the baby? … During the early years of babyhood, when the child is helpless and has few if any powers of self-ownership, he indeed becomes a kind of property of his creators, his parents.
The fact that babies are unable to control their bodies in anything more than a rudimentary way does not invalidate their legitimate ownership of their bodies. One must recognise the distinction between legitimate ownership and de facto control to have a theory of property rights. Without this distinction one is left with the belief that might is right. If someone steals my car, I am not capable of controlling the vehicle at all. Nonetheless I am still the rightful owner. Therefore Rothbard's argument that rightful ownership comes from de facto control must be incorrect.
To complicate matters, Rothbard also argues that babies have a right to self ownership:
In short, every 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.
So we have four conflicting propositions from Rothbard:
- It is "grotesque" to think that the parents can own children
- A newborn baby cannot be an existent self-owner in any sense
- The mother is the rightful owner of the baby
- Babies possess the right of self-ownership
Why did Rothbard seem to contradict himself by arguing that babies cannot be self owners and also arguing that babies have a right to self ownership? I believe that what he was getting at in an unclear way is that babies are unable to exercise effective self ownership and therefore somebody else has to be their owner for their own good.
However, as already discussed, being unable to exercise control over your property right does not invalidate your right to it. Babies are self owners, even when they are helpless and incapable ones.
Individuals Cannot Be Homesteaded
Rothbard assumes that a baby is something that can be homesteaded. He refers to the mother as "its natural or “homesteading” owner". Why does the mother get to homestead the baby but the baby not get to homestead itself? If homesteading were the way that ownership of babies is allocated then the baby's lack of ability to control itself would explain why Rothbard thinks the mother does the homesteading. Here is Rothbard's line of reasoning:
- Property rights are allocated by the process of homesteading, whereby an individual takes ownership of a previously unowned resources through demonstrative physical acts. Examples of these demonstrative acts include physically taking hold of a resource or creating a border around it.
- Infants are incapable of homesteading something since they cannot demonstrate taking ownership through physical acts.
- Therefore infants cannot be property owners.
- Therefore infants cannot be self owners.
The implicit assumption in this argument is that homesteading is the method of establishing self ownership. But homesteading is not the only way to allocate property rights. Property rights are rightfully assigned to the person with the best objective link. For unowned physical objects, the best objective link is demonstrated by first-use homesteading. However, homesteading cannot be used to establish self ownership since the acts required for homesteading presuppose recognition of self ownership.
Each individual has the best objective link for ownership of their own body. This is the objective rule used for establishing self ownership. Babies own themselves because nobody else has a better objective claim to own them. The best objective link is not dependent on the capabilities of the baby. It doesn't matter if babies cannot yet argue a syllogism or advocate for their rights, they still have the objectively better claim to be the owners of their own body simply because they are the inhabitants of that body.
Furthermore, the idea of a mother owning a baby and then the baby acquiring ownership is logically flawed. You cannot acquire ownership of yourself because you cannot homestead anything unless you already have self ownership. So how is a baby supposed to acquire self ownership? Self ownership must be presumed from the get-go as the only non-contradictory basis for libertarian ethics. All other libertarian principles, such as homesteading, depend on the assumption of self-ownership. There is no way to come up with a non-contradictory account of an individual starting as property and becoming a self owner.
Rothbard's Two Models Of Limited Parental Ownership
Rothbard goes on to argue that although parents own their children, they only have a limited kind of ownership:
But surely the mother or parents may not receive the ownership of the child in absolute fee simple, because that would imply the bizarre state of affairs that a fifty-year old adult would be subject to the absolute and unquestioned jurisdiction of his seventy-year-old parent. So the parental property right must be limited in time. But it also must be limited in kind, for it surely would be grotesque for a libertarian who believes in the right of self-ownership to advocate the right of a parent to murder or torture his or her children. We must therefore state that, even from birth, the parental ownership is not absolute but of a "trustee" or guardianship kind.
This leaves a lot of open questions. Firstly, Rothbard mentions two possible analogies of the parental ownership role: trustee or guardian. He does not specify which, and there is a difference in the implications for self ownership.
A trustee holds legal title to the trust property, albeit not beneficial title. This means that a trustee does "own" the trust property legally, but this ownership is not absolute. This sounds exactly like the kind of limited ownership model that Rothbard is advocating. If the parent is a trustee, the implication for the question of ownership is indeed that the child is not a self owner. This model would explain why Rothbard thought that he needed to argue that parents own their children.
In contrast, guardians do not own the assets of their wards; they merely manage them on behalf of the ward. The ward retains ownership of his property, but the guardian has the authority to manage the property on his behalf and is obligated to act in the best interests of the ward. If the parent is a guardian, the implication for the question of ownership is that the child is a self owner. The child remains a self owner even while he is temporarily under the tutelage of the parent. This is an accurate characterisation of the parent child relationship, but if Rothbard was thinking of this model then he would not need to argue that parents own their children.
What Was Rothbard Trying To Achieve?
Rothbard had three conflicting goals in his theory of parental ownership:
- He wanted to protect the family from outside interference.
- He wanted a mechanism for parents to have authority over their children.
- At the same time, he wanted to deny enforceable parental obligations.
Despite denying parental obligations, Rothbard still wanted his theory to legitimate the relationship between natural parents and children. In developing his theory, he was addressing the problem of how to prevent others from taking children away from their parents. Since he also chose to argue that parents have no obligations to their children, he needed an alternative mechanism to bind the child to the parents. He uses parental property rights as the basis:
to assert that a third party can claim his “ownership” over the baby would give that person the right to seize the baby by force from its natural or “homesteading” owner, its mother. The mother, then, is the natural and rightful owner of the baby, and any attempt to seize the baby by force is an invasion of her property right.
Notice how, on Rothbard's account, the only victim in cases of child abduction is the parent (and not the child), since the crime is theft of parental property. On the contrary, when one recognises parental obligations, in child abduction cases the primary victim is the child, who is being kidnapped and deprived of his legitimate claim against his parents for care.
Rothbard also wanted to defend the concept of parental authority. The child liberation movement in the 1970s advocated the view that parents do not have any legitimate authority over their children. This is arguably the logical consequence of Rothbard's own theory of parenting as charity, but Rothbard himself saw the need for parental authority:
We see here the fundamental flaw in the progressive notion that parents should allow their young children unlimited freedom to do as they wish and not to "impose" training, values, or education on them. For the young child, still not in possession of knowledge, values, self-discipline, or much rationality, is hardly in a position to be able to decide what he should be doing or wishing. Failure to function as rational "authorities" or failure to provide that training and those values to the best of their ability, is a tragic abdication of the basic parental responsibility--which is not simply to provide food and shelter but also mental and moral training.
What justifies parental authority? Rothbard invoked parental ownership of the home as the primary basis of parental authority. Parents have the right to make rules for their children in the way that any property owner can make rules for those who occupy their property (in line with basic libertarian principles). But parental ownership of the child is another mechanism Rothbard appealed to in order to justify parental authority. For Rothbard, parental authority is derived from parental ownership of the child. It is a benefit of ownership. On the contrary, if one recognises parental obligations, then parental authority is a consequence of parental obligations. Parents may only use their authority to fulfil their obligations and the obligations provide both the justification and limit of that authority.
Parental Ownership Rights Are Merely Asserted
The hole in Rothbard's theory of limited parental ownership is that it lacks any justification. The right of parents to "homestead" a limited ownership of children is merely asserted. On what grounds did Rothbard believe that children come into the world as homesteadable property in waiting? This assertion contradicts the basic libertarian principle that individuals are self owners.
His reasoning seems to be this:
- Children are incapable.
- Therefore somebody has to take care of them.
- There could be conflicts over who takes care of a child.
- Therefore the role of parent is a scarce resource and is subject to the rules of homesteading.
But why should the helplessness of a child make them ownable property? Does the helplessness of an inveterate drug addict make him subject to ownership by someone else for his own good? If not, how does Rothbard differentiate between these cases? Rothbard is engaged in a circular argument that parents own children because children need to be owned by parents. To base a theory of parental ownership on the assumption that parents can own children is begging the question.
The Core Premise At Fault
Rothbard ended up arguing himself into this corner because of a faulty premise: he was determined to argue that parents have no obligations towards their children. If you start with this premise, it creates all these unresolved questions: who has responsibility for infants? Why shouldn't someone else be allowed to become the parent if the they want to? The theory of parental responsibility provides a clear answer to all these questions, and it all starts with parental obligation based on the action of parents putting children in a state of peril by creating them. Since Rothbard rejected parental obligation, he tried to resolve these questions with a convoluted theory of children as homesteadable property. It was incorrect.
The Correct Formulation Of The Parental Role
All of these problems are resolved if you drop the faulty premise that parents do not have obligations to their children. Here is the argument:
- By creating children, parents are responsible for their state of peril.
- Parents therefore have an obligation as a strict liability tort to remove their children from peril. This is achieved by doing whatever is necessary to raise them to become self-sufficient adults.
- In order to fulfil this obligation parents must take on the role of guardian. Children can only be saved from peril if parents fulfil this role. The guardianship role is not a homesteadable property right, it is an obligation resulting from creation of peril.
- Being a guardian involves fiduciary duty and the authority to act on the children's best interests. This includes the authority to coerce the child in limited and specific circumstances: each act of coercion is only justifiable if it is clearly in fulfilment of the best interests of the child.
- None of the this changes the status of children as self owners.
Children are self owners, even when they are babies. You are the rightful owner of yourself from the moment you are created.