In Episode 182 of his podcast, Bob Murphy put forward a proposal for how children should be treated in libertarian law. This post is a response to his proposal.
Rothbard's Theory of Parental Ownership
As a background to the proposal, Murphy outlines some disagreements or concerns that he has with the ideas on the parent-child relationship set out by Rothbard in The Ethics of Liberty.
Murphy explains that he always found Rothbard's account of limited parental ownership of children to be unsatisfactory and "loosey-goosey" in its formulation. He mentions a variation of this parental ownership idea by Walter Block, who attempted to ground certain parental obligations in the rules of homesteading. Although Murphy is not convinced by this version either, he does think that some better grounding of the parent-child relationship in libertarian legal theory is needed.
Rothbard's Denial of Parental Obligations
In The Ethics of Liberty, Rothbard argued that parents do not have enforceable obligations towards their children:
the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights.
It is not clear to me whether Murphy agrees with this line of argument, but he does make it clear that he understands why Rothbard is concerned to avoid any principle that could justify positive obligations. Here's how Murphy puts it in the podcast:
There is a definite plausibility to what Rothbard is saying because once you open that door so that other people could have claims upon you even though you don't have a contractual arrangement with them, then it's hard to stop that principle.
Rothbard's Limits on Parental Authority
Murphy also objects to Rothbard's argument that parents cannot exercise authority over a child if the child chooses to run away. Murphy points out that this implies that if a stranger manages to persuade a child to go with them willingly (for example by bribing them with candy), the parent would just have to let the child leave.
Murphy's Proposal
Murphy suggests that the relationship between a parent and a child should be considered that of a trust, whereby:
- The child is the beneficiary of the trust, receiving parental care and guardianship as the benefit.
- The parent is the trustee (the person entrusted with responsibility for administering the trust) who provides parental care and guardianship to the child as an obligation of the role of trustee.
- The trustor (the person responsible for defining the terms of the trust) is the future adult that the child will become. The parents as trustees must do their best to imagine what the future adult-child would want them to do and act on those wishes.
A Response To Murphy
I agree with Murphy that Rothbard's theory of parental ownership is flawed. Here is a detailed critique. Like Murphy, I also disagree with Walter Block's ideas about homesteading children. Contrary to Block, children are not homesteadable property and parents are not "free to dump out" a child that they do not want. Parents cannot legitimately give up parental obligations.
What about Murphy's trust proposal? What Murphy is doing by conceptualising the parent-child relationship as a trust is asserting that parents have obligations and also that they have authority. If parents are trustees, then this implies that they have certain enforceable obligations. It also implies that they have authority in order to carry out their responsibility as trustees.
But why should a parent act as a trustee? In commercial trusts, the responsibilities of a trustee are governed by contract. It is clear why the trustee must fulfil this role, since he contracted to do so. Yet the analogy breaks down in applying this model to the family since the parent did not sign a contract (and the child is too young to consent to contracts anyway). So what obliges the parent to fulfil his duty? And what happens if a parent does not fulfil his duty? Does he have an enforceable obligation? Murphy does not say. He has not provided any grounding for the parenting-as-trust metaphor. He has just asserted it.
Similarly, why should one accept that a parent has the authority over a child to act paternalistically towards them? Since libertarianism is incompatible with paternalism in general, what makes paternalism justifiable towards a child? And why is it that a parent has authority to act paternalistically but others do not? Again, Murphy uses the concept of the trust as a framework, but does not provide a reason why this should be accepted.
Parents Have Enforceable Obligations
What is missing from Murphy's critique of Rothbard is for Murphy to take a view on whether parents have enforceable obligations and to explain why. One of Rothbard's great merits was a consistency that came from his willingness to accept the logical consequences of his ideas. However, in the case of parent-child relationship, Rothbard doggedly stuck to an idea that is simply wrong: the notion that parents do not have enforceable obligations. This insistence led to absurd conclusions, such as the legitimacy of starving a child to death. As I have argued elsewhere, the denial of parental obligations has been an enormous error in libertarian thinking and is by no means a requirement of libertarian theory.
Parents have enforceable obligations towards their children because they have causal responsibility for placing the children in a state of peril as a consequence of having created them. This is the causal theory of parental responsibility. Among the competing libertarian theories of the parent-child relationship, this is the only one that provides a clear grounding both for parental obligation and parental authority.
To illustrate the concept of causal responsibility for the creation of peril, imagine I decide to create an enormous "burning man" style bonfire in my garden. The flames begin to rage out of control, which creates a risk to the neighbourhood at large. If I find the whole situation is not as entertaining as I wished and instead is getting stressful, can I legitimately just walk off and do something different instead? Or do I have a positive obligation to take whatever actions are necessary to bring the fire under control? Despite the fact that the fire has not yet damaged anyone else's property, and despite the fact that I have no contract with my neighbours pre-arranging what must be done in the event of fires, I still have a strict liability for the consequences of my own dangerous acts and I am responsible for preventing the danger from turning into harm. This means that I have an enforceable positive obligation by tort (not contract) to control the fires that I start.
It is the actions of the parents themselves (regardless of intent) that grounds their obligation towards the child. Similarly, it is the obligation to relieve the child from peril that gives the parent authority to act on that obligation, and also sets clear limits for that authority.
Parental Obligation Does Not Imply General Welfare
Murphy seems to share the concern that Rothbard had that to accept parental obligations would open the door to accepting generalised obligations of welfare. Again, on this point Rothbard was unfortunately just wrong. There is nothing in libertarian theory that prevents an acceptance of tort liability for one's actions. Accepting that you are responsible for the consequences of your own actions does not entail a responsibility for humanity at large, nor does it imply responsibility for anyone at all except those directly impacted by the consequences of your actions.
The Principle of Parental Responsibility is Libertarian
Although still a minority position among libertarians, the principle of parental responsibility has the advantage not only of being correct but also of leading to all the reasonable conclusions that Murphy would expect from a theory of the parent-child relationship. Stephan Kinsella has advocated this principle in his book Legal Foundations of a Free Society. In the past, the principle was expressed by libertarians such as Doris Gordon and Nathaniel Branden (although Branden did not accept all the logical consequences). It has been set out by various philosophers as far back as the eighteenth century. I hope Bob Murphy becomes another libertarian advocate of this principle.