Why Libertarians Mistakenly Think Parental Authority is a Homesteaded Property Right

If you put an individual in a state of peril, you have a positive obligation to get them to safety. Not only must you take whatever reasonable actions are necessary to save them, you may also undertake these actions without their consent, if your actions are justifiable in fulfilment of your obligation. For example, if you push someone into a lake who cannot swim, you must get them out before they drown or you will have committed homicide. If you need to pull them back onto land, you must do this even if they are so panicked that they flail around and attempt fight you off while you do so.

This basic principle provides a clear logical grounding for both parental obligation and parental authority. If you accept that parents have a causal responsibility for the peril that children face as a result of creating them, then it is easy to understand why parents are justified in having authority over their children to undertake whatever steps are necessary to get them out of peril. In the case of children, peril ends when the child becomes a self-sufficient adult. So parents are obliged to undertake whatever care is necessary for a child to grow into a self-sufficient adult. This causal theory not only explains what parental obligations are, but also specifies which individuals are obligated to care for each specific child.

However, most libertarian theorists do not view parenting in this way because they have denied the existence of all positive obligations except those agreed to voluntarily (i.e. by contract). When it comes to parenting, this has resulted in libertarians either denying that children have any enforceable claim against their parents for care (as Rothbard and Evers did) or arguing that children only have a claim if parents voluntarily commit to assuming obligations for their children (as Steve Horwitz and Roderick Long did).

This has left libertarians with a big problem when it comes to explaining why parents have authority over their children. In the absence of a theory of obligation, what gives any person the right to claim authority over anyone else? Also, without a theory of explaining why specific parents must care for specific children, why should any particular person have the right to act paternalistically towards a specific child?

Libertarians have attempted to solve this problem by applying the concept of homesteading to parenting. Their line of argument is as follows:

  1. There are no positive obligations, so people only have the role of parent if they voluntarily choose to assume it. All parents are volunteers.
  2. For any given child, there could be competing claims to act as the parent of the child, since multiple people could volunteer for the role. This could lead to conflict.
  3. Libertarianism solves the potential for conflict arising from rivalrous claims by assigning a property right using the principle of homesteading. The rule used is that the property right justly belongs to the first person to perform whatever acts are necessary to make a claim.
  4. Therefore, the solution to who gets to parent a child is to consider parenting as a property right and identify the acts necessary to claim it.

Opinions differ among libertarians on various details, such as what act constitutes homesteading a baby. But all proponents agree on the basic proposition that parenting a child is a rivalrous good and homesteading is the rule used to allocate it.

Those who argue that parental authority is a homesteaded property right imply that parental obligation comes attached to the homesteading of that property right. This is because– according to this theory– everything to do with being a parent is a homesteaded property right. The idea is that one homesteads a bundle of rights associated with the role of parenthood, such as the right to exclude others from parenting the child and the right to exert paternalistic authority over the child.

However, if you accept that parents have causal obligations, then the concept of homesteading parental authority as a property right is nonsensical because parental authority derives from parental obligation. Parental obligation is antecedent to parental authority. Parental obligation provides both the justification of parental authority and the criteria to set limits on it. Therefore parental authority can only be secondary to and derived from obligation. It is only because libertarians do not understand this that they invented the idea of parenting as a homesteaded property right.

The entire theory of homesteading parental authority has been adopted by libertarians because they do not have a causal theory of parental obligation. If they had such a theory, it would be self-evident that the idea of homesteading a child is absurd.

Rights Cannot Be Based on Demonstrated Rationality

According to the theory of acquired rights, an individual starts life without rights and only qualifies for rights once he or she demonstrates some characteristic or ability. One of the many problems of this theory is defining the qualification criterion.

One version of the theory is that an individual has rights when he has the potential to be rational in future. As discussed in a previous post, this argument actually supports the theory of inherent rights, not acquired rights.

Another version of the theory holds that the qualification required to have rights is demonstrated rationality. According to this version, an individual acquires rights once he demonstrates rationality. Therefore, before an individual acquires rationality, he has no rights. This theory is logically indefensible for the reasons set out below.

It Permits Infanticide

If an individual's ability to reason is his qualification for rights, then children have no rights because children are not rational. A newborn baby cannot be said to demonstrate rationality any more than a newborn foal does. Children cannot be said to exhibit rationality until some significant period of time after birth, unless rationality is redefined so broadly that it would have to include all higher mammals (making the theory incoherent).

A norm of withholding rights until an individual demonstrates rationality would logically permit infanticide, since a newborn child cannot be said to demonstrate rationality. This implication is not one that most advocates of acquired rights theory are willing to accept, yet this must be accepted if one is to argue that children only qualify for rights once they demonstrate rationality. Most advocates of the theory choose to ignore this implication and thereby contradict themselves. Occasionally, one chooses to accept the reductio and make an absurd "libertarian" case for infanticide.

It Is a Conflict-Generating Norm

A norm of respecting rights only once an individual has demonstrated any capability would lead to conflict, and is therefore an invalid norm. It is invalid as a moral rule because of the presumption of rights: you can't demand proof that someone deserves rights, you must presume they do until proven otherwise.

It Is a Non-Universal Norm

Any rule for withholding rights until a specific capability is demonstrated breaks the universality requirement of norms as inter-subjectively ascertainable based on relation of person to physical thing. This is another reason that it is invalid as a moral rule.

The failure of a norm to comply with the universality requirement always has disastrous implications. In this case, the idea of rationality as the qualification for an individual's rights implies justification of class rule by a self-declared elite who may judge the rights-worthiness of others (i.e. the self-declared rational judging whether others meet their definition of rational).

Reason Is Intermittent, Rights Are Not

Reason is by nature an intermittent capacity, so basing rights on demonstrated rationality logically entails removing rights from everyone at numerous points in their lives, or else the theory requires an endless list of arbitrary exceptions. Does someone lose their rights whilst asleep? Does someone lose their rights whilst intoxicated? What about if they are in a coma? People in all these cases fail to demonstrate rationality, so the theory would deprive them of their rights or else fall into a mess of contradictions.

Conclusion

Although reason does play an important role in determining the scope of rights, demonstrated rationality cannot be a criterion for rights. The correct role for reason in rights theory is in the theory of inherent rights, described here.

A Child's Potential for Rationality in Future Is an Argument for Inherent Rights

As discussed in a previous post, the theory of acquired rights asserts that a child qualifies as a rights-bearing person once he or she demonstrates possession of some characteristic or ability that confers rights-worthiness.

One version of this theory argues that when a child has the potential to be capable of reasoning at some point in the future, he qualifies for rights. Whatever this argument's merits, it does not support the theory of acquired rights. If rights are based on a child's future capacity to reason, then rights are inherent, not acquired.

If rights come from the potential to reason in future and not from the ability to reason now, then the current characteristics and abilities of the child are irrelevant. It does not matter what a child looks like or can do at present, since this argument for rights is based entirely on something that a child could potentially do in future. The logical implication of this argument is that a child has rights from the moment he comes into existence, since from that moment onwards there is the potential of a future in which the child is capable of reasoning.

Advocates of the theory of acquired rights refuse to accept this logical implication. They attempt to argue that an unborn child only has rights once it reaches certain developmental milestones that are related to a future ability to reason, but not before it has reached those milestones. For example, Jason Sorens argues that an unborn child only acquires rights at six and a half months because at that point the child has various features including "a recognizably human brain" which gives it the "potential for rationality".

However, any arbitrary milestone is completely irrelevant to the basic premise of the argument. As a reminder, the argument is that a child has rights despite his current inability to reason. Rather, he has them because he has the potential to reason in future. The logical implication is that rights are valid from the moment of conception, not from any point in brain development, since from the moment of conception a child is unable to reason but has the potential to reason in future. There is no philosophical basis for arguing that a child acquires rights because of any developmental milestone if that milestone isn't actually changing the child from a non-reasoner to a reasoner.

Advocates of this version of the theory of acquired rights are trying to argue that the potential for reasoning in future is a valid criterion for rights, but it should only be taken into account once some arbitrary developmental milestone has been reached by a child. The entire endeavour is nonsensical. It appears to be motivated reasoning with a particular conclusion in mind: to set aside a window of time in which a child does not have rights so that abortion is not considered a rights violation.