Children and Abortion – A Follow Up

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In response to comments to the original essay on the topic of the rights of children by the YouTube user Justin Sane (which I presume is a pseudonym), I’m presenting an elaboration here on several themes to build on and emphasise what was said in the original essay on the rights of children:

  1. That the quality of a rights holder is a rationally acting being as opposed to a being distinguished by any other standard;
  2. That, when it comes to resolving cases on account of the fact that a child matures and develops into adults in different stages. this does not result in a false dichotomy or binary outcomes;
  3. That the transmutation of political norms into legal norms is likely to afford children legal protection;
  4. There is an elaboration of ostracism as both a legal and extra-legal remedy;
  5. Finally, there is an explanation of why the protection of children through extra-legal measures does not compromise the effectiveness of resolving conflicts between adults through legal measures.

Beginning with the first issue, the source of any rights and obligations is a conflict of actions, a conflict that is generated in the minds of the disputing parties because a portion of physical matter is not capable of sustaining the ends of each. One of Justin Sane’s criticisms of my approach was that, according to him, it results in binary outcomes, disregarding other possibilities. However, the treatment of the political problem most certainly ends with binary results because the nature of the problem is binary. Actions are whole, concrete steps – they are either done or they are not done, never partially done. One may attempt to resolve a conflict between actions by breaking down or reducing an action into a smaller action, but this itself would then be an independent action which must itself either be done or not done. Where a conflict remains, the only solution is an exclusive right for one party to be able to fulfil his end and the other to yield. There is therefore either a conflict, or there is not; and there is therefore either a conflict holder, or there is not.

None of this, however, has any incompatibility with the fact that a child matures and develops gradually from childhood to adulthood, nor with the resulting legal rights of a child. I spent a section of the original essay criticising the very rigorous distinctions drawn between childhood and adulthood executed by the state, even when these where different for different types of act (e.g. the ability to drive, to have sex, to drink alcohol, etc.). I’ll return to this later but I first wish to address the fact that the concept of rational action, and no other criterion, is essential for libertarian rights.

The assignment of rights and obligations has, as I stated, no business outside the realm of conflicts. Libertarianism therefore needs to accomplish two things to be a successful theory. First, it needs to identify conflicts correctly. Second, it needs to demonstrate why the resolution of conflicts such as murder must be resolved in favour of the murdered person and why thefts must be resolved in favour of the original owner of the stolen property. It follows that liberty is destroyed by a further one of two, or both things. First, the invocation of conflicts where there are none, such that people are subjected to force when it is not justified; and second; where real conflicts do exist they are answered in the wrong way. Needless to say the latter is never presented as “murderers can kill” and “thieves can steal” but is rather dressed up with the view that everything can be decided by what is best for “society” as if “society” was an entity independent of its individual constituents with a clear cut conception of its own welfare; or that issues can be solved by us magically being able to “share” everything when the problem exists precisely because we cannot share.

The latter problem does not need to be addressed here. But the problem of defining conflicts most certainly does. The meaning of a genuine conflict has no application outside the realm of rationally acting beings. Physical clashes may take place between non-rationally acting beings and these may be competitive. An antelope may fight off a cheetah out of survival instinct but, unable to choose or comprehend its actions, there is no basis for any perception of the outcome that it strives for to be “good”, “bad”, “better,” or “beneficial”. All of these qualities are founded on the rational desire to choose to devote means towards ends resulting in actions – in other words, rational action, action that is able to be motivated by conscious choice. Furthermore, such an appreciation of outcomes has no application outside of the concept of rational action as it is only rational action, motivated by a conscious choice, in which an informed opinion to change the course of events has any relevance.

The criterion for bearing rights and obligations is not rational thinking, or any other kind of purely mental ability, as opposed to rational action. Although a conflict is always a clash of subjectively held valuations, it is only the physical manifestation of these valuations in real action that permits a conflict to be evidenced objectively in order to produce any meaningful identity of that conflict and its resolution. A rock, for instance, may be able to think rationally and may have mused in its mind more philosophical tomes than Descartes. But if I was to tread on it then its lack of rational action means that there is no way of identifying this objectively as a conflict. Thus the unique concept of rational action shared between rational beings gives rise to a common understanding of ends, means, choices, valuations, conflicts, and so on, and further provides the means to assess them objectively; we are all rational actors and we all know what rational action entails, so our ability to recognise it in others means that this criterion provides the further benefit of being an avoider of conflicts in the first place.

There are therefore no rights and obligations without a conflict, there can be no conflict without a conflict holder; there can be no conflict holder unless he makes a conscious choice to devote means towards ends; devoting means towards ends is a rational action, the province of a rational actor; there are therefore no rights and obligations outside of the realm of rational actors. It is therefore rational action that is the linchpin of all of the elements that give way to the generation of rights and obligations.

To dispute that it is the quality of rational action – or, more precisely, rational action perceiving a conflict – that determines rights produces no firm basis for libertarian theory. For otherwise in all cases it would mean that the causative event of legal enforcement is not an objectively identifiable conflict of physical actions between the alleged perpetrator and the alleged victim as perceived by those parties, but, rather, conflicts that are subjectively observed or hypothesised by third parties and onlookers, permitting these mere observers to use force to remedy the alleged ill.

In a situation involving A and B, where A is a rational actor and B is not (either an object, an animal, a baby, or whatever), A faces the conflict as to how he should behave towards B and may assess his options in terms of that which is good, which is moral, which is the “better” outcome and so on. But the product of this conflict is wholly in A’s mind, his need to choose between options, not in B’s. Only A, possessing the quality of rational action has the capacity to reason whether alternative outcomes can be assessed in terms of these qualities and to put one of these outcomes into effect. A might be motivated by what is good for B in a way that a person may consider what is good for a pet, a flower, an oil painting, or a baby, but there is no conscious, reciprocal involvement from B in this process motivating what the outcomes should be. There is, therefore, in no meaningful sense a “conflict” between A and B, a conflict that would result in any kind of right by B against A to cause one specific outcome to trump another.

If C, a rationally acting third party, comes along he may develop theories as to how A should act towards B, and may even name this theory as a body of “natural rights”, “natural contracts” or whatever. Such espousals, whatever form they take, may be very wise, very learned, even very beautiful and harken to a seeming harmony of the natural order. However, any conflict that C identifies between A and B in this regard is a product of C’s mind, not of B’s. Any attempt by C to enforce any of “B’s rights” that he has supposedly identified is therefore not a resolution of a conflict between A and B, it is the resolution of a conflict between A and C. C is not alleging the right of B to enforce certain behaviour from A that B wants – C is alleging the right of himself to force A to behave towards B in a certain way that C wants. The pivotal party to the conflict is not B, it is C; if C dies then the conflict dies with him, a conflict un-rooted in the objective basis of a physical contest between himself and A. For any meaningful rights and obligations to arise between A and B, B must assert himself as an independent rational actor who perceives a conflict between himself and A. C’s theories may be relevant to B in this regard and may serve to heighten his awareness of his place in the world and of his understanding of his relationship to his fellow beings, should he have the capacity. But they are not in and of themselves a replacement for the quality of the rational action of B that perceives a conflict with A. Other standards such as sentience, maturity, language, numeracy, the perception of pain and so on may be related to and intertwined with rational action, but they are not themselves rational action. Only the ability to make choices devoting means towards ends, whatever the substance of these choices may be, has any bearing upon the perception of a conflict and thus on the question of rights and obligations.

Basing any kind of political norms upon the perception of conflicts such as those of C, however genuine, honest and well-intentioned that this may be is precisely what leads to the destruction of liberty. “The welfare of the people has always been the alibi of the tyrannous”; “the road to hell is paved with good intentions”. Furthermore, unlike the quality of rational action, such theories that C may espouse, while they may be cloaked with apparently universal and everlasting principles, are often a slave to the substantive moral issues of their time, moral issues that are themselves based on the specific wealth, customs, and traditions that happen to exist. Thus they fail to transcend their localities of time or place and provide any universal grounding for political norms. Even apparently “obvious” or “clear-cut” cases of hypothesised conflicts are an illustration of this fact – such as children’s rights. In pre-industrial, agrarian societies where the main economic unit was the family, children were indeed regarded as little more than property of the parents that possessed an economic value. Although research produced by scholars since the 1960s has indicated that child rearing was not brutal and parents made sacrifices for their children to maximise their welfare such as care during sickness, the general attitude is hardly unsurprising in an epoch of extreme poverty where infant mortality was as high as one third of babies born. Indeed, we can surmise that telling a mother that she may legally kill her child may have been greeted with an acknowledged, if reluctant acceptance if there simply wasn’t enough food to eat. Renaissance/Enlightenment thinking, coupled with the romanticised view of childhood as an “age of innocence”, began to see children as having an independent identity that accorded them certain rights, but the product of this thinking was far from uniform. The nurturance or caretaker view was, at its earliest, espoused by John Locke, and Thomas Spence’s “The Rights of Infants”, one of the first pamphlets to specifically consider the issue, is subtitled “Imprescriptible Right of MOTHERS to such a Share of the Elements as is sufficient to enable them to suckle and bring up their Young”, and is written as a dialogue between mothers and the aristocracy. In other words the right was of the mother to demand from the gentry the wherewithal to nurture her infant from the produce of the land. The alternative view, that children have much more independent rights, became augmented and subsumed by the onset of industrial society (in which children often worked in factories), and the backlash of the middle class intelligentsia against the “squalid” and “destitute” conditions of industrial workers generally, a backlash that was itself subsumed by the descent into socialism and communism. But what abolished child labour was not a call for children’s rights; it was the fact that adults could produce enough wealth for a child to survive and flourish without the latter having to work. The right of a child not to labour and, instead to be supported by its parents, are, like any positive obligations, wholly dependent on there being enough wealth to accomplish this. In the twentieth century, The Declarations of the Rights of the Child, the precursor to the modern UN Convention on the Rights of the Child which is, as of this day, enshrined in international law, was drafted by Eglantyne Jebb, the founder of the charity Save the Children that was set up to alleviate the starvation and poverty of German and Austrian children as a result of the First World War, a war which would not have occurred without imperialism, state militaries, the drive to autarky, central banking, etc. The creation of the welfare state and the subsequent disintegration of the family it has caused, together with government provision of education, have all served to make the rights and conditions of children a public affair. Far from being in anyway universal or an engrained part of humanity, the modern development of children’s rights has been welded to the growth of the state and all of its catastrophes and calamities.

Even if however, we attempted to curtail C into developing a theory that advocated rights between A and B that were in accordance with liberty, it would be immensely difficult, if not impossible, to produce a theory that categorically insulates this from either abuse or outright usurpation. Let us say, for example, that all rights holders are not objects, or animals and must, instead, be endowed with the quality of being human, so that we can never be forced to behave in certain ways towards objects and animals but we can  be forced to behave in certain ways towards human beings. Hence, we have dismissed the most outlandish anti-libertarian theories that C might have devised, we say to him that A and B must both be human for any theory to apply to them. We have still, however, left the door open to C to conjure up all sorts of other theories of “society” and “the harmony of man” in order to invoke all manner of rights and obligations between the two. I personally marvel at any author who can persuasively attest to the harmony of the market place, the beauty of freedom and the unfathomable extent of man’s accomplishments unleashed by capitalism. But other accounts can be made to argue the complete opposite, all the way from the naive but plausible reinterpretations of social co-operation under the division of labour to connote a false sense of brotherhood, togetherness and family that looks after each other, all the way to more sophisticated treatments such as those of John Rawls. Thus I could be legally forced to help adults in need; to give food to the hungry; to give medicine to the sick. In short, a welfare state.

If, in response to this, we attempt to introduce a further limiting factor that legal rights may only be used by humans to repel aggressions – i.e. a human’s only right is non-aggression – this also is no good. An aggression has a physical manifestation but this fact in and of itself does not qualify a physical act as aggressive; it is only aggressive if the aggrieved party so deems it in his mind. Sex and rape are the same physical act, yet the first is consensual and legal and the latter is aggressive and illegal. Frustrated by the evidential difficulty of establishing whether or not a specific rape occurred, feminists and women’s rights groups have taken to redefining the concept of rape and blurring the line that separates it from consensual sex. So what we have now are acts which are viewed as consensual by the parties but redefined as aggressive by outsiders, thus leading to the infringement of the liberty of the alleged perpetrator based on nothing but a string of fictions – that yes means no; that acceptance is repellence; that love is now hate; and so on. But forgetting that aggression and conflict are mental categories in the minds of the parties can have even more disastrous consequences than for participants of a one night stand. The conflation, by Karl Marx, of economic classes, which co-exist peacefully, with legal castes, which do not, coupled with his half-baked economic theory of surplus value and the “appropriation” of profit from wages created what is undoubtedly the epitome of falsely perceived conflicts in the whole of human history – that between capitalist and labourer. These theories, developed entirely by middle class intellectuals and based on no aggressive relations whatsoever as perceived by the parties concerned, went on to enslave half the globe for the best part of a century. It is true that ideas such as “sex is rape” and “employment is slavery” may have instilled in the alleged victims the mere belief that they were subject to a conflict; but this simply causes the necessity to focus on their actions – what they did as opposed to what they say – to stand out in relief even further. It should also be clear that such theories do not need to be correct in order to have a disastrous impact; they simply need to be plausible and popular.

If it should be thought that it is a spurious, “slippery slope” argument and that it is unlikely that at all of this may result simply from the desire to prevent infanticide and child rape then we might want to think again. Throughout history, the power hungry have not only succeeded in exploiting to their advantage the slightest glimmers of light in the form of minor weaknesses and inconsistencies in opposing theories, but they have succeeded in redefining entire doctrines out of existence. The divine right of kings was flipped from subjecting the king to divine law to meaning that anything the king said or did was divine; to violate the constitution is to adhere to it; to be a socialist is now to be a liberal; to favour hampered trade is to be a free trader; and with libertarians like the “Bleeding Heart” camp and other “thickest” varieties perhaps we will lose “libertarianism” too. Moreover, practically anything that has been ever been written, as opposed to spoken, in defence of liberty has been tortured into producing the very opposite effects from those intended. As Cardinal Richelieu is supposed to have said, “give me six lines written by the hand of the most honest of men, I will find something in them which will hang him”. Finally, acolytes of liberty such as Milton Friedman and Friedrich von Hayek, however much they may have said some many great things on individual topics, are lauded by the mainstream precisely because their basis for liberty is weak and presents no real threat to the “statist quo”, whereas hardliners such as Ludwig von Mises and Murray Rothbard are just ignored.

Therefore, basing rights and obligations in rational action, grounded firmly in the reality of conflicts and their resolution, is the only rigorous and distinct basis for libertarianism. It is therefore conceptually correct to say that if a being is not a rational actor he has no rights and that if he is then he does. Any alternative is the product of invoking rights where no conflict exists, and even if these hypothetical conflicts are defined narrowly they provide only a tenuous defence against less restrictive views.

Returning now to the question of the legal rights of children, nothing whatsoever about this provides any difficulty regarding the gradual, complex and developmental transition of a child into an adult. The law’s only purview is the resolution of conflicts, not to make sweeping decisions concerning every facet of life. As I stated in the original essay:

In a free society, different children will reach different milestones at different ages, when they themselves see fit to accomplish them. Hence, one child may decide to get a job at thirteen, another at fifteen and a third at eighteen. One may decide he is mature enough to give sexual consent at fourteen, another at sixteen and another not until he is twenty. The choice to leave home may be made at a similar array of ages. In the event of a dispute between an adult and a child a libertarian court will have to decide on a case by case basis whether the action of the child that is the subject of the litigation represented a rational action to devote means towards ends or was simply an instinctive action.

Courts do not, therefore, go into the world and make grand pronunciations such as “Tom is a child”; “Dick is an adult”; “Harriet will be an adult in three years”. Indeed, most children will coast from childhood to adulthood without ever realising the precise points at which their competence to effect certain outcomes took place, and libertarian courts are never going to make any judgment whatsoever on whether most children are, or are not, self-owners and at which point. Their role is akin to that of a watchman, not a nanny; their only competence is the case before it and legal regulation has no place in permeating any other aspect of life that is devoid of conflicts. Hypothetical judgments in hypothetical cases are not needed. If a child had been sold a mortgage and the child took the house and made all the payments and paid the debt then any hypothetical conclusion of a court of non-self-ownership had the case produced a conflict would have no relevance – both parties would be happy and no one ever need ask the question. If two sets of parents make a contract for adoption, the money is paid and the child goes then the fact that a court may conclude in a hypothetical judgment that the child is a self-owner and cannot be sold is irrelevant. All that matters, therefore, is establishing the quality of self-ownership – that the child acted rationally to devote means towards ends – for the purposes of resolving the real conflict before it, not for resolving any other. Thus a finding of self-ownership in one case, or the lack thereof, does not prejudice a contrary conclusion in a different case, real or hypothetical. In a case where the child approaches a sweet shop with cash in its hand, asks about the prices, dislikes them and then decides to steal some sweets a court may conclude that this was a clear rational action sufficient to categorise him as a self-owner and thus legally responsible for the crime. On the other hand, in the case involving the attempted sale of a mortgage to the same child, the court may find that no action of the child could be sufficiently interpreted as a rational action to borrow money to purchase a property, and any “signature” of the child on the title deeds has no greater legal significance than a dog’s paw print. If a young girl purchased condoms and walked to the house of an adult and engaged in sexual relations with that adult and the parents brought a lawsuit for invasion of their property in the child then the court may conclude that the actions of the child were a clear, rational choice of a self-owner to have consensual sex and the parents would lose the case. On the other hand, if the same teenager knocked the handbrake of her parents’ car the court may conclude that the parents are liable for any resulting damage caused by the run away vehicle. Such flexibility in the case law will serve to protect adults from harm by children also. Where a child kicks his football into the neighbours’ window, for example, the latter is likely to be more interested in suing the “deeper pockets” of the parents for replacement of the broken glass rather than the child’s piggy bank. Alternatively, in the case where a child has attacked his parents, the court may find that the child is liable in spite of being under the ward of the victims. Nothing about any of these possible judgments need have any effect upon any other part of a child’s growth and development or its interaction with other people, provided that these are devoid of conflict.

Nothing about what I have said here is contrary to the traditional short hands that a self-owner cannot be property; and that “property in libertarian tradition means absolute control of the thing owned”; for these are derived principles. We say that a self-owner cannot be property because we are typically referring to adults whom we regard as always acting rationally and thus are always independent and ownerless; and we can do whatever we like with our dead objects and regard them as our property because it’s virtually certain that such an object like a table or a cup will never act rationally. Indeed, the very criteria presented here is actually perfectly applicable in cases involving adults, even in our own contemporary legal systems. Absent some additional factor, an adult is not deemed to be legally responsibly for those actions where he can establish that he was acting as an automaton or with an instinctive response. Furthermore, an extension of the principle applies to property that is subject to multiple titles such as the freeholding and lease holding of land and other rental arrangements; each party bears the exclusive right to certain actions in relation to the same property.

Judging the quality of an action as rational is not, to be sure, ever going to be easy and there are clear overlaps with qualities such as maturity, understanding, knowledge, “sapience”, and so on, all of which may come into consideration and all of which libertarian courts will have to develop a framework for. Yet it is crucial that rational action itself – the conscious choice to devote means towards ends – remains the focus. We must remember that the result of a court case is not to make a loss disappear – it is simply to decide who should bear the burden of it. In cases involving adults in our current legal systems, undue stress is placed on motive, intentions or appreciation of the circumstances and consequences which serve to acquit defendants and leave a perfectly innocent party – the victim – saddled with the loss. Thus the decisions of court cases, lacking any primary rationale as to what constitutes legal liability, often serve as little more than policy vehicles for determining who bears the risk of loss from certain conflicts. By focusing on the fact, rather than the quality of rational action, libertarian courts avoid these difficult enquiries, but this clearly has to be relaxed in gradations when it comes to children. My argument would be for as restrictive a relaxation as possible to avoid reassigning loss to innocent parties (which could, it should be remembered, include the parents if they were left responsible for the tortious or criminal actions of a rationally acting child). It is also at least arguable that a finding of legal responsibility will improve a child’s understanding of consequences and contribute to its maturation and suitability for joining the adult world.

However, this is not the only thing that can be said on the matter as the transmutation of political norms into specifically legal norms is also heavily reliant upon their social, customary, conventional and even economic context. Indeed, so dependent is the development of legal norms upon these aspects that they cannot be reasoned theoretically, a fact that is usually lost upon libertarians who approach the discipline from economics or philosophy and are so accustomed to arguing everything from the a priori. Hence they push the problems faced by the development of strictly legal norms back onto their political theory. (This includes Rothbard in The Ethics of Liberty who, in order to classify children as the property of their parents yet deny the latter the right to kill or harm the child refers to them as “guardians or trustees”. But then, to avoid any possibility of positive obligations, he states that these “guardians or trustees” don’t actually have to act as such as they cannot be forced to care for the child. Randy Barnett once mentioned in a lecture that a group of law students managed to stump “Mr Libertarian” in his own living room purely by asking him questions that concerned strictly legal norms).

One of the factors that has a bearing on the development of legal norms is the fact that the legal adjudicative process itself is a product of its time upon which the quality, dissemination and coherence of legal rules will be heavily dependent. In a legal system covering a small jurisdiction or in tribal settings where conflicts are infrequent and adjudicated by the elders, every single case may present a novel and unexamined situation and justice may be dispensed and disseminated in varying degrees of coherence with regards to principle. In a legal system such as ours which takes place in a highly industrialised society of social co-operation under the division of labour, where the seeking of justice is contracted out like any other service to full time specialist jurists, scholars and practitioners with access to an array of precedent and case law, legal norms may have crystallised around clear principles to a much higher degree. We can also surmise that through education, communication, and thriving media and news outlets, legal principles will be well disseminated through the populace. The advantage of this type of legal system is that it makes possible to a higher degree the classification of cases into various categories of “typical case”, each of which may met with specific legal presumptions and variable burdens of proof based on the experience of a wide number cases. The question of self-ownership may be subsumed by such presumptions and burdens of proof.  For example, where the defendant is an adult there is a legal presumption that the adult is a self-owner and the burden is on him to prove otherwise in order to defray liability. On the other hand, where the defendant is an animal or object there is a legal presumption that this being is not a self-owner. We can further speculate as to what these presumptions and burdens may be in cases involving children.

First, in a case where the child brings the action before the court (or has appealed to a third party such as a school or neighbour to do so) there is a legal presumption that the child is a self-owner. Indeed, we might say that the appeal to justice and with it a sense of rights and obligations, itself a rational action, is the criterion par excellence in determining such an outcome. Second, where the alleged victim is a child, there is a presumption of locus standi (so a third party could bring to court a case where a parent is alleged to have killed his/her child). Third, where a child has not brought the action but the case involves a physical invasion of the child in rerum natura, there will be a legal presumption that the child is a self-owner. Fourth, in cases involving the homicide of a child (or any person, for that matter) in rerum natura, there is a presumption that the death was non-consensual. Fifth, in cases involving a physical invasion there is a presumption that this is aggressive and non-consensual. Sixth, in cases involving the physical invasion of an adult by a child, there is a presumption that the child is not a self-owner and the parents are liable for the invasion of the adult. Seventh, in cases involving an alleged contract between an adult and a child there is a presumption that the child is not a self-owner. Eighth, in cases involving sexual relations between an adult and a child, there is, similarly, a presumption that the child is not a self-owner. Ninth, where an act of defence by the child is evidenced, there is a presumption that this was a rational and not instinctive action and the child is a self-owner. And so on in ever more detail to sift out different types of case, for example between contracts to purchase sweets and contracts to purchase houses and cars, for example.

Thresholds for these possible presumptions could be determined by a court with reference to any criteria that are appropriate for the customary, conventional and social context. This could be specific ages, physical changes such as the onset of puberty, or a rite of passage such as Bar Mitzvah in a Jewish community. To be sure, they cannot be constructed so that the fact presumed completely obliterates the underlying reality, but their effect is not to alter the fundamental political norms of self-ownership and private property; it is simply to shift the burden of establishing or defraying liability between the parties. The burdened party always has the option of rebutting the presumption. The upshot of this is, therefore, where a party has any dealings with a child – such as intended sexual relations or an intended contract – they will have to take evidential steps above and beyond they would have to take with an adult to prove the child’s self-ownership and valid consent. Conversely, where he wishes to attack a child, he will have to prove that the child was not a self-owner. Needless to say, however, some of the presumptions as I have worded them above would be almost impossible to rebut, to the extent that legal liability would always follow resulting from a parent assaulting or murdering their child, for example. Yet in a hypothetical community plagued by feral children, where the overwhelmingly typical case is of children attacking adults, there may be a legal presumption that any harm to a child by an adult was defensive and not aggressive, thus the burden rests on the child to prove otherwise. In any case, however, it is clear that courts can develop legal norms that serve to protect children in spite of the fact the underlying political philosophy may not grant them any formal rights.

Turning now to an elaboration of ostracism, the just use of force in a libertarian society is, in my opinion, likely to be restricted to extracting restitution from the aggressor, i.e. to compensatory remedies, for which there is much theological, philosophical and historical support, and is unlikely to extend explicitly to punitive remedies. The replacement of the victim as the primary aggrieved party by the prosecutorial system itself and the role of enforced punitive remedies such as prison are intimately intertwined with the state and this is at least a prima facie reason for rejecting its use in a libertarian society. It is also far from immediately obvious that citizens in a free society, absent violently enforced taxes, would be prepared to pay their criminals board and lodging in order to extract some kind of punishment. Ostracism is therefore likely to be the primary punitive remedy. Let us explore briefly how this would work.

In pre-state, customary law systems the role of adjudication at the remedy stage was geared more towards reaching a consensus between the parties as to how the wrongful act should be righted, regardless of whether this wrongful act was intended or accidental. Thus there was little regard for the distinction between “torts” and “crimes” and everything revolved the parties determining their own solution between themselves. Hence, the absence of any specific punitive remedy was not an impediment to the potential desire of a victim to seek retribution and recompense.

Problems came about either when the offender refused to co-operate with a settlement, i.e. he would refuse to pay compensation out of his own wealth, or where he absconded entirely and fled from justice so that he was “on the run”. In the first case, the compensation due may be extracted by force from the offender. The way this would work in a libertarian society is that there would be independent, private adjudicatory services (“private courts”) to which aggrieved parties would take their cases. These bodies would gain a reputation for determining the outcome of these cases in accordance with libertarian principles. Such dispensation would lend prestige and authority for the enforcement of a remedy to an act of aggression. Therefore, when dispensing a judgment or solidifying an agreement between the aggrieved parties, the private court is stating that it would refuse to acknowledge any violent enforcement of the remedy as a new, independent act of aggression, and hence it can proceed unmolested. Therefore, if the offender refused to co-operate in paying compensation, it would mean that a private recovery agency would be able to extract that compensation from him by force without fearing that it too would then be subject to a lawsuit. In other words, as far as the enforcement of the remedy went, the offender would not be protected by the law.

In the second case, that of a flight from justice, ostracism was usually the result. This was not simply “social stigma” but was rather the branding of the offender as an outlaw – an extended version of the response to the non-payment of compensation. Under outlawry, an outlaw was not just a gun wielding bandit in the Old West. Rather, he was someone whom the justice system would refuse to protect in any circumstance when he was subject to an act of aggression of a third party – i.e. he was not someone who simply refused to obey the law but was some who was without protection from the law. In a libertarian society, this means that if the absconding offender is subsequently a victim of an act of aggression, the court would refuse to hear any case regarding the matter which the offender brought before it. The result of this is that a private recovery agency could use any means necessary against the offender – including the imposition of death – in order to either stop or capture him, knowing full well that it would subsequently not be prosecuted for this deed. Indeed, in its most extreme form, outlawry meant that any party could do whatever they wanted to the assailant in order to impede and/or apprehend him. This is precisely the origin of the familiar “Wanted” posters that bore the mugshot of fugitive criminals and popularised the fact that any force could be used against this individual. Furthermore, outlawry was deemed to extend to those who were harbouring or sheltering the fugitive – the origin of the crime “aiding and abetting” – and they too would also be fair game in any attempt to apprehend or stop the fugitive. The court would therefore not hear any case brought by aiders and abetters for injury or death sustained by them in any attempt to catch the fugitive. Of course, if totally innocent parties were caught in the crossfire then whoever caused these injuries would be liable.

Ostracism, in the form of outlawry, was, therefore, not merely banishment into exile or a branding of the offender as a nasty person with whom people shouldn’t deal. It was, rather, an incredibly harsh punishment. The absconding offender found himself without protection of the law, and no one else would help him as they too would lose their protection of the law. In cases where the offender refused to give himself up it was the equivalent of a death sentence for which any person could be the executioner. Needless to say, in a libertarian society today we can surmise that there would be a more sophisticated version of this process, with private recovery agencies contracted to seek the recapture of fugitives, and with the use of the internet to disseminate information concerning known criminals and absconders.

How, then, would ostracism be used to combat abuse against children under the assumption that a child has no legal rights and, therefore, the offender has not technically committed any crime? The answer to this is that in a free society, courts and adjudicators are private companies and citizens too and they have the right to withdraw their services and refuse their business with any party they choose. Thus, their withdrawal of services for the benefit of any person could theoretically be made at any time and not just when someone flees from justice. Normally, of course, they would not do this as they would be turning away good business from genuine clients and they need to maintain a reputation of hearing all cases impartially. But when it comes to fleeing offenders against whom judgment has already been pronounced, the refusal to support these fugitives with legal help would most likely enhance, not impair, their reputational prestige and so they would not risk losing business to other courts and adjudicatory services. But there is no reason to say that a strict framework for withdrawing legal services from and thus ostracising a child killer or abuser could not be developed, in spite of the fact that a child may not have any formally recognised, legal rights. Indeed, when child abuse is viewed as a heinously immoral act by a majority of the population, such a framework may also serve to enhance and not impair the reputation of the court.

Thus, as I said in the original essay, there is nothing to stop a profitable or charitable entity from bringing a case of child abuse before a court, the court accepting this business and agreeing to hear the case as if the child had legal rights. In this role it could act as either an adjudicator or as an arbitrator or conciliator. Therefore, if the facts are sufficient to establish beyond reasonable doubt that the offender abused or killed a child, the initial focus would be, just as in a legal case, achieving an outcome agreed by both parties with the precise remedies determined by them. If, on the other hand, the offending party absconds then the court would simply pronounce its refusal to protect the offender in a future case until he sufficiently accounts for the act he committed. Thus it is quite open for courts and their customers to achieve the same outcome as a legal trial – and to ensure children protection from murderers and abusers – without ascribing to children the formality of legal rights.

Wrapping all of this up, therefore, hopefully what I have demonstrated is that a coherent and impregnable libertarian political philosophy is dependent upon identifying rights holders as rational actors and not by some other criterion. At the same time however, I have demonstrated at least two ways – the transmutation of these political norms into legal norms and the imposition of ostracism by the court – in which the protection of children from abuse can be achieved in a libertarian society without compromising or distorting the underlying political philosophy.

Finally, looking more widely at just the “utility” of a system of justice in producing a civil society, any denial of formal, legal rights to children does not undermine this. First, justice is demanded by individuals from other individuals who actions produce conflicts. It is not demanded by “society” or any other collective entity perceiving a conflict somewhere “over there” between an individual or a group and some other object or being. A civil society results because it is conflicts between individuals that are resolved peacefully. It is a mistake to think that “society” seeks justice to protect individuals. Rather, individuals seek justice between themselves and the result is a civil society. Second, the commentator to my original essay extensively criticised my approach as lacking an understanding of subtlety or nuance and unable to comprehend varying shades of grey. Yet it is precisely the recognition that children are different from adults upon which this approach is based. It is clear that adults, although they are wont to co-operate socially under the division of labour and although explicit cases of private murder and theft are consigned to a handful of nutcases and sociopaths, have an extensive capacity and desire to plunder and kill each other through faux legitimised outlets such as democratic government. Indeed, the state exists for no other purpose. On the other hand, adults also have the capacity to appeal for their rights and to demand justice. The aim of the libertarian project is to disseminate an understanding of these rights so that these adults will demand them and cast off the yoke of the state. Thus a system of legal rights and obligations between adults has an eminent utility in producing a civil society that is peaceful and harmonious. When it comes to children, however, whatever happens to them they do not, until they are older, have the capacity to advocate their legal rights. A civil society will not be achieved by reading Rothbard to babies. On the other hand, it is precisely because of the unique connection that adults have to their own children and to the children of others that the capacity for adults for harming children is greatly diminished compared to their capacity to harm each other. As I said in the original essay, even the most oppressive of governments, however much it may revel in plundering and killing its adult citizenry, is not likely to legalise the abuse of children by either its own elite or by the populace at large. Indeed, any political regime that does murder children is usually slaughtering men, women and children indiscriminately. Thus, affronts against children are truly confined to a bare handful of aberrations to the norm such as perverts and paedophiles. Faced with such overwhelming odds – indeed, a deluge – it is eminently possible and, indeed, likely that extra-legal methods of deterrence, detection, and punishment of abuse against children will be sufficient to handle this tiny minority – particularly if those methods included the voluntary withdrawal of support to the perpetrator of adjudicatory and private defence services as I described earlier.

Indeed, I would like to close by saying that as libertarians we should remember that the legitimised use of force is the way of our ultimate foe the state, and in defining our own solutions to problems we should have a presumption of restriction against its imposition. This is true even in apparently obvious cases which may not, upon greater examination, be quite so obvious – as I hope I have demonstrated here when considering the rights of children.

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Gender, Race and Sexual Orientation – The Problem with Single Issue Groups

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Although the state has always constituted a mantle of unjustified oppression of and invasion into the lives of every person who has had to suffer its yoke, it is undeniable that certain groups of individuals who possess a common identity have been singled out for persecution. Laws that criminalise homosexual behaviour, or sought to set up “caste” systems such as the “Jim Crow laws” in the certain US states single out certain people, who possess a common characteristic, for a heightened degree of state aggression compared to other citizens. This common characteristic can consist of either their private, consenting behaviour with other adults or on some kind of characteristic that they are not able to help such as their gender or their skin colour. In order to oppose this, political movements to champion the rights of these (at least allegedly) legally persecuted individuals have appeared, such as the suffragette movement and the feminists for women, the 1960s Civil Rights Movement for blacks, and the LGBT (Lesbian, Gay, Bisexual, Transgender) movement. These groups have, to varying degrees of success, achieved a relaxation of legal discrimination against their intended beneficiaries.

The problem with single issue movements is that they do not always understand the principles upon which their complaints are based – or at least, those principles are not applied consistently. Strictly speaking, when it comes to legal rights there are no such things as “gay rights”, “women’s rights”, or “rights of blacks”. There are only rights that apply to every individual by virtue of his status as a rational, human being. According to libertarians, these rights consist of the right to self-ownership and the right to own private property unmolested by the physical interference of any other individual. It follows, therefore, that the attempt by single issue groups to remove genuinely invasive incursions by government into their lives is entirely legitimate. So that, for example, decriminalising sexual relations between two members of the same sex, and removing any legally enforced segregation of blacks from whites would be a perfectly legitimate cause. In other words, so long as these movements seek to achieve the right to be left alone and to be able to interact peacefully with whomever they wish, on a par with every other citizen, their aims are perfectly merited and, indeed, should be encouraged. Unfortunately, in seeking to promote the interests of merely a narrow group of particular people, these groups end up proceeding beyond this point and begin to invade the rights of others in order to provide not just the negative right to be left alone but a positive right or benefit to the favoured group that invades the rights of other people. Thus, having begun in the position of the oppressed the beneficiaries of a particular movement become, in turn, the oppressors, and having achieved their own right to be left alone start to erode that right when it comes to others.

In light of recent judicial decisions in Ireland and the US concerning the legality or constitutionality of gay marriage, we will concentrate, by way of example, on the gay rights movement. However, what we say here is applicable to any single issue movement such as those promoting the interests of a particular race or gender. The political oppression of gays throughout the world is still active in many countries, particularly in those that are deeply religious such as many Middle Eastern states, and they can still prove to be a struggle in countries that are heavily divided on the issue such as the United States. Nevertheless, we can state in countries such as Great Britain that gays have achieved a high degree of political equality with heterosexuals. Gays may engage in sexual intercourse with members of the same sex without legal molestation; institutions set up specifically to attract gay customers such as gay bars, clubs, dating sites and so on are perfectly legal. Moreover, a gay individual may now marry another gay individual on the same footing as heterosexual couples.

However, in spite of having accomplished the ejection of the state’s interference from their bedrooms, the gay rights movement is now attempting to co-opt the state into furthering the interests of homosexuals by invading the rights of other people. The typical case that arises is one of alleged “discrimination on the grounds of sexual orientation”, where a heterosexual individual, or group of individuals, chooses not to do business with a homosexual. For example, if a gay couple wishes to stay at a bed and breakfast the owner denies them lodging because they do not wish homosexuals to stay in their institution. A court case usually follows, the result of which is that business owner is forced to pay damages to the aggrieved gays for “discriminating” against them.

Regardless of whether one is libertarian or not, this attitude is nothing short of rank hypocrisy. Gays reserve the right for themselves to do whatever they want with their own bodies on their own property, but through crying “discrimination” they deny these rights to other people. Moreover, a quick google search reveals that there are hundreds, if not thousands of gay hotels, resorts, cruises, bars, clubs, bathhouses, and dating sites that describe themselves as “gay only” and market their products and services to those of a specific sexual orientation, even if this does not explicitly exclude those of other sexual orientations. How much of a furore would there be if a hotel stated on its website that it was “straight-only”? Ironically, however, there have been complaints from the owners of gay establishments that anti-discrimination laws will negatively impact their operations as their entire business model is based upon serving, exclusively, the needs of gays.

According to libertarians gays most certainly do have the right to do whatever they want with their own bodies with other consenting adults on their own property, as they possess the rights to self-ownership and to private property. And there is absolutely no problem in libertarianism with gays, or anyone else for that matter, setting up businesses and establishments that cater only to gays. But so too, therefore, does everyone else have the right to set up businesses that prefer to cater only to heterosexuals. In reality, though, matters never usually proceed to that level. In the case of a dispute with a bed and breakfast, the owner was happy to do business with the gay couple but was simply not willing to book them a double, as opposed to a twin room. In a more recent case involving a bakery, the latter did not refuse to bake a cake for a gay couple but merely refused to decorate it with a message supporting gay marriage.

If a business does so choose to cater only to straights, this decision may be based on anything from reactionary bigotry and irrational homophobia to deeply held moral or religious convictions (although some would probably say there is little difference between all of those things). Whatever the cause, however, the business accepts the risk that it will lose the money of gay customers. If, therefore, the owners of a bed and breakfast turn away a gay couple, they already incur the penalty of lost revenue for taking this course of action. The gays are denied a room for the night but they do not pay the owners a single penny of their money. The owners therefore risk going out of business sooner compared to other establishments that are not so discriminating and are happy to accept the custom of gay couples. It is for this reason that, for the most part, the competition of the marketplace eradicates discrimination on merely spurious, personal grounds (grounds which we may indeed identify with prejudice and bigotry) but it does not eradicate a choice for the owner to deal with his property as he sees fit. Moreover, the marketplace permits such discrimination to flourish where it is appropriate for customers who are distinguished by a certain characteristic and are interested in purchasing products and services that are designed for people with that characteristic – such as gays. Indeed, there is no specific culture or community that identifies itself as “straight” to which businesses can specifically market their services – there are very few explicitly straight bars, straight hotels and straight clubs etc. Hence the incidence of businesses that may, privately, choose to exclude gay customers are scattered and heterogeneous. But because the quality of being gay is an acknowledged common identity and has generated its own community and culture, the proliferation of gay businesses that discriminate on the grounds of sexual orientation is vast compared to the scattered number of non-gay businesses that do so. And no one should have the right to stop these gay-only businesses from flourishing any more than one should have the right to stop a bed and breakfast from catering only to straights.

One also has to shake one’s head in bemusement at the extreme pettiness at some of these cases that are brought in the west. Apart from the common libertarian complaint of our own governments looting and exploiting the populace on a prolific scale, even without this we live in a world in which there are heinous human rights abuses against women, ethnic minorities, and gays alike involving assault, mutilation, stoning and killing. And yet we in the west are worried about whether a gay couple can get a cake iced. In the fight for any cause, it is true that the smallest of gestures may be better than the grandest of intentions. But when the grandest of intentions have, in fact, already been accomplished, couldn’t they have easily found someone else on the same street to decorate an item of confectionary?

The ongoing issue of gay marriage appears to be the pinnacle of the attempt by the gay rights movement to nest its cause firmly within the bloated bosom of the state. Hitherto there has been nothing to stop to people of the same sex from hiring a venue, gathering all their friends and family, exchanging vows and rings and declaring their union that will forevermore be recognised by their community. The swat team was never about to break down the door after the committal “I do”. The real problem is the lack of legal recognition of the marriage by the state and the denial of the dubious benefits deriving from the state’s use of marriage as a shorthand for creating different legal rights and obligations between the two partners. Thus the issue has never really been about affirming one’s love for another person in front of your friends and relatives; it has been about achieving the state’s sanctifying blessing. Indeed, even after Ireland legalised gay marriage in May of this year the response across the spectrum was less about marriage and more about “acceptance”, “vindication”, “validation”, “recognition”, etc. – as if one needs the state to live one’s lifestyle with confidence. Gay pride seems to have turned into gay diffidence. Far better, to achieve a genuine equality, would be for the state to remove its invasive usurpation of all marriage and return it to its rightful origin as a religious or community affair.

It is sometimes true that if a particular group has been burdened with legal oppression for decades or even centuries then they are, as a whole, left with the “unfair disadvantages” of lower standards of education and employment prospects than the un-oppressed groups. This has been used to justify the government’s intervention to furnish the oppressed group with positive benefits, for example, so-called “affirmative action” for blacks in the United States. Apart from the fact that it is unjust to force everyone else to pay for the oppressive acts of their ancestors, disadvantages are not solved overnight by pretending they do not exist and trying to force an outcome by government fiat. Indeed, they have simply had the opposite effect. Forced economic relations have served only to keep past discriminations kindled and measures such as the minimum wage have excluded blacks from the entire productive system. Arguably, the economic plight of blacks today after half a century of affirmative action is worse than it was before the civil rights era. Only the market place can bring to formerly oppressed groups the opportunities for the development of skills, employment, education, saving, capital accumulation, and entrepreneurship, a process that might have elevated their position to that of others within one or two generations.

All of this goes to show that, while the plight of an individual group or community can be illustrative of a denial of rights, a true understanding of the matter is likely to come only from a consideration of which rights apply to all people everywhere regardless of their particular creed and colour. To approach the matter otherwise simply turns the oppressed into the oppressors. As libertarians we know that only the rights to self-ownership and private property of everyone is the only way to lift the burden of oppression from the shoulders of all groups everywhere so that everyone is free to live their lives as they see fit.

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