Ep. 182 A Modest Proposal for Children in Libertarian Law
Bob explains his idea for the general legal principle under which children would constitute a particular case: Namely, treat the parent (or legal guardian) as a trustee acting upon behalf of the trustor, who is the future (adult) version of that child.
Mentioned in the Episode and Other Links of Interest:
- Rothbard’s book Ethics of Liberty (free pdf).
- Walter Block et al. on children under libertarian law.
- Bruno Leoni’s Freedom and the Law (various formats).
- Bob Murphy’s lecture on private law.
- Help support the Bob Murphy Show.
The audio production for this episode was provided by Podsworth Media.
Good episode. It does seem like a lot of effort to make what I would call biblical stewardship for into libertarian theory. If only all libertarians were Christians 😉 Though I’m not sure what would be more difficult, converting them all or fitting children into the theory!
More seriously; I was wondering, if the child is the trustee and trustor, then what would make the parents the guardian in this construct? Or, put another way, what would stop someone else from taking that role away from the biological parents? I didn’t understand by what mechanism the parents would be seen as the primary legal guardians the way you’ve formulated this.
I was listening while driving, so I may have missed some nuance that would answer my question. If so, my apologies.
If I’m correct, I believe the parents would be the trustee, the child as an adult the trustor, and the child the beneficiary. This way trusteeship could be transferred betwixt guardians legally.
I don’t see how this would differ greatly from Rothbard’s vision. It seems like it comes down to the ‘contract’ formulated when the child is created between the parents and the adult version of the child but since this is an ‘assumed’ contract, any legal aspect (excluding possibly survival) would be arbitrarily induced as any positive law is.
I would say Rothbard’s thesis holds water especially if you take into account the court’s role in self determination. The trustee acting on behalf of the trustor would still be a moral situation although this contract can ‘become more legal as opposed to moral’ as the child ages which you point out!
Yes, I think this comes close to rationalising what people are doing already and where people’s instincts are coming from. But I think you need to think of the trustor as an “imagined consenting, experienced version” of the child.
For example, if the child had a disease which meant it would definitely die before it was ten years old or had mental impairment which meant it would never be in a position to give consent, there would presumably still be an obligation to look after the child even though the future consenting adult version will never exist. Also, if you knew a child who is currently thirteen might still have wanted something to have been permitted (getting a tattoo, say) by the time they reach eighteen, but suspected they could regret it later in life. you might still not allow it.
I presume this is similar to how someone who had to administer someone’s estate after he dies would be expected to make decisions, which the will had not provided for, as the deceased *would have wanted* and yet if the person was senile when he died, the executor would not be expected to make senile decisions on his behalf.
And you would want a high threshold before a court could override a parent’s assessment of what the child would want for itself. A tricky case (as now) might be something like puberty blockers for future gender reassignment (I’d still be tempted to go with the parent’s judgement on this).
Lastly, this analysis would seem to make abortion illegal as it is unlikely to be what the trustor version of the unborn child would want for itself. This would differ from the mainstream liberal/libertarian position which is that abortion should be legal even if you don’t agree with it.
What about this idea instead of the trustor/trustee relationship, seems simpler to me:
Having a child is creating a helpless human who can’t feed himself for the foreseeable future. It’s somewhat akin to taking somebody and putting him on a lonely island, or preventing him from working for his own food and shelter. Doing such a thing would presumably come with the obligation that the person you just made helpless doesn’t die or suffer due to the position you put him in.
And that’s basically the end of it. As soon as the kid can feed himself, or find reasonable better caregivers that a court would accept (not guy in a van), that can be done and the obligation is gone.
There’s no positive right at all here – the kid’s right not to starve is a direct consequence of your putting him in that position. It’s not a slippery slope to positive rights, except for people you put into a child-like, helpless position.
Another analogy would be that you run somebody over in your car, and he’s in a wheelchair and can’t work now. Well, you have to take care of him now. Not because he has positive rights, but because you caused his condition. (In this analogy it wasn’t even an accident, because you decided to have the child on purpose. But even in case of an accident, a court might reasonably decide that you’re now responsible for that person not starving due to your negligence.)
I’m a huge fan.
But… at about the 20:00 minutes mark into the podcast.
You said: “I think it’s crazy”. About children at age 6 being able to “run away” and find a better home. You said you disagree with Rothbard. Well, as someone who grew up in a dysfunctional home (to put it extremely mildly), the ability to run away and get adopted or live on the street, would have been of certain benefit to me.
Just the freedom to do so – would have put my home on alert – “be nicer or I’ll run away – I have alternatives”. I think Rothbard is super brilliant and would solve issues of child abuse (an actual example positive unintended consequences of anarcho-capitalism).
Thanks for the note. I’m of course very sorry for your childhood experiences. To be clear, if even a small child runs away and tells others of serious abuse/neglect, that is a different thing. I was saying the mere ability of a child to run away doesn’t demonstrate legal independence, in my book; that’s what I was calling “crazy.”