Libertarian Theory and the Rights of Children

By Kevin LeCureux

Two years ago, my wife and I had just finished the training and paperwork to become foster parents. At the time, I wrote this post about a possible non-coercive way to help the children of bad parents. Today I want to look at the theory behind parental rights in a libertarian society.

Both libertarians and their critics often lament the gaps in libertarian theory regarding the rights and protection of children. In a purely libertarian, anarcho-capitalist society, would parents be free to neglect their children? Is forcing people to properly care for their children justifiable? Is the case of children in abusive homes a critical flaw in libertarian thinking? I argue below that it is not.

The foundation for dealing with bad parents (because that is really the core issue – not the children per se but the neglectful parents) begins with understanding property rights. I am not claiming that children are property in this post, so bear with me! As Rothbard (For a New Liberty, 52-53) and others have theorized, homesteading is the basis for original property rights. A person has a defensible claim to a piece of real property when he is the first to make use of and improve it from its natural state, or if he has acquired such property through legitimate means. The important component for this post is that I cannot walk up to 10 million acres of virgin, unclaimed land and “homestead” it by decree. I must exercise the duties of land ownership in order to attain the rights of ownership; that is, I must put the land to use and improve it in order to have a property claim to it, and only that land that I successfully use and improve can be called mine.

Similarly, parental rights — the right to make decisions on behalf of a child — are attained by exercising parental duties. You might say that bearing the costs and responsibilities of caring for a child is analogous to homesteading in the case of property rights. Of course, children are not really “homesteaded” as they do not exist in nature apart from adults waiting to be put to use. They are born, and we expect that those who give birth to them will take on the parental duties and rights that go with those children.

However, suppose that you see a set of parents that are not meeting their parental duties. They are seriously neglecting the children in their care, and you wish to help those children. As I said in my earlier post, one possible way – and I think the preferable way – is to try to improve the parents’ skills at parenting, perhaps even offering them financial incentives to do so. But suppose that does not work. Is there no other means of helping those children without violating the non-aggression principle with respect to the parents?

I think there is, and it brings me back to the point of how parental rights are established. If you started homesteading unused land, and someone came up to you and said, “Hey, this is part of my homestead,” though they clearly had not and realistically could not use that land, you would be justified in staying put, and they would be wrong to force you out. This is because the property right over unclaimed land is attained through the use and improvement of that land, not by decree. Similarly in the case of parental rights, if you see a child that is not being cared for by their parents, and you take that child to your home and start caring for her, her biological or nominal parents have no standing to force you to return her, as they had, in practice, given up their parental rights by not exercising the duties that go with them. You, by exercising the parental duties, have received the parental rights.

That is the core of the argument. Parents lose their parental rights and claims to custody of their children when they seriously neglect those children. They in effect abandon their children, even if they may still shelter them. Therefore, someone who is willing to take on the duties is justified in taking the children away from the nominal parents, even to the point of physical altercations, as the former have in effect become the new parents and are protecting their children against the neglectful parents.

Some make the argument that as parents are responsible for the existence of their children, it is justifiable to force them to provide proper care for the children, as to do otherwise is to initiate aggression against the children. While I agree with the assumptions there, I think it is an unproductive approach to the problem. Most people who neglect to care for their children do so not merely out of spite, but usually because of poverty or addiction problems. Trying to force such people to properly care for their children is as futile as forcing a thieving employee to continue to work for no wages.

Of course, there are other questions that are not so straightforward. What constitutes neglect serious enough to consider parental rights abandoned? Does it have to be life-threatening or merely have a negative impact on the child’s future? I don’t claim there are any universal answers to these or other hard questions, but these same problems face the coercive, state-run systems currently in place, and they have no answers, either.

As with anything in a voluntary society, the protection of children will be up to individuals who see the problems and are capable of helping. One of the appeals of the state is having a scapegoat for unsolved problems that you yourself are not willing to step up and address. If we want a truly better society, we must change our perspectives and be willing to take action like adults should.

Post originally appeared at Preposterous Preponderance

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