Re: SOC: Children's Rights (was: Tough Questions)
Sat, 18 Sep 1999 09:00:51 EDT

[ ... my apologies for the sporadic nature of my participation in the list; I'm in a particularly busy time at work ... ]

In a message dated 99-09-13 10:47:05 EDT, (Edgar W Swank) wrote:

> >I think this is an overly-static view of the status of children.

> >Children don't remain children: Unless someone interferes with
> >them, they become adults. Thus, with a child (as with any moral
> >and legal subject) one is dealing not only with what the person
> >IS, but what they have the potential to BECOME.
> Of course, but how does this make any difference to the parent,
> absent the ability to enforce an obligation on the adult, for
> services rendered to the child?

While I'm all for the classically liberal project of trying to cast as much of human relations into the mold of contract as possible (because that model best accommodates values of individual autonomy), the parent-child relationship has some unique characteristics that require flexibility in applying that model. In no other relationship does one party literally cause the existence of the other party. Obviously a new human being cannot give prior consent to being brought into existence in the first place. Likewise, an infant is simply incapable of forming the requisite intent to agree to be bound to any contractual arrangement with its parent, or anyone else, for that matter. Accordingly, the element of reciprocal agreement upon which our fundamental notions of contractual fairness are based seem to be inapplicable to the adult-child, and especially the parent-child relationship. By simple logic, this means that the notion "enforcing an obligation" incurred in childhood should work in a quite different manner than when we are dealing with one incurred by an adult.

> >Again, I think you can only liken the parent's position vis-a-vis the
> child
> >to "slavery" by taking a completely static view of the
> >relationship. You have to look backward in time to the point
> >where the parents chose to put themselves into the situation of
> >conceiving the child,
> Assuming they even had a choice, especially for the male. See

There is a wise old saying in common law jurisprudence that "bad facts make bad law". The situation in which men are forced into parental responsibility are extreme cases. It seems to me one can articulate a principle that people who do not consent to parenthood and who take reasonable precautions to avoid it, shouldn't be forced into parental responsibility. On the other hand, human children ARE people and their rearing must impose some burden on SOMEONE. I don't presume to have a perfect answer to this dilemma: Do you? There's a reason that issues of children's rights were included in a list of "tough questions."

> >and forward in time to the point where the
> >child is an autonomous moral subject. Only by putting on
> >temporal blinders can you ignore the (to me) obvious moral
> >responsibility parents have to their children.
> Not obvious to me! I'm not talking about voluntarily assumed
> responsibility, which most parents undertake willingly. I'm
> talking about responsibility imposed by 3rd parties (i.e. the
> state) on parents who for whatever reason are unwilling to assume
> it.

Here's the problem: On average, children who have loving, caring parents grow up to be better people than children who don't. (I know there are many exceptions: Good people have bad kids and visa versa.) Children - especially very young children - can suffer quite a bit if they aren't cared for properly. Most people have an instinctive desire to help children who aren't cared for properly and feel anger and disgust for adults who shirk their parental responsibilities. Unfortunately, most people reach for the first tool that comes to hand to express these feelings and address these concerns: The state. I'm not saying by any means that this is the right or best thing to do, but it is understandable.

Personally, I don't want to live in a community where people have children and then dump them on the street with impunity. I'd be willing to work pretty hard to develop and maintain a set of values, customs, laws and institutions to minimize the extent to which this happens. I'd also be willing to pay some significant cost for this, because I think it's obvious that poorly reared children impose costs on me, both when they are children and later when they become adults. This doesn't mean that I am willing to undermine important principles of individual liberty, but it does mean that we have to be willing to think clearly about moral responsibility and the real costs of irresponsible parenting.

> I challenge you to defend the logical interest of such 3rd
> parties in initiating force. In prehistoric times, there was
> possibly an interest in species survival. But the human species,
> or any identifiable subgroup, is in no such danger (at least from
> unhindered parental neglect) in these times.

If my neighbor sets up an industrial plant and begins to spew noxious effluent onto my property without my permission, I am justified in using force, if necessary, to stop him. Because the deleterious effects of irresponsible child rearing are less direct, they are more difficult to causally connect to direct harm to me, but those costs to me are nonetheless real. People who dump their kids on the street are creating a classic economic externality, just as my smelly neighbor is. If no other social institution is capable of doing it, then law must be employed to bring the cost of that irresponsible action to bear on the people who do such things.

If you doubt that the use of law to address such externalities is consistent with rigorous libertarian theory, check out the application of the Coase theorem to tort law, as discussed in Posner, et al. and as is clearly employed in the work of Bruce Benson, David Friedman and others.

Now, I'll grant you that the use of legal means to cause actors to bear the real costs of their externalities becomes a matter of applying fixed rules to fluid situations, but this is always an issue in the use of law as a tool of social order. Thus the old saying of "bad facts" making "bad law": Marginal cases, cases with extraordinary complexity and extreme cases always stretch the fairness of any rule. But that's the beauty of the common law method and why it is valued so highly by libertarians. Unlike inflexible legislative statutory law, the common law allows an organic evolution of rule-making in light of the concrete facts of real cases involving real people with real interests. Stasists don't like the common law because it is flexible and organic; they prefer the "one best way" envisioned by the "Continental" "code" system of social control.

The challenge to those who value liberty is in identifying the fundamental principles that must guide case-by-case rule-making. In the situations we're discussing here, the classic challenge of BALANCING powerful fundamental principles is very difficult. Ultimately, though, some balance MUST be struck: That's the responsibility that free people have to accept if they mean to maintain their liberty and not abdicate it to some central authority. Thus my comment about people getting what they deserve if they don't accept this responsibility.

> You can speak as an expert then. Are you aware of any
> court-approved contract obligating a child to repay his parents
> once he becomes productive for their investment in him? I don't
> think so.

No, and for a good reason: Children aren't capable of making enforceable contracts on their own.

People often have children for "non-rational" reasons. (In industrial societies, I would say they almost always do.) In the modern age, we're coming to understand WHY they do it with increasing clarity: Humans (like all animals) feel an urge to reproduce that is hard-wired into their natures by billions of years of evolution. In a very real sense, engaging in reproductive behavior is satisfaction of a biological urge in the same way that scratching a mosquito bite is. The difference between our own age and previous ones is that we have MUCH greater control over the extent to which we indulge our evolutionarily-determined biological drives. Instead of scratching a mosquito bite until I bleed, I can use the old method of self-control or, now, I can spray a little antihistamine on the bite and the urge will more quickly pass. Likewise, I and my partners can use a whole host of fertility control technologies to control the outcomes of sexual behavior.

Given that biological reproduction is now much more a matter of choice than ever before, the results of engaging in that behavior must be considered - especially by a libertarian - as a matter to be dealt with in terms of bearing individual responsibility. In the complex modern world, the notion of what is "chosen" behavior can become equally complex. Consider that someone under the influence of a psychotropic drug such as alcohol may not be "responsible" for the actions she takes when she is so intoxicated. But we don't excuse that person from the consequences of her actions while she is under the influence of the drug because of this. Instead, we consider that the choice to take the drug is the act from which the consequences flows, not, for instance, the "choice" to drive made while under the influence of the drug. Likewise, we may have to widen our view of what choices someone makes that result in the production of a child in order to properly place responsibility for the costs that it imposes on complete strangers to the "transaction" that is the proximate cause of the child's birth. This is NOT simple, but fairness in extreme cases never is.

> >> Children have the right to run away, and fend for themselves.
> >> This works fairly well right now in many 3rd world countries.
> >> c.f. "street children."
> >
> >I'm sorry, but I have to differ strongly with the
> >characterization that this "works fairly well". The hordes of
> >"street children" in the Third World result from a collapse of
> >civil society and are a tragic mechanism for propagating
> >dysfunctional societies.
> The societies of most 3rd world countries look pretty functional
> to me, hardly "collapsed." Street children that manage to
> survive are mostly pretty well integrated.

Well, we have a fundamental disagreement about a lot of this. I won't do the common thing of challenging your personal knowledge of the circumstances of life in the Third World. Instead, I will simply say that it seems obvious to me that the circumstances of life in most of the Third World appear to be miserably inadequate: Despite the fact that there is plenty of food in the world, there are hundreds of millions of underfed people; despite the fact that there is no shortage of information in the world, there are hundreds of millions of people who are illiterate and ignorant; despite the fact that there exist tools for creating peaceful societies, there are hundreds of millions of people in the world who have no security in their lives or property. These are facts not subject to doubt by well-informed and rational people and the contrast between the societies in which such conditions exist and those in the First World is no accident.

> >Such children are poorly socialized and
> >become cannon fodder for tin-pot dictators and other slime.
> Seems like an over-generalization. It seems to me in order to
> survive they have to become very well "socialized" and very fast.

Oh yes, the hordes of street children in Rio de Janero or Lusaka become socialized all right; they become socialized to a primitive order characterized by the tyranny of coercion.

> >Where do you think the gun-toting armies of 12-year-olds who
> >fight the civil wars in Africa come from? It's statements like
> >this that make people think that libertarianism is all about the
> >Hobbesian "war of all against all".
> >
> >> Another possibility is a "Kiddy Pound"
> >> where parents can bring unwanted children or children can run
> >> away to. Hopefully, an acceptable parent can be found for every
> >> child brought in. But if not, then the child can be put back on
> >> the street. Or, perhaps, if stray children become a pest, an
> >> unwanted child can be "put to sleep" as we now do to unwanted
> >> pets. I don't see how "society" has any motivation to protect a
> >> child which NONE of its citizens wants.

Well, to start off with, human children aren't dogs. Of course, if we treat them like dogs, we shouldn't be surprised if they grow up to act like them; which is my point about the armies of street children in the Third World. Beyond this, we can make the moral choice to put a stray dog "to sleep" if a home can't be found for them BECAUSE they are dogs, not people. Any moral philosophy that could justify killing biologically viable unwanted children is inhuman. If you defend such a moral philosophy, then you do indeed have something to fear from the kinds of "Super Intelligences" we discuss on this list, because the relationship between an unaugmented human and such a being is precisely analogous to the one we are discussing here.

> >Just FYI, it was a situation like this that made 19th century
> >England turn its back on classical liberalism.
> ... and sacrifice their natural freedoms on the altar of
> "suffering children." Other people's suffering children. Crazy.

Well, I would say that you have "thrown the baby out with the bath water" (pun intended) in raising the value of a parent's liberty to such a high value that we could be morally justified in killing children they reject. This seems to me to be the kind of absolutist moral thinking that results in tyranny. If you raise one value above all others and then apply it inflexibly, narrowly and simplistically to every conceivable situation, you have the logic of bloody revolution. This is the methodology of Marat and Lenin and Hitler. Saying that you are radical in the service of liberty doesn't change this, in my opinion.

> >We've been paying
> >the price ever since. If free people can't develop better
> >institutions to deal with suffering children than this, they will
> >get the kind of nanny-state they deserve.
> If we don't enslave ourselves, then the state will do it for us.
> Sounds like a no-win situation to me.

Submitting to rational laws is not enslaving ourselves. Liberty doesn't mean "whatever I want".

> >With respect, I
> >suggest you try to see a performance of "A Christmas Carol" this
> >year.
> Saw it. The pre-transformation Scrooge is my hero. He presumably
> provided a better job for Bob Cratchit than he could find
> elsewhere. He was not responsible for Tiny Tim's problems. He did
> not initiate force against anybody.

And he would die before the full effects of his Benthamite "poor house" solutions would spawn their full effect. Check out George Orwell's little-known masterpiece "Down and Out in Paris and London" for a chilling depiction of life in the society created by the unreformed Scrooge.

     Greg Burch     <>----<>
     Attorney  :::  Vice President, Extropy Institute  :::  Wilderness Guide   -or-
                         "Civilization is protest against nature; 
                  progress requires us to take control of evolution."
                                           Thomas Huxley