In my last post, I discussed an argument by analogy made by Stephan Kinsella and Tom Woods against the critique that parents have no enforceable obligation to feed or take care of their children in a libertarian society. The analogy was as follows: suppose A pushes B into a lake, and B starts drowning. Under libertarianism, A has aggressed against B, and therefore has an obligation to save B. Likewise, a set of parents that create a child but abandon him have aggressed against that child by putting him in a situation where he will likely die (like B who would likely drown on his own). Because of this, the parents have a positive obligation to take care of that child.
(Note: whenever I say “obligation” or “positive obligation” in this post, I’m referring to a positive enforceable obligation, not merely a positive moral obligation, unless otherwise stated)
Last time, I discussed why even if this argument works, the NAP still leaves rarer cases of child abandonment (e.g. rape) along with positive enforceable obligations to strangers (e.g. a random girl drowning) unsolved. This time I’ll discuss why I think the argument doesn’t even work.
In an interview with Daniel Rothschild about a year ago, Walter Block made some interesting arguments against this analogy. His main argument was that in the case of child abandonment, the parents’ act of creating the child and thus giving life to it actually puts that child in a better situation than he was before. Therefore, the parents giving the child life and then abandoning it would be analagous instead to a situation where B is about to get hit by an oncoming truck, and A pushes him and saves him from the truck but pushes him into a river. A has bettered B’s situation by saving him from the truck, but by pushing him into the river he has only given him a few more minutes to live. In this scenario, it’s not so clear that A has a positive obligation to save B.
However, ever since I heard Kinsella’s original analogy, I took issue with it but I was never able to figure out what that issue was. Listening to Block’s argument clarified it for me. Consider the following:
In making the analogy that if A aggresses against B by pushing him into a lake, A now has a positive obligation to save B, what is the comparable act of aggression supposed to be in the situation of the abandoned child? It certainly isn’t the act of [leaving the child alone] by itself. There are adults all across the earth who have no connection to the child and are leaving the child alone: we wouldn’t consider this an aggression. And it isn’t the act of [creating the life of the child] by itself. This would nonsensically suggest that all sexual acts ending in fertilization constituted aggressions. The act of aggression then is the series of acts, the totality of both creating the life of the child and later abandoning it.
Let’s say that the parents engage in the sexual act at time(t)=0 and and at t=100 they abandon the child. In addition, at t=1 the egg was fertilized and the child’s life came into existence (this necessarily happens after the sexual act since neither the sperm or egg is under the control of either man or woman after the sperm is released and the sperm takes time to reach the egg). Since the totality of both acts is what constitutes the aggression, the parents were aggressing against their child from t=0 -> t=100. But what this means it that the parents were aggressing against the child before it even existed.
As I said before, at t=0 the parents are engaging in the sexual act: the child does not exist yet. At t=1, the child comes into existence. But since someone making the river analogy is calling the series of acts from t=0->t=100 an aggression, they are necessarily saying the parents were aggressing against the child at t=0. Of course, we only know in hindsight that the action at t=0 was part of a series of acts constituting an aggression. But it nevertheless was part of it, and that implies that the parents were aggressing against tthe child before it existed.
This is a clear contradiction. In order to aggress, we must be aggressing against someone. If I attack Bob with a knife, I’m aggressing against Bob, and Bob necessarily exists. If Bob didn’t exist, I couldn’t attack Bob because there is no Bob. Likewise, if Kinsella and Woods say that a set of parents is aggressing against their baby, but the baby doesn’t exist, they are contradicting themselves. Therefore, the analogy does not work.
Tom Woods has a podcast out with Stephan Kinsella examining several arguments made by Matt Zwolinski against the non-aggression principle (see “Six Reasons Libertarians Should Reject the Non-Aggression Principle”). While I agree with the majority of their critique of Zwolinski’s article, I’ll here address my one major disagreement.
In October, I discussed the child abandonment issue for libertarianism at length, mentioning both the views of Murray Rothbard and those of Walter Block. As I noted, a Rothbardian, faced with the situation of a parent being thrown in jail for allowing his child to starve, would absurdly have to complain not about the blatant murder of the child, but instead about the fact that the parent was thrown in jail. With no positive obligations, Rothbard’s view of libertarianism allowed for a society where parents starved their children in the masses. There were no limitations and violence could not be used to punish or prevent these parents. Fortunately, one could, however, shout at them and tell them what terrible people they were (from one’s own property).
Block’s view was an improvement but still had some unreasonable leftovers. According to Block, in a libertarian society, a parent would have to notify as many people as practically possible around them (e.g. through a newspaper, or through adoption agencies, etc.) if he chose to give up ownership of his children. In addition, he would not be able to stop those trying to adopt his kids from coming onto his property in order to homestead them. However, in situations where the adults in the community were unwilling to take his children, or unable, due to poverty or lack of knowledge (due to a slow spread of information), the children could still starve to death, and no use of force to either prevent the parent from doing this or to punish him in the aftermath would be allowed.
In Woods’s podcast with Kinsella, the two promoted a third view and offered an interesting analogy. Suppose you push a person into a lake and he can’t swim so he starts drowning. According to Kinsella, by your voluntary action of pushing the person into the lake and aggressing against him, you now have a positive legal obligation to save him. Most of us agree with this, but is it libertarian? Perhaps just as you lose your rights when you aggress against someone, and they have the right to punish you and take restitution, you also have an obligation to reduce the damaging impact of your previous aggression. I find this plausible, but it does need to be laid out systematically. For now, let’s move on.
Like Block’s attempted fix, Kinsella’s unfortunately also leaves the child abandonment issue unsolved and libertarianism open to other criticisms under the category of positive obligations. For the former, consider acts of rape. Let’s say a woman is raped by a man, becomes pregnant, and has a child. If the man disappears or is imprisoned, he may not effectively be able to or be called on to take care of the baby. If the child’s custody then falls to the woman, how is Kinsella to deal with a situation in which she chooses to abandon the child? Since a mother who is a rape victim did not voluntarily choose to have sex and create that child, it seems that she, unlike the voluntary mother, has no positive obligation to take care of it. It seems, then, according to Kinsella and Woods, that a rape victim who becomes a mother can let her child starve to death.
What if we take Kinsella’s general view and add on to it Block’s view for cases of rape (I see no necessary contradiction between the two beliefs)? (EDIT 1-13: I’ve just realized that it is unnecessary for someone with Kinsella’s view to add on Block’s view. Kinsella’s view doesn’t just create a positive duty for someone who voluntarily has a baby, but also for someone who voluntarily homesteads a baby. However, the 2nd criticism in this paragraph still applies and the “drowning child” criticism further below applies as well.) Then the rape victim who chooses to abandon her child must notify as many adults as she practically can around her and not stop others who wish to adopt her child from coming onto her property in order to homestead him or her. However, we are then back with the same problem we had originally with Block’s view. In situations where a rape victim wants to abandon her child and there are no adults around willing or able (perhaps, again, due to poverty or lack of information) to adopt the child, she can legally let it starve to death. In addition, there is another scenario that proves troublesome. What if, after the baby’s birth, the mother who was raped never claims ownership of the child but simply lets it be? If she never homesteads her child, then Block’s solution doesn’t work; she doesn’t have to notify anyone she is giving up ownership if she never had ownership in the first place. This is hardly the extreme reductio we started out with due to the rarity of the situations, but it nevertheless poses a problem for NAP libertarianism: it threatens the principle’s universality.
Finally, what of the “other criticisms under the category of positive obligations” that the views of Kinsella and Block (respectively, but also if combined) leave libertarianism open to? Consider Peter Singer’s “Drowning Child” thought experiment. Let’s say you’re walking to class one day and you notice a child drowning in a shallow pond nearby. You could save him fairly easily and without risk to yourself, but you’d have to go through some trouble of getting your clothes wet and muddy. Do you have a positive obligation, and one that can be enforced, to save that child from death?
Most of us would agree there’s a positive moral obligation to save the child. Any person who chose not to because they didn’t care enough or were lazy would be an unethical human being. Would it be an enforceable (or legal) obligation though? This isn’t as clear, but I think most would still fall on the side of saying yes. It’s possible I’d oppose a “duty to rescue” law (like the Good Samaritan law on Seinfeld) forcing people to act in such situations, but my opposition would not center around it being strictly immoral to use force in such situations, but instead around practical reasons, e.g. is it easy to tell the motivations of the person, could he have just frozen up, was there risk involved, would a law be the right way to incentivize people? Meanwhile, the NAP libertarian would be forced to declare any law created or any force used as punishment against the bystander an aggression. If the government fined him $100, libertarians would call it theft. If an adult late to the scene came and punched him in rage for his inaction, libertarians would call it assault, and consider it justified for the “assault victim” (yes, we’re talking about that guy who just let a little kid drown to death) to press charges.
For those that are still unsure, luckily, it’s quite easy to come up with variations of the drowning child example to find other situations we can agree with more easily. For example, now let’s say that you’re a few miles away on the phone with your friend, and your friend is the one who walks by a shallow pond with a child drowning in it. He tells you about the situation and how the little girl is kicking and slapping her arms about wildly but says he’s going to be late for class and doesn’t want to help. You shout “How can you be concerned about your class at a time like this!? Go save the kid!” He refuses. At your wit’s end, you angrily and truthfully shout into the phone “If you don’t save the kid, the next time I see you, I’m going to beat the snot out of you.” Your friend, realizing your anger and believing your threat, finally decides to save the child.
If it wasn’t for the threat of force against your friend, the child would have died. Because of that action, the girl is alive and your friend has done his duty; he may even realize this one day and thank you for it. Again, most of us would agree that this threat is perfectly just. We might argue about some practical considerations like “maybe he should have tried persuading him without the threat at first,” but ultimately if a threat was necessary, it would definitely be justified.
Unfortunately, the non-aggression principle has no way to deal with this. Kinsella and the libertarians who agree with him must call the threat unjust because, like the rape victim who lets her child starve to death, there is no voluntary action linking the potential savior to the dying child and creating a positive enforceable duty between them. Finally, even those that agree with Block or want to apply a combination of both views, have no way of doing this either since the potential savior never homesteaded the drowning girl, as a voluntary parent does for his child, and therefore also has no link to her to create a positive enforceable duty.
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