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Woods and Kinsella on Child Abandonment and Libertarianism

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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Nuclear Weapons in a Libertarian Society: A Nuke for Everyone?

A common attempt at a reductio ad absurdum of libertarianism is the nuclear weapons argument: in a society following the non-aggression principle (NAP), wouldn’t every person be free to own a nuclear weapon (and wouldn’t that likely lead to the destruction of civilization)? In a post a few months ago, I argued that child abandonment is a fatal flaw for libertarians, but this time I’ll argue the opposite.

The most common response by libertarians against this reductio starts by pointing out that the NAP allows for the use of  purely defensive force, but not aggressive force (i.e. the initiation of force). For example, if Bob initiates force against Phil, and Phil responds by defending himself against Bob, Bob has committed a crime and Phil has not. But if Phil responds not just by using force against Bob, but by also initiating force against an innocent third party, he has gone beyond his right of self-defense and is now an aggressor himself. Since certain weapons, such as nukes, cannot be pinpointed and necessarily transgress the rights of innocent individuals even if they are directed at an aggressor, individuals have no right to own them.

Many (including previously even myself), especially those familiar with Austrian subjectivist economics, find this argument atrocious. They respond that yes, it’s true that individuals defending themselves can use force against aggressors, but cannot aggress against third parties. And it’s true that nuclear weapons cannot typically be used to defend oneself since it will break this principle by harming innocents. However, a typical use is not the only use. For example, in a very rare situation, perhaps the entire area that a WMD is targeted at contains only aggressors and no innocents. Or perhaps the nuclear weapon is “used” by being sent into space and harming no one. Or perhaps the individual owning the nuclear weapon is someone with merely historical interest in State weaponry and “uses” it by looking at and contemplating it. In other words, even if a weapon is typically used in an aggressive manner, that wouldn’t outlaw all ownership, but only specific uses of or actions with that ownership. For an analogy, just because a gun can be used to aggress against someone doesn’t mean we can outlaw it on that basis: there are many other uses!

What this objection misses (and it is not entirely the fault of those who make the objection – those who make the original argument generally do an extremely poor job explaining it and tend to do so in a misleading way, as I have done on purpose above) is two things: 1) it is not the initiation of force per se that is the issue at hand, but the threat of force, and 2) the way the entire libertarian system is defined, including what can justly be owned, what is considered aggression, and what is considered a threat, has continuum problems and is dependent on what is called the “reasonable man standard.”

Let’s first discuss point #1. The reason I call the original argument misleading is because it makes a person think the main issue at hand is the use of actual force, e.g. the dropping of a bomb or the firing of a weapon. As such, since there’s a distinction between ownership and a particular use of ownership, one naturally argues that ownership itself cannot be outlawed merely because a large number of typical uses involve aggression. But the use of actual force is not what is relevant. What is relevant to this argument is what is actually a threat. And the mere ownership of a nuclear weapon by various, random individuals would certainly be considered a threat by many.

This brings us to point #2 – what is a threat? It seems odd to define this subjectively, either by the individual(s) feeling threatened or the individual(s) doing what is considered threatening by others. The former seems strange because individuals often feel threatened by things that are not actually threatening. And if we were to accept this as a principled way of defining a threat, at its most absurd, we’d have to listen to insane and paranoid individuals calling others threatening for doing nothing of the sort. Meanwhile, there are some cases in which we’d accept the subjective perception of the individual(s) feeling threatened even if they were wrong. For example, Walter Block points out:

Suppose A comes rushing at B carrying a knife in the up-thrust position, while yelling ‘Kill!’ in a blood-curdling manner, whereupon B draws his pistol and shoots A dead. Later, it turns out that A was merely an actor, practicing for a part, and that the knife was made of rubber, as are most stage props of that sort. Is B guilty of murder? Not a bit of it. Rather, B would properly be judged to have done no more than exercise his right of self-defense. Even the reasonable man would have so concluded. (pp. 294-295)

In this example, if we were to follow the subjective desire of the “attacker” A, we’d consider B a murderer. But even in such a scenario we do not.

On top of this, what is and isn’t considered a threat is subject to continuum problems. For example, if A shakes his fist and shouts at B when he is only a few feet away, this could be reasonably considered a threat, and if B punched or attacked A first, it would be reasonable to consider B acting in defense and not an aggressor. However, if this occurred while A was a few hundred feet or a few miles away, etc. the opposite would hold true. This suggests that there is some point in between where A turns from an innocent individual into an aggressor and vice versa for B. However, any point picked seems arbitrary. Let’s say we chose 30 feet as our dividing point. Why not 1 foot more or 1 foot less?

The answer to both these problems is to use what’s known as the reasonable man standard. How would a “reasonable person” in a given society act under such circumstances? In practice, this would likely be determined by a jury of some number of disinterested individuals making a judgment on the case. The reasonable person would likely side with B in our first scenario: after all, how is he supposed to know that A is not “really” threatening him as he runs toward him with knife in hand. In our other scenario, the reasonable man would side with B if A was shaking his fist at him at a very close distance. At some further distance, the decision would become murky, but eventually it would fall to the opposite side.

How would the reasonable man standard apply to the case of nuclear weapons then? It is plausible to think that most people in a society would consider the mere possession of nuclear weapons by random individuals as a threat. For one, an analogy can be drawn between A shaking his fist under B’s nose from a proximate distance. After all, a nuclear weapon constantly poses a danger to those in its vicinity if it were to go off. And like in the other scenario, where A runs toward B with knife in hand, even if A does not intend to harm B does not necessarily mean the reasonable person wouldn’t side with B using force against A.

All of this is conjecture, of course, but that’s the point. There is no clear connection between the non-aggression principle and legal ownership of nuclear weapons, because nuclear weapons  fall, at the very least, on the murky area of the continuum of threatening behavior.

The Reductio Ad Absurdum of Libertarianism: Child Abandonment

As I’ve stated before on this blog, libertarianism (in its Rothbardian form) is a political philosophy with the non-aggression principle (NAP) as its foundation, stating that individuals may not aggress against or threaten aggression against other individuals and their justly attained property. Libertarians strictly deal with political questions such as when violence can be justly used and what sort of rights exist, but moral questions beyond that are set aside.

As such, libertarianism is a system of “negative (legal) obligations,” meaning that while it states you may not do X, and that violence may justly be used against you if you do in fact do X, there are no “positive (legal) obligations,” obligations of the form that you must do Y, and violence may justly be used against you if you do not do Y.

This inevitably creates substantial problems for libertarians, since most of us think there are at least some situations in which there are positive obligations of such degree or kind that violence can justly be used – either to make a person do something or punish him for not doing it. For example, wouldn’t a law obligating parents to feed their children be just? And if a child was starved to death through parental negligence, wouldn’t it be justified to use violence against the parent by throwing them in jail for murder? Common sense may say so, but libertarianism says otherwise. In a society with no positive legal obligations, parents could let their children starve to death. It’s true that parents could not directly attack or harm their children, but it seems parents could indirectly harm them by leaving them on their own.

Rothbard, describing the implications of the NAP, states:

Applying our theory to parents and children, this means that a parent does not have the right to aggress against his children, but also that the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights. The parent therefore may not murder or mutilate his child, and the law properly outlaws a parent from doing so. But the parent should have the legal right not to feed the child, i.e., to allow it to die. (The Ethics of Liberty, p. 100)

The problem with this is that it is so obviously the case that a parent starving his child is murder, and that laws against it and violence used to prohibit or punish it are just. Yet if a parent is thrown into jail for starving his child to death, the main complaint of the Rothbardian will not concern the clear and atrocious murder, but instead be about the (perfectly reasonable) fact that the parent was thrown in jail. And this is manifestly absurd.

Walter Block meanwhile has a slightly different view of what the NAP implies for the rights of children. In a paper discussing child abandonment, he makes the argument that the very process of homesteading (one of the ways people can come to own things justly, according to libertarians) carries with it certain implications because of its purpose in bringing previously unowned things into ownership. For example, “forestalling,” meaning to homestead a certain area of land, say, in the shape of a donut, and in the process make other land, on the inside, unownable (by refusing people through your own property), contravenes the entire point of homesteading, and is therefore illegitimate on libertarian grounds. Analogous would be the situation of a parent who, through the ownership of their house, forestalls the ownership of a child by not letting people through while the parent has given up ownership and decided to no longer feed it. In addition, to be logically consistent in giving up ownership of something, a person must enable others to homestead that object by making known the fact it is now unowned. Otherwise, as in the donut scenario, the process of homesteading is contravened. Therefore, the parent who gives up ownership of their child must both make it known they have given up ownership and allow anyone who wishes to homestead the child to do so. Anything else would be contrary to libertarian principles, according to Block.

While I do have some objections to this argument, what’s more important to note is that even according to Block, the problem is not fully solved. He states:

Would it ever be possible, under libertarian law, for a baby to be abandoned by its parents, for there to be no other adult willing to care and feed it, and the baby be relegated to death? Yes. However, this could occur only under the condition where the entire world in effect was notified of this homesteading opportunity, no roadblocks were placed against new adoptive parents taking over, but not a single solitary adult stepped forward to take on this responsibility. Since there are no positive obligations in the libertarian lexicon, it is logically possible for such a sad state of events to take place.

Giving up on demonstrating the conformity of libertarianism with our moral intuitions, Block is forced instead to argue that the chances of such an event happening is very low. However, while the terrible occurrence might be less likely to happen in a country such as the United States, it is far more plausible in third world nations where many people are in dire poverty. And it’s just not true that this could only occur without contradiction to libertarianism in situations where individuals were unwilling to take ownership of the baby. It could also occur if information could not spread very far or quickly enough.

For example, say a family of two parents and their one year old child somehow end up stranded on an island. The parents, not out of the lack of food or shelter or any other good reason, arbitrarily decide to stop feeding their child. There is no one in sight to yell for, and they make no attempt to inhibit someone from reaching their baby. Weeks later, the parents are discovered, but it’s too late for the child, who is found dead. According to Walter Block, it’s unjust for the saviors of the parents to throw them in a prison cell for their misdeeds.

It’s great that Block does attempt to make the libertarian philosophy more palatable by narrowing down the absurdity. Unfortunately, whether this attempt is successful or not does not matter. Even if it is successful, it simply is not enough: the leftovers are still unreasonable. Therefore, the libertarian principle is not universal.

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