George Smith has authored an extremely underrated book that I want to recommend all libertarians to read. I'm talking about, is atheism the case against God? Now, a lot of people neglect this work. I think it's unfortunately neglected by libertarians because those of you who are atheists figure, well, I'm already an atheist, I don't need to hear any more arguments against God. And those who are not atheists aren't really interested in reading the book. And so the book remains unread. But it's more than simply a refutation of the idea of God. George, in atheism, the case against God has, I think, one of the best introductions for laymen into philosophical discussions of metaphysics, epistemology and ethics. In fact, if I was going to write, if instead of George making up David's reading list, I would put that book as the introductory one to start with. There's an awful lot valuable in there that I think you all could get out of it, especially in the light of the interest in the debate the other night. George is also the author of an article that just recently came out in the Journal of Libertarian Studies entitled, Justice Entrepreneurship in a Free Market Society. Anyway, I believe that's another pioneering work by George. It delves into issues involving justice and retaliation and the role of convention in defining aggression and that sort of thing in a way that it's one of the most stimulating pieces that I've recently read in the entire libertarian movement. In fact, I don't want to embarrass George, but I would say that in terms of my own intellectual development, I would probably place George's works second only to those of Murray Rothbard. Again, this is an obscure piece that a lot of you might not have heard about, so I'm going to recommend that you try and dig it up. George has a book, Fourth Coming, which I haven't read on education being published by the Cato, by Avery Publisher, and I expect that it will be as path-breaking as his previous works. His topic for this afternoon is, Do Children Have Rights, which is actually related to the Fourth Coming book. Thank you. The subject of children's rights is often regarded as one of those gray areas of libertarian theory, although it's been dealt with, I think, in a very fine manner. Although the subject has been dealt with in a very fine manner by such people as Bill Evers and Murray Rothbard, nevertheless there's still a lot of work that remains to be done, I think, on the theoretical level on the subject of children's rights. Now, I've got a lot of material here, so I will apologize in advance for going through it rather quickly. Some of it, unfortunately, is somewhat technical, but there's so much groundwork that has to be laid that I really feel obliged to cover some of this material, so I hope you can follow it satisfactorily. Let me state at the outset that I'm not going to be dealing with a whole gamut of problems surrounding the issue of children's rights. I make a distinction in my own mind between what I would call infants, meaning by that, children before what we'd call the age of reason, children, infants who simply are not able to reason in any recognizable sense, who are unable to consent, who are unable to engage in voluntary relationships such as a newborn baby, that kind of thing. I would distinguish that sort of child conceptually from what I would simply call a juvenile or a minor, namely a young juvenile, say, eight, nine, ten years old, who clearly, on some level, can reason and think for himself or herself, and who is capable of making contracts and so forth. Now, with the second category, I think the libertarian position is quite straightforward, that juveniles should have simply the same rights as adults, and I would commend to you articles like Murray Rothbard's article on Kid Lib, which is republished in his book, Egalitarianism is a revolt against nature and other essays, so I'm not really going to deal with those problems relating to that age of child because I think that's a relatively straightforward sort of thing for libertarians to deal with. What I would like to do instead is to deal with the much more troublesome issue of infants, and this is an area that libertarians often have a problem with. And let me state also at the outset that I'm not going to be dealing with a subject in what may strike some of you as a rather highly abstract and bloodless way. That is, I'm not speaking of the psychological relationships and bonds that tie together parents and children. I'm speaking of those abstract sort of legal principles that should apply, in my opinion, when there's some kind of conflict. For example, if a parent is treating his infant, feeding him food that you regard as improper or not sufficiently nutritious to sustain the life of that infant properly and perhaps lead later to problems in a child's later life, does a third party have the right to intervene and dictate to a parent what that parent should teach the child, or indeed whether it should teach it at all, whether it should give it an education, what it should feed it, how it should care for it. The kinds of problems I want to deal with are these problems when they relate to infants rather than juveniles. With juveniles I would simply say, ask the juvenile. And whatever the juvenile says, if he wants to stay with the parents, if he wants to leave, that's what should be respected, the right of the child to make his or her own decision. But as I indicated before, we really can't make this sort of judgment in the case of infants because infants are incapable of communicating in any really clear sense, and presumably they're incapable really of understanding what it means to consent to something to begin with. So understand we're talking about very, very young children. Now, so I don't mean if you want to get into the things about parent-child relationships, how you can deal psychologically with children so you don't have to coerce them. I would recommend something like Peter Bragan's recent book, which has a rather long and a very good section on parent-child relationships. Psychologists like Heimgenat have written on this kind of thing. And there's a rather extensive body of literature, a very intelligent body of literature by psychologists, pointing out how children and parents can get along perfectly well without the parent introducing coercion in the relationship. But that is not my subject here. Now, as I said, the term infant as I'm using it designates a child before the age of reason. Now later on I'll discuss some criteria by which to distinguish when exactly an infant reaches the age of reason. But for right now I'd simply like to say that an infant lacks the ability to reason on any significant level. Consequently an infant is unable to formulate goals and appropriate means. And it fails to grasp causation in human affairs. That is, an infant fails to understand the relation between conduct and consequence. In short, even if the goods necessary for survival, food, clothing, etc., were made available to an infant, if they were put before him, he would still be unable to utilize them effectively. An infant is a child who by its very nature is dependent upon another person. Even in the best of circumstances, an infant is unable to survive simply by itself, by its own actions. Now because dependence is an essential feature of infants, some person or persons must care for an infant if it is to survive. Whereas dependence is an option for non-infants in this sense, it is a condition of survival for infants. Infants as a class would perish without aid from adults. Because adult supervision is necessary for infant survival, no political theorist that I've ever run across has ever denied the legitimacy of such supervision. Even granting, however, that some adult must supervise and care for infants, it does not follow automatically that the natural parents have the overriding moral claim to this role. In other words, why may not a third party who believes that he can care for the infant better than the natural parents or the legal guardians, snatch the child from the custody of its parents? What rights, if any, do the parents have that preempt this kind of child's stealing? What is the basis of parental jurisdiction over an infant? A jurisdiction that precludes a third party from depriving the parents of custody? In other words, the point here is that somebody has to make the decision for the infant, granted. The question then becomes who makes it? Who has that right over the infant to make that decision? Is it the parents absolutely? Are there some circumstances in which a third party can intervene and co-opt the decision of the parents in favor of another decision? That seems to me to be the crux, the really key troublesome issue confronting any theory of infant rights. Now, political theorists have offered a variety of answers to this question. I've divided the reasons most commonly given into three general categories or models. Now, this classification does not fit neat... I'm sorry, many philosophers don't fit neatly into one category or the other, and others employ more than one model, even though I think these models are, for the most part, mutually inconsistent. After sketching the basic characteristics of each model, I want to examine their approach to basic questions such as infant abandonment, enforceable duties by parents, the right of third party intervention, and so forth. Finally, I want to expand on the model that I find the most satisfactory, which I call the Guardian Ward model, and I want to examine some of its implications. And before I proceed, I should mention that it's a credit to libertarian history that libertarians have always been on the cutting edge of discussion of children's rights. Some of the earliest literature we'll find on children's rights comes from the pens of libertarians. Herbert Spencer, in his book Social Statics in 1851, wrote, to my knowledge, the first explicit discussion. He had an entire chapter called Children's Rights and came out hard line on the right of every child to his personal liberty and so forth. This has been a long-standing theme in libertarian literature. Now, the first model that I want to discuss, I call the Contract model. This model portrays the infant-parent relationship as resting on a quasi-contract and therefore as resting on consent. Parental jurisdiction, according to this view, derives from the delegation of this right from the infant to the parent. We thus have, so to speak, a principal-agent relationship. The parent acts as an agent for the infant, providing for its care in exchange for which the parent has jurisdiction over the infant. For a third party to intervene, according to this model, would be in violation of the contract between the infant and the parents, only if parents violate their side of the agreement, such as by neglecting to care adequately for the child, would a third party be permitted to intervene on this model. Now, the obvious problem with the contract model is that infants are incapable of giving or withholding consent. The picture of a newborn infant delegating a right of supervision to its parents stretches the imagination to say the least. Of course, proponents of this contract model are aware of this and they rest their case not on explicit consent, but rather on tacit or implied consent. As Samuel Pufendorf, a very important 17th century legal theorist, put it in his defense of the contract model, quote, it is rightly presumed that if an infant had had the use of reason at the time of its birth and had seen that it could not save its life without the parent's care and the authority therewith connected, it would gladly have consented to it and would in turn have made an agreement with them for a suitable bringing up, close quote. This has been argued by a number of other philosophers, by the way, it's a very popular position. Now, the supposed contract between infants and parents is quite simply a fiction, and the appeal to what an infant supposedly would have done if it could reason is highly speculative. Suppose a wealthy third party wishes to deprive a poor couple of their newborn infant. It's quite possible that a newborn infant, prior to forming an attachment to its natural parents, would opt for the rich third party if it were able to reason. It might very well prefer a life of luxury to a life of poverty, so it might conceivably delegate provision to this third party who desires custody. The tacit consent model, aside from its other shortcomings, clearly fails to explain why parents should have, should be the presumptive guardians over competing third parties. Now, before leaving the contract or the consent model, I want to highlight some of its underpinnings because they're quite interesting. First, to its credit, this model begins by granting equal rights to infants. An infant, as Pufendorf said, quote, has the right naturally belonging to all men, close quote. The contract model fails in its attempt to explain how, starting from a position of equal rights, parents can legitimately claim jurisdiction over infants. A curious feature of the contract model is it begins by assuming not only equal rights for infants, but equal capacities as well. Of course, it does not literally claim that infants have adult capacities, but it postulates a condition where infants have the capacity to reason. Infants, in other words, are construed by the contract model to be hypothetical adults, or adults in the process of formation. Thus, in contrast to the two models that follow, the contract model is based first on the idea of equal rights for infants, with which I agree, and B, on equal hypothetical capacities of infants, with which I disagree. And it's this latter premise as I indicated that I find troublesome. Now, the second major model is the ownership model, as I call it, and this has been defended from a number of different perspectives, and I want to just touch briefly on some of these and then concentrate on it as it's been defended by Bill Evers and Marie Rothbard, and offer some objections to that, and then go on to my own alternative. The ownership model posits a property right by parents in their infant, and this provides a straightforward basis for parental jurisdiction. Ownership models often disagree as to which parent has the primary right of ownership, the mother or the father, but this issue is really not important here. In its most extreme form, the ownership model argues for the absolute right of property in infants. We see this in the classical doctrine of Pottestas, which was upheld in Roman law, where the power of life and death over a child was vested in the father, a right that extended throughout the life of the child. Even when the child was grown up, the father in Roman law could theoretically still put the child to death. And we see a similar property approach, in effect, if not in name, in certain patriarchal theorists, as they're called in the 16th, 17th centuries, such as Bodan, Filmer, and others of that ilk. Curiously, one of the few theorists in the last 100 years to defend the absolute ownership of the infant by the parents, or specifically by the mother, was the individualist anarchist Benjamin Tucker, the editor of Liberty. A helpless infant is, according to Tucker, the property of its producer, the mother. And as much as we may abhor and condemn cruel or injurious treatment by a mother toward her infant, no third party, according to Tucker, has the right to intervene in maternal actions. Now, Tucker argued that this maternal ownership terminates when the infant attains the age of reason. The prohibition of all third party intervention whatsoever, even to prevent parental aggression or murder of an infant, is the logical corollary of the absolute ownership model. For if a child is property, then the owner or owners may dispose of the child as he or she sees fit. And in fact, Tucker was willing to take it this far, saying he didn't think it would ever be a realistic problem, but if a mother did want to burn her baby in oil, no third party would have the right to intervene. The accepting of a reductive ad absurdum, you might say. Although the absolute property model explains parental jurisdiction, it does so, obviously, at a very high cost. Such ownership requires not that we view infants... that we view infants not as self-owners, or indeed as the possessors of any rights, but as chattel. The notion of injustice, as Aristotle explained many years ago, does not apply between an owner and his chattel. An owner cannot act unjustly towards his property. What would it mean to commit an injustice against one's car or one's television set, for example? Thus, justice no third party has the right to intervene between an owner and the use of his television set, even if the owner decides to destroy the set, so no third party has the right to intervene between the parents and the disposal of their infant under the absolute ownership model. Now, a highly modified version, and it's really a different version altogether, but it still falls roughly under the ownership model. A version of this model attempts to combine the ownership model with the guardianship model that I'll be discussing shortly, and it's found, as I mentioned, in the writing as far as I know of two leading libertarian theoreticians, Murray Rothbard and Bill Evers. Now, to quote from Murray's forthcoming book, which is being published, I understand, later this year, and he has an excellent section there on children's rights, he says, quote, we may say that the parents, or rather the mother, who is the only certain invisible parent, as the creators of the baby become its owners. A newborn baby cannot be an existent self-owner in any sense. Therefore, either the mother or some other party or parties may be the baby's owner, but to assert that a third party can claim his ownership over the baby would give that person the right to seize the baby by force from its natural or homesteading owner, its mother. The mother, then, is the natural and rightful owner of the baby, and any attempt to seize the baby by force is an evasion of her property right, close quote. Rothbard goes on to say that infant ownership by the mother cannot be absolute. It must be limited in time, so as not to extend beyond infancy, and it must be limited in kind, so as to forbid the murder or torture of an infant. At this point, Rothbard advances a version of the guardianship model. He says, quote, we must therefore state that even from birth the parental ownership is not absolute, but of a trustee or guardianship kind. In short, every baby, as soon as it is born, and is therefore no longer contained within its mother's body, possesses the right of self-ownership by virtue of being a separate entity and a potential adult. It must therefore be illegal, and the violation of the child's rights for a parent to aggress against his person is in him, close quote. Now in contrast to the patria potestis of Roman law, or the absolute maternal ownership defended by Benjamin Tucker, we may label Rothbard's version as a limited ownership model, or as a combination of ownership guardianship. It addresses the problem of parental custody by maintaining that parents, or the mother in particular, has a homesteading right in the newborn infant. This is also defended by Williamson Evers and the Bill Evers in the following terms, quote, under this conception of the status of children. Because parents have produced a child, they have a right to the initial custody of the child, stemming from a simple extension of the Lockean labor mixture, homesteading principle to the production of children, close quote. Now you understand why caution to you that we're talking about legalistic terms here. Nobody's actually advocating that this is the basis for the bond between parents and children. I hope that's clear. Now before criticizing this view, let's examine some of its implications. First, the duties of parents to infants accept the negative obligation to abstain from aggression. Thus, except in the case of physical aggression, no third party would have the right to intervene. No third party could demand that a minimum level of care be maintained. The parent, as Rothbard says, quote, 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, close quote. Secondly, this entails the right of infant abandonment. The parent, according to Rothbard, quote, should have the legal right not to feed the child, that is, to allow it to die. The law therefore may not properly compel the parent to feed a child or to keep it alive, close quote. Now an interesting problem arises concerning this right of infant abandonment. Does the parent owner have the right not only to abandon the infant, but to prevent a third party from coming to the infant's rescue? Bill Levers does not think so. He doesn't think so, but if they decide to physically abuse or to abandon a child or feed us, parents cannot rightfully prevent an outsider from taking on support of the child, close quote. The reasoning here is unclear, however. Granted, if a parent places an infant on the sidewalk, clearly demonstrating his intention to abandon his property claim, the infant would then revert to unowned property and a third party could re-homestead the infant. But suppose a parent does not renounce his property right in this way. Does the infant at home in a crib and refuses to care for it or feed it? Does a third party here have a right to assume custody in this case against the express wishes of the parent owner? In the limited ownership model defended by Rothbard and Evers, the answer, in my opinion, must be no. If the infant is truly property and if the parent has no positive legal obligations of care, then the parent can not only refuse care, but also prevent third parties from rendering care as well, as a claim of ownership. Third party interference here would be a clear violation of parental ownership. As an illustration of this principle, suppose that one leaves a television set on the sidewalk for the garbage collectors. It may be reasonably assumed that this act constitutes a renunciation of one's title to the set, say, in which case it reverts to unowned property. Hence, a third party may re-homestead the set and claim legitimate ownership. But suppose that one keeps a broken set in one's home, refusing to fix it, including the television here, because it still belongs to the original owner. It is not a condition of ownership that the set be maintained in good working order and a third party cannot rest title to the set from its owner for failure to so maintain it. Now, the limited ownership model must reach an identical conclusion in the case of infants. If the continued, although limited ownership of an infant does not rely upon a minimum of parental care, not even enough to keep the child alive, is a situation in which a third party may legitimately intervene to save the infant's life. Now, a variation and a very important variation of this problem occurs when Jehovah's Witnesses refuse to approve blood transfusions for their children, even when the transfusion is necessary to save a child's life. If the child is no longer an infant, if he is able to understand the situation and either give his consent or withhold it, then all libertarians, I hope, would agree that the child should have the right to decide his own fate. The wishes of the parents and the minor as a self-owner has the right to decide on such matters. But with a newborn babe, the situation is dramatically different. An infant is unable to decide or even comprehend the problem, so a decision must be made for him by someone. Who makes it? The parent owners according to the limited ownership model. It is their prerogative to give or withhold care according to their own judgment. A 1974 case decided in the District of Columbia Superior Court dealt with precisely this problem.  The mother refused transfusions for herself and both parents denied permission to give them to the infant. The judge honored the mother's request for herself but ordered treatment for the infant. He reasoned that the infant should at least have the chance to reach an age where it is capable of making such life and death decisions for itself. The contract model, which I discussed originally, let me skip that and we'll short on time. Let me just go to the limited ownership model here. The limited ownership model that I've been discussing must place the right of decision-making in the hands of the homesteading parents. They own the child to some degree but they have no positive obligations to it. If they decide to let it die rather than permit medical care or any kind of care then that is their business alone in which third parties have no right to interfere. The fact that their refusal is based on religion or concerns medical care is irrelevant. If a magical spirit informs a mother that evil forces are attempting to poison her baby and she consequently refuses to feed the baby anything then her judgment must prevail over the attempt of third parties to intervene according to the limited ownership model. Now having examined some implications of the Rothbard-Evers ownership model I should now like to examine what are some of its weaknesses. Perhaps its most serious deficiency in my view is its attempt to combine ownership and guardianship. This model maintains that guardianship is a species of ownership. A kind of ownership which is limited in duration and extent. In fact as I shall argue shortly it is an error to equate ownership and guardianship because they rest on fundamentally different premises. Guardianship is not a kind of property relation. Indeed inherent in the guardian ward relationship is a positive obligation of the guardian to the ward. This is how it has been treated in legal theory as well, an obligation that does not exist in ownership. The basic question that must be answered by any proponent of any ownership model whether absolute or limited is the following can any human being be owned by another human being in any respect whatsoever? In other words, is it ever permissible to regard human beings as property? This is especially troublesome for defenders of self ownership. If a mother has a property right in her infant it is unclear why this right should expire after a certain time or why the right should be limited in extent. If the infant is owned by another it cannot be a self owner and if the principal is admitted that a human being can be property then it seems that the mother's ownership should continue until she relinquishes it voluntarily. And as if Rothbard states in a passage quoted previously quote, a newborn baby cannot be an existent self owner in any sense then it seems that the right of a mother over her infant should be absolute which leads us to the position defended by Benjamin Tucker. Now shortly after asserting that infants are not self owners elsewhere Murray Rothbard states that quote an infant possesses the right of self ownership by virtue of being a separate entity of a potential adult, close quote. Now in my view this remark conflicts with the earlier comment that infants lack self ownership and it illustrates I think the tension between the ownership model on the one hand and the guardianship model on the other hand. In order to assert that a parent homesteads an infant and thereby gains a property right to it an infant must be denied the prior right of self ownership. Even the mother after all could not homestead her baby if the baby had a prior moral claim to self ownership. But in order to escape the consequences of the absolute ownership model which would imply the right to murder an infant Rothbard and Evers appeal to parental property a parental property right that is limited by the self ownership of the infant in some way. Thus after excluding infant self ownership as a means of leaving room for parental ownership the Rothbard-Evers model reintroduces infant self ownership as a means of limiting the extent of property jurisdiction over a child. This model thereby moves from the parent as owner and the infant as property to the parent as guardian or trustee and the infant as self owning ward. But there is a serious problem here as I said. If the parent owner is forbidden to aggress because of the infant self ownership then does not that same right of self ownership previously denied now exclude any property right whatsoever of the parent to begin with. In other words I don't see how self ownership can be kind of it's like being partly pregnant in my view. You either have self ownership or you don't. And I think that's the main problem with this model. Now it's quite true of course that self ownership need be absolute. Ownership may be limited in extent and time. For example one may purchase the mineral rights to an acre of land for a specific period of time. One has the right to use the land for this purpose but for no other and this right expires after the specified time. Presumably this is the kind of absolute ownership that Rothbard and Evers have in mind. And ownership limited by the prior rights of the infant. All property claims therefore need not be absolute. But the central question here is not the kind of property right that we have in infants but whether infant should be regarded as property to begin with. There can be different kinds of ownership in land and minerals but this presupposes that land and minerals are capable of being owned. Once we agree that land can be property we can then discuss different kinds of ownership in land. But whether land can be owned in some fashion at all is itself an either or proposition. It does not admit of degrees. If land cannot be legitimately owned then it is futile to discuss varieties of ownership. Similarly if we agree that infants can be property in some sense then we can determine just what kind of ownership is appropriate. But whether infants are properly subjects of ownership in any sense is an either or proposition. And to grant infants the right of self ownership is I suggest to remove them from the realm of property altogether. Just as self ownership was the moral basis of the radical anti-slavery vanguard in the 19th century because the abolitionist realized that a self owner could not properly be owned by another, hence the term man stealers to describe slave holders. So the description of self ownership to infants precludes ownership by another. Infant self ownership forbids any homesteading rights to infants in any property sense. Now having made that rather extensive critique, and by the way the reason I'm focusing on the Rothbard-Evers model is that libertarian philosophers are virtually the only people that are willing to talk about these kinds of subjects. I would be happy to go through a bunch of other modern philosophers if I could find any who are willing to talk about and offer some kind of comprehensive theory to explain this extremely troublesome topic. But unfortunately although there's a few things that have started to appear recently libertarians are the ones really willing to touch this in any kind of systematic form. And I think that's very much to the credit of libertarian thinkers. Now let me move on finally to the guardianship model and the model I propose instead. It has many similarities with the limited ownership model but it has some important differences and I suspect this may spark some controversy. The guardianship model as I mentioned before should not be confused with the ownership model. Guardianship is not a species of ownership. A guardian requires a ward and a ward is not property. A guardian attains jurisdiction over a ward in order to execute a duty to the ward. The right of a guardian over a ward depends on the reciprocal duty of the guardian to fulfill a basic condition of the guardianship. There is no such duty in regard to property. Now neither should the guardianship model be confused with the contract model. A guardian is not an agent of the ward. A delegation of authority requires the knowledge and consent of the principal. No such knowledge and consent is possible for an infant. A contract requires a bilateral agreement and this is possible only for individuals who have attained the age of reason. An infant as I said is unable to appoint an agent to act in its behalf. The guardian ward model is a legal category that is entirely distinct from both the ownership model and the contract model. It applies to human beings excluding it from the ownership model and it applies only in cases where there exists a radical inability or deficiency in a human being that is the infant the potential ward. Such that the infant is incapable of judgment and consent which excludes it from the contract model. The guardianship model has been used in some fashion by many many political philosophers who have discussed children's rights and these theorists have frequently reached conclusions that are quite different from mine so I'm not suggesting that there's something inherently libertarian about the guardianship model. A good deal depends upon one specific interpretation of guardianship as well as on one's theory of infant rights. Therefore we shall not attempt to examine the many avenues that previous guardianship advocates have taken. Instead I want to examine a model of guardianship based on the idea of self-ownership of the infant. Now the following and I'll kind of run through these as quickly as I can. The following kind of randomly stated are the basic conditions required in order for a guardian ward to occur and it's important to be clear about what these conditions are. First to repeat because this is an extremely important point. The ward must be incapable of judgment and consent. This does not mean that the ward must exercise good judgment and reasonable consent as judged by the standards of another person. It means that the ward must lack the ability for these activities at all. There is a crucial difference between exercising poor judgment and simply being unable to exercise judgment at all. An infant by the definition I'm employing in this discussion has not attained the age of reason which is another way of stating that the infant is unable to judge or consent. Guardianship therefore applies to infants but it is important to note that it does not apply to adults who because of their eccentric behavior are deemed foolish by their family and friends or society. To repeat we must distinguish between the absence of a faculty as in the case of infants and the exercise of a faculty in a manner disapproved of by others which is the case with eccentric behavior. Next I maintain that the infant as a ward is a self-owner. It has the right not to be aggressed upon and it has the right to exercise its faculties as those faculties develops as it matures into into a later age. But the infant is also a helpless independent being. That some adult assumes the role of guardian over it is a necessary condition of its survival. The decisions of a guardian do not counterman the infant's own decisions. If the infant were capable of decision making it would have attained the age of reason and would no longer be a ward. It could then deal with adults contractually or voluntarily. Because the infant lacks the ability to reason it lacks the ability to deliberate and reach decisions affecting its own life. Thus the function of the guardian is not to correct so to speak the foolish decisions of the child but is to make decisions concerning the child where the child is simply incompetent to make those decisions. The guardian is a surrogate decision maker for the ward. Now the incompetence of the infant and its resulting helplessness and dependence on adults qualifies it as a potential ward. But if, as I have argued the infant is a self-owner then the parents do not have a first claim on the guardian role in virtue of homesteading in virtue of property rights. Neither can the role of guardian be forced upon unwilling participants. The guardian role must be assumed voluntarily and it bestows upon the guardian the initial custody. This means that decisions affecting the child are now within the moral domain of the guardian and that with one exception which I shall examine shortly, no third party has the right to intervene in guardian decisions so long as the guardians actions are non-aggressive towards the child. Now here's the key question. What gives the parents the initial custody going back to the first question I raised? Why not some third party making these decisions for the child? The fact that parents are the original guardian in my opinion is what gives them custody. The mother in particular by carrying her pregnancy to term and by carrying for the infant upon birth demonstrates her intent to act as guardian and thereby precludes any third party competitors. If there is any sense in which we can speak of homesteading in regard to infants it is this first claim of guardianship rights. But this is really quite distinct from property rights in the infant per se and although it may not seem like an important distinction now I'll point out shortly what is important distinction. Infant custody means the right of jurisdiction over an infant in matters affecting its life but rights in legal philosophy imply corresponding obligations or duties. So where may we ask is the duty that corresponds to the right of guardianship? In other words if the parent has some sort of right over the infant how can we speak of a duty of the infant back to the parent? It's plainly absurd to speak of an infant's duty to obey its guardians since an infant is incapable of obedience or disobedience the right of guardianship and this is a key point here. The right of guardianship is directed not so much at the infant as it is at third parties who may disagree with the manner in which the infant is raised. In other words the right of guardianship implies the corresponding duty of third parties to abstain from interfering in the guardian ward relationship. Third parties may disapprove of the manner in which an infant is raised but their disapproval cannot legitimately be transformed into coercive interference. The guardianship model as I've outlined it thus far reaches conclusions that are virtually identical with those of the limited ownership model defended by Rothbard and Evers. But differences appear when we consider positive obligations owed by the guardian to the ward obligations that cannot arise in the ownership model. Now recall that the parents have no natural jurisdiction over an infant who is a self-owner and cannot be owned by another. Neither can the parents be forced to assume the role of guardianship but if the role of guardianship is voluntarily accepted by the parents then the basic custodial right of guardianship that is to exclude third party interference can be maintained only if the fundamental duty, the reciprocal duty of guardianship is maintained as well. Now here comes the really troublesome and controversial part. What is this duty so called? I maintain that it is the duty to maintain and preserve the life of the infant. If the guardian fails to provide the care necessary for an infant's survival then the guardian in effect abandons the basic responsibility that generated his initial custodial right. At this point third parties may intervene to provide care for the infant and in extreme cases perhaps even to deny to the former guardian any future custodial rights. And here we get into a very, very complicated and tricky area. The limited ownership model denies, the Rothbard Evers models denies that parents have any positive obligation to their infants that is obligations enforceable in law. It contends that a parent merely has a duty not to aggress against an infant, a negative duty that parents really owe to all individuals, infants and adults. If the right of parental custody is based on a property right as the ownership model says this is indeed a consistent position to uphold. But if, as I argue, the right of initial custody is not a property right but is the right of guardianship then the situation changes. An infant requires a guardian in order to survive and it is a survival requirement that injects duty into the guardian role. The right of infant custody can arise only if the basic need that generates this right is fulfilled. That is to say, a parent acquires a special jurisdiction over an infant a jurisdiction that excludes third party interference only by his commitment to preserve the infant's life. If the parent fails to meet that commitment he can no longer claim a special jurisdiction over the infant and he cannot prevent third parties from intervening to save under no circumstances can the parent claim a special property right in his child. The parent's right as guardian is conditional upon fulfilling the basic need that makes the guardian ward relationship necessary. Now, let me try to rephrase this since my strike is a very complex argument I'm sorry for how fast I have to go through this but you can appreciate I think the complexity of the situation but let me try to reward it a little bit and perhaps it'll be clearer. To the parent who claims custody but who denies even the positive obligation to maintain the life of the infant we may say no one may force you to care for your infant no one has the right to conscript your labor or confiscate your property for this purpose you may not be forced into the role of unwilling guardian but no one forced you to assume the rights of guardianship and as guardian you have special rights over this infant that third parties lack you have the right to regulate its behavior and shape its destiny now where did you get this right over a helpless infant the infant is not your property he does not belong to anyone except himself why then do you have jurisdiction over third parties why do you have the right to exclude third party intervention why do you have the right to say to other possible guardians that they have no business interfering in how you raise the infant true you have no one chosen obligations to the infant but neither do you have unchosen rights over the infant you choose to become the infant's guardian that aspect of the infant which justifies this role where it would not be justified is the infant's total and other dependence on adult care the special authority over an infant is justified because only by such authority can the infant survive the authority of guardianship is justified because it is necessary to maintain the infant's life the right of jurisdiction in other words can arise only from the voluntary commitment to maintain the infant's life you cannot claim the right without assuming the duty there is a purpose inherent in the guardian role you cannot claim the rights of guardianship you cannot deny jurisdiction to third parties while refusing to perform the obligations of guardianship now that's the argument in a nutshell now I have argued that an infant requires a guardian in order to survive and that a parent can claim the special rights of guardianship only if he fulfills the survival need thus a guardian has more than simply the negative obligation to abstain from aggressing against his infant after all he owes this non-aggression obligation to all infants not only to his own in the case of other infants does not give him special jurisdiction over those other infants a guardian enters into a special relationship with an infant a relationship that excludes third party intervention and I don't mean to drum this issue of third party intervention into the ground but you see this is the key to my whole argument it's really not so much of an issue of the relationship between the infant and the guardian so much as it is an issue between the guardian and third parties who might think they know how to raise the child better and it's this a guardian enters into a special relationship with an infant a relationship that excludes third party intervention and this relationship entails not just the right of jurisdiction but the duty of care as well the guardian may say how the infant shall be cared for how his behavior shall be directed but some adult must have the final authority to decide on such issues and there can arise in those disputes in this area the right of guardianship confers this decision making power on the parent or on the first guardian so the parent may decide the particular kind of care and this is the important proviso here as long as the care is sufficient to maintain the infant's life but this is the bottom line that the guardian cannot ignore this is the basic positive obligation voluntarily assumed of a parent guardian that he may not neglect now let's go now to a few practical implications of the guardianship model as I've outlined it let's consider infant abandonment when a parent assumes the guardian role he does not thereby commit himself for life necessarily he does not commit himself to a state of involuntary servitude in regard to the infant he may terminate the guardian ward relation if he wishes but this does not justify infant abandonment in the conventional sense for example suppose a parent decides not to care any longer for a six month old infant so he shuts it in a closet to die surely this is more than simple termination of the guardianship it constitutes in effect imprisonment of the infant when used to care for the infant he also prevents a third party from administering care as well by keeping the infant combined in his home now suppose that instead of shutting the infant in a closet the parent simply leaves the infant in its crib to die making no effort to place the infant in a situation where another adult might assume guardianship what difference is there between the crib and the closet well we may draw a distinction between being put in a crib and a closet but I can assure you as far as the infant is concerned there is no difference when the parent abandons guardianship the crib becomes simply another mode of imprisonment now a parent guardian has a duty to maintain the life of an infant his ward this obligation places important constraints on the manner in which the guardianship may be terminated in other words I'm not saying you can't terminate guardianship I'm saying you have to be very careful about how it's terminated a similar situation exists with contracts it is one thing for a surgeon to call off an operation that he has previously agreed to prior to the surgery itself it's quite another thing for a surgeon to abandon the patient in the middle of the operation making no effort to supply another surgeon if a surgeon decides not to operate no one can force him to do so but if a surgeon begins an operation thereby placing the life of the patient in his hands he becomes liable for the death of the patient if he willfully abandons the surgery and leaves the patient to die in other words no one can force a surgeon to operate but then by the same token if the surgeon decides to operate on the manner in which he can terminate that contract likewise no one can force a parent to become a guardian but when the parent voluntarily assumes the guardian role the life of the infant is placed in his hands at the exclusion of third parties a life that he has a duty to preserve and constraints are thereby placed on the manner in which the parent may terminate guardianship I suggest that a parent who wishes to relinquish guardianship must make and here's a very troublesome term and I apologize for not being able to go into more detail about this the parent the parent who wishes to relinquish guardianship must make a reasonable effort to find a guardian replacement granted this notion of reasonable effort can be problematic it depends a good deal on the circumstances in which the patient finds in which the parent finds himself but whatever problems may exist in determining particular cases it is clear that a parent who leaves a child in a crib to die when he could have taken the infant to the adoption agency down the street has not exercised reasonable effort in such a case I suggest that the parent should be liable for the death of the infant now let's turn in conclusion to the case I discussed previously that is the mother who refuses to approve of blood transfusions for her newborn baby when those transfusions are necessary to save the infant's life by the limited ownership model the Rothbard Ebers model the judge who ordered transfusions for the baby against the mother's will acted improperly the mother as the homesteading owner had the right to decide which treatment it should and should not receive and since the withholding of treatment does not constitute aggression it was her right to refuse treatment for the infant the guardianship model unfortunately in a sense because I'm rather uncomfortable with this conclusion but logic compels me to adopt it the guardianship model reaches a different conclusion it supports the decision of the judge to intercede I'm not particularly advocating state intervention here so much the right of general third party intervention as far as I'm concerned does not have any more rights than an individual would have in this sort of intervention the mother does not have an unchosen obligation to support the life of her child true but neither does she have a right to prevent others from saving the child if they choose voluntarily to do so the mother has jurisdiction over the child only if she decides to preserve its life if she decides to let it die for whatever reason then she relinquishes guardianship and she cannot prevent a third party from administering care so the issue is not what type obligation does the mother have to the infant for there can be no unchosen obligation of this kind rather the question is what right does the mother have to prevent third party care when she refuses to assume the basic duty of guardianship herself according to the guardianship model the mother cannot prevent third party intervention if she refuses to administer even the minimal standards or the minimal care required for survival now of course there are many many borderline cases where it is unclear whether third party intervention is justified applications of the general principle may require an impartial agency to adjudicate in particular cases this is why we need courts of law because general principles by their nature are so broad they apply to such a broad array of cases that when you have variables in the real world it's not always clear how the general principle applies hence the need for a court of law to interpret now to give you an example of this kind suppose your neighbor has a swimming pool and he allows his infant to crawl around the pool unsupervised on two previous occasions you have seen the infant fall into the pool and the parent having taken no action to save the infant being in the house or being away you have rushed to save it the parent meanwhile displays no concern and takes no steps to protect the infant finally after a third incident of the child falling into the pool you decide to take the infant with you and file in a court of law to have guardianship transferred from the parent to yourself now is such a transferred justified although we lack clear cut answers to such problems the general rule in my opinion should be that if a parent displays little or no interest in protecting an infant from severe and obvious hazards then a strong case may be made for saying that the parent by his non-action has abandoned his guardian role and thereby abandoned the right to prevent third-party intervention now just if I'm through with that let me just say once again that I've given you a highly condensed synopsis leaving out a good deal of material it was originally a much longer version of this paper and I just want to stress again that there is a good deal of similarity between the limited ownership model and the guardianship model that I'm defending the two models agree on practically everything the only disagreement seems to be as far as I can tell this issue of is there any kind of positive obligation and of course I've argued that there is indeed a form of positive obligation which comes from assuming the guardianship role which I further argue contains within it a reciprocal duty to care for the child so I hope I haven't lost you or bored you too much with a lot of technicalities but as I said in the beginning I think this is an extremely important topic the issues like Jehovah's Witnesses cases are real issues, they come up all the time and sooner or later libertarians are going to have to face these issues and discuss them openly and hammer out some kind of solution to them a libertarian solution I'm frankly not happy with some of the things I've presented here but I can tell it's a more satisfactory solution in my own mind at least than the alternatives that are available so I'm not presenting this as some sort of definitive statement of children's rights I'm merely presenting it in a sense as work in progress where I am at the present state of thinking and so I want to make it clear that this is not some sort of dogmatic pronouncement so much as it is an attempt to come to grips with very very complex and delicate problems thank you we hit the break time so I'll just let George answer questions for a ten minute break and then we'll be starting the last speaker of the day yes I do like the things you said better than the alternatives you presented I'd like to know if you'd mind discussing one particular point I've got a few questions but there's other people how did you arrive at the criteria of life as opposed to something like health and welfare in addition for the guardianship minimum there's a theoretical problem there's a practical problem now I'm well aware of the dangers and I'm sure I will be admonished by many people in the upcoming months I'm opening a Pandora's Box for third party and especially state intervention in other words it's not just that what if you keep a child kind of on the verge of life but don't care for him and once you admit that principle then you have a whole Pandora's Box where the state can come in and demand a minimum care and education and the whole gamut that's a very serious problem it's frank to the major reason I'm uncomfortable with this situation I have drawn the line for preservation of life because I think that is the only necessary condition inherent in the guardianship model in other words it's the preservation of the child's life that is the basic need that allows it to enter into a guardian ward relationship and anything beyond that is highly subjective as to what constitutes an adequate level of care and I think the life standard is a reasonably objective standard in this sort of thing I think beyond mere survival standards of care become highly subjective and it would lead us nowhere to try to speculate on various standards but I admit that is a very serious problem it looks like we've got a lot of questions so why don't those of you who want to ask questions line up rather than having to find your hand I'm glad you made the disclaimer there on the fact that it is very fraught with a lot of danger in there when you take a position of custodian and ward position a custodial you say is an assumption type thing but it really is not it is appointed recognize some higher authority now we have an authority of the parents that is the ultimate or we have the government or somebody acting like the government that's going to come in with the strong arms and the muscles and the guns and doing what government does and take away the authority of the parent and who decides when this particular point has been passed it's an area that's just totally fraught with air and being a father of ten I can guarantee you that when a child comes it is totally helpless for quite a number of years I've got a little four year old or almost four year old he would not be able to defend for himself he cannot make a decision who decides when he does reach the age of region do the parents decide who have great love and compassion normally you might have an area occasionally of it's so infatestable in supply of the norm that I don't think it should even be considered here if we think in terms of of libertarian principles you're talking now not about infants but children I'm talking about from infant all the way up until the time that they are adults who decides when they're adults it's a growing process the issue of where the age of region actually starts is obviously differs from child to child there is no clear cutoff point there are certain clear indications who decides the point is it becomes a parent after a while when a child is making decisions for itself and it's a continuous process now look let me get something straight here because I didn't really deal with this issue of juveniles as opposed to infants I'm not saying that parents don't have authority over the children in the sense of setting up certain house rules this sort of thing I'm not going with some sort of crazy kid liberation thing where kids can run around the house and their parents can't do anything to discipline them what I'm saying is let's say you're dealing with a 12-15 year old kid he doesn't like the way his parents are treating him now the parents own the house they own the food and so forth they're supporting the child therefore they have the right as property owners to regulate the life of the child in effect saying look if we're going to give you the sustenance then you have to follow certain house rules if you're going to stay here okay I agree with that that's fine that's a contractual model there but what I'm saying is if a child feels that he is being abused they should always have the option of running away and the parent should have no right to forcibly drag the child back into the home nor should the state or any other person have the right to drag that child back in the home so the key aspect is the right of runaway for juveniles they should have that right absolutely let's stay with the babies I don't mean to cut you off but we've got so many people to ask questions I appreciate it maybe we can discuss it later I believe that the only proper way that you can treat a baby is that it's an ownership principle because of acts of the parents and bringing them into existence you don't have that then you've got the government you don't have to without going into it any more detail as I stayed in the talk if you take that position then you couldn't stop a parent from boiling their baby in oil if they wanted to I don't agree with that number one, when and where will your paper be available I'm sorry I'm having trouble hearing you when and where will your paper be available and number two given a situation in which a third party intervention is necessitated what criteria do you suggest for deciding which third party could intervene the second question was when more than one third party wished to intervene surely like a neighbor the government relatives let me answer your second question first I don't know I don't mean to I'm not trying to evade your question honestly I just don't know this is still a lot of work I have to do on this and this is kind of the basic stuff I've been so concerned about the fundamentals I really haven't gone on to consider these troubles in particulars I would generally say the first person to get there but that's not a very satisfactory answer in regard to your first question there will be whether it's this version or some highly changed version there will be a number of things on children's rights in my forthcoming education book which I'm co-authoring with Jack High we have chapters dealing with the history of children's rights and philosophy this sort of material and a lot of other material so there's about three chapters three pretty meaty chapters on children's rights in the education book when do you think that will be out? it won't be out for some time it will be finished in manuscript by the end of the summer but it probably won't be out for until six months or so after that George I see one of the main problems with the standard of care where you put it as life of the child is until the child dies the child is still alive and you really haven't crossed that line that line drawing is still the hardest thing to do and perhaps that's why I'm more of a limited status and I feel that that's an area that courts can get involved in the common laws endeavor to do that for for centuries well I'm not saying that you have to literally wait for the kid to die before you can I realize that but you're saying in the case of the blood transfusion I'm sure the mother could make an argument oh that's you know that blood's going to kill the child and in her mind she's fulfilling her guardianship duty so it's very difficult that's true especially if you believe that an afterlife is at stake and you get into all kinds of tricky problems but on the other hand there's a very persuasive case on the other side the child cannot decide for itself and it's a very I find troubles with both sides if you want to know the truth I'm not comfortable with either one of them up till about a year ago I accepted the limited ownership model and would argue that no one could interfere with the mother's decision to let her child die I just cannot follow the logic of that out because as I said I can't find this basis for ownership in an infant and that's why I'm forced somewhat against my will frankly to adopt the position I've adopted so again I apologize if I can't give you a good definitive answer but that's right now the best I can do I'm saying I think it's a difficult question and perhaps the only way it can be answered in any community is through somewhat of a consensus you have the same thing with surgeons abandoning patients or something that's a standard of care and what it would be in that situation for other people as perceived by some third party supposedly a judge there are so many things that your talk brought up I've spent the last eight years or so working with an organization called Parents Anonymous as a volunteer it's an organization, it's a self-help program for parents who have abuse problems I've met literally hundreds of child abusers I've met lots of judges and case workers and so forth too and I'm a little troubled that we're trying to come up with solutions right now because I really think that perhaps there are other models I think maybe we haven't looked at all the alternatives I think maybe we need more discussion really the Jehovah's Witness one is probably the most difficult the swimming pool one I just shuddered when I heard you say that it would be okay for third party intervention it's been my experience that someone who went over to that parent and said are you aware of how dangerous it is for your baby to be waltzing around this pool perhaps we could cover the pool perhaps we could teach the baby to swim there are some I understand what you're saying I agree with you entirely about that my example was very brief and I meant it on the assumption that these alternatives have been exhausted I've never met that parent I agree but this is just a hypothetical extreme case that could conceivably happen I admit and that's why it's important to reemphasize what I said in the beginning we're dealing with highly abstract philosophical issues here and thank goodness that these sorts of issues are not really in many cases real life cases well some of them aren't but what I'm saying is that there's much more to the parent-child relationship that legal niceties I'm discussing now are only a bloodless sort of thing that have nothing really to do with that sort of parental child bond I'm sorry I've just been informed that we've already run over on time so I hate to cut everyone off but thank you very much


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