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Mar 19, 2015

Hayek and the Hard Case

Dale argues we need a Hayekian social safety net to prevent infanticide.

There is a saying, among lawyers, that runs as follows: “hard cases make bad law.”

Here, I talk about a hard case and a (provisional) classical liberal solution. It is a libertarian solution, not an anarchist one, because my research on point leads me to believe that the hardness of this particular hard case requires a state to solve it. You may disagree.

But remember, this is a hard case. All outcomes are bad.

The Baby Farm

In 1892, 18 year-old Amber Murray placed an advertisement in the Sydney Morning Herald for “a kind person to take charge” of her baby son, Horace. Horace was illegitimate, and Amber had spent three months unable to juggle work and baby.

The advertisement drew the attention of John and Sarah Makin. They seemed kindly, and in return for an upfront payment of £3 and ongoing payments of 10 s a week, offered to care for Horace while still allowing Amber to visit him. Over the following weeks and months, Amber kept trying to see Horace, only to be rebuffed with excuses. Eventually, she arrived to find that the Makins had disappeared.

In October of the same year, council worker James Hanoney was clearing a blocked drain when he discovered the bodies of two infants. The Makins had moved again, but by now the resources of the New South Wales police were directed to investigating every house in which they had ever lived. The police found 12 dead bodies in addition to Horace’s, which Amber identified from his clothing.

The Makins were “baby farmers,” a descriptor of sufficient vintage to be foreign to most people now. Baby farmers relied on the stigma of illegitimacy and laws that mandated that men did not have to provide for children born out of wedlock to take in infants and, very frequently, kill them. Because the sums of money the single women provided were of necessity small, it was better for the baby farmer to kill the child swiftly: that was more profitable.

The Makin case—a true cause célèbre—made its way to the House of Lords.1 Trial evidence disclosed that the Makins turned to baby farming after John, a brewery drayman, had been injured at work. Meanwhile, Sarah had once been a midwife, and was not unkind: indeed, when the court imposed sentence, her daughters pleaded for clemency and her capital conviction was commuted to life imprisonment. John, however, was hanged in 1893.

Laws were changed in Makin’s wake: the NSW parliament enacted the Children’s Protection Act 1892, which brought the care of orphaned and destitute children under state or church control. At the same time, a shift towards providing welfare support to single mothers commenced, although the latter did not emerge as the preferred policy until it became clear that institutional care had also failed: in Australia, the failure was spectacular, and the hammer blows fell particularly hard on the country’s mixed race population: children born of an Aboriginal mother and a white or Asian father. There, children taken into care not only often died, but when they lived were treated with disdain.2

Of course, this is not to pretend that the care institutions in other countries that now go by the name “developed” were much better: to assay the widespread abuse, sexual and otherwise, in orphanages, care homes, and facilities directed at unmarried mothers is merely to state the commonplaces of recent times.

The necessity of Hayek

Providing adequate care for unwanted children and the women who bear them is a “wicked” problem, incapable of complete solution. We can improve it, but fixing it is out of the question. Wicked problems are difficult or impossible to solve, typically, for four reasons:3 here, we confront incomplete or contradictory knowledge (why do women have children?); a vast number of people and opinions involved (every unmarried mother, those who set welfare policy, children raised in single parent households); a large economic burden (welfare is expensive), and the interconnected nature of this problem with other problems (demographic decline is as serious in non-welfare-state filial piety cultures with their “bare branches” as it is in the pension-crisis afflicted West).

Much ink has been spilt, over many years, criticizing the effect of the welfare state on family structure, starting with Daniel Patrick Moynihan and showing no signs of abatement. It has focused on diminished outcomes for children and economic disadvantage for their mothers. Some of those criticisms may be true, but they are all flawed because they fail to take account of what came before.

Hayek’s support for a limited social safety net is the only means left to us to improve this wicked problem, for two reasons: (1) all previous interventions, save one, have failed; and (2) those interventions, when they failed, did so irrespective of whether they came from the public or private sectors. This is not a problem where one can make conventional classical liberal arguments about superior private or charitable provision.

The intervention that worked

Before welfare, before orphanages, and before baby-farming there was infanticide, pervasive and on a staggering scale, in every human society of which we have record.4 The most eminent minds—Plato and Aristotle, Cicero and Ulpian—argued for its necessity. And when eminent minds—Augustine and Aquinas, say—argued against it, not a whit of difference was made to the infant kill rate. About 25% of all children born throughout the Medieval period in Europe were killed—a higher rate than that in infanticide-approving Rome, in part because the latter was for much of its history more peaceful and prosperous, and perhaps also because its abortionists were more skilled.5 As late as 1862, Metropolitan Police reports noted that officers “seemed to think no more of finding a dead child than they did of finding a dead cat or a dead dog.”6

An echo of humanity’s infanticidal past is still found in jury rooms throughout the common law world: the reason we [Australians -ed.] do not refer to infant-killing as “murder” is because in 1922, it was reclassified and re-named with passage of the Infanticide Act. This was done because juries refused to convict—even before 1920, when they were all male and the Crown case was overwhelming—and had been refusing to convict for some time. The only crime for which fewer convictions were recorded was abortion. In Scotland, there hadn’t been a successful abortion prosecution for 50 years.7 To this day, infanticide convictions are astonishingly rare.

However, as what would become the developed world transitioned from infanticide to the baby farm to the orphanage to the welfare state, it not only became richer, but it developed reliable contraception and legalized or decriminalized abortion. Infanticide rates collapsed: the crime became a legal curiosity.

To that extent, then, this wicked problem was ameliorated even if it was not solved. The interventions of science and medicine succeeded. All the other interventions directed at preventing infanticide or improving morality or lessening promiscuity or caring for unmarried mothers and their babies or however else the wicked problem was conceptualised failed badly. We still live with the daily aftershocks of that failure, as lawsuits by the living are brought against the institutions that abused them, exploited their labour, stole their children away, etc.

Equal failures

Worse, both the public and private sectors manifested the failures in remarkably equal proportions. Churches, local authorities, central government care homes, private orphanages, charitable foundations. Classical liberals often argue with some force and considerable evidence that things provided by the state would be better provided by the private or charitable sector: there is no persuasive reason why the state should run an airline, for example, or a telecommunications company, or any number of (un)natural monopolies. That argument does not hold here: maybe we human primates are just bad at institutional care.

However, when we consider Hayek’s argument for “a limited security which can be achieved for all,”8 then the welfare state in combination with contraception and abortion has done most to vitiate the wicked problem of the enormous disadvantage heaped on women simply by virtue of the fact that they give birth.9 Of course, this is not to pretend that the welfare state is without flaws, but rather—at least in this narrow field—that it is rather like democracy: the worst system of the lot, except for all the others we’ve tried. Yes, it is fair to say that the welfare state produced Baby P (the closest to the cruelties of Makin, say, or the patria potestas of Rome’s Twelve Tables) and Karen Matthews. It is also fair to suggest that cutting generous benefits may drive the abortion rate up. Attempts to make abortion illegal or to restrict access to it would, however, have worse effects. The abortion rate in periods of illegality does not decline; the procedure simply becomes unsafe. Infanticide may also re-emerge, along with its recalcitrant juries.

Further, the British public has also shown itself quite adept at doing utilitarian calculus, and those socially conservative people who wish to cut welfare to single mothers may find themselves confronted by a public happy to pay for abortions instead: abortions are cheap, adequate child welfare services are not.

We now know that it is impossible for even a highly productive market economy to provide “assurance of a given standard of life, which is determined by comparing the standard enjoyed by a person or group with that of others.”10 Britain’s escalating pensions crisis is ample evidence of that. However, attempts to do away with welfare may expose us to wickedness that many of us have forgotten ever existed, something Hayek saw more clearly than many people who purport to endorse his ideas:

There is no reason why in a free society government should not assure to all protection against severe deprivation in the form of an assured minimum income, or a floor below which nobody need descend. To enter into such an insurance against extreme misfortune may well be in the interest of all.11

This is my hard case. Now solve it for the best of all the (bad) outcomes.


  1. In the Australian court hierarchy, sitting as the Privy Council: Makin v Attorney General for New South Wales [1894] AC 57.
  2. South Australia v Lampard-Trevorrow [2010] SASC 56.
  3. Horst Rittel, “Dilemmas in a General Theory of Planning” Policy Sciences, 1973: 155-169.
  4. The leading survey is Larry Milner’s Hardness of Heart/Hardness of Life (New York: 2000).
  5. Lloyd DeMause The History of Childhood (New York: 1974), 148.
  6. From a Coronial report cited in Milner, above n 4, 100.
  7. Phillip Resnick, “Murder of the newborn: A psychiatric review of neonaticide” 126 American Journal of Psychiatry (1970) 58-64.
  8. The Constitution of Liberty 226 (Chicago: 1960).
  9. Women out-earn men until 29, the average age of primiparae in the UK; thereafter their earnings collapse unless they remain childless.
  10. The Constitution of Liberty, 226.
  11. Law, Legislation, and Liberty: Vol II, 87 (Chicago: 1976).