George H. Smith presents the rudiments of a theory of children’s rights.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

Once again I must beg the indulgence of readers as I push back the final part of my reply to Matt Zwolinski by at least one essay. This is necessary because I wish to discuss the issue of children’s rights, a complex subject that cannot be covered in a paragraph or two. Even devoting this entire essay to the subject of children’s rights has resulted in an inadequate treatment, but at least I have been able to outline a theoretical infrastructure.

What About the Children???–It’s one thing to say that aggression against others is wrong. It’s quite another to say that it’s the only thing that’s wrong–or the only wrong that is properly subject to prevention or rectification by force. But taken to its consistent extreme, as Murray Rothbard took it, the NAP implies that there is nothing wrong with allowing your three year‐​old son to starve to death, so long as you do not forcibly prevent him from obtaining food on his own. Or, at least, it implies that it would be wrong for others to, say, trespass on your property in order to give the child you’re deliberately starving a piece of bread. This, I think, is a fairly devastating reductio of the view that positive duties may never be coercively enforced. That it was Rothbard himself who presented the reductio, without, apparently, realizing the absurdity into which he had walked, rather boggles the mind.

The issue of children’s rights is of special interest to me. During the many years that I lectured on rights at summer seminars for the Institute for Humane Studies (IHS), I devoted most of one lecture to the rights of children. I also published a lengthy and densely documented article on “Children’s Rights in Political Philosophy” in my 1991 anthology, Atheism, Ayn Rand, and Other Heresies. The last part of my article deals with “The Individualist Tradition,” as exemplified in the views of three classical liberals: Wilhelm von Humboldt, Jeremy Bentham, and Herbert Spencer.

I devoted a fair portion of my IHS lecture to criticizing Murray Rothbard’s views, especially his contention that parent‐​guardians have no enforceable duty to preserve the life of an infant. Unlike Zwolinski, however, I did not depict Rothbard’s position as a “reductio of the view that positive duties may never be coercively enforced.” For one thing, this is not even an accurate characterization of Rothbard’s position, since he obviously believed that positive obligations voluntarily assumed (as in a contract) may be coercively enforced. Rothbard’s point was that there are no natural positive duties that are enforceable. But this does not preclude what classical liberals typically called adventitious duties, i.e., enforceable obligations that are not inherent in human relationships but can be acquired through voluntary means.

I never published my ideas about children’s rights (though I did discuss them on various e‐​lists throughout the past twelve years), so I will summarize them now.

Rothbard published two major treatments of children’s rights: one titled “Children and Rights,” a chapter in The Ethics of Liberty; and another titled “Kid Lib,” an essay in Egalitarianism as a Revolt Against Nature and Other Essays. Rothbard’s treatment in the latter is better overall, but in both discussions he does a poor job analyzing the nature of guardianship rights and duties. This is the deficiency that led him to advocate the view that parent‐​guardians have no enforceable positive obligations to an infant‐​ward and so may leave him to starve, however monstrously immoral this neglect may be. (It is interesting to note that Rothbard defended this extreme view only in The Ethics of Liberty. In Egalitarianism, he merely argued that no third party, including government, has the right to intervene in order to insure that an infant is raised “properly”–a sentiment with which I largely agree.)

Rothbard embraced a guardianship (or trustee) model of parental rights, but he was wrong to view this as a type of limited ownership claim. It is nothing of the sort. And, contrary to Rothbard, voluntarily to accept the enforceable right of guardianship entails accepting an enforceable duty as well, specifically, the duty to maintain the life of the infant in the guardian/​ward relationship. Let’s explore this issue in more detail.

We first need to distinguish between infants and children. An “infant,” as I use the term, is a child who has not yet attained the age of reason, i.e., the age when he is competent to make rational judgments about his own welfare and take the actions needed to sustain himself. Infants depend wholly on adults for their survival. An older child, in contrast, may be able to take the basic actions needed to sustain himself, so he is not dependent in the same sense; he is not helpless, in other words. (I hereby bypass the thorny problem of when an infant may be said to attain the age of reason, except to note that this will vary from child to child.)

It is important to understand that the guardianship/​ward model applies only to infants, not to children who have attained the age of reason. In the latter case, as Rothbard correctly maintains, a principle kicks in that says, in effect, “My house, my money, my rules.” Moreover, children at that age possess the right of elopement, i.e., the right to leave home–a right that makes no sense when applied to infants.

It is owing to the utter helplessness of an infant that the guardianship/​ward model becomes necessary. An infant would be unable to survive without the help of a guardian, and we must keep this primordial need in mind when we analyze the nature of guardianship. A guardian, whether that be a natural or adoptive parent, is an adult who has the enforceable right to make decisions on behalf of an infant. This means that a guardian has the right to say how an infant shall be fed, clothed, educated, and so forth. But what are the implications of this right? Rights entail corresponding duties, so to say that I have a right to x means that others have the duty not to forcibly interfere with my exercise of the right in question.

To whom does this duty of noninterference pertain in the guardian/​ward relationship? Not to the infant, certainly–for part of what it means to say that an infant lacks mental competence is that an infant is unable to understand and conform to juridical duties. So of whom are we speaking when we say that someone has a duty not to forcibly interfere with how a guardian raises her infant?

The duty involved here applies to third parties who may disapprove of how a guardian is raising her infant and who might impose their ideas of what is best for him, if not for the right of the guardian to make final decisions in this realm. So what gives the guardian this enforceable right to exclude third parties from imposing their wills in regard to the infant? Simply this: The guardian has voluntarily accepted the duty of sustaining the life of the infant, and it is from this voluntary, self‐​imposed duty that she acquires the right to exclude third‐​party intermeddlers.

Without this primary duty, the corresponding right of excluding third‐​party intervention could not be justified. A guardian, including the natural mother, cannot claim any kind of ownership rights in the infant, who is a self‐​owner. No guardian can legitimately claim, “This infant is mine, and I will do with it as I please.” All persons have the enforceable duty not to aggress against an infant by harming it physically, etc., but a guardian voluntarily takes on the additional positive duty of sustaining the life of her ward–first, because it is only the helpless nature of an infant–its need for a guardian to survive–that generates guardianship rights in the first place; and, second, because a guardian cannot claim the right to exclude third parties unless she accepts the positive duty of sustaining the life of an infant.

With this foundation, we now come to the questions of if a guardian may terminate or transfer her duties and rights qua guardian, and, if so, under what conditions. Such questions would require a lengthy essay to answer satisfactorily, but some brief comments will serve my purpose here.

Yes, a guardian may terminate (or transfer) her guardianship rights, but she must do so in a way that will not violate her fundamental duty to sustain the life of the infant. To leave an infant to starve in its crib is to renounce all guardianship rights to the infant, after which the former guardian can no longer prevent a third party from caring for him. And from this it follows (after some steps that I won’t mention) that the original guardian must make a good faith effort to find another guardian (which is usually not a difficult thing to do).

Just as a pilot who has agreed to take passengers to their destination may not bail out in mid‐​flight, while protesting that he does not recognize any positive juridical duties, so a guardian may not bail out of her guardianship duties, willy‐​nilly, after accepting the duty to maintain the life of her ward. For a guardian to leave an infant to starve (if she is able to feed it) would violate her most fundamental duty qua guardian; it would be nothing less than willful murder.

What I have presented here is merely a framework, and I don’t pretend to have developed or to have justified it fully. But it is a sensible analysis, one that is compatible with a strict interpretation of the NAP. What I have done is to focus on Rothbard’s flawed understanding of the guardianship model and to present what I believe is the correct analysis.

This process of criticism and reconstruction is how libertarian theory advances, and it is a far cry from Zwolinksi’s superficial complaints. Although Zwolinski was correct to reject one of Rothbard’s conclusions, he failed even to consider the possibility that the unacceptable conclusion flowed from Rothbard’s faulty understanding of guardianship. Instead, Zwolinski conveniently assumed that the NAP is to blame, when in fact Rothbard’s unacceptable conclusion had nothing to do with the NAP at all.