The social institution of the family has not received a great deal of attention from libertarian theorists. Because it is primarily concerned with political ideas, libertarianism has emphasized the legitimate limits of the state and the ability of voluntary associations to help achieve social goals. Those associations have first and foremost been those connected with the market economy. However, in the last decade or two, libertarians have paid increasing attention to the crucial role played by other social institutions, among them, although less so, the family. The family presents at least two sets of issues for libertarians: the relationship between the family and the state in general, and the tension between parental rights and the rights and interests of children.
As they do with many other institutions, libertarians can find no rationale for the state to intervene in providing support for the traditional family or in helping shape the various forms that the modern family takes. Historically, the relationship between the family and the state has been a close one. The institution of the family was not created by the state, but rather emerged out of prehistoric needs for forging cooperative networks of extended kin in order to survive in the face of scarce resources and to provide for the needs of helpless infants. However, much of the family’s evolution in the last several hundred years has been shaped by the state’s attempts to support or punish various forms that the family might take. Examples include everything from coverture laws (the merger of a woman’s rights into those of her husband at marriage) and other restrictions on women as individuals, to regulations on who could marry whom, to tax code incentives that punish secondary earners (usually women) or that reward having larger families.
Much discussion about the degree to which the state should encourage or prevent particular familial forms has obscured a question that is more important to libertarians, which is ensuring that families are able to perform their evolved functions and are allowed to continue to evolve within the economic, political, and social contexts in which they operate. Families are in this way part of an ongoing, unplanned, social evolutionary process that is driven by the wants of individuals and their own judgments about how to accomplish the various ends they are pursuing. Just as libertarians believe, in general, that the diverse economic wants of individuals can be best met by the unplanned coordination of millions of individual judgments made possible by the market, so they have argued that families need the same degree of freedom to create forms that address their own needs.
The state, libertarians argue, should strive to remove itself from issues involving the family (beyond any role it might have in protecting individual rights), and, where it cannot remove itself, should seek to make itself neutral with respect to the kinds of families people might wish to form. The contemporary debate among libertarians over same‐sex marriage illustrates these two principles. The ideal solution from a libertarian perspective is to get the state out of the marriage business altogether and turn marriage contracts into private arrangements between the parties involved, with religious institutions having their own freedom to sanctify whatever marriages they might desire. The more contentious debate among libertarians has been over whether it is an appropriate second‐best solution to allow the state to grant marriage licenses to same‐sex couples. For some libertarians, in a world where the state is intimately involved in the marriage process, it is incumbent on government to treat all citizens alike; therefore, it should offer marriage on equivalent terms to any two adults. For others, the desire for equal treatment extends the state’s reach into marriage even further, which is especially misguided given the first‐best alternative of getting out of marriage altogether.
The question of parental rights is a particularly vexing one for libertarians. Clearly, libertarian doctrine suggests that parents should have the right to make decisions about their children rather than other adults or the state. In the United States, constitutional jurisprudence has, since the 1920s (in Meyer v. Nebraska and Pierce v. Society of Sisters), largely upheld this principle as a matter of substantive due process under the 14th Amendment. At the same time, it also has recognized arguments centering on the “best interest of the child” in 1944 in Prince v. Massachusetts. Recognizing the primacy of parental rights, however, raises more questions than it answers; it does not tell us at what point children are “adult enough” to begin making their own decisions, regardless of parental preferences, nor at what point the exercise of parental rights spills over into abuse and neglect that can justify intervention by the state or others.
With respect to the first question, a minority of libertarians strongly defends the rights of children and believes they should be able to make more decisions at an earlier age than is commonly thought. Whether this perspective is simply part of a philosophy of childrearing or a political statement about the individual rights of children is not always clear. Libertarians have no clear answer to the issue of neglect. However, inasmuch as libertarians embrace the view that the burden of proof for intervention in the affairs of individuals rests with the state, it follows that there is a presumption that parents have both the knowledge and incentive to do what is right for their children. Furthermore, the state must demonstrate that by subjecting the children to its actions it will not bring about a situation that is worse than that which obtains at home. Just as the existence of imperfections in the market does not ipso facto mean state intervention will improve upon them neither does an imperfect family mean that interference with parental rights, especially by removing children from a home, will lead to an improvement in the life of the children. It also should be clear that claims of “family privacy” (as distinct from “parental rights”) that in earlier generations permitted men to use violence, including rape, as a way to “control” their wives, is utterly contradictory to libertarianism, inasmuch as no reasonable understanding of the marriage contract can override the libertarian prohibition on the initiation of physical force or the threat thereof against competent adults.
Libertarianism rests on the premise that consensual behavior between adults should be free from interference by others. However, this view is complicated by what constitutes “consent” and “adulthood,” which are both challenged by the presence of children and the nature of the tacit understandings that comprise familial relationships. These questions do not lend themselves to simple solutions and provide ongoing areas of debate among the libertarians who address them. That said, libertarians generally agree that the state should remain either absent or neutral in its treatment of the multiplicity of family forms that humans can develop and maintain and that when it comes to issues of abuse and neglect, the burden of proof is on the state to show that interference with parental rights is warranted and that the alternative solution is superior to the status quo.
Becker, Gary. A Treatise on the Family. Chicago: University of Chicago Press, 1981.
Evers, Williamson. “The Law of Omissions and Neglect of Children.” Journal of Libertarian Studies 2 no. 1 (1978): 1–10.
Horwitz, Steven. “The Functions of the Family in the Great Society.” Cambridge Journal of Economics 29 no. 5 (September 2005): 669–684.