The Libertarian Hard Cases, Part I: Childrenby Doug Mataconis
It’s been awhile since we’ve done an open thread here and, even though it’s not Monday, in the course of reading Brian Doherty’s Radicals For Capitalism,, I’ve been running a few issues through my head.
They all deal with what I’ll call the “hard-cases” for libertarians, and they’re areas where libertarian ideas have not really filtered into the mainstream of public debate.
They fall into two categories, (1) children and the mentally incapacitated (which the law generally refers to as persons under a disability) and (2) private activities which have consequences beyond the private sphere in which they are conducted (also called externalities). I was going to address all of these issues in one post, but it seemed wise to break it up.
First, the subject of children.
Children — The traditional view is that, until they reach the age of 18, children are incapable of making rational decisions. Therefore, they are treated as wards of their parents or, if the parents or other family members cannot or do not care for them, the state.
With children there are two areas where libertarian ideas don’t seem to be particularly well-developed:
The Age Of Majority:
While 18 as the age of majority is a purely arbitrary number and there’s nothing magical that happens to a person on the morning of the day they turn 18 that suddenly makes them capable of making decisions they couldn’t make the day before, there is a clear advantage to having such a bright-line test. Take the case of contracts, under current law, any contract entered into by an unemancipated minor before they turn 18 is capable of being declared void by a Court; this is meant to project the child from what may have been an unwise decision made with insufficient maturity.
Drawing the line at 18 is arbitrary, but I would submit that a line has to be drawn somewhere, and 18 is a good a point as any other. If there weren’t a bright line rule, then each contract entered into by someone we now call a minor would be subject to a defense that that the person entering into lacked the capacity to understand what they were getting into — and each case would have to be adjudicated on its on factual merits. While this might seem the “fair” thing to do, it is hardly, from the perspective of the legal system the efficient thing to do and would involve a tremendous waste of judicial resources. Unless you adopt a radical “children’s rights” philosophy — which makes no sense given the immaturity of, say, a 7 year old, even the most radical libertarian is required to admit that children are, at least for a time, not fully entitled to exercise the same rights as adults are.
Who Decides “The Best Interests Of The Child” ?
Next, a hyopthetical. Let’s say that there’s a child whose parents have just died in a car accident. There are relatives on both sides of the family who say that they’re best equipped to raise the child. Who decides where the child goes ? Under the law today, preference is given to guardians designated by the parents, if any, before they died, but even that decision is not final because the Courts have assumed the duty of considering what is in “the best interests of the child,” and it may turn out that Uncle Joe and Aunt Sally don’t have the best parenting skills. Similar tests are applied in a divorce situation when the parties’ cannot agree on custody.The question is this — if Courts (i.e., the state) aren’t going to be the one to make these decisions, then who is ? Can we necessarily trust distant family members to act in the best interests of young children who may or may not be better off living with someone else ? And, to the extent that the state exists to protect human rights, doesn’t it have a special obligation to protect the rights of a class of citizens who are developmentally unable to do it themselves ?
Child Abuse And Neglect
Finally, there’s the issue of child abuse. At one point is it legitimate for the state to step in and take children away from parents who are abusing them ? And, more importantly, what constitutes abuse ? Physical and sexual abuse are easy calls, of course, but what about psychological or mental abuse ?
I’ve got a few ideas of my own on these issues, which will probably be the subject of follow-up posts are some point, but I’d like to hear what others have to say.
Next, sometime next week, another class of humans who are not fully capable of protecting their rights, the mentally disabled.