The Libertarian Hard Cases, Part I: Children

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.

      • UCrawford


        Your questions were a little buried in there (and a couple bordered on not being questions at all), but from what I could gather it boiled down to these:

        1) Is the 18 year age limit a sufficient boundary for separating adults from children? I’d argue yes, as far as a starting point for federal limits go. Obviously it’s not an absolute. States all have varying statutes regarding age of consent on sex (some as low as 14, in the case of Hawaii), states have varying laws when it comes to licensing drivers (in Kansas we can start driving at 14 as well) but 18 seems as good a starting point as any when it comes to federal legislation. And of course in instances where a minor is reasonably capable of fully exerting their rights, I believe that all states have processes by which those minors can be legally emancipated from their parents or guardians. I could be wrong, so please feel free to correct that if I am.

        2) Who should determine custody in the case of the death of the parents? I’d argue that it should be the parents who make the choice, and except in cases of probable physical abuse or neglect by or incapacity of the appointed guardian (or in cases where the parents have appointed no guardian) the state should have no authority to interfere in the parents’ decision. In the case of parents not designating a guardian then the parents have essentially ceded responsibility to the state, so I’m generally okay with whatever the state authorities decide as long as they aren’t choosing to stick the kids in a blender or letting them be raised by pedophiles or by a pack of wolves or something ludicrous.

        3) “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?”

        Some people will disagree with me but I don’t think mental or psychological abuse is sufficient grounds for states to override parents’ authority. I’ve known many people who were raised in what could be termed as psychologically abusive households and the overwhelming majority of them turned into fine and productive people. One person’s psychological abuse is merely another’s tough love, and the distinction between the two is so arbitrary that it simply begs to be misused by overzealous politicians and nanny-statists. Until the abuse swings over into the physical/neglect arena, I think the state should be kept out of evaluating parenting decisions.

      • Stephen Littau


        I look forward to your conclusions on these issues. The issue of “children’s rights” got me into a lot of hot water with fellow libertarians when I wrote an in depth 4 part series on the subject in 2005:

        Its been awhile since I revisited the issue and some of the conclusions I made at the time may be different than what I now believe. All I know is that this is a tremendously difficult issue which has a lot of conflicting answers in libertarian philosophy. The main point of contention: where do parent’s rights end and the child’s rights begin? Anyone who can successfully answer that should be in the running for the Nobel Prize!

      • UCrawford


        Someone in an earlier post made a comment about how Maslow’s first two levels of need (mainly regarding physical security and health) should be the line at which state intervention is justified. Parents owe their children sustenance and health care, and food and shelter and an environment free from violence. But I don’t know that they actually owe it to them to provide them with society’s interpretation of a quality education, or proper decision making skills, or even “love”. Or at least I don’t think it’s the realm of the state to determine the quality of those things. As Doug said, the physical abuse and neglect situation is usually a no-brainer…it’s relatively easy to make an objective evaluation of unfit parents when they beat, starve or molest their kids. It’s not so easy when you start getting into value judgments on intangibles and I don’t think it’s a wise idea to entrust the state with that much power when the state’s so obviously ill-equipped to make those judgments. I think that line fits pretty cleanly into the whole philosophy of limited government and individual freedom.

      • Stephen Littau


        The first two levels of Maslow’s Hierarchy of Needs seems to be a reasonable basis to me. Where you seem to be drawing the line is much more reasonable than where some of my critics drew the line. The reasons you stated for giving the state additional power are precisly why this is such a difficult issue. But if parents are not held accountable for genuine maltreatment of children by the government (at least at some level), who does? Who decides what “genuine maltreatment” is?

      • UCrawford


        My point would be that “genuine maltreatment” in regards to children is often the same as it is for adults…violence (expressed through physical and sexual abuse primarily). The only key difference between kids’ rights and adults’ rights is on the issue of neglect, which I’d argue is defined by a parental responsibility to provide food, shelter and health care to the child (since they cannot reasonably provide those things for themselves). As far as education, life skills, financial stability, love or anything else go, I don’t think it’s something that the state can reasonably require of parents…I mean, parents either want to do right by their kids or they don’t care. And for the parents who don’t care, there’s simply no law that you can write that’s going to make them be better parents or work harder at raising their kids…you can only remove the child from the home when it strays into the realm of physical abuse (which I believe the neglect issues I mentioned do).

        There’s obviously gray area in the realm of “neglect” and there will always be extreme anomalous examples (like with these asshole parents: ) that are going to simply be impossible to predict, prevent or legislate against. For what we can reasonably control, I’d say that the violence/basic sustenance bright-line should be the boundary for state intervention. Beyond that it should be left to the parents and families to sort out amongst themselves without the state trying to impose its own version of good parenting.

      • Joshua Holmes

        Eighteen is way too old to hold young people responsible for their actions. Historically, the age of ascension has been 13 – the onset of sexual maturity. The infantilization of teenaged humans, especially teenaged men, is at the root cause of so much of the “teen problem”.

        I think Paul Graham made the best explanation of the teen problem:

        I’m suspicious of this theory that thirteen-year-old kids are intrinsically messed up. If it’s physiological, it should be universal. Are Mongol nomads all nihilists at thirteen? I’ve read a lot of history, and I have not seen a single reference to this supposedly universal fact before the twentieth century. Teenage apprentices in the Renaissance seem to have been cheerful and eager. They got in fights and played tricks on one another of course (Michelangelo had his nose broken by a bully), but they weren’t crazy.

        Teenage kids used to have a more active role in society. In pre-industrial times, they were all apprentices of one sort or another, whether in shops or on farms or even on warships. They weren’t left to create their own societies. They were junior members of adult societies.

        Teenagers seem to have respected adults more then, because the adults were the visible experts in the skills they were trying to learn. Now most kids have little idea what their parents do in their distant offices, and see no connection (indeed, there is precious little) between schoolwork and the work they’ll do as adults.

        And if teenagers respected adults more, adults also had more use for teenagers. After a couple years’ training, an apprentice could be a real help. Even the newest apprentice could be made to carry messages or sweep the workshop.

        Now adults have no immediate use for teenagers. They would be in the way in an office. So they drop them off at school on their way to work, much as they might drop the dog off at a kennel if they were going away for the weekend.

      • UCrawford


        At first I was opposed to your comment as a knee-jerk reaction, but I’ve got to say that there seems to be some validity to the argument your source brought up. Perhaps we do infantilize teenagers too much in the misguided notion of “childhood” as some mystical Rockwell-like Eden that we must do our utmost to preserve for their safe development instead of expecting them to be productive. Do I think, however, that this means that 13 year olds should be able to drive cars, purchase drugs or alcohol, buy guns and exercise the full rights of an adult without some parental control? I’m a little leery about the practical implications of that and I’m not so sure that the societal examples you mentioned earlier lend would agree with the idea that there was no difference in the freedoms a 13 year old or an 18 year old should be allowed to enjoy. I think that it’s just a lot grayer than that.

        As for the pre-13 crowd, I still stick by Maslow’s first two levels as the cut-off point for parental rights vs. state intervention.

      • Jeff Molby

        UC, If you’re not familiar with Graham, you should read some a few of his essays. He has a couple inherent biases that you need to keep in mind, but his writing is generally an honest and insightful exploration of a the topic at hand.

      • Joshua Holmes

        Do I think, however, that this means that 13 year olds should be able to drive cars, purchase drugs or alcohol, buy guns and exercise the full rights of an adult without some parental control?

        By and large, 13 year-olds don’t earn any income, and they would still earn little even if we had a system more like the apprenticeships of old.

        But then again, if they could, but were subject to the same rules as adults, I tend to think they would take these freedoms more soberly. Get drunk in your friend’s basement and roll into public school with a hangover? No big deal. Get drunk and roll into your apprenticeship with a hangover? Problem.

      • UCrawford


        I see your point, but by and large I’m okay with the federal age limit where it is and with the states determining their own standards for local communities and specific circumstances. The instances in which I think the federal government needs to determine maturity level are very few and in most of those instances (military service and voting as the primary ones) I don’t think society’s going to gain a lot by including thirteen year olds in the pool. I’m okay with apprenticeships for 13 year olds and getting rid of mandatory education (high school was largely useless) but I think it’s a stretch to grant them full rights.

        As for the under 13s, my arguments remain unchanged.

      • Doug Mataconis


        Do you honestly think that a 13 year old has the maturity and emotional discipline necessary to be treated as an adult ?

        Yes, two hundred years ago they were. But in some ways, we are far more civilized than people were 200 years ago when it comes to the status of children in society.

      • Sean

        Once upon a time, rites of passage determined when you were an adult, usually around puberty. Now, most people don’t really consider themselves adults until age 26. Thanks to our increasing emphasis on dependence, the age of maturity has literally doubled. And it’s only happening in our worldwide culture that constantly emphasizes self-reliance less and less.

        I work in a Sudbury school, an alternative democratic model that lets kids decide for themselves what they’re going to learn, how they’re going to learn it, and what they’re going to do all day. I see freedom for children work every day. No, I’m not going to let the eight year old stay in the building without a single adult around. But he’s already a lot more articulate and mature than some 18-year-olds I’ve met who’ve never made a real decision in their lives.

      • UCrawford


        “But in some ways, we are far more civilized than people were 200 years ago when it comes to the status of children in society.”

        And in some ways we are far more infantilized. I don’t agree that 13 year olds merit full rights, but I think Joshua and the citation he linked to brought up some very valid points.

      • Joshua Holmes

        Do you honestly think that a 13 year old has the maturity and emotional discipline necessary to be treated as an adult?

        Considering that they were for most of human history prior to 1900 CE, yes.

        Yes, two hundred years ago they were.

        And two thousand, and twenty thousand, and two hundred thousand…

      • Nick Russell

        Is this too simple? Let the young person decide. At some point in his or her life, he or she needs to step out and declare ‘I am an adult and ready to join adult society’. For some (streetwise kids?) this will occur at an apparently young age, for others (the precious darlings), much later. For a few – I’m anticipating our next discussion on the mentally challenged here – it may never occur at all and the individual concerned will continue to receive the protection of ‘childhood’.

        No doubt, humans being humans, such a public declaration will become ritualized and will take place at a ‘usual’ age. So? Sounds like a Bat/Bar Mitzvah or a Confirmation to me – to use only examples with which I’m familiar.

        Thought I’d throw this in.

        Nick Russell, Herefordshire, England