Monday Open Thread — Hard Cases Edition

Doug recently posted a “Libertarian Hard Cases” thread about how to deal with issues related to children. Libertarianism is one of the few political systems that treats adults like adults and holds them responsible for their actions; it assumes that people are rational actors who are capable of making decisions in their own life and deserve rights commensurate with that ability. But it has difficulty answering questions regarding people who are not capable of making those decisions and cannot be trusted with the rights to do so, such as children and the mentally disabled.

Undoubtedly, there are many other libertarian hard cases. So this thread is a call to the readers here to give us ideas. What libertarian “hard cases” would you like to see addressed?

For example, I’ll be writing a post soon regarding the rights of parents to choose to vaccinate or not vaccinate children. There are two clear questions that arise:

1) As a parent, do I have the right to not vaccinate, which is a choice that some would consider tantamount to abuse or neglect of a child, if I believe that the potential harm of a vaccine is worse than the disease it is preventing against (such as chicken pox)?
2) Does society as a whole have a legitimate claim to supersede my right to choose not to vaccinate, as it creates an externality that increases the likelihood that we see an outbreak of vaccine-preventable diseases?

These are difficult questions, and ones that I think may result in disagreements within the contributors here, so it could lead to some interesting fireworks. If you have any suggested topics, let us know.

  • tkc

    Question 1: Yes, you do have the right to not vaccinate your child. The question that needs to be asked is if you are putting someone else in harms way. Some people will say that not vaccinating your children puts other children at risk. I think that, for the most part, this is hogwash. If little Joey dosn’t get his shots and little Mary does then Mary should, for the most part, be safe from the diseases that Joey might get because he is not vaccinated. Now, should Mary catch something from Joey and Joey wasn’t vaccinated you might have a specific case of wrong doing that could be punished. But this is not an excuse for collectively pushing medical proceedures on to the public at large.
    Is it child abuse? That is hard to say. There are all sorts of things that put a child at risk. Where do you draw the line at what is abuse and what is not? Again, deciding this collectively is a bad idea.
    Question 2: absolutely not. Society, in general, has no more rights than the individual does. I cannot come to your house and force your kid to have a vaccination. You would clearly be in the right to tell me to take a hike and use force against me if I persisted. It would be considered a crime if I tried to do this individually. Society cannot vote collectively to make a criminal act legal as that would be highly unethical. Yes, I know, government does this all the time. That doesn’t make it right.
    Democracy does not confer legitimacy.

  • FreedomDemocrat

    I’d say that increasingly we’re going to see “post-scarcity” or “post-economic” issues becoming more and more important within American politics. Today’s environmentalism is only the start. I think more and more we’re going to see a rise in concern for animal rights, and I think that it’s a very hard case for libertarianism in the future.

    Specifically, how would a libertarian approach something like Arizona’s Proposition 204 from 2006. Here’s a state that voted down a gay marriage ban and voted for laws requiring pigs and calves be given enough room to move around.

  • tkc

    What would be a ‘post-scarcity’ or ‘post-economic’ issue. Environmentalism most certainly has to do with scarcity and economics. Ignoring this is usually its downfall.

    It is hard to argue for animal rights as we regularly raise them simply for the point of killing them and eating them. Animals don’t have the first and foremost right, that being their own life.

  • Doug Mataconis


    As a general rule, I think its clear that the state doesn’t have the right to force you, as a parent, to vaccinate your child. The question becomes how far parental rights go.

    Does a parent have a right to refuse to allow their child to receive emergency medical treatment that is necessary to save the child’s life ?

    Do they have the right to refuse to allow the child to receive non-emergency elective surgery that would make the child’s like “easier” in some way (i.e., an operating to correct a cleft palatte, which is not a life-threatening condition but is disfiguring if not corrected) ?

    And if the answer to Question # 1 is yes, how far does it go — do parents have the right to starve their children and treat them like slaves ?

    I have more thoughts about this that will end up in a future post this week, but I think the basic position on children’s rights should be as follows:

    Children have rights in the same sense that they have the same natural rights that every other human being has. However, since they are physically, mentally, and emotionally, immature, their parents are charged with the task of safeguarding those rights in what they believe to be the child’s best interests. To the extent that the state has a role in protecting children, it is step in when parents either are unable or unwilling to fulfill that role or when they become a danger to their children’s rights, specifically the rights to life and liberty.

    I know that leaves a lot open to interpretation, but I think its a start.

  • tkc

    Here is tough one for you. Let’s say that Junior has a critical problem that most likely can be corrected by a competent medical operation. The parents, for whatever reason, don’t want the kid to have this proceedure done.

    The kid then turns to the doctor or some other third party and says, “Please save me.” What do you do? What can you do?

  • tkc

    My fortune cookie from lunch says, “The will of the people is the best law.”

    Heh. Hogwash.

  • Brad Warbiany


    Must be those commies in China :-)

  • FreedomDemocrat

    tkc, most political scientists have identified environmentalism as a “post-scarcity” issue because it’s something that tends to pop up in developed counties. Only affluent countries can afford to focus on conservation of land and similar issues. And if you’re just on the edge between starvation and having a meal, you’re not going to care that much about the activists telling you not to hunt whales or other appealing animals in the media.

    One could very easily modify your statement to:

    “It is hard to argue for slave rights as we regularly raise them simply for the point of working them to near death. Slaves don’t have the first and foremost right, that being their own life.”

    My point is that in affluent societies you’re more likely to see people considering giving more rights to animals, and I think this is a hard case for libertarians.

  • tkc

    FreedomDemocrat: since the ‘post-economic’ thing got thrown in I assumed the economic definition of scarcity was being used. Obviously a bad assumption on my part. You’re right, affluent societies have more disposable resources to deal with environmental problems.

    As for the modification there is a clear difference between human slaves and cattle. The humans have an ability to reason. For example, cattle don’t raise us for corn feed and pasture space. The ability to reason seperates us from animals. Again, a more affluent society will deal with this in a different way than a poor one.

  • FreedomDemocrat


    “The humans have an ability to reason.”

    And these “libertarian hard cases” are in areas where the subject is incapable of reason, like the mentally handicapped or children or people in comas. I think that another “libertarian hard case” may be with animal rights, where a number of species (like chimpanzees and even bees) show advanced mental thought processes.

  • Joshua Holmes

    I don’t consider animals rights a difficult question at all. Animals have no rights. But realize this isn’t a libertarian answer. It’s not un-libertarian, either, it’s a question outside libertarianism.

    As for vaccination, I think the answer is that parents have the right to withhold it. Parents are the guardians of the rights of their children, and they should have broad discretion to raise them, feed them, educate them, and care for their health. There needs to be some imminent danger to a child to override the duties and responsibilities of a parent. To vaccinate is something that I disagree with, but I do not think it poses an imminent danger to the child. Hence, the parent gets to choose.

  • tkc

    FreedomDemocrat: I don’t think they are as hard of a case as one might think. With the mentally handicapped, children, or chronically disabled most libertarians will give a wide berth to the wishes of the family over most dictates of the state. Only in the hardest of cases would I think a third party would be called for. Such ‘hard cases’ should be dealt with individually based on the facts of that case. 99.99% of the people can get by 99.99% of the time without intervention. It is the busy bodies who invent problems for themselves to solve. Libertarians have very little use for these busy bodies.

    When it comes to animal rights, the arguments, for me, seem to be on the fringe. Bees have a hive mentality that seems to lend itself to survival, not to reason. One can teach a dog to sit and fetch and rollover but I doubt the dog ever bothers to reason his way about it. Things learned by instinct or by trained repitition is not reasoning. Most people will swat a bee if it disturbs them too much. Most people will not think twice about giving the dog swat to the nose if it misbehaves. If I tried either with you then you’d have me up for assault charges. That is because you have rights. The dog and the bee do not.
    As for chimps, most people won’t run into one outside of a zoo. Yet most people, except for the fringe, don’t think twice about a chimp being kept captive in a zoo. Replace that chimp with a human being and there will be a stir.

  • GabrielLawana

    what the freaking blog about facebook proxy can i use it for my emule software