A Child’s Rights

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Walter, thank you for your praise and comments. The problem facing Rothbard at the time and us now and anyone with any theory of rights is to ascertain the rights of children and parents. Richard D. Fuerle has a new theory of natural rights that I’ll use in order to analyze the problem. In my opinion, his is the best theory of rights that I know of. To come right to the heart of what he says about children’s rights:

“Failing to act is not a violation of a right because a violation of a right requires the initiation of a chain. One does not violate a child’s rights by failing to care for it unless one has consented to be so obligated. If Bob agrees to feed Sally, a child, he says, in effect, that he will abandon his ownership of his food at periodic intervals so that Sally can acquire ownership of it and eat it. Ownership of the food passes to Sally at those intervals and if Bob retains possession of Sally’s food, he violates Sally’s rights.”

Elsewhere, he says “One cannot escape responsibility for one’s acts,…”, which is relevant if one has in some way consented as a parent to take care of a child.

This pushes the problem back to an analysis of consent. “…a person consents when he indicates, by word and/or deed, that he consents, unless he would not have so indicated had he not been threatened with a right violation.”

How does a parent consent to be obligated to care for a child? This occurs through action or deeds. If the parent carries the child through pregnancy and gives birth, these actions imply consent to the subsequent caring activities after the birth. That is, the parent cannot suddenly stop feeding the out of uterus child without its breaking the bond and obligation. The parent does have parental or guardianship rights as you call them, but that’s a different matter. They do not preclude that the child has rights that it has acquired through the consent of parents.

In Fuerle’s theory, rights are acquired in Lockean fashion by homesteading. A right is a valid claim, and a valid claim can’t be defeated or proven otherwise by any argument (not force, but argument).

“Children are not in a separate class – they acquire rights the same way as adults.”

“Also, children gradually acquire rights, but normally they can not acquire rights inappropriate to their maturity…”

In Chapter 12, Fuerle explains how a fetus acquires some rights:

“Now, at some point, that fetus will acquire free will, but until it does it is not capable of acquiring rights and can be destroyed by the woman. When it acquires free will is a question of fact, but let’s suppose that it acquires free will before it is born. The woman still sends her nutrients to it through her umbilical cord, she still controls its overall position relative to her body, she still controls contact with its body, and she does not abandon those rights. But when an entity having free will arises within the fetus, that entity moves the body in which it resides to achieve some value, even just the pleasure of moving a finger, and it acquires a right to use its body to achieve that and other values, subject, as with all rights, to the pre-existing rights of others, in this case, those of its mother.

“Now suppose the mother wants to abort a right-bearing fetus. The situation is analogous to the little boy next door coming onto your yard (or staying in your yard) without your consent. He violates your rights by doing so but you will violate his rights if you injure him. What do you do? Well, you can take him home and neither of you will have any significant liability, but if you blow him away with a shotgun, your liability will be pretty high. Similarly, if the woman destroys a right-bearing fetus she will have civil liability and, if it is intentional, criminal liability. Suppose she removes a non-viable fetus from her womb, putting him in the outside world, a world in which he cannot yet survive? In the yard analogy, this is similar to her putting the boy into a raging river, for which she would clearly incur liability.”

Coming back to the issue of consent, Fuerle says

“Freedom means that a person cannot be deprived without his consent. A really good theory, therefore, would require a person’s consent before he is so deprived.”

If a child is made to starve, there are many ways in which it will show that it does not consent. Even a baby will cry. A parent who mistreats a child is definitely depriving that child of freedom and violating some acquired rights of that child, assuming, which it is reasonable to assume, that the child does not consent.

There is no need to bring in positive rights in all of this reasoning. All rights are arising from homesteading or acquisition by transfers or monetary exchanges.

“In this theory, you can pass through life never being obligated to another person unless you consent to be obligated. No one can say to you, ‘Because you exist, you have certain obligations to others’ such as to defend them (the draft) or to care for them (to pay taxes for welfare or other ‘services’). You are free, of course, to undertake any obligations you wish to, but they cannot be imposed upon you without your consent – you are not a barnyard animal to be used by others. This theory requires 100% consent – no non-consensual relationships are permitted. No one, not even a criminal, can suffer the loss of his rights without his consent.”

This blog is already way too long, and I haven’t even addressed what I’d say about Rothbard’s take on children’s rights. I also haven’t addressed your theory or theories, since you also have a theory of abortion. Instead, since it does take a theory to beat a theory, I’ve explained how it is, in Fuerle’s theory, that a child acquires a right to live, and it’s basically by homesteading. Then I’ve explained how it is that parents consent to care for a child, so that they take on an obligation and incur a responsibility. This is by word and deed, and that idea could be fleshed out even more. But it adds up then to the conclusion that if the parents suddenly decide to starve the child to death or let it starve without transferring it to someone else who takes on the responsibilities of caring, then those parents are certainly violating rights of the child that have been acquired in the ways I’ve outlined.

6:24 am on April 29, 2014