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Sailboat, Shipwreck Survivor, Trespass and Abortion

Walter Block is the energetic and efficient clearinghouse for many e-mails that challenge libertarian ideas. Thank you, Walter. An entry today struck me because I’ve been pondering for several days the same question in the context of abortion. The writer wrote

“A ten year girl old survives a shipwreck and is floating around in the ocean surrounded by sharks. A Libertarian comes along in a sailboat. The ten year old climbs onto the sailboat to save herself and the Libertarian picks her up and throws her back into the water, shouting, ‘How dare you trespass on my boat!’ She drowns.”

This example is almost exactly the same as the abortion case. The sailboat is a woman’s body and womb. The ten year old climbing in is the fetus. The Libertarians who own the sailboat are represented by Murray Rothbard and Walter Block, who follows Rothbard’s theory very closely. Both would say that their legal right, in the libertarian law theory, is to evict the trespassing girl if they want to. Both say that removing her is legal. Both say she’s initiated violence and they can throw her out in self defense. (They could also elaborate the case to say that they do not have any positive obligations. They don’t have to give her space, food, water or anything else.) In the abortion case, the woman owns her body and womb. She only has not to want the fetus aboard for it to be a trespasser. Her self defense right kicks in and she can remove (evict) it (like tossing the girl back into the water). If death follows, that’s no crime of theirs. And let us assume that tossing the girl overboard is done in the gentlest possible manner, as Block stipulates for removal of the fetus. Okay?

We can quote any of several equivalent passages in which Block argues the theory. Here’s one that just happens to be conveniently at hand:

“The womb is her property, and, in libertarian law, she, I contend, properly maintains control over it. If she wishes to house the fetus there until natural gestation is completed, well and good. But, if she does not, what rights does she have over this small human being who now resides within her body? May she kill it, and then eject it? May she remove it from her body, that is, evict it? In my view, the relation of the fetus to the mother is akin to the one that obtains between the ordinary trespasser and the owner of the property in question. In libertarian law, the property owner is entitled to remove the trespasser in the gentlest manner possible; if this necessitates the death of the trespasser, the owner of the land is still justified in upholding the entailed property rights. My conclusion, then, is that the mother is within her rights to evict, but not kill, the fetus. The ‘gentlest manner possible’ in this case requires that the mother notify the authorities to see if they will take over responsibilities for
keeping alive this very young human being. However, if the ‘gentlest manner possible’ implies the death of this very young human being, then so be it: the mother still has that right.” [Emphasis added.]

If gently sliding the girl back into the ocean implies her death, then “so be it”. The libertarian sailors have that right.

Rothbard says much the same about abortion:

“But should the mother decide that she does not want the fetus there any longer, then the fetus becomes a parasitic ‘invader’ of her person, and the mother has the perfect right to expel this invader from her domain. Abortion should be looked upon, not as ‘murder’ of a living person, but as the expulsion of an unwanted invader from the mother’s body.”

This logic is built upon a strong foundation which is the woman’s absolute ownership of her body and the Rothbard-Block absolute ownership of their sailboat. Is the logic impregnable? Is it impervious to revision? If so, where are the weak spots in its battlements?

The sailboat case is a tougher case than even the abortion case, because it avoids complexities that can create argument. In the latter, one may argue that consensual sex makes a difference. One may argue (contra Rothbard) that the fetus has some self-ownership rights. One may say that the female owns the fetus. To simplify let’s focus on the sailboat case, not on abortion.

I will paraphrase some of the steps in the Rothbard-Block (RB) theory applied to the sailboat example.

1. We (Rothbard and Block) own the boat. Our ownership is absolute.
2. The girl is trespassing because we do not want her in the boat. (If we had wanted her, then she would not be trespassing).
3. We have no way of removing her except by a method that causes her death.
4. If we remove her, we are not guilty of a crime when she dies because her removal is by the gentlest means possible of removing her.
5. The girl must be removed to end the trespass.
6. We decide that there must be an end to the trespass.
7. Therefore we remove the girl.
8. She dies.

I suggest that each step here be examined closely to find weak spots in the theory. I save that for another time, maybe, but I have many, many questions to raise; and here are a few.

Does absolute ownership in this case imply RB may cause a life to end?

Did RB end the life indirectly or directly? Is gentle eviction from the boat a fiction? Does gentle eviction get RB off the hook?

Do RB have obligations outside of libertarian law? If so, where do they come from? If so, does that mean libertarian law is defective or needs to be supplemented?

Have RB interpreted libertarian law correctly?

What happened to Rothbard’s theory of proportionality in punishment? Why does it or a variation or extension of it not apply?

Is the ten year old guilty or innocent? Do the circumstances in some way mean that she’s not trespassing? Why are her rights inferior?

Why must there be an end to the trespass, if there is one? Why do RB’s absolute rights prevail?

Does the situation call for a reworking of rights in this 3-person society, or must we stick to the rights as previously defined?

If it is moral to save the girl (Rothbard acknowledges that he’s concerned with legal rights not the morality of abortion), is it a failing of libertarian law not to handle it in a case as startling as this one?

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6:02 pm on May 31, 2019