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Ownership of Children

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The Texas Trigger Posted: Tue, Aug 14 2012 10:20 AM

Ok, so I just thought of this question and I am wondering what the implications are. Perhaps I am not understanding somethign correctly.

 

so......in short, take the praxeological factors of ownership. Put very briefly, we own that which we homestead/mix our labor with. Sex, in this sense, could be considered labor, and a man and woman cooperate to produce a child.

I subscribe to the Rothbardian definition of a child and its rights to break from the parents rule once it has shown both a will to leave and an ability to fend for itself in one way or another.

However, given Misesian ideas of property ownership, how can the child be said to be anything other than property. Perhaps I am misunderstanding the definition or I am taking it too far/too literally, or it just does not apply in the case of humans. But still...it seems that if a man and a woman cooperate to mix their labor with each other and "produce" a child, they might be said to have ownership over this child.

how is this resolved?   

"If men are not angels, then who shall run the state?" 

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gamma_rat replied on Tue, Aug 14 2012 11:07 AM

. Perhaps I am misunderstanding the definition or I am taking it too far/too literally, or it just does not apply in the case of humans.

Inexplicable exemptions break theories.

What if parents are stewards, rather than owners?

"The history of the world is the history of the triumph of the heartless over the mindless." - Sir Humphrey Appleby
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gotlucky replied on Tue, Aug 14 2012 11:20 AM

You are misunderstanding homesteading and libertarian ideas of just property. Certainly, if a legal system allows for it, you can own whichever person you want. But what we want to examine is what a libertarian legal system might allow for. The rule of first use, or homesteading, is only meant as a way to resolve questions of ownership. It's not some dogmatic rule that must be applied to everything. Just consider why the rule of first use is even accepted by libertarians. Let's look at the following scenario:

You and I are on an island, and there is only one source of water. I sprint towards the water and take a sip of the water first. Then, when you come to take a drink, I tell you that you may not touch my property, as I was the first person to use it.

Now, there is no way that you would ever agree to such a rule. There is one source of water, and neither of us had previously owned it, so why should you accept some rule saying that whoever can run faster gets to own the water? There is no reason why you would agree to this. So in this scenario, it would not make sense to talk about homesteading the water, as the homesteading rule is meant to resolve and prevent conflicts, not cause them.

I guess that's probably the best way to look at it. Norms are meant to resolve and avoid conflict. If a norm does not accomplish this, then it really isn't a very good norm. Homesteading is a good norm in the vast majority of cases, but there are times when it is inappropriate. And the reason why homesteading is accepted by libertarians is because it is an offshoot of the NAP/golden rule. "Don't touch my stuff and I won't touch your stuff." If I claim this apple tree as mine and you claim that banana tree as yours, then we can choose to either respect or violate these claims. But if there is only one source of water, then there is no reason for either of us to respect a claim of exclusive ownership.

To bring this to children, so maybe the parents make a claim of ownership over the child, but why should the child respect that claim? And can the parents just do whatever to the child? No. This is why Rothbard talks about trustee ownership or guardianship. The parents do not own the child. And homesteading is an inappropriate rule to bring up as it does not really apply. The only way you could apply "homesteading" would be to use it against other people trying to make a claim towards your child. You and your wife create the child (and your wife carries the baby to term). Who else has a better claim? How would another rule other than "first use" resolve and avoid conflicts regarding children?

There isn't another rule. The only way another person could legitimately claim the child is if the parents abandon their rights to take care of the child. But if you and your wife have a baby, and then some random person comes up and tries to claim the baby under the rule of second use, how is that going to resolve and avoid conflicts? Not all conflicts can be avoided or resolved without the death of one of the parties, but a norm or law is bad when it wouldn't resolve or avoid conflicts most of the time.

/rant

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soooo you are agreeing that parents have property rights of a child?

can you go further into detail of trustee ownership of a child? how would as a society determine allowable actions against your own propety?  length of trustee ownership, spanking a child with an open hand/with a belt, tossing your child against a brick wall, if your property robs a bank, or goes on a kill spree at their school.

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gotlucky replied on Tue, Aug 14 2012 12:18 PM

soooo you are agreeing that parents have property rights of a child?

Having the rights to raise a child is not the same as owning the child.

can you go further into detail of trustee ownership of a child? how would as a society determine allowable actions against your own propety?  length of trustee ownership, spanking a child with an open hand/with a belt, tossing your child against a brick wall, if your property robs a bank, or goes on a kill spree at their school.

The child is not your property. There are some posts around here where Clayton has gone more into this. Basically, if the parents are abusing the child, the grandparents ought to be the ones to step in. Or the aunts and uncles. That sort of thing. If there is no one closely related to the child, then strangers can start making claims. But it's not like just anyone can swoop in and take the child. It has to do with disputes and norms. If you think that someone is abusing their child, and you want to do something about it, you have a dispute. This dispute needs to be settled. If the child is old enough, then the child can decide for himself who he wants to live with. But if the child is really young, the parties involved will look to the norms. If the parents only occassionally spank their child, then they will probably keep the child. But if the parents beat their child so bad that they break bones, then it's likely that the other party will get the rights to take care of the child. But remember, the people who get first dibs are the grandparents and aunts and uncles.

I'm not going to try and predict what the norms will be. I can only say that there will be some actions that remain in favor of the parents, and other actions will constitute abandonment of the rights to take care of the child.

 

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Was just trying to understand your position better.  i agree with everything you say, but im of the opinion children should be considered property.  Though i recognize a huge contradiction when i say im for a 3rd party (grandparents, close relative) stepping in to claim parental rights when a child is obviously abused.

How do you determine liability if 4 yr old throws a rock through a neighbors window?  You cant claim to imprison the child or make a 4 year pay for the broken window since they are not of an age to fully understand their actions.  I believe a parent(s) would be liable to fix the window, but how can a parent be forced to pay if a child isnt considered their 'property'?

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David B replied on Tue, Aug 14 2012 1:08 PM

grant.w.underwood:

Was just trying to understand your position better.  i agree with everything you say, but im of the opinion children should be considered property.  Though i recognize a huge contradiction when i say im for a 3rd party (grandparents, close relative) stepping in to claim parental rights when a child is obviously abused.

How do you determine liability if 4 yr old throws a rock through a neighbors window?  You cant claim to imprison the child or make a 4 year pay for the broken window since they are not of an age to fully understand their actions.  I believe a parent(s) would be liable to fix the window, but how can a parent be forced to pay if a child isnt considered their 'property'?

I think the issue is and will always be one of agency and position before the other members of society, and this is only relevant for the purposes of dispute resolution.  

The example above is in fact how one resolves the situation, and while others may find it odious, for all intents and purposes the actions of the child should be dealt with (in their larger social implications) just as one would deal with the actions of an animal.  The question is when a child violates the property rights of others, who is the litigant in a dispuate action?  In our societies, it is normal for the parent to step up and act as the responsible party for the actions of the child, therefore if a violation of property is found to have occured then the parent (or other responsible adult) is bound legally to repair any damages caused by the child's actions.

Now, with an animal as pet or livestock, the same relationship is also true, but in the case of the animal, the owner can choose to step aside and "disown" the animal, either by putting it down, or by releasing it into the wild.  

The one difference between the child and the animal is that regardless of the mental capacity of the child in the present, the expectation is that at some future time, the child will become a legally responsible adult.  The hardest question for any law or dispute resolution institution is how to deal with "crimes against a child by the custodian".   In a pure property relationship such acts would not by any definition of property be actions by the owner to use his own property and thus not a crime.

There are two ways a legal system might choose to mitigate this type of harm, in ways that would not violate the normal property relations that free societies respect.  The first way would be to view the child's parent as some type of temporary owner, or landlord.  The parent is a custodian responsible to the future and rightful owner. Meaning that if the parent commits criminal acts against the child in the present, the future adult would have legal standing to seek redress for such harm.  This might be reasonable, but a very slippery precedent, and any law or precedent in this regard would need to be very stringently and conservatively framed.

The second way would be for the other members of society to use economic sanction to redress the offending behavior.  Now a more "real-politik' type of solution would be for well-intentioned members to "kidnap" the child, and take responsibility for the current and future care of the child.   The question then would be whether or not the community of his peers would stand behind his actions, which would for all intents and purposes represent a violation of property rights.

The other sticky aspect is to decide what dividing line to mark in the sand which establishes the rights of the child to be recognized as an adult before the court.  In most aspects of economic life a child can in fact take some economic actions and have them deemed legal actions.  For example, I've seen many children spend their own money to buy candy.  Contract law in the US prevents a minor (under-18) from entering into a contract, thus any contractual agreement with a minor is null and void without any recourse to the other party for any unmet contractual terms. 

Anyway you look at it there is no perfect answer.  But on the other hand, any evils suffered by parents upon children can just as easily be committed by well-intentioned violent external intervention by "authorities".  And in fact, institutional interference will most likely lead to a more rapid destruction of children, and thus the future vibrancy of the society would be in serious if not fatal jeopardy.  Compulsory education, forcing minors to stand before the court as adults for agregious actions, regardless of age (think of pre-teens on trial for murder as adults), etc.  are all examples of bending historical standards for emotional reasons without regard for the larger societal impact.

Regardless of the political system in place for any society, even under libertarian ideals represented in various ways by minarchist, anarcho-capitalist, or anarcho-communist solutions would still have to deal with these issues.  No solutions will ever result in a society where children are perfectly cared for, and none of them become criminal or pathological in their behaviors.

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gotlucky replied on Tue, Aug 14 2012 1:30 PM

Was just trying to understand your position better.  i agree with everything you say, but im of the opinion children should be considered property.  Though i recognize a huge contradiction when i say im for a 3rd party (grandparents, close relative) stepping in to claim parental rights when a child is obviously abused.

I'm not sure that I can offer an argument to convince you that children ought not be considered property. I can only say that it leads to some bizarre conclusions. For instance, you have a right to destroy your property, but from what you say, it seems that you do not consider it right for a parent to do the equivalent to his child, i.e. kill his child. So, all I can really say is that viewing the parent as a guardian of the child prevents some of these bizarre and what I would consider to be unjust conclusions.

How do you determine liability if 4 yr old throws a rock through a neighbors window?  You cant claim to imprison the child or make a 4 year pay for the broken window since they are not of an age to fully understand their actions.  I believe a parent(s) would be liable to fix the window, but how can a parent be forced to pay if a child isnt considered their 'property'?

Well, I don't really believe in the justness of prisons, especially they way they are run in the modern state. It's tricky as to who ought to be held liable for the actions of a 4 year old. Before we look at children, let's look at a dog bite:

Suppose dog A is offleash and bites person B. Who is liable for the actions of the dog? Do we say the owner of A, or is A liable? Before we answer that question, let's suppose that instead of an owned dog, it was a wild wolf that bit B. Who is liable? Well, certainly no person is liable. Is the wolf liable? It's a strange question to ask. Obviously the wolf is the only one controlling its actions, but liable is a legal term. And since there cannot be any formal dispute between a wolf and a person, it makes no sense to talk of liability (certainly wolves and people can have disputes, but these are not formal disputes of the kind that can be dealt with in the realm of law).

So, if the dog A is owned, who is liable? Certainly not the dog. So, person B cannot have a formal dispute with the dog, but he can have a dispute with dog A's owner. In that case, the question of liability is whether or not A had taken reasonable measures to prevent his dog from attacking someone. Unless B had let dog A out of a fenced in yard (or something similar), then person A is liable, as it is his responsibility as the owner of dog A to prevent his dog from getting loose and hurting people.

So let's bring it back to the four year old. It's a similar scenario. One cannot have a formal dispute with a young child, as the child is not competent. So, if the child does something wrong, such as key a car (I don't think a four year old could throw a rock hard enough to break a window), then who is liable and to what extent? Well, four year olds shouldn't be wandering the streets by themselves, so parents or whoever is supposed to be watching the kid at the time should be taking measures to prevent the four year old from keying cars. What if the four year old somehow kills another four year old (this is the extreme of bad actions)? Well, again, why is this kid being unsupervised at 4 years old? If the parents or babysitter or teacher or whoever were in the room and doing their job of supervising, wouldn't they step in and stop a four year old from killing another kid? So, these people are liable.

What if the kid is 10 years old? Well, at that age, the 10 year old is probably liable. Historically, children around that age have begun to enter legal adulthood, even though in our modern era of state dominance the age has been pushed up. Anyway, kids don't really kill other kids the way you see it on tv, and especially 4 year olds don't kill other 4 years olds except maybe in some tragic accident. Either way, if the kid is legally incompetent, then whoever was supposed to be watching the kid is liable for a wrongful death. If the kid is legally competent, then the kid is legally liable.

Perhaps there are some exceptions, but the way I see it, if you don't want to be held liable for your legally incompetent kid's actions, then supervise him or arrange to have him supervised (thus having blame shifted to someone else if something goes wrong).

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Wheylous replied on Tue, Aug 14 2012 6:43 PM

However, given Misesian ideas of property ownership, how can the child be said to be anything other than property

My view on things is that the fetus is indeed property until it gains sentience. After all, our liver is alive and it certainly doesn't have rights separate from ours. So the fetus needs something special besides being alive. Having different DNA doesn't really cut it. The thing it lacks up to a certain point is sentience (however you define that, a new can of worms). But I hope it's reasonable to say that a few cells jumbled together after conception are most definitely not sentient. They are property of the parents, specifically the mother.

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hashem replied on Tue, Aug 14 2012 7:41 PM

I read For a New Liberty and The Ethics of Liberty 5 times each, and a shitload of Rothbard stuff a few years ago when I was just getting into anarchist stuff.

According to Rothbard, a child is a self-owner (and therefore free) when it is A) a self, an individual (not attached by umbilical cord) and B) an owner, which requires the capacity to act (behaving intentionally and purposefully).

The property thing is resolved simply: as a self-owner, it may not be considered property, and is therefore a free human. This may be a few months into life, or a few years, depending on your understanding of action as purposeful behavior. Until then, the parents are at most "trustee" owners, free to help—but not to harm—the child, and by no means obligated to support it.

Whenever you find yourself on the side of the majority, it's time to pause and reflect. —Mark Twain
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Which is a greater risk, that parents who own their children will abuse them and no one will have the right to interfere, or that perverts will game the system and take children from parents falsely accused of abuse? These are the risks associated with parental ownership of children and parental trusteeship (or whatever you like to call it), respectively.
 

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