first off, does anyone know of books or articles that talk about childrens rights???
I got asked a question that goes something like this…
since ana caps are for voluntary contracts, how is a kid being born under an anarcho cap society part of a voluntary contract agreement if their parents signed it?
how old does one have to be in order to sign a voluntary contract? suppose a man tells a 6 year old kid to sign a contract but clearly the 6 year old doesnt have the maturity to understand the contract or the purposes of the contract.
My answer was that private court would handle both of these matters, but i need some help explaining this further
There are plenty of books and articles about children’s rights in a libertarian society. A place to start might be Rothbard’s “The Ethics of Liberty” Chapter 14. You can find the a pdf file here and an audio file here. Otherwise, just do a site search on the topic and you will find plenty to read on the topic.
Your answer that private courts will handle these matters is a good answer. Here are some ideas to flesh out your answer.
Under English and US common law, “age of consent” is a subpart of the legal concept of capacity to contract. For a contract to be valid and enforceable, the parties to the contract have to have the capacity to contract. To have the capacity to contract, parties must have sufficient understanding so that they can appreciate what they are doing. Adults and children can be incapacitated for purposes of entering a contract. Mentally ill or handicapped adults may lack the capacity to contract. Capacity to contract is an old common law concept. There is a well-developed body of law on this subject.
Capacity to contract, in turn, rests on the concept of fraud. Contracts resulting from fraud by one of the parties are not enforceable. This would continue to be true in a libertarian society. So, capacity to contract, so long as it is rooted in determining when a contract is the result of fraud, would continue to be an issue in a libertarian society. Just as capacity to contract issues were determined by public courts under common law, they would be determined by private courts in a libertarian society.
Good idea for a post. I’m doing my senior thesis on how exactly an anarcho-capitalistic society would function, and this is the one section I’m having extreme difficulty in arguing. Things like “What if kids don’t really understand what they’re doing when they’re doing it?” lead to “Well, parents, for the most part, want what’s best for their kids.” And then it gets into the whole messay “What if parents put their kids in child pornography, though?” argument. The rights of children is such a hard thing to discuss.
I agree with Rothbard and Walter Block that children are property of their guardians. if we assume that children are property, then an adult trying to make a contract with a child would be invalid because you cant make a contract with property as one of the parties..
i believe the 'age of consent" is a bit misleading because I would say that in an anarcho cap society, there would not be a specific age where a child is considered an adult… instead a child is ready to be an adult when he/she has basic knowledge and experience skills to live on their own..
and of course, if there is any question about a contract being fraudulent, whether both parties aren’t ‘‘adults’’ for example, then the private courts and simply handle this by saying that since a child is property, a child cannot take part in a contract…
I am guessing, the way to show proof that a child is ready to be an adult is by showing work experience, school experience, activities he/she participates in, etc… private courts would determine themselves how much experience in work, schools, etc.. is needed for a child to be considered an adult if there ever was a doubt on whether a specific person was considered a child or adult…
thats the best my 20 year old brain can come up with when dealing with children in anarcho cap societies…
There is no contract without animus contrahendi - real intention to contract with the capacity to do so. That’s a very well-established common law concept, and I don’t see why market courts would abandon it. Signing a piece of paper creates a rebuttable presumption (caveat subscriptor) that you had animus contrahendi, but it’s just a rebuttable presumption. If you’re an infant, or senile, or coerced into it, or have some other genuinely good reason for why you signed it without actually consenting to the terms, then the signature doesn’t bind you to anything. Of course in the real world it’s all about what you can prove on a balance of probabilities to a hopefully impartial and fair court of law.
Presumably, the free market would provide courts which are fairer and more impartial than political courts. Assuming this is what the sovereign consumer demands.
Yes, it is difficult to put the cart before the horse… I don’t know what your thesis is in, but you have to understand the psychology of it. Economics and praxeology can’t bridge the is-ought gap. Praxeology tells us that the state is irrational assuming the praxeological axioms, which are of course irrefutable, but it can’t tell us why people believe in it despite its demonstrable irrationality, and that’s where the answer to ‘childrens rights’ ultimately lies.
In a nutshell, the state is a projection of the statist’s internalised parental voices. The more violent and oppressive a state; the more violent and oppressive the average childhood was for the people who live in that country. Violent, authoritarian childhoods create violent, authoritarian states. Highly controlling, neurotic parenting styles create highly controlling and neurotic states. Childhoods in which it is taboo to talk about embarrasing parental secrets create statists who consider it taboo to talk about embarrasing state secrets. You get the point.
This happens because as someone grows up, they have to develop an internal moral system which is based on their primary attachment figures’ behaviour, especially towards themselves. If dad says that it’s always wrong to hit people, and then proceeds to hit his children, the seeds are sown for the creation of the special moral category of sacrosanct authority which is allowed to violate the rules it establishes for those underneath it. It’s violent assault for most people, but if it’s a parent or teacher doing it to a kid then suddenly it’s “corporal punishment”, which is deemed by those who advocate it to be both morally acceptable and necessary for some utilitarian purpose. Someone who is brought up under such conditions could easily come to believe that it is always wrong to kill people - murder - if it is private individuals doing it for their own reasons, but not if it is the state’s actors doing it for what is alleged to be the greater good - then it’s ‘war’ or ‘assassination’ etc. It would not be incompatible with the moral system they had been forced to internalise whilst growing up. Where the parent is the special moral category at home, the state is the special moral category for society at large. In reality, there are no special moral categories, but there is immense instinctive pressure to view one’s own parents as moral, and once one builds a fallacious moral system which accomodates discrepancies by parents, that same moral system is used to justify the shape of society as a whole.
The reason why most of the more-or-less civilised world is quasi-socialist at this point is because they were raised under utterly socialist conditions as children. How do you expect someone to believe that the government should respect property rights on any sort of principled basis, when the property they owned as kids could be and was arbitrarily taken from them by their parents at any moment? You really think it’s strange that the income tax is less of a tax now than a total confiscation of your productivity with a small ‘allowance’ left over for you to use? Society seems to expect children to magically turn into responsible, property-respecting people when they turn 18, when the incentives haven’t been there for them to behave in such a fashion at any point in their lives. There’s this massive disconnect between the way children and teenagers are treated, and the way adults are expected to behave once they emerge from the other end of the meat grinder.
A peaceable abolition of government will come about only after the vast majority of people have adopted libertarian modes of parenting and education. To imagine that government could disappear today, and family not change one bit, is impossible. It’s the fantasy statists accuse us of when they try to envision anarchy. Libertarians should first adopt the non-aggression principle at home before they attempt to take on the state.
Once a society has been established in which libertarian parenting is the norm, it’s not difficult to imagine how the now-relatively rare instances of parental child abuse will be dealt with. I don’t see why coming to the defense of a child against a violent initiation of force by their parents should be any different to coming to the defense of an adult in the same situation. It’s allowed under private defense. You don’t have to violate anyone’s property rights or the NAP to do it. I’m sure I’m not in disagreement with Block and Rothbard if I assert that a child is the property of their parents’ only inashmuch as that child is not able to demonstrate self-ownership, and I’m sure the criteria for demonstrating self-ownership are identical for any thing suspected of possessing it. It raises interesting questions. An unconscious person is not able to demonstrate self-ownership, and one might argue that he is the property of his next-of-kin while he is unconscious. Is his next-of-kin allowed to kill or otherwise do him harm while he is unconscious? (Unconsciousness… not brain death.) Or do we not operate under the hopeful presumption that he will come round and be able to reassert his own self-ownership in the future? Doesn’t the same sort of reasoning apply to the baby who cannot yet speak to assert his self-ownership? It doesn’t apply to the fetus or sperm cell, obviously, because they cannot ever assert self-ownership without first being born, before which they are literally a part of another’s body.
James - I could be missing something, but I found that to be a very thought-provoking response. I certainly agree that a democratic state can be seen as a reflection of the morals and beliefs of its citizenry, and that parenting comprises a major component of said attributes for each passing generation.
Children have all of the same rights that adults do in the libertarian society. Therefore, nobody (and this includes parents) has the right to initiate force against a kid anymore than they have the right to initiate force against an adult. For example, a parent does not have the right to hit his child (unless provoked and then only proportionately) nor does any parent have the right to mutiliate the body of his child. Obviously, this would outlaw some customary methods of parenting children, but parents would be able to take the risk of initiating force against their kids and hope that the kids choose not to press charges against them (in cases of relatively mild aggression against children, at least in our present society, most kids will not hold it against their parents).
To address the question of whether or not a kid has the right to consent, the answer is that they obviously have the right to consent to anything that adults have the right to consent to, provided that they are giving informed consent. If a 6 year old signs a questionable contract with an adult, the courts would almost certainly have to have a strong presumption that the contract was not based upon informed consent. In a case where the kid understands what he agreed to and states to the court that he consented voluntarily to the contract, the contract would almost certainly be upheld as valid. The same standard would apply to contracts entered into by adults who are seriously disabled.
I don’t believe that any voluntary contractual agreement that an adult makes can be imposed on his child. By definition, the libertarian society is one in which the initiation of force is prohibited, so no contract is valid that permits adults to initiate force against children. I also regard “restrictive covenant” contracts and “intellectual property” contracts, even among consenting adults as unenforceable, although these are issues for another time. For example, a parent certainly cannot transfer his debts to his children or force his children into a marriage (although there is nothing unlibertarian about a consensual arranged marriage). Any contract that violates the non-aggression axiom (contract killings), the inalienability of self-ownership (slave contracts), or absolute property rights (restrictive covenants, “voluntary” intellectual property) is null and void in my view.
Of course, it is plainly obvious that there would be no child labor laws or other legally mandated discrimination against children in a free society, so children would be able to become independent of their parents whenever they desire to do so.
I think that I am probably 98% or so in agreement with Rothbard on the content of libertarian law, so I think much of this is an extension of what Rothbard wrote in The Ethics of Liberty (obviously, my opposition to IP is influenced by Kinsella and my argument against “restrictive covenants” is a logical extension of Kinsella’s anti-IP arguments).
What do you mean you agree wth Rothbard… Rothbard believed that children should be the property of their guardians… you are saying the complete opposite, that children arent property…
How do you defend yourself against the people who say parents might put their kids in child pornography, though? Clearly the vast majority of people would never do that to their children, but, for the few who abuse their children, I don’t know what the argument should be in terms of whether the children are the property of their parents.
I understand what you were saying about the school/extracurricular experience thing, but who gets to determine if the child has had enough ‘real life’ experience? I’m just being the devil’s advocate here because it’s such a hard argument to have (not to mention difficult to digest), but still.
EDIT: I’m also 20 years old and pretty new to anarcho-capitalism in general, but when you said,
I just still have my worries over whether private courts will be set up who won’t care about the age of consent even if the kid is extremely young. I know that I need to read up on more libertarian legal theory, though, so I’m possibly confused by some of this.
Yeah, it’s a requirement. I’m double-majoring in genetics and entrepreneurship so I have to choose a thesis from one of those (I’m choosing genetics based on research I’m doing), and then another for the honors college I’m in, which will be the anarcho-capitalism one because it can be about any particular subject.
Before I start, I appreciate you playing devils advocate. i might write a paper about childrens rights, or at least my view on childrens rights in a stateless society…
“How do you defend yourself against the people who say parents might put their kids in child pornography, though? Clearly the vast majority of people would never do that to their children, but, for the few who abuse their children, I don’t know what the argument should be in terms of whether the children are the property of their parents.”
Well i would first point out that in todays society, even though child pornography is illegal, people still do it to their kids and it is very much part of the black market… Before i go on, i would suggest you read Walter Block’s article on childrens rights when it comes to abandonment, http://www.walterblock.com/wp-content/uploads/publications/block-children.pdf … basically what he says about abandonment is that, sure the majority of parents would be decent parents and would want their children to do well, but there are going to be times when a parent is going to abandon their child, is it possible that the child may die due to this, unfortunately, yes… but, the government shouldn’t be called the protector of the children, parents abandon their children in a State, they murder their children in a State… this same idea can be used as an answer to child porn… sure the majority of the people aren’t going to do it, but is it possible that some might? yes… but even under a State, people force their children to participate to these horrible acts, just because the State says that it is illegal doesn’t mean people aren’t going to do it…Now what are some ways we can prevent child abuse from happening? Well landlords can write in their contract something like " if you bear a child, do not abuse the child, if you do, you will be subjected to a fine." or to take this one step further, a landlord can also write " by abusing your child, you give up your property (child) and it shall be taken to foster home, church etc… "If the person signs the contract, he has to abide by the rules… this system isn’t perfect, i know, but a governmental system isn’t perfect either, at least I admit it isn’t perfect unlike government…
Now, who gets to determine what basic experience a child has to be considered an adult? The private courts…every private court is going to have their own set of requirements… if one asks how will we know the private courts are making right decisions? well if people see a particular court as inefficient, then it is quickly going to go out of business… but at least the theory about private courts can be ALOT easier to explain because so many people have wrote about private law… im sure i don’t have to tell you what sources you should read for private law…
[quote=“Isaac “Izzy” Marmolejo”]
I agree with Rothbard and Walter Block that children are property of their guardians.
[/quote]
Isn`t “the responsibility” better, i.e. property is something one can do as one pleases with?
@MaikU ok first off, I am not saying ‘this is how we will do with childrens right…’’ i am just showing my view on it…I even said that clearly,before i started, so i would skip having to explain myself, obviously that didnt work…my ideas are influenced by both Rothbard and Block, you can read their writings that they fully claim that children should be property, i am expanding my ideas on that platform… if you find some articles on childrens rights in an anarcho cap society that claims children arent property, i m happy to read them, but dont just call my ideas nonsense…
Johnny Doe,
no because guardians do not have a responsibility to take care of their children.. Block clearly has that position when he says that parents have a right to abandon their children, if they are cruel enough to do so…
no because guardians do not have a responsibility to take care of their children.. Block clearly has that position when he says that parents have a right to abandon their children, if they are cruel enough to do so…
[/quote]
OK, in an anarchy anything goes? but Im minarchistish and think children/individuals should be protected from parental neglect/harm etc. I.e. I think a government should intervene if parents dont take care of the child/individual they are responisble for putting into this world and who is completely helpless to begin with(fetus` are a different matter).
And children/individuals are not under any circumstance the property(did Rothbard/Block think guardians should be allowed to do whatever they pleased with their “property”?) of neither the parents nor any guardian(“someone who takes care of another person or of another person’s property”, i.e. they have taken upon themselves the responsibility of taking care of the child, but they don`t own the child).
of course not… but like I explained before… government shouldnt be called the protector of children… people murder, rape, and/or abuse their children under a government society… whether you like it or not… there are some parents that do create child porn and sell it in the black market… just because the law says that it is illegal doesnt mean that people are going to obey… i listed some solutions how a private society can reduce the abuse of children by contracts…
“did Rothbard/Block think gurardians should be allowed to do whatever they pleased with their property?”
Yes, that is pretty obvious if you read Chapter 14 in The Ethics of Liberty by Rothbard and the article on child abandonment by Walter Block…
i stress this again, my view on childrens rights is influenced by Rothbard and Blocks view on childrens rights… children are property…
Rothbard and Block never said anything about children being the property of parents. Simply that by being the biological parents of a child they head homesteaded the guardianship or custodial rights, but that these right are alienable, and can be taken away if abandoned, or abuse or neglect is shown, or when the child matures.
it is not necessary to say that children are the property of their parents - parents act upon children as their property. From the actions of parents upon children, we derive the fact that children are property. The problem facing the justice system is simply to arbitrate dispute between parents involving children. (Children cannot participate in the justice system for obvious reasons.)