LS - the Block / Kinsella position that Daniel is talking about is nuanced, but I believe it is a sound argument. I will try to put it in my own words but I implore you to read Kinsella and Block on this issue. I believe this uncomfortable area of libertarianism - parental obligations - has been solved, from a practical, legal perspective. Child rape is illegal, and so is child neglect, under libertarian law.
Abandonment / Continual Homesteading Theory
Imagine a land area made up of numerous allotments. Each one is being tended carefully by their owners, growing food. Except one allotment. This allotment is overgrown with weeds and litter and is a disgrace to the neighbours. The owner is a man named Bob, and no one has seen him for 5 years. The neighbours have tried to contact him, but he has vanished. One neighbour, Alice, decides that enough is enough, she is going to assume ownership of Bob’s allotment, clear it up and grow food on it. Is this an act of aggression by Alice? If Bob turns up the next day and accuses Alice of aggressing against his property, is Alice guilty, under libertarian law?
Maybe, but maybe not. If Bob’s absence had been 5 days, rather than 5 years, clearly this would be aggression. But what if it had been 20 years, or 100 years? What if Bob’s grandson suddenly appears to claim his land? Does the libertarian court award the allotment to Bob’s grandson, or to the current owner, Alice’s granddaughter? There has to be a boundary somewhere; there has to be some time when we say ‘this allotment has been abandoned’. Determining exactly how long it takes for an allotment to be abandoned is a continuum problem, to be solved by market competition between courts.
In some sense, then, Bob has a ‘positive obligation’ to maintain his land - otherwise he may lose it if someone else is claiming it. In a way, he must continually homestead his property - otherwise he loses his rights to keep the land.
Applied to Children
Block applies this idea of abandonment / continual homesteading (I think that’s my term, not Block’s) to children. Parents own the rights to bring up their child, because they homesteaded that right. But if a parent abuses or neglects the child, it may lose the right to bring up the child. The parents must continually homestead the right to bring up the child, if they want to keep it. If someone else is claiming it (for example a ‘Friends of Babies’ organization), they may have a better claim to the upbringing rights of the child. Specifically, when a libertarian court declares ‘this child has been abandoned’.
“The only way to attain homestead rights to the child after giving birth to it is to bring it up in a reasonable manner. Were the parents to instead abuse their child, this would not at all be compatible with homesteading it. If so, they would lose all rights to continue to keep the child”. (Block, bold mine)
The libertarian courts will have to work out a boundary delineating what is reasonable and what is not. This is no different to a court determining what is a reasonable claim to have homesteaded an allotment, or how long before an allotment is to be considered abandoned. Neglecting a child for 10 minutes does not constitute abandonment, but neglecting it for a week while it starves to death certainly does. The courts will decide, and since the courts are competing for customers, no reputable court will set the boundary at the extremes of 10 minutes neglect, or one week neglect, because most people (I conjecture) believe that the proper time when a child should be rescued from neglectful parents woud lie somewhere in between these extremes. No court will want to have a reputation for taking abused or neglected children from their parents too soon, or too late, or when the abuse/neglect is only mild.
The Scenario
So here’s how things would go:
- Bob rapes his 3 year old daughter.
- Evidence of the rape is discovered, by chance, by a nursery nurse.
- The nurse calls the ‘Friends of Babies’ organization.
- ‘Friends of Babies’ knock at Bob’s door and start asking him questions. Bob starts getting nervous, but denies it. Friends of Babies are confident in their assessment that Bob’s lying, so they break into his house and forcibly remove the child from him.
- Bob calls his PDA, telling them an evil gang has taken his child away from him, for no good reason.
- Bob’s PDA investigates. There’s a trial. If Bob is found innocent, ‘Friends of Babies’ are guilty of child kidnap. If Bob is found guilty, the libertarian court declares that, by raping his child, Bob loses the right to continue bringing it up. Rape is not consistent with homesteading the right to bring up a child, so Bob’s right to bring up his daughter is declared abandoned. The court awards the right to bring up the child to the other claimant: the Friends of Babies organization.
- The Friends of Babies organization rehomes the child, perhaps with a relative, or finds adoptive parents for it.
- Friends of Babies publicizes the fact that Bob is a child rapist. He is added to all the (privately-produced) sex offenders registers. Voluntary actions, such as boycotts of Bob, make Bob’s life a misery.
The rest of the scenario I have not read about anywhere, but I think the scenario would continue thusly:
- Bob’s daughter grows up and claims self-ownership.
- If she wants restitution or retribution for being raped as a child, she may bring a claim against her father. The libertarian court will decide on a suitable punishment for Bob, for the crime of child rape.
- The burden of proof to show that the sex was consentual (should Bob wish to make this defense) will be prima facie on Bob. He will have to prove that his daughter made an informed decision to have sex. No sensible court would be convinced of this in the case of a 3 year old. - link