Children's Rights versus Murray Rothbard's The Ethics of Liberty

by John Walker
Libertarians for Life
Copyright 1991

You may have read reviews of Murray Rothbard's book The Ethics of Liberty (Humanities Press, 1982). Unfortunately, most of the reviews failed to cover (or barely touched upon) how he handles the questions of abortion and children's rights. And it is on these issues that Dr. Rothbard shows why so many find him exciting and why others find his arguments outside economics to be less than impressive.

First, let it be noted that Dr. Rothbard can be very impressive in attacking the injustice of government's dealings with the young. He makes excellent points in his critique of current policies. It is good -- and essential -- to point out, for instance, that minors guilty of crimes tend to be given shorter sentences than those deemed "in need of supervision". And while those charged with crimes have finally been granted procedural rights, those who need "supervision" are deemed to have no right of redress against the state at all. It all boils down to classic anti-libertarianism: aggression is less of a crime than independence. And Dr. Rothbard is to be credited for reporting the facts.

But if he should be praised for his critique of government, Dr. Rothbard deserves considerably less credit for his own efforts to justify abortion and abandonment. Even among some libertarian "pro-choicers", his arguments have frequently produced little more than acute discomfort bordering on embarrassment. Yet at the same time, others have given his views instant acceptance. The paradox deserves more attention than it has received.

Dr. Rothbard holds that parents have the right to abandon their children at any time, regardless of the consequences. So also, he insists that abortion is a right. The difference between Dr. Rothbard and some other "pro-choicers" is that he is quite willing to concede (if only for the purpose of discussion) that the preborn are persons. He makes it quite clear that his arguments apply equally well to the preborn, infants, and all children.

The chain of reasons by which Dr. Rothbard arrives at his conclusions is relatively simple. We are necessarily self-owners. Our will is absolutely inalienable. You could not sell yourself into slavery, for instance, because being a slave would entail the surrender of your will. So also even in more customary contract situations, you can not agree to do something in the future because what if you changed your mind and didn't want to do it any longer? To be compelled to perform the service would be an alienation of your will -- and, as such, an intolerable injustice. So parents have the right to abandon children because we all have the right to abandon anything that requires our continued labor.

Dr. Rothbard agrees that we can owe money or property. Such things can be alienated from us. But labor, services, the exercise of will, no. Dr. Rothbard's position on abandonment, then is an unavoidable conclusion of his most fundamental premises. Abortion is merely a case of abandonment: "eviction." If the child's death results, that is immaterial.

Regrettably, Dr. Rothbard does not appear to be willing to subject his fundamental premises to much examination. Nor, for that matter, is he willing to ask whether his theoretical justification of abortion as "eviction" has any relationship to abortions as they take place in the real world. In the real world, after all, most abortions are not simple removals where the child dies for lack of sustenance. They are usually very unambiguous acts of destruction. Yet Dr. Rothbard proposes to use the same term to cover two radically different events. It is far more comfortable and popular to provide a window-dressing justification and ignore the question of inconvenient little facts in the real world.

It may be easy, then, to dismiss Dr. Rothbard's "evictionist" position on abortion as hypocrisy. But there are many libertarians who, when discussing abortions as they actually take place, are willing to recognize them as acts of outright homicide. At the same time, though, they will insist that genuine evictions are fully the right of parents -- even if the child dies as a result. That position is certainly preferable to word games that dodge the facts. And it is certainly preferable to the "right to a dead fetus" so vigorously advanced by some -- including some libertarians.

Yet while there are worse alternatives, pro-lifers must also counter abandonment and simple eviction. And for many who hold that position, Rothbard's notion of "self-ownership" has become an article of faith.

The strength of self-ownership lies in the strength of the word "own". It makes clear that I am mine -- I am not the property of anyone else nor is my body. The weakness of "self-ownership" is that it doesn't really make any sense when taken literally.

If I own something, then I can give it away, I can sell it. That's part of what ownership means. Yet can I give myself away so I don't have my self any longer? Hardly. Indeed, Dr. Rothbard is quite insistent that self- ownership is "necessary". That is, that it is utterly impossible to alienate our selves from ourselves.

But if I can not rightfully give something away, transfer its ownership, then I don't own it. (At least I'm not the sole owner.)

Dr. Rothbard's way out of this dilemma (which he never seems to confront openly) is to assume that if you don't own yourself, then the only alternative is that it must be at least possible for someone else to own you. That's impossible, though. So you must own yourself. His assumption dodges the fundamental question, however: are persons the sort of thing that can be owned? By anyone? Are they accessible to becoming property? Are you your property or are you just you?

The answer of traditional philosophy (which elsewhere Dr. Rothbard can discuss very well) is that it is sheer nonsense to apply the notion of "property" to persons. "Ownership" doesn't apply to persons -- it presupposes them.

He may be reluctant to take such a stand, however, because all the foregoing to the contrary notwithstanding, he insists there are persons who can be owned. They're children.

"A new-born baby cannot be an existent self-owner in any sense. Therefore, either the mother or some other party may be the baby's owner...." He does state, though that this "parental ownership is not absolute but of a 'trustee' or guardianship kind"; it's limited in time and in kind, so that parents couldn't own their children forever, and couldn't murder or torture them. But trusteeship isn't ownership and guardianship isn't ownership in any sense of the word. How this notion of "ownership" squares with the words we have to use in ordinary conversation, Dr. Rothbard does not address.

Dr. Rothbard, then will have to distort the notion of either "self" or of "ownership" in order to glue them together.

But he is absolutely correct in one element that he regards as crucial: that we can not alienate our wills, our selves. Even if we sell ourselves into slavery and do all our master asks, we do it because we will it. We are stuck with being choosing beings; and ultimately only death can free us from that state. (That, in fact, is why the idea of ownership can't apply to persons.)

But the fact that we can not alienate our selves does not mean that we cannot "alienate" our individual decisions. We do it every day. We do things we don't want to, whether we have obligations to do so or not. Dr. Rothbard seems not to confront this fact of life. Mainly he contents himself with denying that we can ever have any enforceable obligations to do so when it comes to providing labor.

The net result is that he denies, in effect, obligation itself. According to Dr. Rothbard, I "alienate" myself by performing labor when I don't want to; I also "alienate myself when I don't labor when I want to, as with a no-compete contract. Then why don't I "alienate" myself when I expend any energy in repaying a loan I don't want to repay? Or when I don't commit aggression when I want to? My relationship to you may be different in these cases, but how is my relationship to myself any different? That's another question, unfortunately, that does not get addressed in The Ethics of Liberty.

If Dr. Rothbard does not discuss points that might lead him to a wholesale repudiation of obligation, and therefore rights, others are not so reticent. We have probably all come across libertarians for whom any restraint on their wills is intolerable. But the only real restraint on our wills is obligation -- the recognition of the rights of others. (We always have the possibility of escaping practical restraints on our will, such as jails or hostility. Whereas if rights and obligations exist, they sit there as a rebuke regardless of whether we get away with the aggression or not. To some minds, that is more of an insult than mere punishment.)

In The Ethics of Liberty, Dr. Rothbard appears to wish to undermine the notion of obligation while still retaining the language of rights. Just as he wishes to justify acts of killing by the language of eviction. It remains to be seen whether this is deliberate, or inadvertent, or whether he just hasn't gotten around to following his ideas out to all their implications and judging those implications against reality.

For the moment, his ambiguity may be a sure way to retain his status as establishment libertarianism's chief guru. Sooner or later, though, both he and his acolytes may have to confront the implications of their own ideas. Then they will have to ask which they value more: doing whatever they will, or recognizing rights.

Reprinted by permission of Libertarians for Life.