Cite articles as: Author, “Title,” Libertarian Papers [volume #], [article number] (year). Example: Jan Narveson, “Present Payments, Past Wrongs: Correcting Loose Talk about Nozick and Rectification,” Libertarian Papers 1, 1 (2009).
16. “A Critique of Block on Abortion and Child Abandonment”
by Jakub Bożydar Wiśniewski
Abstract: The present paper offers a critique of Block on the issues of abortion and child abandonment. Block regards aborting a fetus or abandoning a child as an instance of exercising one’s libertarian right of expelling trespassers from one’s private property. I argue that the above reasoning is flawed due to the lack of the appreciation of the fact that if one voluntarily initiates the causal chain which leads to someone else ending up on his property, the latter person cannot be considered a trespasser. Furthermore, in the light of the above observation, any direct effects resulting from that person’s eviction should be considered the responsibility of the property’s owner. All of this follows from the simple logical fact that in all links of the causal chain under consideration the owner is the ultimate causal agent.
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Excellent article. I hope this puts an end to the libertarian debate on the issue and unites us further.
Responding to Dr. Block on this question in _The Libertarian Forum_, July-August 1978, Father James Sadowsky asked a couple of rhetorical questions: “To say that x is trespassing is to say that he is somewhere where he ought not to be. But where should a foetus be if not in its mother’s womb? This is its natural habitat. Surely people have a right to the means of life that nature gives them? If the home in which the infant grew were outside the mother’s body, we should all see that to expel him from that home would be to deprive him of the nature-given means of life.” Mr. Wiesniewski’s paper is a most welcome contribution to the literature as it supports with an argument the moral claim implicit in those questions, an argument that effectively answers Murray Rothbard’s contemporaneous reply to Sadowsky, which may be read online here: http://www.anthonyflood.com/sadowskyabortion.htm
Fetus are not human beings (yet, or will never be). So, the paper first part is invalid. The second part must take on account Rothbard’s arguments like this:
“And suppose the child is deformed and ill, scarcely human; does he still have a binding legal obligation to maintain the child? And if so, how much of his resources—his time, energy, money, capital equipment—should he be legally required to invest to keep the child alive? Where does his obligation stop, and by what criterion?
This question of resources is also directly relevant to the case of natural parents. As Evers points out:
[L]et us consider the case of poor parents who have a child who gets sick. The sickness is grave enough that the parents in order to obtain the medical care to keep the baby alive, would have to starve themselves. Do the parents have an . . .obligation to lessen the quality of their own lives even to the point of self-extinction to aid the child?[9]”
As a determinate entity, the human conceptus is continuous with the fetus, child, and adult it may later come to be, and entitatively discontinuous with the egg and sperm that ceased to be when the conceptus came to be. Rothbard generally followed Aquinas on natural law, but not with respect to the convertibility of being and goodness. His string of rhetorical questions is not an argument. Evers’ single one stimulates (mild) curiosity about his worldview and about the metaphysical status of parental love therein. Even if I lived in an anarchist territory, I would like to know who among my neighbors, if any, put his or her own welfare above that of his or her child. If the right not to be wantonly killed is not essentially part of the objective goodness of human being at every stage, then it can only be a contingent value we project onto one another — or withhold from or deny one another when economic calculations dictate. Within the human conceptus (the “clump of tissue” of abortion apologetics), what we appreciate as patently human is already latent. We therefore reasonably impute human dignity to its every stage and only fatuously withhold it from the human fetus.
Any human being, who is not utterly sociopathic, and is a parent would answer in the affirmative. Those, like myself, who have had a child know that your love and affection for your child is such that you would undertake ANY endeavor, unto your last breath, in order to save that life. That is part of the very definition of parenthood.
The aforementioned questions frame the issue of resource allocation in a context similar to treating the serious illness of a family pet.
Perhaps, Mr Rosales, take a step back and understand that we COULD VERY WELL BE talking about having taken that last breath already (if only figuratively) to save the child.
If you choose to die along with your child instead of allowing only the child to die, have you done more wrong or more right? Even that is a difficult question as the option of dying with your child might have certain benefits such as setting a high moral example that may inspire better moral behavior among your surviving family and freinds. But morals are not necessarily Laws. Libertarianism is about searching for fundemental Law, not morality.
So, it is still a fair question: Is it illegal to cause or allow the death of a child if the cost of raising it is deemed too high by the original homesteader? It turns out that it depends on the situation as to the legality, and even if it is determined to be Legal, it can still be very immoral.
Lifeboat situations are always difficult to resolve. But the question here is ultimately about whether taking actions that lead to the death of a child can ultimately be Legal or not, and why. In certain circumstances, it would be just and Legal (even morally right) to make decisions that ultimately cost the life of one’s child. Now, it should also be known that were a parent to give up the homesteading rights of a child, he must reasonably announce this to other potentially interested homesteaders. All morals aside, these are the parameters.
I don’t agree with Block 100%, but he argues that as long as the technology exists to maintain the life of the fetus, baby, child, or even adult (presumably), AND it is reasonably known to the community that there may be interested non-governmental third parties willing to take over homesteading rights for the concerned fetus, baby, child, or adult, then it is incumbant upon the original homesteader to reasonably announce to her/his community his intent to release claim to the fetus, baby, child, or adult so that these others may declare their homesteading rights to it. Government is not ethically in the right in making homesteading claims, because, by the nature of government doing so, it is coercing others to pay for the government’s homesteading interests and government can only do this by force of coercion and theft of property, unless government has some sort of ‘donation effort’ voluntarily funded by the people, which would be unusual if there was already a free market where more efficient local charities were to emerge.
Now, how the community treats this parent or homesteader will depend upon the parameters of the situation in which the parent let go of the child. This is where morals come in. If the reason was no good, then the person will be shunned. No-body has ANY problem with this. No-one should be forced to help the former unjust homesteader in any way, to include trading with him or her. This is a pretty strong punishment and is a clear message to others in the community. But did the old parent have to break any Laws to be treated thus and should he go to jail for doing so, even if the reasons were deemed insufficient? Not if he followed a reasonable rule and announced to his community that he is releasing his homesteading rights to the concerned.
We all know when such a behavior is immoral and distasteful, but is a person a sociopath for trying to understand when and why such behavior is Legal, even if morally wrong? Certainly not. Can a person believe that certain unsavory actions are Legal and unpunishable by a government, but still morally wrong? You bet.
As well: What if the original homesteader was so self-interested in saving his child that he refused to relinquish homesteading claims to the child which resulted in the child’s death, and did so even when capable third parties were declaring an interest in the same child? Is the parent more admirable for fitting into some definition of “parenthood” or has the parent rather acted immorally?
The answer (subjectively dependent upon the self-viability of the fetus, baby, child, or adult) is that the parent has indeed acted immorally, but did not break any fundemental Law. The parent would and should be subject to censure from the community, but cannot have his property (including freedom) tresspassed against for the behavior by government, groups, or individuals.
It’s not trespass if a person acts on the belief — which he or she should, of course, expect to defend in court if his or her community does not share it — that interpersonal aggression is occurring or is imminent. That is, his or intention is not to commit aggression (i.e., there is no _mens rea_), but rather to prevent aggression, or to repel or restrain and hold liable the person he or she sincerely believes to be an aggressor.
It falls to legal theory to describe an action as “aggressive” or “defensive,” but legal theory is not fundamental ontology, one of whose jobs it is to clarify the category of “person.” Legal disagreement presupposes, and therefore cannot resolve, ontological disagreement.
Either (a) persons come to be and cease to be when their bodies come to be (unified organisms) and cease to be (unified organisms); or (b) persons come to be some time _after_ their bodies come to be and cease to be sometime _before_ their bodies cease to be. Behavior will be described as an act of aggression or an act of defense depending on whether (a) or (b) is adopted. But libertarian legal theory as such cannot help one choose between (a) or (b).
Wiśniewski point — which we should not lose sight of — is that to trespass is _to undertake an action_. We bother to entertain and rebut the risible proposition that the fetus may or not be a “trespasser” — depending on (of all things!) its mother’s disposition toward it — only because of the eminence of the libertarian theorists who have subscribed to it.
The contemporary need is for rethinking the fundamentals, not just following one brilliant thinker’s idiosyncratic (and logically unstable) synthesis of pre-modern, personalist realism and modern, depersonalizing empiricism, that is, his shotgun marriage of the Catholic Aquinas and the anti-Catholic Locke. Such rethinking should not require asking (at least not without embarrassment) whether the fetus/infant/child is a species of “homesteadable land.”
Once we view a parent as “homesteading” her child, we’re already well off the deep end.
The idea of Rothbard’s questions also applies to the case where you are at fault in an automobile accident, where you caused someone else to go to the hospital and be temporarily dependent upon life support. You would have a legal obligation to repay your victim for the damages.
So what is Rothbard saying? He appears to be rhetorically rejecting the idea of unlimited liability (without argument), and then also rejecting the idea of limited liability on the grounds that any limit is arbitrary. Thus does Rothbard conclude that there is no such thing as liability at all? Thus you would have no obligation to pay your victim anything? I would have to reject that conclusion as absurd.
Rothbard is making an emotional argument. What about a case where Alice owes Bob repayment of a debt, Bob will die without receiving the payment owed to him, and Alice will have to starve herself to repay it. Then Rothbard’s question is “Does Alice have an obligation to lessen the quality of her own life even to the point of self-extinction to fulfill her legal obligation?” Or do we suspend enforcement of Alice’s obligation at the cost of Bob’s life–when the funds are rightfully Bob’s?
Or even simpler, Bob has food just enough to sustain his own life. Does Alice have the right to steal any of Bob’s food, thus killing Bob? Even if it is a matter of life and death for Alice? Or does she have the obligation to refrain from infringing upon Bob’s rights? This is what Rothbard is emotionalizing about: the compassion for Alice. Of course it is a hard (lifeboat) case, which stirs the emotions. But the logical issue still remains: if the food is rightfully Bob’s, it is rightfully Bob’s. On what possible grounds can we kill Bob by confiscating Bob’s rightful property and giving it to someone else?
Predicaments such as those Joel describes can be spun out indefinitely. The question is, where are their resolutions to be properly sought?
Rothbard’s argument was not, in my opinion, so much “emotional” as truncated. Although he rejected Mises’ utilitarianism for natural law, he resisted elaborating publicly upon the metaphysical inquiry such a commitment draws one into or revealing much about how he negotiated that philosophical business. As Rothbard stipulated in his preface to his _The Ethics of Liberty_[EL]:
“It [EL] is not, however, a work in ethics _per se_, but only in that subset of ethics devoted to political philosophy. Hence, it does not try to prove or establish the ethics or ontology of natural law, which provide the groundwork for the political theory set forth in this book. Natural law has been ably expounded and defended elsewhere by ethical philosophers. And so Part I simply explains the outlines of natural law which animates this work, without attempting a full-scale defense of that theory.”
Fair enough, it an author’s prerogative to limit the scope of his book. In this case, however, the consequence has been that his readers have been “simply” left to figure out exactly where “elsewhere” is and what to do with what they find there. Hans-Hermann Hoppe, for example, has suggested one direction; James Sadowsky, S.J., another.
To tie these various strands together: let’s say Bob is a fetus and Alice is his mother and therefore Alice naturally and continuously provides Bob with food. Is that food rightfully Bob’s? The answer does not lie in political-ethical theory.
I think the point is been missed. The big question is not whether the parent should or should not use his/her resources to keep the child alive; but if the parent has the right to keep third parties away from feeding the child when he is failing to. I think it’s obvious that if someone tries to feed a starving kid and someone gets in the way it is certainly an act of violence. That conclusion PROVES that Bozydar is right and Rothbard is wrong when the latter claims the child to be the parent’s property; because, if the child was truly the parent’s property, then he should be able to prevent third parties from feeding his baby as he would his dog.
The fact is that babies have the same rights than any other human being, because they are human beings. I don’t know if fetuses are people or not. I don’t care really, because what is definite is that fetuses and people share the same “nature”, (it would be absurd to say the fetus is like a cow or an ant for the first two or whatever months of pregnancy and then suddenly transforms its nature into that of a human being). Since natural rights come from the “nature” of the subject and not from its hability to talk, walk or think, then there is no point in triying to say thet the fetus has diferent rights than those of a grown up (Rothbard actually gets it perfect up to this point). Regrettably Rothbad fails to identify the trespass issue which Bozydar so elocuently demonstrates; that is, that the owner cannot claim trespass if he, himself, is directly liable for the intrusion. This argument is very very powerful against abortion, because it is NOT an AD HOC rule that applies only to abortion, just as the positive right solution proposed by Dr. Block, but is a general and simmetrical rule perfectly coherent with the negative right libertarian theory. You can not punch an “intruder” in the face if he was your house guest just seconds before he looked your wife in the “wrong way”; eventhough you COULD punch him if he was never invited. You can’t throw a baby out of a womb claiming trespass if you were at least responsible (maybe didnt want him) for it to be there.
The no-trespass argument is settling in all but one case of abortion; that is rape victim pregnancy; because in that unique case the mother is not liable for the pregnancy. I don’t have an answer for that one yet, but i really think that the answer is somewhere around because I have a lot of trouble accepting “unique exceptions” on libertarian theory. The answer is lurking somewere around.
Keep looking, but consider expanding the search beyond the area of the dark street upon which the lamp post of libertarian theory happens to cast its circle of light. The “lost” key is further down the road in natural law theory, which has been around a bit longer.
Like babies, fetuses and embryos have the rights of persons because they are complete (if immature) human beings. Rights pertain to persons (substances of a rational nature), not to their immediately exercisable capacities.
The costs associated with pregnancy and labor are considerable, and if they are the consequences of rape, they can be all but unbearable. I do not make light of them. They are, however, temporary, whereas the proposed “offset” — the killing of the rape’s issue, an innocent person — is permanent. Death is a worse harm, in degree and in kind, for the unborn child than the difficulties are for his or her mother. The former might be emotionally understandable as a “solution” to the difficulties, but not rationally justifiable.
I would like to say one thing, the countries with the most oppressive laws against women are usually one in the same where abortion is illegal. A woman may not conceive of her own free will, birth control fails, rape exists, and the rights of a fetus cannot supersede the rights of it’s mother. Her body is not it’s property. What she chooses to do with it is her own decision, she does not cease to be a human being and instead become nothing more than an incubator.
There is a serious implication in the idea that a fetus has rights, if a woman miscarries due to a mistake she makes while pregnant, ie she falls off a bicycle, do you prosecute her for negligent homicide then? A fetus is not yet a person in the legal, or philosophical, sense since it can not support itself, it cannot direct itself, and by acting as though it is a moral actor you are putting women in the position of being nothing more than a walking womb.
Ms. Pandora has the rights accruing to a person because a person is what she substantially _is_. She didn’t acquire personhood the way she acquired, say, the ability to express the person-body dualism implicit in her comment. She has been a person since she came to be, which is when her body came to be, i.e., at conception.
Answers to her concerns (exressed at length and with greater care by philosophers on her side of the controversy) may be found in Lee and George, _Body-Self Dualism in Contemporary Ethics and Politics_ (Cambridge, 2008). This is not the place to review that book, of course, but had Ms. Pandora been aware of its arguments, she would have formulated her case differently (or not at all).
In Utah there has already been an attempt to pass legislation that would hold women criminally liable for miscarriage. It isn’t hyperbole, and it is a real concern.
There is a person body dualism in this case because there are two bodies being discussed, the body of the mother and the body of the fetus. One is fully formed and a functional human being the other is a potential human being. I say the rights of the already adult female outweigh the rights of the potential human she carries.
Had my mother aborted me, I would have no memory of ever existing. A person is more than a body, a person is their mind. Without a mind we are no more than animals or pieces of meat. A fetus has no developed consciousness, no sense of itself, it cannot and does not support it’s own life.
I will look into that book. And Anthony if you insist on replying to my comment, at least have the courtesy to address me directly, or don’t mention me at all!
Eris, my comment was directed at yours, not at you. Comments pages tend to degenerate into shouting matches; , one way to prevent that is to depersonalize the exchange of ideas. This thread is not (or should not be) a free-for-all on abortion, but comments on Wiśniewski’s paper. I have tried to adhere to that in my previous comments on this thread.
Self-body (or person-body) dualism is a modernist presupposition. It needs to be made explicit and argued for and against. (I think it needs to be retired.) Much of what you wrote in your most recent message is either irrelevant to the philosophical questions at issue or begs them. If I were to demonstrate that, sentence by sentence, the feared degeneration would inevitably ensue. This is not the place. If you visit my eponymous site, you’ll find my e-mail address; if you use it, we can continue the exchange without the limitations imposed by someone else’s site. — Tony
Honestly, this paper is the best treatment of the subject that I have ever seen to date.
The conclusion makes perfect sense if we are asking ourselves the question of how market-based law would deal with such a difficult question. Since it was the mother’s responsibility for bringing the child into existence, then they should be forced to pay restitution to the child if they decide to abandon them. Private legal systems would have an incentive to enforce this law just as they would have an incentive to prosecute and enforce against theft – part of the restitution payment paid by the mother would easily be their profit.
I reply to an objection similar to the one raised in the above paper in this paper http://papers.ssrn.com/abstract=1668528 (still a working paper).
I argue that Eric Mack’s Self-ownership proviso allows us to distinguish between the abortion case and the case of (say) kicking someone off a boat (who will then drown).
It is Mr. Shah’s burden, not the reader’s, to spell out how his paper affects Wiśniewski’s, not Mack’s, argument, the focus of this thread.
Despite the availability of my August 5th comment above, which Mr. Shah may not have read, he assumes the coherence of the notion that the fetus can _trespass_, not by acting, but merely by being unwanted by the mother.
When Mr. Shah’s paper has transcended its “working” status, perhaps it will appear on Libertarian Papers.
I was merely flagging it up should anyone be interested.
I had not read your August 5th comment. I have now. I would reject your notion that trespass requires a mens rea (this is a separate question as to whether criminal penalties should be imposed an a trespasser lacking mens rea). The idea that trespass has to consist of an action is an interesting one which is worthy of more consideration.
However whether or not the foetus is a trespasser does not affect my argument. My claim is that, by self-ownership, the woman has the right to evict anyone (or anything) from her body unless that person (or thing) has the right to remain there.
Regarding how my paper affects Wiśniewski’s. First I must state my thesis (it is similar but not the same as Block’s). The woman has the right at any time during her unintended pregnancy to remove the foetus from the womb. She however does not have the right to directly kill the foetus (which is what almost all abortions do) but if after having removed the foetus it dies (which will happen if the removal is pre-viability) then she would not have wronged the foetus.
(part of the reasoning is that by removing the foetus we are not depriving it of anything that it is entitled to)
Now an objection to this (which is similar to what Wiśniewski raises) is that in the following case:
A is kidnapped and thrown in B’s plane without his consent. B discovers A when he is at 30,000ft. He then proceeds to evict A claiming that he is not depriving A of anything A is entitled to (after all B has full ownership of the plane).
Now clearly kicking A out of the plane at 30,000ft is murder. But my reasoning in the abortion case seems to allow this to happen. If I bite the bullet then my thesis should rightly be rejected as implausible. So I must find a way to distinguish the two.
One possible grounds on which we could distinguish it is by appealing to a proviso on acquisition of external property like Nozick’s Lockean proviso. I suspect that most people here do not belief in the proviso.
The other ground is to use Mack’s self-ownership proviso. The proviso states that an agent cannot make use of his entitlements in a way that nulifies or severely disables the world interactive of another agent. The paper is available here http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=4566556, Unfortunately a subscription is required but Ed Feser has an article in which he summarises it and which is freely available http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=275184
My argument is that exercising one’s property rights to kick the guy off the plane is a violation of the Lockean proviso and of the self-ownership proviso.
However in the abortion case there is no violation of the Lockean proviso (since it only applies to external stuff). However the SOP applies to external stuff and to one’s body so it is applicable in the abortion case. And clearly the world-interactive powers of the foetus have been nullified. Indeed Ed Feser in a 2004 article for the Journal of Libertarian Studies makes exactly this argument.
Briefly, I argue that Feser is wrong since his case would sanction the use of some people as a means to the end of others. However both Mack and Nozick (and I am sure many others) identify not being used as means (without one’s consent) as a core component of self-ownership. So Feser’s interpretation of the SOP violates self-ownership itself. So Feser’s interpretation is wrong (or Feser could reject self-ownership, which he has done; he is no longer a libertarian). So there is no violation of the SOP (properly understood) in the abortion case (but there is one in the plane case).
I hope this helps.