A Hayekian Theory of Parental Rights

September/​October 2015 • Policy Report
By Steven Horwitz

The last few decades have seen a dramatic increase in the control that many parents wish to exercise over their children. That desire for control has been reinforced by a variety of institutions, from schools to the police, who have slowly reduced the range of freedom children have. For example, local police are arresting parents who allow their kids to walk to school or play in the park by themselves. In response, we’ve seen the rise of the “free‐​range kids” movement which aims at letting parents decide what degree of freedom is right for their kids.

Libertarians are a natural ally for this movement, and more nonlibertarians are beginning to be rightly outraged by the overreach of local authorities in arresting parents who are legitimately exercising their parental rights and best judgment about how to raise their kids. But do libertarians have a coherent theory of parental rights that can provide some intellectual support for free‐​range parenting? I think they do, and I think it can be found using insights from F. A. Hayek.

In thousands of pages of written work, Hayek said remarkably little about the family, which is nonetheless one of the most important of all social institutions. Like most other classical liberals, he noted the family’s role in conveying important social norms and values, but he had almost nothing else to say about its role in either the social order in general, or as a key institution of a classical liberal society. In my book Hayek’s Modern Family: Classical Liberalism and the Evolution of Social Institutions, I try to fill that gap by applying Hayek’s intellectual framework to the history of the family, its functions in the modern world, and how classical liberals might think about issues of family policy. One of the issues I discuss is the question of parental rights. I argue that Hayekian insights should lead us to make a strong defense of parental rights and place a high burden of proof on those who would intervene into families for anything beyond obvious cases of violence or abuse. Parental rights also come with parental obligations to care for their children.

A key part of Hayek’s intellectual framework is the idea that knowledge is dispersed, contextual, and often tacit. No one knows everything, and it is those closest to choices and their direct consequences who are in the best position to know what to do. This argument is at the core of Hayek’s objections to socialism and his case for the market: by establishing well‐​defined and well‐​protected property rights, we allow people to develop and use their local knowledge in ways that make the best use of resources. In the same way, it is parents who have the right incentives and best relevant knowledge to know what is best for their children. Establishing well‐​defined and well‐​protected parental rights encourages parents to act on this local knowledge and thereby helps to ensure the best outcomes for children.

The intimacy of the family provides parents with deep and often tacit knowledge of their child that can be deployed in finding the most effective ways to transmit social rules and norms. A great deal of the parent‐​child socialization process works through imitation, as imitation is a way to pass on knowledge that otherwise cannot be articulated. The family provides an ideal setting for this sort of imitative learning.

Parents also have strong incentives to make sure that such behaviors are learned. The family remains a major site of social interaction where appropriate behavior will make parent‐ child interactions smoother. Parents bear this responsibility in part because other family members may suffer negative external reputation effects due to the misbehavior of their children. Children who do not learn the rules of social interaction will cause their parents to suffer both directly and indirectly, thus providing parents with an incentive to ensure that proper rules are learned.

The family’s role in this Hayekian socialization process is complemented by schools, houses of worship, and the other elements of civil society. However, none of them can completely replace the family. Placing the stewardship responsibility for child‐​raising in the hands of parents gives those with the most knowledge and strongest incentives the right to make the relevant decisions about the children. Where children have clearly defined stewards and where those stewards have the necessary knowledge and incentives, they will be more likely to engage in the sorts of modelling of behavior and explicit instruction concerning social behavior that are the key Hayekian functions of the family. Where responsibility is diffuse, and where those in charge lack the necessary knowledge and incentives, we would expect the same sorts of commons problems we are familiar with in other realms. As a result, allowing “the village” to raise children is no more likely to succeed than has allowing “the village” to run agriculture or industry.

One of the most thorough, and infamous, libertarian discussions of parental rights is in Murray Rothbard’s Ethics of Liberty. Rothbard rightly argues that children possess a right of self‐​ownership by virtue of being potential adults. This prevents them from being treated strictly as the parents’ property. However, Rothbard further argues that, although the child’s right of self‐​ownership prohibits anyone, including the parents, from aggressing against it, that right does not create a “legal obligation to feed, clothe, or educate” the child. “The law, therefore, may not properly compel the parent to feed a child or keep it alive.” To put it in different language, parents cannot abuse their children, but they can neglect them. Their actions may be immoral, but they cannot properly be considered illegal.

The key premise in Rothbard’s argument is that if parenthood implied an obligation to feed and clothe, it would mean that the parents were being coerced into doing “positive acts … depriving the parent of his rights.” Because Rothbard’s version of libertarianism is rooted in natural rights and begins with what he calls the “non‐​aggression axiom,” any situation in which the state coerces a person (who has not initiated force herself) into acting in a particular way constitutes a violation of that person’s fundamental right to not be aggressed against. The natural response is that parents have somehow voluntarily accepted that obligation to care by creating the child in the first place, so that having a child constitutes a form of contractual obligation for the parents. If so, then ensuring that parents do not neglect their children is a matter not of coercion, but legitimate contract enforcement.

Rothbard’s response to this criticism is to raise a number of counterexamples that aim to show the absurdity of what he calls the “creation argument.” He rightly asks how this can be true of a child conceived in a rape. But then he also asks how stepparenting, foster parenting, or guardianship can be legitimate if those people did not participate in creating the child. What he seems to miss in this discussion is the idea that the obligation to care for a child does not come from the act of sexual creation per se, but from the assumption of the legal rights associated with making the child “one’s own.” In most cases, sexual creation and the assumption of rights take place together, as the birth parents take actions to establish that they wish to keep the child and thereby consent to the obligations that come with it being theirs. However, adoptive parents, perhaps even more clearly than in the case of birth parents, must take affirmative steps in the legal system to acquire parental rights, which makes it even clearer that they have consented to the responsibilities to the child that come with such rights. All of the other examples Rothbard mentions are amenable to the same sort of analysis.

Parental obligations come when parents engage in the positive act of treating the child as theirs by asserting their parental rights, and thereby accepting the corresponding obligations. In this sense, taking a child home from the hospital is analogous to homesteading: the parents are declaring to others that this child is theirs, and that they thereby accept the responsibilities to care that come with exercising those parental rights. If people bring a child into the world and do not wish to care for it themselves, they have an obligation to arrange for its care by finding someone else who wants to assume those rights and responsibilities.

Children must be cared for, and they are unable to consent to who becomes their caregivers. Therefore the agreement parents enter into when accepting parental rights and responsibilities is not with the infant directly. Instead it is an implicit agreement with “the rest of us” that arises when parents engage in de facto exercises of parental rights that then create de jure obligations to care for (or to arrange for the care of) those children. And this is the reason that all forms of abuse or cruelty, and extreme forms of neglect, should be actionable in a libertarian world. Accepting parental rights, but refusing to accept the corresponding obligations to care for a helpless child, is a form of breach of contract. Again, the implicit contract in question is not with the child, but with “the rest of us.” Given the helplessness of infants, someone has to provide for their care, and those who act in ways that exercise parental rights are simultaneously announcing publicly their willingness to accept the obligation to care. Throughout history, we have seen various religious traditions capture this idea through ceremonies such as baptisms, baby‐​namings, and namakarans. Those have endured because of the importance of that public declaration of acquiring parental rights and accepting parental obligations.

What Rothbard’s argument relies on is the centrality of consent in the classical liberal tradition as a justification for rights and responsibilities. The paradigmatic example of consent is the express consent that we see in a written contract associated with a negotiated exchange. However, as legal theorist Tom W. Bell has argued, that form of consent lies at one end of a scale of graduated consent and unconsent whose ability to justify the validity of an action will vary. Bell’s scale runs from “express consent” to “implied consent” to “hypothetical consent” and then continues with hypothetical, implied, and express unconsent. Just as contractual language that indicates both parties’ agreement to take specific actions is the strongest form of consent, so is express contractual language that indicates an unwillingness to accept particular actions the strongest form of unconsent.

Bell’s framework of graduated consent gives us a way of talking about the process by which parents accept the rights and responsibilities of parenthood. Adoption has many of the characteristics of express consent, as parents take affirmative legal steps to acquire the rights of parenthood. By contrast, conceiving a child and bringing him home from the hospital does not involve the express consent of the legal process of adoption. As Bell points out, express consent remains the standard for judging consent, and the other forms are more powerful the closer they are to express consent. Although birth parents never engage in an act of express consent, the express decision to attempt to conceive a child along with the express decision to continue the pregnancy, and then the express decision to keep the child in one’s house after the birth, all add up to a very strong form of implied consent that comes close to express consent, even if there is no specific moment at which the parents explicitly agree to the legal rights and responsibilities of parenthood.

The graduated consent approach also allows us to avoid Rothbard’s logically consistent but offensive conclusion that parents should be legally able to neglect their children. Once we recognize that consent is not a binary choice between express consent and no consent, we can construct a view of parental obligations to children that derives from the parents’ express or implied consensual acceptance of those responsibilities via a variety of forms of actions they undertake to assert their parental rights. Having taken on those responsibilities through forms of consent that are strongly justificatory, failure to discharge them would be legitimate grounds for legal action.

How does this case for parental rights and responsibilities translate into public policy? The newspapers are full of stories of parents who have made choices that clearly are not in the best interests of their children. Do these cases necessarily require some action on the part of the state or others to stop the parental behavior in question? And if parents are imperfect, will the state or other institutions that intervene in the family necessarily improve upon their parenting?

Another of Hayek’s key insights was that no set of social institutions will perform perfectly across the whole range of knowledge and incentives facing human actors. Instead, we must look for those that work better, and Hayek’s standard of judgment was to prefer those institutions that have built‐​in powerful ways of informing actors of their mistakes and providing them the incentives to correct them. Mere imperfection in one set of institutions is not automatically a reason to adopt an alternative. We must ask whether the alternative can actually improve upon the mistakes of the status quo. We can apply that framework to the issue of imperfect parenting and the role of the state.

Imagine a case of child neglect, though not physical abuse. The parents are not sufficiently caring for the kids in terms of consistently providing warm clothes or regular, nutritious meals, or medical care. They also leave the children home alone and unsupervised quite a bit and none of them are older than 10. Assume that the children are in no immediate physical danger. It might be tempting to call this a case of “parenting failure” and ask Child Protective Services to intervene, perhaps even removing the children from the home. In the face of such a temptation, the first Hayekian question worth asking is the comparative question “and do what with them?” Is the alternative that the state will offer for the children really better, on net, than their current situation?

Suppose that alternative is foster care. There is enough empirical evidence on the problems with foster care, especially short‐​term placements where the incentive to really behave as a steward for the child is weaker, to be skeptical that it would be an improvement. When we account for the psychological effects on younger children of being taken from their parents and placed with strangers, the comparative analysis suggests the case for intervention is even weaker.

In addition, we can ask in the case of parenting failure whether there are other nonstate institutions of civil society that could be brought into play to help these parents perform better (e.g., a religious institution, a neighborhood group, extended family members, etc.). In the specific case of neglect, the problems are often financial, rather than bad parenting per se. Parents may be too poor to afford what others would see as an adequate level of care and/​or they may be working so many hours that supervising children is challenging, as is finding the time to cook, shop, or get them to a doctor. In such cases, the sorts of civil society solutions noted above are far more likely to be appropriate than removing the kids from the home of what are otherwise well‐​intentioned parents. One of the problems facing state intervention from a Hayekian perspective is knowing all of the fine details of each particular case sufficiently to come up with a solution. In general, those closest to the family are in the best position to understand the problems at hand, imagine an effective solution, and have the incentive to act on that knowledge. Bureaucrats with dozens of cases or more are unlikely to have enough knowledge or incentive when compared to those in the family’s local sphere.

Despite not having written much about the particulars of the family, Hayek’s theoretical framework gives us a way to think about why we need strong parental rights, why those rights come with corresponding obligations to care for children, and why imperfection in parenting is not a sufficient condition for state intervention. A better understanding of Hayek helps to see why this sort of intervention in families is both unnecessary and counterproductive, and thereby provides intellectual support for the free‐​range kids movement and its defense of, in the words of the Supreme Court in 1925, the “liberty of parents and guardians to direct the upbringing and education of children under their control.”

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About the Author
Steven Horwitz is Charles A. Dana Professor of Economics at St. Lawrence University in Canton, New York, and an affiliated senior scholar at the Mercatus Center in Arlington, Virginia. He is the author of Hayek’s Modern Family: Classical Liberalism and the Evolution of Social Institutions, out in September from Palgrave Macmillan.