The Foundations of Criminal Child Welfare Law in a Rights-Based Political System William R Thomas

192 Benson St. Albany, NY 12206 wthomas@netheaven.com June, 1998

Working paper prepared for the 1998 Institute for Objectivist Studies Summer Seminar at the University of Colorado at Boulder. Subject to revision. Abstract: Thomas argues that legal obligations of parents towards their infant children and criminal protections of infants against abuse are justified within a system of law where all claims derive from the protection of the rights of individual adults to liberty. Given Rands Objectivist argument for rights, infants cannot have rights in the most basic sense. However, the right of adult children to bring (tort) claims against neglectful parents or abusive adults provides the justification for criminal protections of children. The positive obligations parents bear toward their infant children are meaningfully analogous to positive obligations toward (adult) victims of willful harm. The creation of an independently viable infant is taken as the starting point of parental obligation; thus abortion rights are conserved. It results that it is both just and in the interest of adult citizens to enact minimal but significant protections of child welfare. Thanks to Carolyn Ray, for asking why, and to Melinda Ammann, Roger Donway, Susanna Fessler, David Kelley, Eyal Mozes, and David Ross for helpful comments and discussions.

Introduction: Crusoes Family

Collectivism and individualism are as opposed in their metaphors as in their fundamental policy prescriptions. Collectivism is motivated by the metaphor of society as a big family. Citizens all, to some extent or another, need protection, sustenance and guidance that they cannot provide for themselves. The first issue in politics, for a collectivist, is how the citizens will be provided for and protected. In this view, we are all the children of the state or community, and like children, our well-being requires that we be restrained by the collective and fed, clothed, educated and so forth. The state as nanny will look after the citizen from cradle to grave. In a collectivist polity, no one ever achieves metaphorical adulthood: one is never regarded as a grown up who can take responsibility for himself. This is a serious lacuna in the family metaphor, because it breaks down if there is no adult entitled to stand in loco parentis. One may say that society at large or the state may stand in that place, but the living and thinking components of these institutions are simply individual people, the very ones presumed to be incapable of acting responsibly. The internal logic of collectivism begins unraveling on this point. But then its metaphor founders on a more obvious fact, too: in reality, children normally do eventually grow up. Individualism, on other hand, is motivated by the metaphor of Robinson Crusoe. Crusoe is a healthy adult, with the knowledge he needs to guide himself in the world, and the capacity to reason his way through unfamiliar difficulties and enrich his life with new discoveries. Crusoe can survive on his own: the society of others, while unnecessary, can improve his life, or it can threaten him. This does not mean that individualism advocates an atomized society Crusoe values the benefits proper society can bring, after all but it does take atomization as its baseline. The first goal in an individualist politics is ensuring that the citizen retains in society the enjoyment of the capacities that can sustain him alone. Ayn Rands Objectivist philosophy, which is the context in which I am writing this essay, is typical in this regard. Rand asks Can man derive any personal benefit from living in a human society? Her clear implication is that if the answer is No, then one would be better off withdrawing from society, if one can, to live on a desert island, or on a self-sustaining farm.1 Individualists agree with Locke against Hobbes that in such a state of nature, a person can fend competently for himself, just as Crusoe does in DeFoes novel.2 Thus Rand, for example, holds that the best society is one that secures its citizens liberty to pursue happiness through a government based on respect for negative rights to life, liberty and property. 3 Whereas the citizen of collectivism is doomed to eternal infancy, the individualist citizen is a real grown up who has to be responsible for himself, but is free to live as he pleases so long as he does not initiate force against others. But what would happen if Crusoe were to have a family? Continuing with the desert island metaphor, the
Ayn Rand, The Objectivist Ethics, in The Virtue of Selfishness p 32. See Locke, especially Chapter II, on this point (the difference with Hobbes is implicit). Rands politics follow the argument in Lockes 2nd Treatise in many essential points, and Rand saw her project as reconstructing Enlightenment individualism in a more rigorous and consistent form For instance, where Locke takes the law of nature to be a God-given primary, Rand is at pains to explain what it is about human nature that would make her ethics proper, without appealing to Providence. 3 This position is also associated with other rights-based libertarian political theories. Individualist anarchists share the general characteristics of individualism set forth here, while disagreeing about the possibility of government being the means to a just society.
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3 individualist is likely to reply that Crusoes family is Crusoes business. Individualist polemics on the family often stress the authority of parents and the need for parents to be more free from state control. Another individualist approach is to treat children as if they were adult Crusoes, as much as that is possible. Their rights will be protected just as if they were adults, and for the same reasons. One need not exert a great amount of reflection to see that neither of these extensions of the Crusoe metaphor is quite appropriate. If Crusoes children are treated as his property, then the individualist must acknowledge the legality of infanticide, child abuse, and harmful neglect. But the opposite approach is just as weak. Baby Crusoe cannot survive on a desert island; in fact, as we will see in more detail in the next section, applying the rights of adults to Baby would do Baby more harm than good. The truth is that the Crusoe metaphor cannot account for a family. The result has been that individualism has been weak or inconsistent in its approaches to children. This is especially true of Objectivism, in which the Crusoe metaphor is reinforced by the adultoriented character of Rands egoism, and supplemented by the numerous examples of retreat from a corrupt society exhibited by the heroes of her novels. There has been virtually no theoretical work in Objectivism on the political status of children. Rands novels explore the ways and means of her ethics, but children as dependent creatures are conspicuous by their absence. Her essays, when they touch on the subject, presume that parents should bring their children up well, but no explicit obligation of that sort appears in her political theory. 4 The result has been that critics of Objectivism have been able to caricature it as a cold, rationalistic and atomized vision of society. The purpose of this essay is to account for Crusoes family, and to do so in a way that extends the Objectivist approach to the law, consistent with its foundations in political philosophy. Methodologically, extending the Objectivist politics means that, at root, my proposals for the law must uphold individual rights, but also (and more fundamentally) demonstrably advance the rational self-interest of the individuals who make up society. My basic argument is that, although infant children do not have or need rights as such, parents should be under a legal as well as moral obligation to provide a minimum standard of care and upbringing to their children (Section 1). This obligation arises out of the fundamental legal rights that children possess once they have reached adulthood, in a manner that is typical of a variety of tort claims and not by any means ad hoc. The obligation arises with the creation of a distinct, living infant, so abortion rights are reaffirmed. The obligation is also consonant with the rights of parents to exert guardianship over their children (Section 2). The obligations of parents toward their children would have to be enshrined and enforced as criminal law, while I take it for granted that in any rights-based system, legal rights are most immediately defended by civil suit or tort. Therefore, I will need to explain my rights-based approach to the foundations of criminal law.5 Finally, because my approach is grounded in egoism, I will have to show that it would be in the interests of adult citizens to enact the criminal codes that I advocate (Section 3).
See, e.g. Rands approval of Hugos condemnation of child slavery and torture, in The Comprachicos in The New Left especially pp 187-189. 5 Let me warn my readers with legal training that this essay is about the philosophical foundations of the law, not the existing practice of it. I hope my argument coincides with reasonable existing practices in the law, but, like any consistent rights-based approach, it implicitly demands a radical reconstruction of much existing law. I apologize in advance for any failings on my part to appreciate subtleties of legal doctrine.
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1: No Rights for Baby

Ayn Rand brilliantly snatched human rights out of the arms of our creator and located them in the facts of human nature. In essence, the Objectivist argument for rights is that since other people are rational beings, we have the most to gain by approaching them as potential trading partners. People are valuable because productive: the fact that mans mode of survival is the application of rational thought to production means that our fundamental interests are in harmony. One persons success is a creation of his effort, and need not detract from the well being of another. In view of this, a rational egoist should eschew the ethos of dog-eat-dog and instead live by the principles of trade, independence, justice and so on. 6 Rand argued that Parasites, moochers, looters, brutes and thugs are of no value to a human being ...7 Morally, one should condemn and boycott people who are unwilling to support themselves. Legally, however, they should be left alone: The basic political principle of the Objectivist ethics is that no man may initiate the use of physical force against others.8 Therefore, The only proper, moral, purpose of a government is to protect mans rights, which means: to protect him from physical violence.9 This means that even the government may not use force toward its citizens except in protection of rights, and that all issues of civil, tort and criminal law boil down to applications and interpretations of rights violations. It is also worth noting that in this view, rights are effectively indivisible: ones rights to property, contract, freedom of speech and so on are all simply aspects of the single right to live free from force.10 One virtue of Rands argument is that it gives clear, strong reasons why an individual should selfishly seek to secure and promote the rights of others. However, this cannot be said for the rights of infant children.11 In fact, under the Objectivist argument, children as such have no rights at all. The reason for this is that children are not fully rational in Rands sense of the term: they cannot produce for themselves and cannot understand highly abstract principles. Moreover, they are needy and dependent: children might seem to be quintessential moochers and parasites. Of course, most parents love their children and cherish them, and most people adore a cute baby. However, a baby simply lacks the essential characteristics of a rights-bearing being. Before we become too disturbed by this fact, we should recognize that it is just as well. Rights, after all, do not do infants any good.12 An infant child cannot survive for more than a few days without someone feeding, cleaning and otherwise taking care of it. Children regularly have to be restrained from doing what they want to do and forced to do something else. They have to be put to bed and made to wash. In short, many of the basic functions of child care require that one initiate force, albeit kindly, against the child.
See The Objectivist Ethics for a succinct explanation of Rands ethical argument. Her novels Atlas Shrugged and The Fountainhead illustrate that ethos as she envisioned its practice. See also my own Egoism, Rights and the Trader Principle for a more detailed examination of Objectivist rights theory. 7 The Objectivist Ethics, p 32. 8 Ibid. 9 Ibid. p 33. 10 See Smith, The Rights We Hold, Chapter 9 of Moral Rights and Political Freedom, pp 185-194, for a clear exposition of this point. 11 I will be contrasting children in two stages of life: 1) as infant children, e.g. infants and toddlers, who are manifestly unable to survive on their own, and 2) as adult children, who are rational, rights-bearing adults. In general, when I say children, (with no modifier) I mean to include infant children as well as older minor children, but not adult children. 12 David Ross reminded me of this point many times.
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5 And of course an infant child cannot agree to such restraint, in the sense of expressing a full, conceptual understanding (indeed, arbitrary dissent, as opposed to any kind of agreement, is the heartfelt refrain of young children at a certain age). The point is that even if infants had rights, they would need to have those rights disrespected as a matter of course. The application of rights to children is complicated further by the fact that children mature. As they mature, they develop as rational beings: they become more able to function as rights-respecting people themselves, and become capable of surviving as (somewhat) rational creatures. Eventually they become sufficiently mature to merit full respect as responsible, rights-bearing citizens. However, it is not obvious how to handle their status during the transition to maturity. My view is that the law must allow for greater and greater freedom and responsibility for children as they mature. However, at this stage of my discussion I can only state this as an intention, without justification. I will return to this topic toward the end of the essay. The fact that children lack rights would seem to compel us to view infant children as, technically, a kind of chattel. Until at least some stage of maturation, children in this view would be fully under the dominion of their parents, 13 who would own them by virtue of having created them. They could be sold (or given) to other adults. Their education would be entirely within the purview of their parents rights. If a parent wanted to commit infanticide or experiment with raising a child in sensory deprivation (e.g. in a dark closet), the law would respect that as within the parents rights. This is a harsh code, but in fact it has an excellent pedigree, having been in one form or another part of the traditional law of lands as disparate as England and China. One alternative to treating children as chattel is to treat the parent-child relationship as a contract. This has an aura of fairness about it, since parents explicitly choose to have children,14 and because raising children well entails considerable expenditure of time, affection, and effort. If the parents owe their children something, perhaps the children owe their parents something in return. In pre-modern society, children were usually held responsible for providing care for their parents in old age. However, in modern times retirement savings, insurance and the geographic break-up of the family have rendered such arrangements obsolete. The fundamental trouble with the contract approach is that there is no contract when there is no pair of rational parties who choose to be obligated. One would have to create an ad hoc exception to the civil law to handle this contract, a step which would effectively violate the fundamental principles of liberal government. So the idea of contract may be a useful metaphor for fairness in the parent/child relationship, but it certainly cannot provide the basis for a legally binding obligation. Furthermore, the idea of parental obligations as contractual does nothing to create on obligation on the part of the general public to avoid abusing children. Only the parents of the child could be construed as having a chosen obligation, not so the general public. One might attempt to overcome this problem by combining the idea of guardianship as a contract with that of children as chattel. This would allow the children to piggyback on the rights of the parents, while it would restrain parental authority. However, since the contract conception is in fact untenable, this approach collapses in the absence of a more
I say parents generically, and do not intend to address such issues as paternity claims, homosexual or group parenting, etc. 14 The choice to have children is an artifact of effective contraception and safe abortion technology. This is a subject we will return to later. Before these technologies existed, the choice to engage in sexual intercourse was itself a choice to risk having children. This equation of intercourse with child-bearing was part of what lay behind the widespread traditional insistence on female premarital virginity.
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6 sound argument for parental obligation. And as we will see, that argument will allow us to abandon the idea of children as chattel entirely. Normally, in a rights-based system, legal obligations between individuals should only arise from one of two circumstances: 1) as chosen obligations (as in a contract) or 2) as recompense for rights-violating harm or endangerment (as in an award for damages arising from a tort).15 However, one approach to parental obligations might envision an exception for parental obligations. This approach considers parents to have chosen their obligations by virtue of their foreknowledge of the legal requirements of parenthood. We might call this the you knew what you were getting into approach. However, to allow such an exception by legislation or judicial fiat would undermine the very structure of rights-based law. For one could say of any economic or life-style regulation that those who violate the law usually have done so by their own free will with foreknowledge of the consequences. In other words, any kind of regulation could be justified by such a principle. Indeed, this principle is part of the basic fabric of our laws and has in fact undermined our historical rights-based system. Transparency is an admirable quality in the law, but it is not sufficient for justice. One last approach to the problem of childrens legal status is to insist that the innate humanity of children entails that they have some kind of rights or privileges. Children are human beings after all, and they stand to develop into creative, rational beings. In virtue of their humanity, they deserve to have their lives protected. And the fact that parents must care for children is simply a matter of human nature. The nature of children is that they need nurturing and support, and it is in the nature of parents to provide it. This essay offers an argument that, stated quite abstractly, follows much along these lines. However, strictly speaking this argument from potential crumbles under logical analysis. The assertion that rights derive from a beings humanity, in the biological sense, cannot actually be true, unless one accepts this as an arbitrary dictum (in effect, this is what some religious natural rights theories do, making the foundation of law a matter of faith). In the Objectivist ethics, no arbitrary moral claim is allowed to stand. Every moral value, virtue, or political principle is rooted in the choice of a rational being to live. The Objectivist ethics is not a theory for the human species, but for individual humans insofar as they are rational. Legal obligations are quite derivative in the Objectivist theory and arise only out of considerations about how rational beings should interact with each other. To highlight the difficulty, consider how the Objectivist ethics applies to dogs. Dogs are charming, sociable creatures, and relatively bright as animals go. People can benefit from living with dogs in various ways, and even form emotional bonds with them. But dogs do not have rights as such, because one cannot deal with a dog by contract and trade. Dogs have needs, like any living creature, but needs, per se, do not create either a moral or legal obligation in others. In fact, for people, the appropriate way to interact with dogs depends on what value one seeks to obtain from them. If one wants a pet, then a dog should be nurtured. Other dogs may be used in life-threatening experiments, eaten as food, or even killed outright as undesirable or as threats, as when a rabid dog is put down. In short, dogs are wonderful creatures, but as such they deserve no legal entitlements, because the argument for legal entitlements applies only to rational beings, not the broader class of wonderful creatures.
Roderick Long seems to mix all these positions, and takes the choice to bear children as the source of obligation, in his Abortion, Abandonment, and Positive Rights, in Paul, Miller, and Paul, eds. Altruism especially p. 180.
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7 Similarly, consider the Objectivist approach to dealing with murderers. It is entirely appropriate to imprison or kill another human being if that person proves a determined threat to the lives of others. Human life per se is not sacrosanct: it is the life of a rational being that merits respect. A person who lives like a rabid dog deserves no other moral or legal treatment than a rabid dog. Of course, adult humans are initially presumed rational and innocent before the law, because this is their normal state.16 But a human who demonstrates his violent irrationality, as a murderer, a soldier of a despotic regime, and so on, does not merit the treatment one accords a potential partner in trade. Now why then should an infant deserve different legal treatment from a dog? The most natural response is that the child is human, but we have seen that this does not wash. One might argue that it is the biological nature of parents to support children: that is what child bearing is all about. But the Objectivist ethics, though bio-centric, does not admit of biological duties. Ones own life, not the propagation of ones genes, is ones ultimate value.17 Infant children are different from other non-rational creatures not merely in their humanity and vulnerability, but in their potential.18 A child is a rational-being-to-be, barring abuse, neglect or some fatal mishap. The marvel of childhood is the emergence of humanity, not merely in genes or form, but also in consciousness. This is what is sui generis about the nature of children. It is this essential fact of their nature that must serve as the basis of their legal status. But it is not a trivial matter to derive an appropriate legal context for children from the fact of their future adulthood. As we have seen, full-blown liberty rights are not in the interest of the child. Besides, as mentioned earlier, ordinary adults should not have noncontractual, positive obligations to one another except as the result of a rights-violation. Ones future adulthood adds nothing to overturn the reasoning behind this basic principle. Then where would a positive legal obligation of parents to their children come from? The future adulthood of an infant is far in the future. How can a future condition provide a legal obligation? A young adult, for example, may not legally force (e.g. by a lawsuit) his life insurance company to provide his future annuity payments now, even though the young person is an annuity-recipient-to-be in much the way a child is a rightsbearing-adult-to-be. Notwithstanding these objections, we will see in the next section of this essay that the potential, future adulthood of a child can in fact provide the legal context for protecting the child from abuse or mistreatment.

Note that it is in this normal, rational state that we consider adults to be rights-bearers. In using the term rights-bearer, I do not mean to imply that rights are intrinsic to the individual, as some natural rights accounts would have it. Rights are objective principles that summarize the appropriate way for rationally selfish people to relate to one another with respect to the use of force. To say that another person is a rights-bearer is simply a brief way of saying that it is in any rational persons overall interest to respect rights with regard to that other person and, more broadly, to uphold a legal system that protects and enforces those rights for every person. 17 An ethic based on evolutionary imperatives would have many other problems as well. 18 By X is a potential Y I do not mean to imply anything other than the fact that it is a typical consequence of Xs development over time to eventually become Y.
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2: Child Endangerment as a Tort

If we want to know what legal claims a future, potential adult might deserve, then the place to begin is with the legal claims that an adult should be able to press. For the purposes of this discussion, it does not matter whether legal adulthood is established by age or capabilities. All that matters is that the law recognize a transition in legal status from that of a minor to that of an adult.19 When a person reaches his majority, he of course becomes a full rights-bearer in the ordinary sense. His contracts are fully enforceable, and he is fully liable for any damages he causes in violation of the rights of others. He can sue; he can be sued. No one owes him a living, but he is free to make one as he pleases.20 In what sense could an adult child have a legal claim against his parents? I argue that it would be perfectly appropriate for a victim of abuse or neglect to bring a tort action an action for endangerment or injury, thus child endangerment against those responsible for damaging his development and inflicting fundamental harm on him. In essence, an adult child could sue his parents.21 Of course, ordinarily a child should be grateful to his parents, and a lawsuit should be the last consideration in his mind. Sadly, the law must contemplate the worst sides of society, including the cruelest parents, the most abusive adults and the most damaged children. The suit for child for endangerment is actually one of two related torts. The first is child abuse, the second parental neglect. Each is an instance of a broader class of torts, and not an ad hoc aggregation to the law. The justification for the child abuse tort is that any party who harms one by violence in childhood owes one recompense. This is because such harms are rightsviolations inflicted on one while one was legally incapacitated. This is analogous to the standard procedure for harms to incapacitated adults. For example, violence inflicted on an unconscious adult is actionable by that adult if and when he regains his senses. It is the rights-bearing status of the conscious adult that makes violent harm inflicted on him while he was unconscious the subject of a tort. Just so, it is the rights-bearing status of an adult that justifies our respect his claims against those who inflicted harm on him while he was a child. Of course the fact of such harm would have to be demonstrated, and the damages would be based on the effects on the overall development of child at the time of his majority. Evidentiary standards would be strict: a grown child would only be able to claim objective damages in such a suit, as opposed to unsubstantiated emotional traumas or
When I describe someone as an adult child one should bear in mind that in this case the person is a child only in the sense of having been created and/or raised by someone, and that no continuing obligation on the part of parents is presumed. 20 These assertions apply to a system rooted in individual rights, not necessarily any particular current legal context. Since I am assuming a kind of ideal justice system, let me offer this brief sketch of it: presume the basic institutions of the United States system, with all law amended to accord with a rigorous constitutionbased enforcement of strict rights to life, liberty and property. Among the implications of such emendation would be the elimination of all administrative law and agencies, all economic regulation, and the alteration of liability law to focus on individual responsibility. For instance, bankruptcy law would be significantly different from the current state of affairs, and anti-causality doctrines such as joint and several liability would be swept aside. However, one can presume the flourishing of alternative collective arrangements within the context of freely chosen contracts, such as arbitration standards and community associations, subject to the supervision of the law courts. 21 Like any damages claim, this might be subject to a statute of limitations. At least, testimony and evidence would likely be most compelling soon after the child reaches majority.
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9 subjective resentments. Suppose through cruel abuse by an adult (a P.E. teacher with a fondness for practicing karate on his students, say), a child loses his leg. Once he attains his majority, if he could establish the abuse and show that the loss of the leg had damaged his capacities from what they otherwise would have been, he would have a legal entitlement to compensation. Of course, the standards for establishing damage would be unlikely to allow exaggerated claims to emotional harm, or evidence concocted through unscientific methods such as much of current recovered memory therapy. These suits could not, for example, serve someone who wants to frivolously berate his mother for not having bought him trendy shoes. However, genuine psychological harms do exist. An obvious example would be the effects of depriving a child of linguistic stimulus during the years of natural language acquisition (e.g. by keeping the child imprisoned in a closet). This causes a child to become locked into a sub-conceptual wolf-boy mode of cognition. The other end of the scale from such blatant harm would have to be contextually determined. The technical issues are complex, but I would venture that, for instance, indoctrinating a child with self-destructive habits (or ideas) could create a lasting psychological disability that is very hard to repair. The general claim for damages incurred in childhood could be brought against any responsible party who inflicted violent harm on the child. In addition, the adult child would have a broader endangerment claim against his parents, a tort for parental neglect. 22 This is a claim to positive care. In essence, any failure on the part of the parents to provide the basic food, shelter and education required for the child to become a healthy, rational adult, would be actionable if a person could demonstrate harm to his adult self resulting from such neglect. The legal obligation on the part of parents turns out to be a standard kind of obligation. It is of the same kind as the obligation of someone who has endangered or damaged an adult.23 In creating a child, the parents have in essence put the adult that the child will be into a condition of dependent existence: they have put a person in danger. By way of analogy, consider someone who is thrown into a lake: the thrower is not only morally but also legally obligated to provide assistance to the victim, including rescuing him from the lake and seeing to the repair of any injuries he has suffered. If the thrower failed to provide appropriate assistance, the victim would have grounds for a tort. There is no innovation in asserting a right to recompense in this case: this is not merely true of the law as it currently stands, but should in principle be true of any rights-based system of law. Of course, creating a child is not in sum a malicious act. The gift of life is the greatest gift one can receive, and every child owes his parents thanks, in a moral sense. But any person is entitled to the basic faculties his genetic makeup and a non-abusive upbringing would ensure for him. Having created a potentially rational but dependent being, one is responsible for that condition of dependence. Creating a child creates the dependence of the adult-to-be. Since anyone who puts a rights-bearer into a position of incapacity is legally responsible for rectifying that incapacity, this creates the obligation. Let us pause for a moment to consider the crucial claim I am putting forth at this stage. I have argued an adults claims for childhood abuse or neglect are quite strictly
By parents here I mean any legal guardian. Generally, as we shall see, the obligation of guardians toward children is rooted in the obligations of biological parents. This obligation could be passed on only by contract, e.g. via adoption. 23 Roderick Long, in his Abortion, Abandonment and Positive Rights, especially p. 172, makes a similar point, calling such positive obligations derivative positive rights.
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10 analogous to ordinary tort claims for violent harm or endangerment. The strictness of the analogy arises as follows: If a person has the qualities of rationality, productive capability, etc., then he places no burden on anyone by his existence. His life and ours benefit if his rights to freedom are respected, since a) his rights secure the range of action he needs to flourish, b) no one has an objective interest in inflicting violent harm on such a person, and c) his success could benefit others as well as himself. All this is true of any person who is a rational adult, so of course it would be true of a child who has just attained his majority. When someone inflicts a rights-violating harm on someone else, this act is thus against the self-interest of both parties. The role of the government is to eliminate this form of threat inasmuch as possible, consistent with universal respect for rights. The role of the law is to implement the implications of our rights for our claims on government and each other. In a rights-based system, if harm is inflicted on someone through a rights-violation, the victim is entitled to be restored to the condition he would have attained in the absence of his injury. The case of harms inflicted on children is distinctive in that their rights-bearing status lies in the future. But there is no asymmetry in holding a person responsible for the harm he inflicts on a future rights-bearer: one no more has a justifiable interest in harming a person ten years distant than one has in harming people living on a distant continent. However, a minor child, per se, is not in a position to press legal claims: his claims originate in his adult self. Thus we may seem to face an incongruity, or at least a sui generis situation that can only be addressed by ad hoc principles. But this is not the case. The incongruity seems to lie in holding someone responsible for harm to an adult that resulted from an action that was taken when that adult did not exist. But consider the example of a polluter who dumps toxins into a river. Some chemicals can inflict substantial harm on people who consume them over time, and tend therefore to inflict only a delayed harm on the health of people living downstream. 24 The act of dumping the toxin is thus separated in time from the harms it would inflict. Indeed, it can be separated from the very existence of the eventual victims. It would be absurd to argue that only downstream victims who were living on the river at the time of the dumping are entitled to compensation. Nor would it make any more sense to argue that only those people who were adults when the toxins were dumped have a case. Ones right to life implies that others must be held responsible for harms they inflict on one in violation of that right, no matter how extended in time the causation may be.25 The peculiarity in the case of children is thus not in the general character of the obligations people can incur toward children, or any novel view of rights-violation. Rather, the peculiarity lies in the narrow implications of the rights of the grown child for the obligations people bear toward minor children. This peculiarity does not arise because of any difference in the rights-bearer, the rights being protected or the reasons those rights should be observed by others. Rather, it has its origin in unavoidable epistemological constraints on knowing what harm has resulted from a given instance of abuse or neglect. When a person is harmed during adulthood, the extent of the harm can be demonstrated by reference to the characteristics the victim possessed at the time he was injured. Colloquially, we may say a victim is entitled to be restored to his previous state,
Although environmentalists greatly exaggerate the dangers of chemical waste, several such cases have actually occurred, e.g. the Minamata mercury poisonings in Japan. 25 Of course, in all cases I assume harm to be demonstrable and the causation well established. indisputable.
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11 but this is inexact. The victim is actually entitled to the state he would have attained but for the harm. For instance, if someone is injured by a reckless driver, he is entitled not merely to his health at the time of the accident, but to any income he may have lost over the course of his recovery. We can know fairly exactly what his state of health, his physical features, his income, etc. would have been in the absence of the injury. When a person claims compensation for harms inflicted on him while he was a child, it is more difficult to determine the extent of the harm. A young childs development is subject to many factors, and it is not possible to say with exactness what his career should have been if things had gone differently, what his educational attainment would have been, what his social life would have been like, nor his emotional state, and so on. A childs future, adult characteristics are largely unknown and unprovable. What can be proved is developmental and genetic. A child of normal health, properly cared for, will develop a healthy body and the faculty of reason. In short, he will develop the essential characteristics of a normal adulthood. An adults full right to life includes the right to the faculties that make him an adult, as well as to the other aspects of his life. But since these other aspects, so important normally in establishing the extent of harm, are largely undetermined until one is grown, they cannot provide grounds for gauging harms inflicted in childhood by abuse or neglect. Thus, with reference to his treatment in childhood, an adult has no other right than the right to his bodily health and rational faculty. While parents incur no obligation to an existing rights-bearer in creating a child, they do, in giving him life, put in danger the very existence of the adult the child would become. In this they are quite precisely like the polluter of the example above, whose proximate action of dumping toxins may have no immediate effect on a rights-bearer, but who is nevertheless responsible if it results in harm to rights-bearers in the future. The polluters action endangers the people living downstream in future years; the parents action endangers the person their child becomes in future years. In the future, downstream residents could hold the polluter responsible for failure to ameliorate the danger created by his toxins; just so, in the future, a damaged adult could hold his parents responsible for failure to attend to the developmental needs that they created. In each case the person who has created the need is held responsible, in each case the obligation can be enforced by a victim who was not present at the time the endangerment was initiated. It should be clear, then, that the only right that the child could be said to possess with respect to anyone is the right to, as it were, come to have rights. Therefore, the expectations that the law could have of parents, on the basis of my theory, are rather minimal. To become a rights-bearing adult, a child needs sufficient physical and emotional care and instruction in thinking conceptually. One can become a rights-bearer without a fancy education, plentiful toys, a cheerful home, or any of a myriad of other values. Parents do not obligate themselves, in creating a child, to provide that child with a wealthy or happy life, but merely an adult life. It is morally laudable, if one loves ones child, to see that he goes to good schools. But the adult child is entitled by right to little more than health and the basic the ability to think. However minimal the obligation is, neither is it empty. In the context of modern life, for example, it is generally known that the use of written symbols is necessary for complex conceptual reasoning, and also for communicating and preserving extensive information. Given this fact, parents are obligated to see to it that their children get the opportunity to learn to read and write. Similarly, parents are obligated to provide their

12 children with modern medical care to the best of their ability, regardless of their own personal views on medicine. The parental obligation, like any ethical principle, is contextual. It will depend in part on the knowledge that the parents can be expected to possess about the needs of a child. For example, it would be hard to insist that illiterate nomads of a previous century should have understood the function of reading in life. Indeed, without the validation provided by the industrial revolution, it would take an insightful imagination to grasp the broader principle that reason is ones means of gaining values. A peasant on a medieval manor might understandably infer that a strong arm is of more use than a questioning mind. Thus it is possible for us to sketch here examples of items such as food and language, that any parent is obliged to provide, as well as examples such as literacy, which might only properly be expected of a parent with access to modern knowledge. In a lawsuit, the precise extent of the parents obligation, within the bounds laid out here, would be decided by the court.26 As we will see when we discuss criminal child welfare laws, the legislature may have to establish statutory standards as well. We can state in advance some limitations on the extent of such standards, and on the general character of the obligations that could be found through a tort. Inevitably, we must rely on the principled reasoning of jurists and lawmakers to ensure that the obligation does not become artificially inflated or watered-down. But this is the case with any aspect of the law. So far we not discussed the temporal boundaries of the parental obligation. Naturally, it must expire when the child becomes an adult. But we must also determine when it starts. That is, there must be some point in the series of events that brings about an adult human being where obligation actually begins, and before which none exists. Lets consider several options: an obligation preceding pregnancy, one that begins with pregnancy, and one that emerges with the infant as a viable, independent living entity. It seems absurd to locate the obligation before pregnancy. Yet we must seriously consider doing so. After all, every choice adults make to engage in heterosexual intercourse or not, to use birth control methods or not, and so on bears on the potential for some hypothetical persons existence. For a woman, being pregnant with one fetus of course precludes being pregnant with a different one for over nine months: that excludes some people from existence. A man who commits to one woman rather than several decreases the number of children he could be helping to create. But every act one takes bears on the chances of some child or other to come into being, so any obligation to one necessarily excludes others. This would lead to a putative obligation that was self-contradictory, which is an impossibility. Similarly, since one could not be obligated to create any particular child, it would be absurd to presume (as the Catholic Church does) that one has an obligation to engage exclusively in procreative sex. After pregnancy occurs, the issue becomes slightly more murky. One might consider conception to be the moment of the creation of a child. However, early in pregnancy, the fetus is a biological process within the mother. It is not integrated or capable of self-support without her. An attempt to assert an obligation at this stage ends up creating a possible conflict of interest and rights between the mothers claim to her body, and the inability of the fetus to exist as a living organism outside of it. The fetus is not yet a viable independent organism, while the mother is a mature rights bearer.27 What reason could be given for holding that the fetus has rights superior
26 27

This may include a jury: this is a matter of legal practice and convention, to a certain extent. Melinda Ammann has suggested in correspondence that a fetus is in fact a viable parasite. Even if this

13 to those of the mother? It is not even clear that the fetus is a distinct living entity during the early stages of development, it certainly has no consciousness or ability to survive for even an instant on its own. It is morally repugnant in view of these considerations to hold her obligated in the first trimester to bear the fetus to term and assume responsibility for a childs life in the absence of her voluntary agreement. The idea that such a complete long-term commitment would arise as the result of conscious choice by the obligated party is appealing. I noted earlier that choosing to create a child could not in itself entail a legal obligation. The obligation, per se, arises from the fact that the parents have endangered a rights-bearer: it would make no difference to the obligation if they had not intended that consequence of their actions, so long as their actions (in contrast to an incidental involvement) were what caused the endangerment. Choice could not trump a pre-existing obligation. But as there is no preexisting obligation, the fact that modern technology allows the mother to explicitly make the choice to bear her child, at a time before the child has actually developed, is welcome, because it allows the obligation to be chosen. This is an additional reason to respect a womans right to abortion.28 That said, it remains unclear how late into pregnancy the right to abortion should extend. All I can say with conviction is that in the second trimester the fetus is quite developed, but is still not yet truly an independent living entity. Perhaps closer analysis will yield a compelling argument on this issue. Without such a compelling argument, we may admit that the right to abortion could perhaps be construed to extend into the second trimester, while remaining certain that the right does hold during the first trimester. So perhaps the right to abortion should extend into the second trimester, but then perhaps not. I do not take this uncertainty about the exact boundaries of parental obligation to be problematic for my thesis, since all I need to show at this stage is a pair of boundaries that certainly exist. My argument is that we can at least be certain that any infant that can survive outside the womb is the object of obligation on the part of the parents. At this point the child is a distinct living human being who is independently able to maintain his life, at least in the short run, without outside assistance. There can be no doubt that this is a living being that stands to become a rights-bearing adult, and whose dependence for longterm sustenance has been intentionally caused by its parents. This is a clear, bright-line criterion. Whether or not one can construct a plausible further extension of the obligation into the second trimester, we can be sure that at some point at or preceding birth there are no possible impediments to the obligation.29 An additional aspect of parental obligation, which I will mention only briefly here, is the responsibility parents bear for the actions of their minor children. In that parents are the cause of their childrens existence and relative lack of capacity for reason, and inasmuch as the children are not yet able to be responsible themselves, it is
description were exact, it is not clear why the rights-bearing mother must submit involuntarily to the needs of such a parasite. The dependence of an infant child is not comparable, in part because that obligation may be transferred to another through adoption. Pregnancy, however, cannot be transferred. 28 I take the father to have no claims in the issue of abortion, except by prior agreement with the mother. Ross, Responsibility, Navigator Vol I, No. 9, May 1998, p. 15, gives a sound Objectivist analysis of this issue. 29 With the ever-advancing technology for the incubation of premature infants, my bright-line criterion of independent viability could lead to the incongruous situation of a mother legally terminating an infant that could survive with sufficient medical care, but that is not able to breathe and survive in the short-term on its own. I can only observe that the ethics of late pregnancy is a complex gray area with respect to the ethical principles I have been discussing.

14 straightforward that the parents are responsible for damages that their children cause. Furthermore, the guardianship that parents hold over their children implies some responsibility for their childrens moral character, which only enhances the justice of holding them responsible for their childrens actions. On a positive note, we can now see that parents deserve to act as guardians for their children. This follows naturally from the preceding arguments. Children are not property of their parents, but it would be a gross injustice and asymmetry to assert that the parents are obliged to provide for the daily care of their children, without presuming that they should be allowed to exercise control over how that obligation is fulfilled. Parents are usually by nature inclined to nurture and love their children, so in the absence of evidence of parental incompetence or abuse, it should be assumed that a childs parents are most qualified to shoulder the responsibility of caring for it. This happily accords with the desire of parents to exert control over their childrens upbringing and to enjoy the emergence childrens personality and character. I have argued in this section that a child has the right, at majority, to be a healthy, rational being, presuming he was genetically capable of becoming one. This implies that he may raise tort-claims for violent injuries that have impaired him physically or cognitively. Furthermore, because his parents are responsible for creating his childhood dependency, he can hold them obligated in law for failures to see to his basic needs, which include some amount of basic education. The object of this obligation certainly exists from the moment the parents create the child as a viable, distinct entity, so women retain their rights to abortion, at least in the first trimester of pregnancy. The obligation is therefore initially chosen as well as being eventually transferable through adoption. Naturally, it entails a corresponding claim to parental guardianship on the part of part of parents.

3: Child Welfare Laws

When I argue that a child should be able, upon reaching his majority, to sue for damages from neglectful parents or others who have done him violence, I mean that such suits should actually be brought, when appropriate. Even in the current U.S. legal environment, such cases would help draw attention toward the obligations of individuals and away from the presumptions of the state. Indeed, I suppose most legal thinkers today take it for granted, unreflectively, that parents do have obligations to their children, and are not as concerned as I am to actually establish this obligation in fact. Naturally, I would wish that such cases were relatively unusual, since the vast majority of parents go far beyond any legal obligation in seeing to their childrens welfare. However, tort actions brought by grown children could not, in themselves, ensure justice in all, or perhaps even the majority, of cases relating to child welfare. For instance, a child who died of medical neglect would never reach adulthood, and therefore could never bring the issue to trial as a standard tort. Furthermore, there is a practical concern in relying on a tort action that would be delayed for years in cases of abuse to small children, which is that immediate legal intervention might prevent a great deal of harm. The solution is to codify and enforce a child welfare law that lays out the legal obligations of parents and the rights, or protections, of children.30
We may say children have rights, i.e. legitimate entitlements, but as we have seen, they do not have rights in the sense that adults do.
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15 Could a criminal child welfare law be consonant with the premises of a rightsrespecting government? To see how it could, we will first need to consider the broader and more fundamental issue, which is the role of the criminal law in an individualist state. In advocating the criminal law I mean to advocate a code of law delineating offenses against rights, and corresponding punishments, to be enforced by the executive arm(s) of government in the absence of private enforcement. This is not exactly coterminous with the historical character of the criminal law, but captures its essence. In English law the criminal law arose as part of an extension of the authority of the crown. Murder, for instance, which had been in the common law a matter for retribution, was construed as a breach of the Kings peace, and thus an offense against the claims of the crown. In the United States the republican government (state or federal, as the case may be) has taken the place of the crown in the criminal law. Nominally, offenses against the criminal law are crimes against the people. But to my understanding the actual content of the criminal law at this point coincides with the defense of individual rights only by default to tradition, and there are vast areas of the criminal law where the interests of the people have been equated with the desires of the legislative majority which passed the law. Thus many of todays crimes would fall well within the rights of citizen of an liberal, individualist republic. Such crimes include various consensual sex acts, many uses of real property, many aspects of commerce including the wages of labor and trade in narcotics, and so on. Given the facts of the origin of the criminal law and its function in American society today, one might expect an individualist to reject the idea of a criminal code. Certainly, even a more principled, libertarian construction of the existing U.S. Constitution would result in a radical critique of the criminal code. But I believe that the Objectivist epistemology, as well as various considerations about the nature of rights violations, insist on the retention of the principle of a criminal law, albeit on a reconceived foundation. Epistemologically, we need a criminal law as an aspect of the broader commitment to codified law. This in turn is an aspect of our need to understand in terms of principles. When possible, the principles of the law should be codified in objective, if abstract, terms so that it is clear what the law expects and what it does not. 31 Of course judges and officials will still need to exercise their judgment in applying it, but the principles of the law should themselves be relatively transparent. Some Libertarians are fascinated by the common law and its methods, but there is no compelling reason to believe that the common law has any advantage over codified law except conservatism. While that may seem attractive in an era when the role of the state has been expanding sharply, it may not seem so fine in an era when the role of the state is contracting. The best non-institutional guarantee that the law will be principled is to formulate the principles clearly and hold the judicial system to them. There are also practical considerations that necessitate the creation of a criminal law. In the first place, there are actions which plainly violate rights, but cannot be brought to trial by the offended party. Murder is a case in point. If torts are only concerned with the rights of the plaintiffs, then even if a relative of the victim brought claims against a murderer for damages, one might expect the damages to be unjustly low. Furthermore, the public at large has a strong interest in the apprehension of people who are inclined to commit murder, in part to prevent them from murdering again, and this interest would not
The Objective Law that Objectivism advocates is precise, but conceptual in character, whereas todays legal codes are not abstract, but rather concrete bound. That is, the typical current code handles minutia case by case, and substitutes rigid specifications and procedures for well-formulated, abstract principles and standards. See Howard, The Death of Common Sense for a discussion of this lamentable trend.
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16 necessarily be reflected in a tort proceeding. In addition, codifying a criminal law allows enforcement officials to intervene in crime cases more quickly, and allows arrest on demonstrable intent to commit a crime, which helps decrease the number of crimes committed. A criminal law that was based in individual rights could only codify as crimes those actions that plainly cause harms that are actionable as torts. In other words, individual rights would have to be at stake for a law to be justified. Criminal law would thus depend on, and never supplant, the constitutional principles behind the tort law of rights-based adjudication. The constitutional basis of the criminal law would need to be enforced as such to prevent the legislative branch from over-extending its prerogative as it has in the U.S. in this century. A criminal law formulated on the basis of rights would serve the general public by setting punishments that reflect its interest in justice.32 Furthermore, by easing enforcement and highlighting common crimes and their punishments, the criminal law helps deter crime from occurring, thus enhancing overall security. This in turn serves the main goal of government, which is to secure us from the threat of force. A criminal child welfare law would be especially beneficial, so long as it remained confined to enforcing the delimited obligations that I have outlined in the previous section. Many harms to children that would otherwise come to pass could be prevented. For instance, a child who is severely mistreated for extended periods can suffer lasting cognitive damage. A tort far in the future (should the child survive) could demand recompense, but would be too late to rectify the harm. By contrast, if such severe mistreatment or neglect is illegal, law enforcement officers (or private citizens) could intervene to remove the child from its parents and find a safer home. Furthermore, it would allow immediate action in cases of child murder or assault, which upholds the general interest in preventing the criminal from inflicting violence on others. Establishing the entitlements of children in a rights-based criminal code would also make it possible to establish a sliding scale of partial rights, or freedoms, for children as they mature. An infant would thus have only the right to life, not in the fullblown adult sense, but in the more limited sense of being protected from murder or physical abuse. Over time, a child could acquire delimited rights of contract and property as he developed the ability to handle such freedoms responsibly. How these might be constructed, and what the standards for them might be, is a fascinating issue in its own right, and one that I hope sympathetic thinkers will explore. I hope it is clear that a criminal child welfare code would be justified under the understanding of rights and parental obligation as I have developed it here. The fundamental rights of the adult child, those which allow him to bring tort actions for harm or mistreatment, underwrite the child welfare code in this individualist context. All items in that code would have to be justified with reference to harms that would in principle be actionable as torts. In extreme cases such as murder, the harm is so severe that it prevents the victim from bringing the tort, but the principle of basing the law on rights remains clear despite the lack of a plaintiff. The fact that a child welfare law can be justified in Objectivist terms does not necessarily imply that it would be right for such a law to be enacted. This is because in a liberal republic the citizens interests should lie behind the passage of a law. We may easily show that it is in the interest of the children to have child welfare laws. It is less
One must be cautious about asserting the interests of a collective. I intend any claim I make about the general public to apply to each member of the public.
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17 obvious that it is in the interests of adults. Yet it is adults who are the citizens.33 I can think of three reasons why the adult population should favor child welfare laws. In the first place, law or no law the obligations and standards that would lie behind a child welfare code would remain genuine obligations. The tort process I have described would enforce them in any case. If these standards would exist in any case, every parent or prospective parent has an interest in seeing them stated more explicitly, so that they can be more easily understood. Another reason to favor the establishment of child welfare laws is that it is in keeping with a benevolent character. Most people recognize the charm and potential of children, and have little sympathy for child abusers or neglectful parents. This sentiment, then, would favor improved prevention of child abuse and measures which would help decrease the amount of harm suffered by children. Furthermore, legal protections for children enshrine in the law our justified respect for the fundamental humanity of children, and this, too, which would symbolize benevolent intentions.34 Perhaps the strongest reason for the public to favor such laws is its interest in preventing crime and destructive social pathologies over the long term. Children are especially apt to have their character shaped by their environment, and it is well established that an abusive or neglectful childhood is significantly correlated with later pathologies such as unemployment and crime. Of course no Objectivist holds that the public owes an unproductive or criminal person a living. But the fact remains that a measure that reduces crime is in our interests, ceteris parabus. Moreover, we all lose something when a significant demographic group is less productive and successful than it might be. If, in consonance with justice, we can at little cost to ourselves expand their opportunities, we stand to gain in the long run. In these several ways I think we find that a public sympathetic to Objectivist principles in a polity based on freedom would find reason to support the establishment of a code of child welfare laws along the lines I have presented in this essay.

Conclusion: A Robust Individualism

Objectivism is a rigorously consistent form of individualism. It recognizes no basic moral end other than the life of the individual, and individual freedom is the guiding principle of its politics. It is useful in considering such an ethos, so contrary to traditional morality in many respects, to wonder what a person stands to gain from being part of society, and to imagine Crusoe on his island, living apart from his fellow man. But we are born into society, and we all owe society, and especially our parents and teachers, for not only our lives but for our ability to reason and choose our own paths consciously. Objectivism of course holds that there is a harmony of interests among peaceable, rational people, and while it rejects mysticism and collectivism, it recognizes that society is the context in which we normally live. Galts Gulch has its society, too. In this essay, I hope I have satisfactorily demonstrated how the unique conditions and legal questions raised by the relationship of children and parents can be addressed in the context of a radical, rights-based political system. Of course, at best this essay provides the foundations of a legal position; I merely sketch its actual features. It may be some time before anything like this position becomes part of legal practice, but that is no reason not to attempt to refine and develop it.
This point, and much of what follows, Roger Donway explained to me. Sentiment could not make the passage of a law just, but it is sufficient reason to enact one the justice of which is established.
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18 I believe the considerations I have presented here are representative of the robust ability of individualism to address the patterns of human life. The family has been the enlivening metaphor of collectivism, which has proved a profoundly destructive social ethic. Properly understood, the family should belong to collectivisms antithesis. I hope my theory of child welfare law can contribute to a realization that a reality-oriented individualism can stand for children as well as for Crusoe.

Bibliography
Defoe, Daniel. Robinson Crusoe. New York: W. J. Black, 1941 (1719). Howard, Phillip K. The Death of Common Sense: How the Law is Suffocating America. New York: Random House, 1994. Locke, John. An Essay Concerning the True Original Extent and End of Civil Government, in Two Treatises of Government. London: Everymans Library, 1924 (1690). Long, Roderick Abortion, Abandonment and Positive Rights: The Limits of Compulsory Altruism, in Ellen Frankel Paul, Fred D. Miller, Jr., and Jeffrey Paul editors, Altruism, New York: Cambridge, 1993. pp 166-191. Rand, Ayn.. Atlas Shrugged. New York: Random House, 1957. ________. The Comprachicos, in The New Left: The Anti-Industrial Revolution. New York: Meridian, 1993 (1971) pp 187-239. ________. The Fountainhead. New York: Bobbs-Merrill, 1943. ________. The Objectivist Ethics, in The Virtue of Selfishness. New York: Signet, 1964, pp 13-35. Ross, David. Responsibility, Navigator, Vol I, No. 9, May 1998. Smith, Tara. Moral Rights and Political Freedom. Lanham, Md: Rowman & Littlefield, 1995. Thomas, William R. Egoism, Rights and the Trader Principle, unpublished working paper presented at Institute for Objectivist Studies Summer Seminar, 1996.