[seraphim37]

Thank you so much for the interesting and detailed reply! It sparks lots of thoughts and questions.

The applicability of libertarian principles to incompetents is contested.

Not to be snarky, but that seems equivalent to saying “The applicability of libertarian principles to the human condition is contested.” 🙂

In the course I taught for several years on ‘Anarchy, Law and the State’, which used Rothbard’s The Ethics of Liberty as a core text, I always left his chapter on children until the very end, so controversial did it always turn out to be.

Thanks for the reference – I found it online here. I was surprised at how many assumptions Rothbard seems to be making in his argument. I will need to re-read this a few times, but here are my first impressions. His forcefulness of argumentation was quite different than Kinsella’s tentative explorations in his article, but I found it even more unsatisfying than Kinsella, simply because he does not seem to allow room for all the nuances and edge cases. It’s all so very clear cut. That seems like a formula for oversimplification, even to the point of hubris. I was surprised to find that in Rothbard — I haven’t read him really deeply, but everything I *have* read (until this) was more sophisticated and satisfying.

Here is a tentative attempt at answering your questions, revisable in the light of objections, counter-examples and further discussion (which I invite)

Thank you! I am really looking forward to the discussion!

If such a child doesn’t own itself, is it owned by another? Perhaps, but not in the way in which, say, a pencil can be owned. Rather, it has to be owned as something which has the capacity to become a self-owner in time, so that the ownership by another of it is to be exercised for its benefit, a kind of trustee ownership, if you will.

Yes, this is the heart of the matter. But what bothers me about this line of reasoning is that it treats this kind of situation (namely, trusteeship) as an edge case, as an odd example, saved for the last topic in the course because it is so difficult. 🙂 But this is really not an edge case — it is absolutely fundamental. After all, every competent adult was once an incompetent child.

What is the line of demarcation between competent and incompetent?

And who is to decide on the nature of the trusteeship?

These are not edge cases in actual human society, with our custody battles, conflicts of interest in the care of incompetent seniors, mind-altering drugs being prescribed more frequently than at any time in history.

Something like this already applies in our legal system. If a very young child becomes the heir of its deceased parents, the law will not recognise it as having the capacity to exercise actual ownership rights over the property that has been bequeathed to it. Instead, the law will appoint a trustee (if one has not already been appointed) who will be the legal owner of the child’s property and who will be expected to exercise control over that property for the benefit of the child (the beneficial owner) and, eventually, upon the child’s reaching its legal majority, to relinquish full control of its property to the child.

This notion of trustee ownership could be applied not only to a child’s external property but to the child itself, so that its parents (or guardians) are its legal owners who must exercise that ownership for the child’s benefit and ultimately relinquish it to the child.

Yes, of course. But in an anarcho-capitalist society, to whom does the child have recourse if the trustee abuses his trust? I suppose it would be left up to the community’s moral sentiments to intervene if there was some kind of consensus about the situation. The community could come up with some general principles by which they decide such things. Etc. But again, this gets to the fundamental question: who decides?

Who decides? Trustees, which would be, in the case of incompetent children, its parents or guardians; in the case of incompetent adults, those whom that adult has appointed when competent or, in the case of non-appointment, that adult’s nearest relative or someone appointed by the relevant legal authorities.

These seem like reasonable ideas. But it still feels unsatisfying to me. And you hit the nail on the head with this:

The problem arises in boundary situations.

Yes, of course, this is where all the legal disputes arise — this is where all the really interesting questions pop up — and this is where a theory is really tested to see if it holds water.

Competence is a capacity which should be empirically demonstrable.

Demonstrable *to whom*?

If a person claims to be competent and can demonstrate it, then that answers the question and no one can override that person’s decisions.

Again, demonstrate *to whom*?

Perhaps a situation arises, where a 16-year-old seeks to end a trustee situation and assert his full competence, and claim his inheritance. The trustee disputes the competence of the teenager, and refuses to relinquish the property. To whom can the teenager appeal?

To the local community? Maybe, perhaps, the teenager is able to convince a majority of the community that he is competent. But not everyone. Who decides? What if the ENTIRE local community sides with the teenager. But the trustee still refuses to give up the property, and claims to have good reason for it. Who decides? If both the teenager and the trustee are acting in good faith but are simply in strident disagreement, how is this to be resolved? It really does seem to come down to “who decides when the teenager owns himself”.

Rothbard asserts that the teenager owns himself as soon as he is able to “run away”:

The child has full rights of self-ownership when he demonstrates that he has them in nature — in short, when he leaves or “runs away” from home.

(emphasis in original)

But how does this actually resolve the cases of the trustee who refuses to relinquish the inheritance (perhaps in good faith)?

If, by any reasonable standard, a person (a young child or an adult who has become senile or an adult with mental problems of a sufficiently serious nature, etc.) cannot demonstrate competence,…

But who decides what comprises a “reasonable standard”?

There are further issues. Who, if anyone, has an obligation to exercise the role of trustee in cases of incompetence? Can a trusteeship be imposed unilaterally on an unwilling agent?

Good question. 🙂

I have answers to these questions (based on the principles outlines above) but not everyone may agree with me.

I would like to hear them.

In any event, take what I’ve written as a first try, and let me know what you think.

I think we’ve opened a can of worms, but it needed to be opened. 🙂

I suppose, in the end, it boils down to this (for me at least): There will always be disagreements, and it is not possible to resolve them all — let alone resolve them all in a manner that seems just and right to all parties. And the fact is, regardless of the political and legal ecosystem in which we find ourselves, we still need to find a way to live in a society where we have substantial, material disagreements with our neighbors. Appealing to a “final authority” such as a State obviously brings about more problems than appealing to a “final authority” such as a local community of peers and neighbors informed by libertarian ideas. 🙂 I suppose the real problem is preventing the latter from inexorably mutating into the former. But without a clear theoretical basis to guide this work — a theory that covers all the edge cases — how are we to proceed?

Anyway, I really welcome your additional thoughts and ideas, and please poke at my arguments and show me where I am going wrong.

Thanks very much!!
Seraphim