Coming back (finally!) to your post. First, some general points, and then I’ll address (some of) your questions.
I wrote: The problem arises in boundary situations.
You remark: Yes, of course, this is where all the legal disputes arise—this is where all the really interesting questions crop up—and this is where a theory is really tested to see if it holds water; and you ask: What is the line of demarcation between competent and incompetent?
The demarcation (boundary) problem is not specific to the issue of competence/incompetence but is a general feature relating to the applicability of all binary categories. What follows is an excerpt from a paper I gave at the Mises Institute some years ago, which addressed this issue. (The rest of the paper applied what I had written to the possession/ownership distinction, so I’ve left it out)
My children sometimes tease me by suggesting that the best way to send me to sleep is to put a film in glorious Technicolor in the DVD player and make me watch it. According to them, I manifest signs of life only in the presence of black & white films. Whatever about the aesthetic advisability of preferring black and white over colour in cinematic matters, black and white thinking—the application of rigid, sharply delineated distinctions—may not always be appropriate or even possible in intellectual and conceptual matters.
The making of binary distinctions such as that between tall/short, good/bad, beautiful/ugly, generous/mean, chair/non-chair is commonplace but all such distinctions appear to be beset by the scourge of the sorites. In a sorites, by traversing a series of incremental steps or stages between two contraries, we can show that one shades into the other in a seemingly inexorable manner thus eroding (or appearing to erode) the distinction between them. The standard example of the sorites, from which it takes its name, is to ask how many grains of sands to you have to take from a heap before it ceases to be a heap?
Try the following experiment on a captive audience. Ask people to raise their hands if they would consider men 6’ 6” and over to be tall. My guess is that you’ll get a 100% positive response. Now ask people to raise their hands if they consider men 4’ 4” and under to be short. Once again, a 100% positive response. [I’m assuming the experiment takes place in Europe or North America. If you were to run it in parts of Central Africa, you might well get different results.] Move your suggested heights progressively downwards from 6’ 6” and up from 4’ 4” and I suspect that the percentages will drop progressively from 100% the more you move away from your starting points. (Even more interesting, perhaps, is to watch how some hands will raise, then lower, then settle at a kind of half-mast!)
Block & Barnett
The sorites problem can be applied to libertarian topics and has been so applied in an article written by Walter Block & William Barnett II. [“Continuums”, Ethics and Politics, Vol. 10, No. 1, pp. 151-66 (2008)] They identify what they call a “continuum” problem [i.e. a “sorites” problem] in law and political economy. They begin with this example. What, they wonder, constitutes a genuine threat of violence? They imagine someone shaking his fist 3 inches away from someone else’s nose (other circumstances being appropriate such as its not being playful, or a joke, or part of a rehearsal for a play) and then they imagine him doing so 3 miles away. 3 inches very likely constitutes a threat; 3 miles doesn’t. They then go on to say: “If the same action is a threat at 3 inches but not at 3 miles it follows ineluctably that at some point in between these two distances its very nature changes from the one to the other.” (p. 152 Emphasis added) If this point of change were, say, 30 yards, then fist-shaking at 29 yards 11 inches would still be a threat but not at 30 yards 1 inch. !
As we saw in our experiment, along any given continuum (let’s stick with the “short” and “tall” example), we can move progressively from a given point which can correctly be described as short to a point that can be correctly described as tall so that as we move along the line change does occur from one to the other; however, it doesn’t follow that the change occurs at a point. Some people are clearly and unambiguously short, others clearly and unambiguously tall, and others—well, who can tell?
To return to Block and Barnett’s example: at one point on their continuum what we have is clearly not a threat; at another it clearly is a threat, and in between, we have a fuzzy area where we simply can’t tell for sure whether someone is making a threat or not. Block & Barnett concede as much when they conclude: “How, then, can we solve the problem of whether or not a response or retaliation against a threat is justified or not given the conditions as depicted above? The only answer is that there is no answer, at least not one that admits of geographical extension. That is, no single cut off point will be both reasonable and non arbitrary.” (p. 153 emphasis added) While we may be unable to draw a dimensionless dividing line between threat and non-threat, it does not follow that there is no difference between them or that there is no way of making a reasonable judgement as to which is which.
Block & Barnett come more or less to this conclusion. “There is a way to address this problem that does not rely upon some necessarily arbitrary point along the continuum; it is to resort to common (economically efficient) practice.” Such reasonable judgements, in fact, are the function of the municipal law, as specified in a particular community by tradition, custom, practice, experience, and so on. In response to such problems, the law elaborated the concept of assault (as distinct from battery) to signify any act that created an apprehension in another of an imminent, harmful or offensive contact, that act to consist of a threat of harm accompanied by an apparent present ability to carry out that threat. Whether or not an act of fist-shaking constitutes assault is a matter of judgement, but the judgement, while requiring the exercise of discrimination, is not based upon arbitrary factors.
B&B’s overall conclusion is that libertarian theory (and I would add, not only libertarian theory) has continuum problems in which one is not in a position simply to set arbitrary cut off points. “We conclude from this not any shortcoming in the principles of non aggression but rather the importance of private institutions in the law industry” (161-62).
I had written: 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.
And you responded: 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 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.
I think it is fairly clear that an entity such as a chair is not the kind of thing that can be an owner of anything, not even of itself. Somewhat more controversially, I would argue that non-human animals cannot own anything either (they can, of course possess something, but that is not ownership). Only rational beings can own anything. I would argue that there is no problem in principle with human beings owning non-human things (leaving aside specific justifications for X’s owning Y). The limiting—or edge case, if you like—is whether or not human beings themselves can be owned and, if so, in what ways.
There are two basic positions on this: one says ‘no’; the other says ‘yes’. The ‘no’ position, typically, simply denies that human beings, being rational, are the kind of thing that can be owned by anyone, even by themselves; in effect, that the notion of ownership has no purchase in this context. The institution of slavery, one of the oldest of all human institutions, and whatever one’s moral approach to the topic, would seem to provide compelling legal evidence against this view.
If we think it makes sense to say (of competent adults) that they own themselves, then, and only then, does the problem of incompetence arise. All (competent) adults were once (incompetent) children (as you note), and some (now competent) adults will become (incompetent) adults.
This is where B&B’s suggestions come in and I quote again from my paper: ‘Block & Barnett come more or less to this conclusion. “There is a way to address this problem that does not rely upon some necessarily arbitrary point along the continuum; it is to resort to common (economically efficient) practice.” Such reasonable judgements, in fact, are the function of the municipal law, as specified in a particular community by tradition, custom, practice, experience, and so on. In response to such problems, the law elaborated the concept of assault (as distinct from battery) to signify any act that created an apprehension in another of an imminent, harmful or offensive contact, that act to consist of a threat of harm accompanied by an apparent present ability to carry out that threat. Whether or not an act of fist-shaking constitutes assault is a matter of judgement, but the judgement, while requiring the exercise of discrimination, is not based upon arbitrary factors.’
In a libertarian society, the legal bedrock is the principle of non-aggression. But, of course, that only provides the outer boundary of what cannot legally be done to you even outside the context of consent. Within the context of the non-aggression principle, any society is free, consensually, to organise its own affairs. In some matters, members of any society are likely to avail of various forms of expertise—medical, arbitration, etc. And it is in this context that contested cases will be arbitrated.
You ask: Who is to decide the nature of trusteeship?
Once again, a boundary problem. Take a case of the trusteeship of property. If a trustee converts the trust property to his own use and consumes it, that’s clearly a violation of trust. If a trustee supervises the property as if it were his own, exercising care and diligence, and handing it over eventually to the beneficial owner in an improved state compared to that in which he received it, that is clearly a case of a trust well carried out. Now any legal system would have to have the means to address contested cases, and in a libertarian society, it would be foolish to leave such things to chance.
The same considerations apply to trusteeship over non-competent human beings. Some ways of treating them will be clearly a violation of trust, other ways, clearly a satisfactory way; and still others, contested. Once again, it would be foolish to leave such things to change.
You seem to be coming to a somewhat similar conclusion when you write: 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 interven if there was some kind of consensus about the situation. The community could come up with some general principle by which they decide such things. Etc. But again, this gets to the fundamental question: who decides?
Once again, I believe that, given the nature of such possible disputes, any libertarian society would have to accept some method of resolving them in a way that is broadly acceptable. This could vary in detail from one society to another. To take an example, let me refer to the question of whether, in an society that is both agricultral and pastoral, the owners of animals have an obligation to fence them in, or the owners of crops have an obligation to fence them out. Either solution solves the problem. In Britain and Ireland, the owners of animals have the obligation to fence them in; in the American West, on the cattle ranges, it would have been staggeringly expensive, even if possible, to fence the cattle in, so the other option was taken.
You write: 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 the 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 or legal ecosystem in which we find ourselves, we still need to find a way to live in a society where was have substantial, material disagreements with out 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?
I am in substantial agreement with this comment of yours, right up to the last sentence! No system can cover every possible edge case in advance. For example, the common-law principle of Rylands v Fletcher was developed precisely in a context in which the circumstances were non-normal and there was no immediately obvious set of principles to appeal to. In practice, any society has a case-law system that covers many of the more common sources of friction. The principles are, firstly, the non-aggression principle, and secondly, the body of practically educed principles that a society has evolved over time, which are known to all, and in the light of which new, unforeseen cases of friction can be resolved.
Perfection is not possible, but a dose of practical wisdom will take us a long way.