Ruwart on Children’s Rights

I see that on the basis of some rather vague passing comments in her book Short Answers to the Tough Questions, Mary Ruwart is being accused (see here and here) of defending pedophilia and child pornography.

Well, she’s clearly not doing that. But her position is vague enough to be ambiguous among several different positions. (She does begin the section with the disclaimer that determining the correct libertarian position on children’s rights is a “hotly-debated issue” where libertarian theorists “need more definition.”)

Let me first say what I take to be the correct libertarian position on these issues, and then take a look at what Ruwart says.

Consider the following three facts:

Fact 1: Consent is not genuine when a person’s capacity for meaningful consent (not just to sex but more broadly – e.g., to commercial contracts) is impaired, as it is in the case of immature mental/psychological development. (Thus some superficially consensual transactions are not genuinely consensual and so receive no protection from libertarian rights theory.)

Fact 2: Not everyone reaches maturity at precisely the same age. (Thus there’s no reasonable point at which to set an absolute universal cut-off without condemning some who are innocent and protecting some who are guilty.)

Fact 3: Nobody passes from immaturity to maturity overnight; the transition is always a gradual one. (The capacity to give meaningful consent to the sale of a pack of chewing gum surely emerges earlier than the capacity to give meaningful consent to a mortgage contract; likewise, given the asymmetries of power involved, the ability to give genuine consent to sex with someone a few years older arguably emerges earlier than the capacity to give genuine consent to sex with someone many years older.)

Fact 1 gives us a reason to favour some form of age-of-consent restrictions. Facts 2 and 3 give us a reason to make those restrictions sensitive to details of context rather than imposing a uniform limit across the board. For example, one way of dealing with Fact 2 is to establish an age limit below which the burden of proof shifts from the party claiming that the person’s consent was not consensual to the party claiming that it was. And one way of dealing with Fact 3 is to make the shift in burden of proof sensitive to age difference between the parties.

With regard to child pornography, I think criminalising the mere ownership or possession of it is legally incoherent, not just for the usual libertarian reasons (though those too) but on the grounds that the prosecutors of the crime would have to violate the very law they’re enforcing in order to maintain possession of the evidence needed to prosecute – unless of course prosecutors are exempted from the laws that apply to everybody else, but that would be hard to square with impartial justice. Moreover, if it were illegal to own photographic depictions of real-life rights-violations then all the news footage from wars, police beatings, etc. would have to be banned as well.

The real issue concerns the production of child pornography. If such production involves actual sex acts (as opposed to, say, digitally simulated imagery) by children below the age of consent (as defined above), then it’s rape and should be banned. If not, then there’s no direct victim, and so the production cannot legitimately be combated by legal force (though vigorous and systematic boycotts, protests, and shaming would be quite appropriate). (The argument that its production should be banned to protect indirect victims, on the theory that child pornography makes its readers more likely to commit child rape, would have no grounds for resisting the demand that all literature advocating and/or glamourising rights-violations be banned – which would deprive us of most of world literature.)

Okay, with those distinctions in hand, let’s turn to Ruwart. Here are some of the relevant passages, with my comments interspersed. (If you want to see more of the context and don’t own the book, go to its Amazon page and use the “Search inside” function; the section begins on page 41.)

Children have the same rights (and responsibilities) as adults, but normally exercise them with the help of a loving parent or guardian because they are physically incapable of assuming them at birth.

This passage recognises, properly, that children can have rights and yet, owing to immaturity, be unready to exercise those rights. Ruwart mentions only physical incapacity here; I would want to add psychological incapacity, but Ruwart here does not commit herself either to affirming or to denying this addendum.

A libertarian society would not have laws that discriminate on the basis of age.

In this section she’s talking not about sex but about things like the ban on selling alcohol or cigarettes to minors. I agree that those laws are silly. (My mother, when she was a child, regularly bought cigarettes and alcohol for her father; I don’t think anyone would claim the problems of underage drinking and smoking were more severe in the 1930s-40s than today.) And as Ruwart goes on to point out, if concerned parents wanted to organise a boycott against stores that made such sales to children they would probably be effective, since “parents are generally better customers than the children.”

But do the age-of-consent restrictions I favour “discriminate on the basis of age”? Well, sort of; but the real basis for the “discrimination” is not age per se but diminished capacity, of which immaturity is one but not the only cause; so I don’t know whether Ruwart is ruling out enforcement of age-of-consent restrictions as such. If she is, I definitely disagree with her (though I don’t regard such disagreement, if it be one, as being as fundamental as I would if I had greater confidence in coercive methods and less confidence in voluntary methods).

In practice, children’s rights are limited by their inability to take responsibility for their choices.

This is another passage that might look as though Ruwart is granting psychological as opposed to merely physical barriers to genuine consent. But the example she goes on to give is that “a child who wishes to work, but can’t convince his or her parents to provide the necessary transportation, will be unable to exercise that right,” which is a completely different issue; so the matter remains unclear.

Children forced to participate in sexual acts have the same rights and recourse as a rape victim. We can, and should, prosecute their oppressors.

Children who willingly participate in sexual acts have the right to make that decision as well, even if it’s distasteful to us personally. Some children will make poor choices just as some adults do in smoking and drinking to excess; this is part of life.

Ruwart’s critics seem to be assuming that she is attributing to children generally a capacity for meaningful consent to sex. In fact she doesn’t say that, though of course she doesn’t deny it either. Her reference to “children who willingly participate in sexual acts” says nothing about what the conditions for willing participation are, and her aforementioned disclaimer suggests she may not have a fully worked-out position on the matter. She clearly assumes that some children are capable of meaningfully consenting to sex under some circumstances, but hardly anybody denies that; see Fact 2. (No ages are mentioned, but given the legal context, “child” presumably means anyone currently regarded as below the age of majority, and so would include, say, a 17-year-old’s having sex with an 18-year-old, which surely can be consensual.)

When we outlaw child pornography, the prices paid for child performers rise, increasing the incentives for parents to use children against their will.

This is somewhat confusing. Does the phrase “outlaw child pornography” refer to outlawing possession or production? It seems to me that Ruwart is committed to banning (the typical case of) production by her earlier statement that when children are “forced to participate in sexual acts” (which is surely the typical case of production), they should be treated as “rape victims” and we should “prosecute their oppressors.”  So I presume that the phrase refers to outlawing possession. In that case, I agree with her conclusion – that possession shouldn’t be banned – but the argument is one which, if it’s good, would seem to tell against the banning of production as well. Now there may well be cases in which attempts to ban a genuine rights-violation can actually make matters worse (Spencer maintains, for example, that British attempts to ban the slave-trade made the conditions of slaves worse by motivating slavers to pack their victims into ships in greater numbers, and to dump them into the sea at the appearance of the British navy); but we should be very hesitant, I think, before deciding that no means of banning such rights-violation is viable.

The age of majority for marriage, work, etc. is most often established by custom of the society and will vary with the individual’s circumstances rather than being dictated by law.

Notably, Ruwart is evidently here endorsing, rather than rejecting, the concept of an “age of majority” – something one would never guess from what the critics have been saying. But it’s unclear whether Ruwart is rejecting legal enforcement of any and all age-of-consent restrictions in favour of custom-based pressure alone (in which case I disagree, as per Fact 1 above), or whether she is rejecting legal enforcement only of those age-of-consent restrictions that fail to “vary with the individual’s circumstances” (in which case I agree, as per Facts 2 and 3 above).

In any case, while Ruwart’s comments are certainly not fairly described as “defending” pedophilia or child pornography, they are admittedly ambiguous as to exactly what she thinks should or should not be banned by force of law. In particular, her position (if she even has a fully settled one) is ambiguous between the correct position (mine, of course) and various incorrect (un-Longian!) positions. Here’s hoping that the reportedly forthcoming revised edition will be less confusing on this issue.

(Note: No Agorist Demerits on this post because it’s about Ruwart’s political philosophy, not her campaign.)

[Clarification, since some are misunderstanding (or pretending to misunderstand) my Fact #2: When I say there “there’s no reasonable point at which to set an absolute universal cut-off,” I don’t mean there’s no age below which sexual consent is impossible for anyone. I’m saying that setting the age of consent at that point will be setting it too low in many cases.]

, , ,

23 Responses to Ruwart on Children’s Rights

  1. Susan Hogarth April 25, 2008 at 9:59 am #

    … her position … is ambiguous between the correct position (mine, of course) and various incorrect (un-Longian!) positions …

    🙂

  2. Alex Peak April 25, 2008 at 5:43 pm #

    The perfect answer to give on any question is so clearly the Peakian stance, I can’t help but to feel I’m doing nothing but stating the obvious by saying so. However, since I do not completely know where I stand on this issue, and since the Ruwartian position is somewhat ambiguous (by the way, the Barrian position and the Rootian position are both ambiguous as well, but no one seems to be complaining there), I shall suffice myself with asking questions about the Longian position (which I may very likely end up adopting).

    The Longian position reminds me to some degree of the Lockean position, in that as one grows, one gains one’s rights, or perhaps always possesses said rights but gains access to or ability to use them. See Fact 3. I would certainly disagree with any claim that a child human, from conception to death, does not possess all the same exact rights as any other human at any other age. However, if we state that our position is that the ability to use one’s innate, natural, inalienable, individual, human rights is not itself innate, but gained over time, this seems like a rather reasonable claim.

    So, my question is, do we run the risk, by accepting this position, of it being determined that person X still has not gained the ability to use his innate, natural, inalienable, individual, human rights, even after, say, fifty years outside of the womb?

    Further, do we run the risk of people murdering X, justifying said murder by claiming that X, although possessing the innate, negative right to life, has not yet gained the “ability” to use that right?

    Or, is there some way to distinguish the negative right you and I enjoy to life from the negative right you and I enjoy to having sex? And if one class of negative rights (I say negative, of course, because positive rights is a contradictio in terminis) can be distinguished from another class thereof, what would the dictinction be?

    (Note for readers: When I say I possess a negative right to life, I mean that I possess the right to not be murdered, to not have my life usurped. I do not have a positive right to life, and by that I mean, I have no right to enslave someone else to ensure my own survival. The same distinction exists for sex. I, an adult, certainly possess the negative right to have sex, in that if I and a partner choose to voluntarily engage in a sexual activity on our own property, no third party has any right to step into the picture and stop us. But I possess no positive right to have sex, in other words, I possess no right to rape.)

    The reason I ask if there can be a distinction is not necessarily to challenge your position. I speculate that it is very possible that a dictinction can be generated. Rather, not knowing positively what we should accept as our distinction, I cannot judge whether it would seem like an arbitrary or a rational distinction.

    Nevertheless, for us to argue that a child may not be murdered at age one–and therefore possesses innately the ability to use his/her innate and negative right to life regardless of mental state–but may be deemed mentally incapable of as of yet to use his/her innate and negative right to engage in sex, there surely must be some distinction.

    There is also another manner in which we could look at this, a manner in which might not necessarily require a distinction at all.

    In the situation of the child having sex, the question is whether the child possesses the ability to grant consent. So, perhaps the better comparison is to the child’s innate and negative right to die, rather than her or his innate and negative right to life. Do we want to argue that if young children are incapable of granting authority to another person to have sex with them, that these children also lack the ability presently in their lives to grant authority to Kevorkian to kill them, and that a given child will gain both of these abilities at the same time, while possessing the innate, negative rights from conception?

    Perhaps we do. But this does bring up its own question. For, if a young child is mentally incapable of using her or his negative and innate right to die and to engage in sex, then surely there are going to be other negative and innate rights that children are unable to use. For example, they would, it seems, be incapable of granting authority to their parents to govern them–and if we should think of the living of a child under a parent’s roof as being a mutual trade between parent and child in exchange for the child abiding by certain rules of conduct, can’t it simply be argued that the child does not possess the mental capacity to use her or his innate right to make this trade, this negotiation? In short, might our adoption of this position imply that the child must live on its own, independence of any family governance; and thus, through reductio ad absurdum, would we be eliminating any arguments against claiming that children cannot, based upon mental capacity, innately use all of their innate rights?

    I’m not claiming, of course, that it necessarily would eliminate the argument–I don’t know if it does or not–but would love to hear the Longian view on thse dillemmas, to help me figure out where I stand on the matter.

    Other questions also arise. If we conclude that one’s ability to use one’s innate rights can be gained over time, do we open ourselves up to the claim that these abilities can be lost over time as well. For example, would one who loses her ability to remember what year it is, and who her husband was/is, and whether or not she ever had children–would she lose her ability to grant authority to someone to have sex with her? Would she lose her ability to grant authority to Kevorkian to off her? (And, if we do not establish a distinction as detailed above, do we have to conclude that she has lost her ability to use her innate and negative right to life; in other words, do we have to conclude that anyone may murder her?)

    That’s the end of my questions as relating to Fact 3. As for Fact 2, I would have to propose that, in the very least, any child who has seceded from her or his parents and taken upon her- or himself all the responsibilities associated with living on one’s own–in other words, taken upon her- or himself all the equal responsibilities of independent adults–must thereby gain the ability to use all of her or his innate rights, including the negative right to enter into the porn industry. (Chances are, not many five-year-olds are prepared to take upon her- or himself the responsibility of living on her or his own, and so this distinction between persons possessing the ability to use her/his rights and those not would “protect” the five-year-olds that the anti-Ruwartians are so concerned about. Conversely, there may be a good hand-full of fifteen-year-olds who are able and willing to take those responsibilities, and so this distinction would seem to embody the principle you state in Facts 2 and 3: some will have gained the ability before others, but not many, and it becomes fewer and fewer the younger and younger one becomes, to the point where the number dwindles to zero.) For lack of a better term, I will call this the “sovereignty principle.”

    The one problem I see here is that no parent, according to Rothbardian theory, is innately obligated to raise children. I agree with this point. So, if the biological parent decides to place the guardianship of the child into the state of nature without actually selling said guardianship (the guardianship, and not the child herself, since children are humans and humans can never be owned (you can see I disagree with Block)) to an adoption agency or a wannabe parent, and no one comes along and homesteads the guardianship, would this not de facto foist the child into a position of “ability” to use her or his innate rights, even if said child is not what we would call mentally capacitated? Or would this even be a concern of ours?

    Finally, one question about Fact 1: How would this impact the mentally retarded adults in society? (And, ought we apply the same sovereignty principle to this as we do above (assuming we actually do want to apply it above)?)

    Thanks in advance to any answers you can provide regarding the Longian perspective on thse questions.

    Sincerely yours,
    Alex Peak

  3. Alex Peak April 25, 2008 at 6:04 pm #

    P.S. I think I accept my sovereignty principle as the best sollution to this ethical problem. But what I forgot to ask is: do you think it’s possible that one can gain the ability to use one’s innate rights even without actually seceding from one’s parents and taking on all the same responsibility of adults? If someone has not actually seceded, but could do so and do so successfully, does this person ergo possess the ability–and if so, how would the legal system go about proving beyond a reasonable doubt that he possesses such ability without the corroberating evidence of his having seceded? (Conversely, how would the Longian legal system go about proving beyond a reasonable doubt that a given child does not possess the capacity to consent, or would it simply be assumed the child does not. And if so, how would we determine the Knappian switch from having to prove the one to having to prove the other? Or do you think we could simply rely on my sovereignty principle, which would bring us back to the question I asked before beginning this parenthetical?)

    Also, how do you think we should apply the sovereignty principle (assuming you accept it) to children who have previously seceded and, after a year of living with all the equal responsibilities of adults, decided to request her former guardians to re-accept guardianship of her. Would she lose her ability to use her innate rights by doing this, or would she retain them by virtue of the fact that she did prove she was capable of living on her own? And if she retains them, how long must a child remain sovereign before she is unable to lose them through re-accepting guardian rule? How would the Longian legal system determine how long she must remain sovereign, assuming that she doesn’t gain the permanent ability to use her innate rights immediately upon secession?

    Also, I noticed that my sovereignty principle rests on a certain assumption, an assumption I most certainly do want to make: viz. that each and every child innately possesses the ability to use her or his innate right to secede from guardianship and assume all the responsibilities of adulthood. But if we are to agree that this ability absolutely must be innate, what separates this ability from other abilities, like the ability to consent to sex or to Kevorkian-assisted suicide? For, surely, if we are to claim that one ability is innate and the other ability is not innate but is rather predicated upon use of the first ability, then there must be some distinguishing factor between them; and, unfortunately, try as I might, what that distinction is evades me.

  4. Alex Peak April 25, 2008 at 6:15 pm #

    P.P.S. I’m sorry, I know I’ve asked a lot of questions. It’s because this is an area of my political philosophy I’m still trying to figure out, and this issue in particular has the ability to raise a lot of questions which I believe I must consider before reaching judgment. The last thing I want to do is arive at my position whimsically or based upon irrational, emotive reasoning.

    Thanks again for any insights you can give.

  5. David J. Heinrich April 25, 2008 at 6:59 pm #

    “Moreover, if it were illegal to own photographic depictions of real-life rights-violations then all the news footage from wars, police beatings, etc. would have to be banned as well.”

    I think victims are victimized twice whenever their victimization is made open to public spectable. And the fact is, the victimizer didn’t have the right to take pictures or videos of his abuse anyways; I’d argue they’re the victim’s property, and she has a right to demand copies sold or distributed back.

    Furthermore, regarding your statement

    “Not everyone reaches maturity at precisely the same age. (Thus there’s no reasonable point at which to set an absolute universal cut-off without condemning some who are innocent and protecting some who are guilty.”

    We can, however, say that *nobody* reaches maturity by a certain age, e.g., 5, or even 10 maybe. We could specify that as the “minimum debatable point”, which wouldn’t mean that anything over that is acceptable, or even accepted within a certain region, but that anything below that, anywhere, is unacceptable. Of course, accounting for the age difference between the 2 people engaged in knowing relations.

    Also, I’d say that in deciding if knowing relations between someone of maturity, and someone not so (say 12, 13, 14) is whether the adult => teenager (or near-teenager) relationship is m => f, f => m, m => m, or f => f (I leave out the new “categories” gender in our post-modernist age). Same sex relations may have a higher burden of proof, even if the teenager or near-teenager claims to be gay. And also that attractiveness of the adult is a relevant factor, at least from our perspective, in setting a default for burden of proof. It is easier to believe that no emotional manipulation was used if a teenaged boy has relations with a supermodel, than if a teenaged girl has relations with a man older than life and ugly as dirt. This isn’t very PC, but it is true.

  6. Gene Berkman April 25, 2008 at 9:23 pm #

    On the question of whether it is more common for minors to smoke tobacco if they are able to purchase it, I have only anecdotal evidence. My dad was born in 1925, and he told me he started smoking when he was 13. A fellow bookseller I know is older, born in Austria, and he told me he started smoking when he was 10. Both were quite addicted to tobacco; my dad quit two years before he died from heart disease complicated by long-term tobacco abuse.

    In Europe minors can also freely buy alcohol, and my Austrian friend had an alcohol problem as well.

  7. Micha Ghertner April 26, 2008 at 3:40 am #

    David,

    Your point about physical attractiveness is an interesting one, and something I think many people (rightly or wrongly) would take into account if asked to serve on a jury tasked with deciding whether emotional coercion was used to initiate a sexual relationship.

    However, I don’t follow the reasoning behind your claim that same sex relations may have a higher burden of proof, even if the teenager claims to be gay. Why would the burden of proof be higher in such a case?

  8. David Gordon April 27, 2008 at 6:30 pm #

    The argument given about the incoherence of prosecution suggests an argument against an instance of the Lockean view on the right to enforce the law of nature. If the incoherence argument is right, then it’s also incoherent to criminalize the possession of property known to be stolen—unless the prosecutor is the rightful owner of the property, or his or her agent.

  9. Administrator April 28, 2008 at 11:01 am #

    unless the prosecutor is the rightful owner of the property, or his or her agent.

    Doesn’t the last bit resolve the problem?

  10. Rob April 30, 2008 at 2:14 pm #

    Isn’t it somewhat obvious that God (or nature/evolution/whatever your personal belief is) designed people to reach sexual maturity at an age that is approaching some measure of mental maturity. . .

    Unfortunately, it’s not uncommon for girls in their early teens to have had several sex partners in their own age range and have practiced seductive behavior towards older males. While they may not understand the long term consequences of their actions, they are certainly capable of understanding what they are doing in the short term. However, these girls have not been protected from practicing such behavior by their parents – particularly their fathers.

    As I understand it, the majority of girls reach child bearing potential (i.e. a regular, stabilized monthly cycle) between ages 11 and 14 . . . (perhaps the numbers are off a bit, but you get the idea). The vast majority of under 10s (and probably under 12s, maybe even 13 or 14) are incapable of bearing children, are not even vaguely sexually or mentally mature, and thus are/should be entirely off limits to sexual participation by the laws of nature. If the body has not developed sufficiently for the process of sex/child bearing to “work”, then clearly sex is inappropriate/premature/criminal/whatever – depending on the age of the “perpetrator”.

    Many of the underage sex laws acknowledge this situation – Under age 16 off limits to adults for sex, ages 13-16 acceptable if the partner is under 16 or under 18. Under 13 unacceptable in basically all circumstances.

    While Western cultures have made it the norm to prohibit sex between adults and anyone under 16 or 18, from my understanding of history, the majority of cultures throughout time (and even a lot of cultures today) have left the responsibility to decide with the parents of the child and presumed that a female old enough to bear children (i.e. physically mature enough) is old enough to be given in marriage. Whether she IS given in marriage at that age or not is/was up to the parents – and I would assert that the parents are the proper decision makers in such cases. (i.e. is the male a good “match”, is the male financially capable, etc. . .).

    I have an aunt and uncle that married when she was 17 and he was 14. They have been married almost 50 years – they both grew up on farms and he was working full time in a coal mine at age 14 in West Virginia. Admiral David Farragut (Civil War) was given command of his first ship at age 12. Davy Crockett left home in his early teens and returned home a man at age 16.

    Most kids today have basically nothing required or expected of them and thus, they tend to be less mature than they should be.

    Concerning girls – if parents today were actually paying attention and protecting their daughters there would not be a need for government involvement in the issue of age of consent.

    However, the tendency in the West is to encourage “boyfriends” for girls under 10 (“do you have a boyfriend yet?”), “regular” boyfriends by age 12 or 13, car dates at age 14 or 15, etc. . . (with the parents believing that their “good little girl” would never do such a thing) but to attempt to prohibit sexual relations until the late teen years or marriage, or whatever. It’s a very contradictory stance our culture has taken. Encourage the development of sexually charged bonds, but prohibit/discourage the actual sex for YEARS until the child is “capable of consent”.

    A nearby state has a law allowing anyone age 16+ to consent to sex with anyone of any age, but the same 16+ person cannot consent to marry until their 18 y/o. Isn’t this simply encouraging sex out of wedlock?

    Another nearby state has a law which states that it is a 3rd degree felony for a 19 y/o to actually have sex with a 13-15 y/o, but it is a (worse) 2nd degree felony if the 19 y/o takes a photo of the sex act. Does this make any sense at all?

    Rapists sometimes get 5 years in prison, or less, while mere possession of underage porn is a maximum of 6 years in prison PER PHOTO. A recent case in Ohio had a man with 110 underage porn photos on his computer. He could have been given 660 YEARS in prison and there was NO ALLEGATION that he had actually molested any child. The prosecutor was a bit more reasonable than that, and only prosecuted him on one photo – the guy got 6 years.

  11. Rad Geek May 3, 2008 at 9:30 pm #

    David J. Heinrich:

    Same sex relations may have a higher burden of proof, even if the teenager or near-teenager claims to be gay.

    Um. Why?

    Rob:

    While Western cultures have made it the norm to prohibit sex between adults and anyone under 16 or 18, from my understanding of history, the majority of cultures throughout time (and even a lot of cultures today) have left the responsibility to decide with the parents of the child ….

    It seems to me that somebody’s consent is getting lost in this discussion of “responsibility.” Can you guess whose?

    Rob:

    Concerning girls – if parents today were actually paying attention and protecting their daughters there would not be a need for government involvement in the issue of age of consent.

    It’s interesting that, in a discussion of age-of-consent clauses in existing rape statutes — which usually do not say anything in particular about gender — you’d spend your entire reply talking about “parents … protecting their daughters” and about the supposed sexual behavior of adolescent girls. I hear that adolescent boys sometimes have sex, too.

  12. David Gordon May 5, 2008 at 6:41 pm #

    No, because Locke thinks that in the state of nature, anyone can enforce the law of nature, not just the victim of a crime or his or her agent. I don’t intend this point to be an argument against the incoherence of prosecution argument, since I haven’t assumed that Locke’s view is correct. I’m trying only to show what I take to be an incompatibility.

  13. Administrator May 5, 2008 at 10:35 pm #

    Alex Peak:

    do we run the risk, by accepting this position, of it being determined that person X still has not gained the ability to use his innate, natural, inalienable, individual, human rights, even after, say, fifty years outside of the womb?

    Well, we can at least say that the mere fact that someone acts irrationally is not by itself evidence that their rational faculties are impaired — since the capacity to behave rationally includes the capacity to behave irrationally. And anyone who tries to raise the bar too high on other people will (absent a government monopoly) run the risk of having raised equally high on themselves.

    do we run the risk of people murdering X, justifying said murder by claiming that X, although possessing the innate, negative right to life, has not yet gained the “ability” to use that right?

    My view (elaborated in my abortion and punishment articles) is that if one proposes to make decisions for a rationally impaired person (e.g., having sex with them or killing them), one has to act as that person’s agent, that is, one has to make the decision for them that (as best one can determine) they would make for themselves if not impaired.

    For example, they would, it seems, be incapable of granting authority to their parents to govern them

    See above.

    If we conclude that one’s ability to use one’s innate rights can be gained over time, do we open ourselves up to the claim that these abilities can be lost over time as well.

    Sure.

    The one problem I see here is that no parent, according to Rothbardian theory, is innately obligated to raise children.

    I deal with the nature and basis of parental/guardianship rights/duties in my abortion paper, which I promise to post soon! But briefly, guardianship rights and responsibilities come as a package, and in accepting one, one thereby accepts the other.

    do you think it’s possible that one can gain the ability to use one’s innate rights even without actually seceding from one’s parents and taking on all the same responsibility of adults?

    Sure. For me it’s just a matter of whether one’s capacities are impaired or not.

    how would the Longian legal system go about proving beyond a reasonable doubt that a given child does not possess the capacity to consent, or would it simply be assumed the child does not. And if so, how would we determine the Knappian switch from having to prove the one to having to prove the other

    Well, the Longian legal system isn’t a dictatorship run by me. The precise rules of evidence and specifications of age, etc., will be determined by evolving custom, I reckon.

    David Heinrich:

    I’d argue they’re the victim’s property, and she has a right to demand copies sold or distributed back.

    The originals, maybe, but a claim of ownership to the copies seems to assume the legitimacy of IP, which I reject.

    We can, however, say that *nobody* reaches maturity by a certain age, e.g., 5, or even 10 maybe.

    Sure. Though I can’t see that that rule has any clear advantage over the one I recommended (or vice versa). I think their results would be essentially the same. General principles are a matter of natural law, but their precise specification belongs to custom.

    Same sex relations may have a higher burden of proof, even if the teenager or near-teenager claims to be gay.

    I share other posters’ puzzlement over this one.

    David Gordon:

    No, because Locke thinks that in the state of nature, anyone can enforce the law of nature, not just the victim of a crime or his or her agent.

    Well, I think something like this (qualifications no doubt needed): if X is in a position to prevent or redress a rights-violation against Y, and Y’s consent or lack of same cannot practicably be ascertained first, X is entitled to presume Y’s consent to X’s acting as Y’s agent in the manner until evidence to the contrary emerges.

  14. Administrator May 6, 2008 at 12:22 am #

    Oh, to clarify: the point of my above reply to David Gordon was that the line between “anyone can enforce the law of nature” and “only the victim’s agent can enforce the law of nature” is less sharp than it might seem.

  15. Laura J. May 6, 2008 at 2:25 am #

    “Most kids today have basically nothing required or expected of them and thus, they tend to be less mature than they should be.”

    Which is an excellent reason to expect more of the children in your life, rather than less, and, in return, accord more respect to those who do their best to rise to the occasion.

  16. David Gordon May 6, 2008 at 9:08 pm #

    A Lockean, though, might contend that X can prevent or redress a rights-violation against Y, even if Y doesn’t want X to do this and X knows this.

  17. Pat Goltz May 8, 2008 at 7:04 pm #

    Two reasons for having a higher age for homosexual activity.

    1. homosexual activity shortens a man’s life expectancy by about 20 years.

    2. most children pass through an age when they are attracted to friendships with the same gender, but they grow out of it. Letting the sexual development of a child be truncated (usually by older men) by early homosexual activity is simply unjust.

    We have some nasty diseases in the general population, due to homosexual activity. Even babies are being infected with HIV. Obviously, the consequences of the activity is not confined to consenting persons. Then there is the MSM (man having sex with men) who has a hetero sex partner but never tells her about his MSM activity. That’s fraud.

  18. Administrator May 10, 2008 at 11:05 pm #

    Pat,

    homosexual activity shortens a man’s life expectancy by about 20 years.

    Assuming for the sake of argument that that’s true, why is that? If it’s not independent of social factors (and surely it’s not), then it can’t be used as an argument to justify the very social factors in question.

    most children pass through an age when they are attracted to friendships with the same gender, but they grow out of it. Letting the sexual development of a child be truncated (usually by older men) by early homosexual activity is simply unjust.

    This assumes that heteronormativity without argument.

    Then there is the MSM (man having sex with men) who has a hetero sex partner but never tells her about his MSM activity. That’s fraud.

    Now you seem to be going off into a general rant about homosexuality that has nothing to do with the topic.

Trackbacks/Pingbacks

  1. Third Party Watch » Blog Archive » LP presidential media wrap-up - April 25, 2008

    […] Politics1 runs with the headline “Leading Libertarian Prez Candidate Defends Child Porn” while Roderick Long defends Mary Ruwart on this issue. […]

  2. Age of Consent: Child Molestation and Legal System | Reason for Liberty - May 21, 2008

    […] The subject sounds repudiating and taboo, but it cannot be dealt by avoiding it. In July 2007, a court of India rejected any charges of rape or abduction on a person who was accused of eloping with a minor girl No rape charge if minor in love elopes: Court In a case involving a 17-year-old who had eloped with her boyfriend Ajit — the accused — and reportedly married at a Bareilly temple, additional sessions judge Kamini Lau held: “…The 17-year-old prosecutrix (the girl) has a right to protect her feelings from the onslaught of her parents and the society. If she had run away to save herself from such an onslaught with her love, this in the view of the court is no offence.” The case was a milestone towards the liberty and sense of civilization. On general notes, a girl cannot get married until the age of 18, and for guys, that age bar is 21. So, can such age bar be put over the question of age of consent for sex? In general, people considers that this is the age restriction over consent, i.e. A boy or girl under the age of 18 is not considered to be of the age of consent, and hence not capable to agree or disagree to sex. In other words, if a boy or girl under the age of 18 has sex, then the law would believe that even if they had agreed, because it is considered that such agreement could have been under an influence and hence invalid, a rape has occurred. But how logical is that idea? In the pretext of what we consider as “the civilized world,” child molestation is a nearly unanimously condemned activity. It can be defined as happening when an “adult” takes on sexual acts with a “child.” I consider this condemnation as proper and right. The criticism is of sufficient universality that it certainly constitutes a social norm. But how will one define “child” and “adult”? Worldwide in most of the cultures, “adult” can be considered as that one who is considered as both independent to use all rights available to a member of the culture in question and is bound by all legalities and duties (as well as punishable if laws are broken) for abruptly breaking and misusing those limits. On the other hand, a “child” is not an “Adult”. The difference between an adult and a child can be best described as Individual able to exercise his rights as well as duties and can be considered responsible for the violations of rights of other Individuals who lives in that society. Being an Individualist, in this era of globalization where various cultures are meeting up together, I further propose that the appropriate dividing line, for legal purposes, between “childhood” and “adulthood” can be discerned by the matter of competence. That is, we cannot collectively decide any certain age limit to decide for a person is adult or child and it is dependent on the competence of that Individual in question in any particular situation. In other words, the age limit of 18 or 21 for adulthood is redundant in many cases and every case needs to be considered individually. As for example, an Individual of age (say 10), working in a coal/diamond mine, would be considered as a case of child labor, but will a child of 10, working in an advertise or a movie along with Amitabh Bachchan or ShahRukh Khan will also be considered as case of child labor? Certainly not! Nor will a cricket player entering in professional cricket game at age of 16 (like Sachin Tendulkar) nor a girl of 15 entering in international tennis arena (Sania Mirza) will be considered as child labor? Same logic although, is not applied in general for the question of “age of consent for sex”. The arbitrary age limit becomes sacrosanct when an accused adult engages with sex with a child in question. And that is wrong. Even at age of 14 or 15 a boy or girl can surely be competent enough to have consensual love, romance and sexual relation as in other cases, a person can be competent of mature actions in other fields of life, but generally, this reality is denied by every body. Legally, a Hindu bridegroom should be aged 21 and a bride 18. However, several girls over 15 but under 18 elope to marry men of their choice. In many cases, the boy is subsequently arrested and charged with rape and kidnapping.. The age bar can also not be considered as valid in cases of mentally retarded growth regarding immature mental/psychological development. (Consider the Sridevi and Kamal Haasan Starred movie Sadma). We cannot discriminate law on the basis of any universally accepted age bar. We need to consider every case individually because in some cases, a person can surely be above that irrational age limit for consent, yet he/she may not be competent for having any consensual contract or relation. These edicts may originate from a determined consideration that a person is naturally disabled, or that he or she has become incompetent due to mental illness or some accident or mental infirmity due to old age. Also, maturity and competence to decide consensually for oneself is a gradual phenomenon. A child is surely competent to make a consensual decision to chew a bubble gum, but that competence cannot be enough to decide to have alcohol or not. Similarly, a girl of 17 may feel easy to have a love/romance sexual relation with a guy of 17 or 18 or 20 but same girl may feel unable to make genuine consent to have relation with a grown-up man of 30-35 because of the asymmetries of power. It will again be needed to be observed on Individual premises. So, why do people make such arbitrary age limits which actually have no relation with reality? May be it is because the sex in general is considered as taboo in our society, and romance and love is also not well taken of. And there comes the fact that law can not be dogmatic. If on legal basis of Age Of Consent, a case is heard about a mentally retarded 25 year old girl being in sexual relation, then it cannot be termed as rape or molestation. Similarly, even with honest and responsible consensual sexual relation with a girl of 17 one can be punished as a molester and rapist. In fact, I would like to support the system of the burden of proof and tilts and presumption equations. That is, let’s say a 20 year old man is accused of molesting a 4 year old girl. Anyone will agree that a 4 years old girl could not have consented for sex. Now the burden of proof would be on the accused to prove the court that the four-year-old girl not only did, but could consent for the actions he did with her. But in case of a 40 year old man accused of molesting 16 years old girl, I would favor the presumption that the 16 years old girl could have given meaningful consent for that activity and it may not be a case of molestation but mutual consent. The burden of proof now will be on the prosecutor’s side to prove that the 16 year old was not in a situation to provide meaningful consent (assuming that the 40 year old man and 16 year old girl were actually involved and that 16 year old girl attested for her consent). Worldwide ages Of Consent Conclusion: Law can not be dealt with dogmatism; the legitimate purpose of law must remain open to interpretation. Law should be considered as proper only to the protection of innocence against violence and aggression, and to reprisal/arrest of restoration where such aggression occurs. It is clear for the following reasons that “Age of Consent” cannot be dogmatized and fixed, it should remain flexible and every case needs proper individual study 1> Consent cannot be held genuine if an Individual’s competence for meaningful transactions (not only sex but all rights including commercial contracts) is prejudiced, regarding immature mental/psychological development. 2> All are not same; everyone doesn’t reach maturity at precisely same age. So question of universally accepted age of adulthood is redundant. As it will condemn some who are innocent and will protect some who are wrong. 3> Maturity doesn’t occur overnight, it is a gradual process. A child can have capacity to have consent for eating a pizza though he might not be competent to have a deal or mortgage. Courtesy: Roderick T. Long http://feeds.feedburner.com/blogspot/Iaol […]

  3. There go my plans to retire on the proceeds of toddlerfisting.com « Entitled to an Opinion - May 26, 2008

    […] UPDATE 2: Roderick Long defends Mary Ruwart’s comments on pedophilia/child pornography here. Possibly related posts: (automatically generated)A new old post on babykillingSupporting the troops is unAmericanTwo Comments by MarcellaOrangutan Rape II: Electric Bugaloo   […]

  4. Touch of the Paedophile! You are Already (Brain-)Dead… (or “How to Make Your Little Boy Feel Special: Complete with Instructions.”) | MRDA's Inferno - July 3, 2019

    […] Does the mere possession of  kiddy porn really warrant a collaring from the long limb of the law? […]

  5. Touch of the Paedophile! You are Already (Brain-)Dead… (or “How to Make Your Little Boy Feel Special: Complete with Instructions.”) | MRDA's Inferno - August 24, 2020

    […] Does the mere possession of  kiddy porn really warrant a collaring from the long limb of the law? […]

Leave a Reply

Powered by WordPress. Designed by WooThemes