Children’s rights and the corresponding parental obligations are exceedingly controversial in the libertarian community.   Why? The fundamental reason is the hostility to positive rights exhibited by nearly all libertarian theorists.

 

What are positive rights? There are two competing versions of positive rights (a statist version and a libertarian version). The statist version of positive rights are claims by individual X that impose a duty on all other individuals to provide basic human needs and/or other particular needs/services to individual X.   These claims are commonly referred to as in rem rights (for, if justified, they “bind the world”). This version of positive rights is obviously rejected by libertarians. Philosopher Eric Mack, in an excellent article entitled “Individual Rights” published in Ronald Hamowy’s The Encyclopedia of Libertarianism, provides a strong synopsis of the libertarian view, stating that, contrary to this statist version, true positive rights are,

“ … not obligations to which individuals are born, nor are they obligations that are imposed by others’ needs, desires, or decrees. Libertarian theories reject assertions of positive rights that cannot be traced to the specific obligation-incurring actions of the individuals who are subject to those rights.”

Thus, the libertarian version of positive rights are claims by individual X that impose a duty on individual Y to provide a particular need/service to individual X, but these duty or duties are justifiably imposed on individual Y because individual Y engaged in specific voluntary (“chosen”) obligation-incurring action(s) towards individual X. These claims are known as inter partes rights (for, if justified, they “bind the relevant parties only”). Mack again describes the libertarian view expertly, asserting that,

 “ … special rights are rights that specific individuals possess on the basis of particular actions performed by other individuals — individuals who, through their particular actions, have incurred special rights-correlative obligations. … In libertarian theories of individual rights, all positive rights are special rights.”

 

Libertarian positive rights apply, at minimum, to the following three scenarios: a creation of peril/dangerous situation, a contractual duty in a title-transfer situation, and a tort/criminal situation. An example of a creation of peril/dangerous situation is a reluctant boyfriend shoving his pregnant girlfriend, who cannot swim, into a lake. An example of a contractual duty in a title-transfer situation is a car dealer refusing to transfer the title to a vehicle to a consumer after the consumer pays for the vehicle. An example of a tort/criminal situation is a sadist raping a young man. In all three scenarios a person (the boyfriend, the car dealer, or the sadist) has engaged in a specific voluntary action that incurs a special rights-correlative obligation to halt the criminal action and provide swift, proportional, and appropriate restitution to the victim.

 

The previously mentioned creation of peril/dangerous situation is fictionalized in Theodore Dreiser’s novel An American Tragedy. Clyde Griffiths, the reluctant boyfriend plotting to murder his pregnant girlfriend, questions his own culpability in her death after she “accidentally” drowns,

 “And the thought that, after all, he had not really killed her. No, no. Thank God for that. He had not. And yet … had he? Or, had he not? For had he not refused to go to her rescue, and when he might have saved her, and when the fault for casting her in the water, however, accidentally, was so truly his?

A jury ultimately answers these queries by convicting Clyde of first-degree murder.

 

Are parental obligations/positive rights of children a subgroup of any of these three basic libertarian positive rights scenarios? Yes. The parental obligations/positive rights of children concept is consistent with the creation of peril/dangerous situation scenario because individuals Y and Z (the biological parents) engage in voluntary obligation incurring actions (sexual intercourse to conceive a child then no abortion confirming intent to care for the child) that ultimately cause emergence of a rights-bearing being X (at approximately 24-25 weeks post-conception when the fetus develops a functional brain) in a perilous/dangerous situation, for being X cannot provide for herself basic human needs A and shall inevitably die without provision of A by Y and Z.

 

In conclusion, parental obligations can be justified in libertarian theory via a libertarian version of positive children’s rights based on a creation of peril/dangerous situation scenario.