Dependents, Introduction To Voluntary Law (Book), Voluntary Law

Abortion, Infanticide and Euthanasia Under Voluntary Law

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I’ve proposed in a prior post that a neutral jurist determines a law to be imputed to a fetus or to an infant, just as in other cases. The jurist, naturally, does this job without the benefit of any words from the fetus or infant. The imputed law is based on the best available indirect evidence, including the adopted laws of the parties and the prevailing norms in the child’s community. Although the jurist exercises discretion in imputing law to the mute infant, she does so subject to the objective constraints of discoverable evidence. If a jurist rules against the weight of the evidence, she puts her own reputation at stake.

To say that abortion by the mother is always prohibited,  or conversely, is always permissible, is contrary to personal sovereignty at the heart of voluntary law. Any absolute rule on the legal status of a fetus would necessarily be based on either an arbitrary diktat of some ruler, or on a definition of “person” that falls outside of voluntary law’s foundational definition of personhood. A person is, according to voluntary law, a corporeal, mortal entity capable at some prior relevant time of language and legal discourse (among other things). Infants, fetuses, fertilized human cells, and the severely mentally disabled from birth fall into a special category that might be called “potential persons who have not yet (and may never) become capable of adopting and following their own laws, yet might become capable within their lifetimes.” For brevity, we may generally refer to such living beings as “dependent potential persons” or “dependent potentials,” as a general class including infants, young children and those born with severe mental disabilities. The fetus is a prime example of this class.

It might fairly be asked how imputing a law to a fetus that permits it to be killed without legal repercussions can ever be considered a voluntary choice of the fetus. As a living being, all fetuses (and zygotes and fertilized eggs) must be presumed to share the common instinct of all life: survival. Therefore to say that the fetus consents to its own self-destruction is to contradict its evident will to survive, and impose a law not of its own choosing. This argument is logical on its face, but consent should not be confused with legal consequences.  We may be sure that no fetus or infant ever consents to its own destruction, and do not need to pretend otherwise.  The question is what to do with those legally competent persons who, by some intentional or negligent act, have caused the life of the fetus to be taken away.  There is no particular logic that requires that all such intentional or negligent acts must have legal consequences.  On the contrary, both moral and economic considerations teach that sometimes the intentional killing of a fetus, however tragic, is morally justified, as when to preserve the life of the mother.   From an economic standpoint, preservation of life generally requires wholesale destruction of its own seeds. Nature teaches us this in many instances, for example with egg-laying animals that may lay dozens or hundreds of eggs, of which few survive to adulthood. Even mammalian species often bear litters, of which few survive under normal conditions. The economics of life dictate that not every individual can survive to adulthood, and in times of great scarcity, difficult choices must sometimes be made.

In the face of these moral and economic realities, no sustainable society can enforce laws in which every individual package of DNA capable of growing naturally or artificially into a person is owed a duty of nurture. If such laws were to be enforced, there could be no legal abandonment or disposal of inseminated eggs. Mothers could be held liable for the violation of rights of miscarried fetuses. No natural society could consistently observe such an absolute rule. Exceptions to the duty to nurture have always been be made for one reason or another, and would always be made in every conceivable society. It is commonplace in every human society for dependent potential persons to be neglected or actively suppressed in the interests of sustainability of the social order on which the as-yet unformed persons depend. So it should be evident that elevating the universal survival instinct to the status of a socially-recognized law cannot be consistently or fairly realized; in actuality it is impossible because of inevitable clashes between fecundity and scarcity. Customs, rules, and laws regarding treatment of infants and fetuses have historically varied with the times and circumstances.

On the other hand, civil society also depends on reciprocal respect for the sanctity of life, which is threatened when the rights of dependent potential persons to live are callously disregarded. The statist approach to this tension is to proclaim one rule concerning practices such as abortion, infanticide and euthanasia, however arbitrary or divisive, or unevenly enforced. The voluntary law approach is more granular, based on the individual social circumstances of the dependent potential person, and therefore not arbitrary or inviting of uneven enforcement. The task of the jurist is to identify the law that the dependent person would most likely adopt, were it in the position of a caretaker or guardian. Were the jurist to simply ask what law comports with the dependent potential person’s will to live, no practical answer is possible, as argued above. The only legal inquiry with a practical answer is, essentially, is “does the applicable law of the parties under TROTWET depart from the prevailing norms to such degree that some other law should be applied?” In other words, if the dependent potential person had grown up in the social context of its caretaker or guardian, what law would it have adopted?

In the case of a fetus and most infants, there is no closer person to the fetus than the mother. Absent extraordinary circumstances, the mother’s law should be the law applied, when harm to a fetus is litigated. If deference to the mother’s law prevails, legal remedies to prevent or penalize abortion will very seldom be recognized unless the mother’s law provides for it. In rare cases, a mother’s law might be disregarded or modified if contrary to clear community norms, objectively determined. For example, if mother who has adopted a permissible adoption law moves and lives as a long-term member of a community in which nearly everyone has adopted a law that penalizes abortion, she may naturally experience difficulty in finding a credible jurist willing to impute her law to her fetus. A competent jurist might find that had her fetus grown up in the community in which she has chosen to live, as an adult it would have chosen a different law. The mother would therefore be unwise to have an abortion there, as legal results would not be predictable. Conversely, if a mother adopting a law that penalizes abortion chooses to live as a long-term member of a community whose members recognize no penalty for abortion, and after some sufficient time willingly aborts her fetus, legal penalties are unlikely to be enforced.

The imputed law of a fetus does not come into play in the case of legal actions against a doctor who performs an abortion, or by such a doctor against any attacker bearing an anti-abortion motive. Such controversies are decided under the laws of the parties. The fetus will not generally be a party to actions by a non-family complainant, for reasons explained in the following paragraph. When the fetus is not itself a party, the law that might be imputed to the fetus is not relevant to a choice of law analysis in these cases. Hypothetical disputes between an abortion provider and a third party “defender of fetuses” have been considered in an earlier post.

Imputed fetal law will not commonly be at issue, because disputes in which a fetus is a party will be rare. Something akin to the notion of “standing” will naturally limit legal actions by unrelated third party guardians. That limit “akin to standing” is the natural limit on the right to receive damages on behalf of an injured potential dependent person. Damages for ordinary murder will normally (assuming most victims prefer it) be payable to the estate of the murdered, and from the estate to the heirs designated by the law of the victim. In the case of abortion, the closest next of kin and likely imputed heirs will usually be the parents, who can be trusted to not sue themselves for damages. An unrelated third person will not stand to receive damages: under any reasonable rule, what reason is there to reward a stranger for the misfortune of a fetus?

There are some cases in which a rightful claim to damages arising from abortion might be enforced. For example, one parent might sue another to prevent an abortion or collect damages for one performed. Imputation of fetal law might arise in special circumstances such as disputes between family members, as when a related-party guardian sues a mother for damages on behalf of an aborted fetus, or in the unusual case where an unrelated guardian learns of another’s intent to abort, sues for an injunction to prevent an abortion from being performed. For example, a person who has paid a surrogate mother might (or might not) have a legitimate interest in seeing a viable pregnancy carried to term. Such claimants might sometimes seek imputation of a law to the fetus if the mother’s law is unfavorable to their cause, and the context clearly supports the imputation of some other law.

Cases that arise after abortion are analogous to litigation on behalf of deceased victims. The parties to the action are the victim and whomever the guardian is seeking damages from, for example, from the mother or from a doctor who performed the abortion. Where suit is brought on behalf of the fetus by an heir or legally potential caretaker, the applicable law is that of the fetus only, which may be imputed based on the circumstances. TROTWET does not apply, when law is imputed to a dependent potential person, as explained in a previous post. The neutral jurist will ask: were the fetus in the position of the mother, what law would the fetus hold? Absent other evidence, usually this imputed law will be the law of the mother, provided the mother has not recently changed her law merely for convenience’s sake. However, if the mother’s law is a rare outlier in a place where nearly all other mothers do not freely permit abortion, and where the mother plans to reside indefinitely, a jurist might conclude that more likely than not, were the fetus to grow to become a parent, it would likewise recognize a prohibition on abortion. In these very rare cases, a guardian might, for example, obtain a ruling requiring that the mother give birth and either care for the child or give it up for adoption. If a legal action is filed post-abortion, damages might be paid to the guardian or to some designated fund, for example, to a charity that represents the rights of the unborn, or that finds homes for orphaned children. Actual outcomes are likely to be highly varied and tailored to the context at hand, based on the voluntary law applied.

For emotional issues such as abortion or euthanasia, it is possible that some jurists may always impute a fetal or infant’s law with consequences for performing an abortion or infanticide, while others might always find abortions or infanticides non-actionable if performed with the mother’s consent, subject perhaps to other conditions. The approach suggested for imputing a law to the fetus provides a way to distinguish between mere consistency by happenstance, and unacceptable bias. If a jurist always rules one way despite hearing cases with different mothers’ laws, absent extenuating circumstances the jurist is plainly biased. The credibility and livelihood of any jurist who hears a large number of abortion cases and consistently rules one way regardless of the evidence at hand would quickly be destroyed. Any rulings tainted by that jurist would be rendered unenforceable, in any community that values neutrality in due process of law.

It might be feared that communities in which juristic neutrality is not valued might come to exist. Suppose, for example, a community is intolerant of jurists who are unwilling to rule one way or another, in the sense that the rulings of any jurist who rules against community norms are practically unenforceable. Widespread enforcement bias might sometimes lead to results contrary to basic justice under voluntary law. However, absent concentration of capital and political power such as states enable, maintaining enforcement biases contrary to reason and justice over large areas for long periods of time will not be possible. If there is a sufficient market for justice of one flavor or another, providers will spring up to meet it.

It can fairly be asked whether providing jurists with the power to impute law to fetuses and other potential persons grants too much power to the jurist. Does relying on community standard bring back the state in another, more subtle guise? No, because there is no actual “standard” outside of a consensus between jurists of good reputation. In fact the opposite problem of disagreement between equally reputable jurists will be more commonplace. Such non-uniformity, if intractable despite good faith efforts, may be evidence that the supposed community standard is not clear enough to support a legal ruling. The potential person will therefore have its rights disposed of under the more usual tool of TROTWET applied to the laws of the parties, or not at all.

Suppose, for example, that the father of a fetus sues the mother for an injunction to prevent an abortion. A first jurist holds that community standards require the pregnancy to be carried to term, under the circumstances at hand. The mother appeals, bringing the case before a second jurist. The second jurist finds there is no community standard regarding abortion, and rules that under the mother’s law the abortion cannot be prevented. If the jurists are of similar reputation, enforcers willing to enforce the first jurist’s ruling will be hard or impossible to find. Reputable enforcers will not want to risk a claim of damages based on the second jurist’s ruling. Although the power to impute a law under limited circumstances grants discretion to a jurist, such discretion cannot be exercised absent a very compelling reason that would be clear to every reputable jurist available to hear the case. Thus, the power is merely a sort of check against loathsome conduct by caregivers, and cannot function as a tool for leveraging judicial influence beyond the constraints of personal sovereignty.

Once a child is born, the adopted laws of other parties to litigation may be given greater weight, as the infant is no longer dependent solely on the mother for survival. In any event, controversies over abortion are no longer possible, once the baby is born. Although repugnant to most modern cultures, infanticide is not unknown in present or historical societies, especially of infants born with severe genetic defects. The legal questions under voluntary law are not much different than abortion, with the important difference that the infant is capable of surviving independently without care for a considerable period of time. Social norms would provide to an abandoned infant a law requiring some reasonable duty to provide care, even if parents abandoning an infant somehow lacked such a law. The standard of what is “reasonable” under the circumstances will vary based on context. For example, what is reasonable in New York City or Omaha may differ from what is reasonable in isolated, resource constrained societies, for example, aboriginal Amazonians or a small colony on the moon. Infant abandonment has been considered in the previous post.

Other cases that touch on the legal rights of dependent potential persons may include abuse, euthanasia, competing caregivers, probate and right to inherit, and actions by or against a legal estate of the dependent potential person. To determine what law to apply, the jurist first determines whether or not the legal interests of the dependent potential person are at the heart of the case. Essentially, the jurist determines whether a claim based on harm to the dependent person, or a claim for or against a property interest of the dependent potential person is at stake. If so, the jurist first determines and imputes a voluntary law to the dependent potential person, and then applies the imputed law. If no such claim is at stake, the jurist applies TROTWET to laws of the parties. Thus, the dependent potential is a party in cases of abuse, infanticide, euthanasia, or the infant’s property rights.

The potential person is not necessarily a party in cases of competing caregivers (e.g., a custody dispute), absent an allegation of abuse. Therefore TROTWET applied between the competing caregivers determines the outcome. The weaker law in a custody dispute is like antecedent basis in property law: the law with the most stringent antecedents to a claim of custody wins. The jurist may evaluate stringency based on some community standard. For example, suppose a father’s law states that sole custody should be awarded to the parent most capable of providing economic support, whereas the mother’s law states that custody should be awarded to the parent who spends the most time personally caring for the child. We can hope that such disputes would be very unlikely because all responsible parents will adopt mutually agreeable laws providing for shared custody in the best interests of a child, before parenting a child together. Nonetheless, some children are conceived and borne without due forethought, and just such children are more likely than others to become subjects of custody disputes.

How is a jurist to determine the weakest of competing custody laws? Which antecedent is more “stringent”: providing economic support, or providing personal care? The child needs both types of support, and both require roughly equivalent measures of exertion. If both parents have demonstrated support for the welfare of the child, a sage jurist might declare a “tie” and help the dueling parents work out a shared custody arrangement. If one of the parents has been negligent, it little matters which law is applied, because under either law, the custody will be awarded to the sole supportive parent. Where the custodial claim is spurious, it might easily be recognized as such with or without application of a comparative principle such as TROTWET. A wise jurist does not seek perfect compliance to any idealized mathematical model for applying voluntary law, “stringency” included, nor seek to play logical games for their own sake. Instead, the wise jurist seeks to do justice within a framework that respects the personal sovereignties of the parties and of the dependent potential person involved in the dispute more than rules imposed from the outside. Concepts such as “stringency” are suggested here as guides to realizing underlying principles of justice in specific circumstances, and not as infallible laws applicable in all circumstances. Where these concepts provide no clear answer, or provide a clearly unjust answer, the ruling should be made on the basis of more pertinent and illuminating criteria.

The case of euthanasia of a once-capable dependent differs from the case of the dependent potential person. The case of a mercy killing would be judged under the applicable law of the one killed, as with any other case involving two parties. It will be almost guaranteed, however, that the person performing the killing will have adopted a law that permits assisted suicide or perhaps mercy killing in limited conditions. For example, killing a person with the permission of the caretaker, or by the caretaker, of a chronically uncommunicative dependent in a medically incurable state with an extremely low chance of recovery, might not be regarding as a cause for any action. For TROTWET to excuse such mercy killing, it will be important that the rule is written as positive law and not as an affirmative defense, as has been noted.

A person opposed to mercy-killing should therefore appoint a caretaker who is also opposed to mercy killing, to avoid a hastened but merciful demise. But what if the killer’s law does not require the consent of the dependent’s chosen caretaker? Such a person would be unnecessarily inviting legal action by offended caretakers. Mercy killers operating without consent would not normally exist, because it would be more expedient for them to pursue the occupation of mercy killing with caretakers’ consents to avoid legal and extra-legal risks.

Supposing, however that the mercy killer has an uncanny knack for selecting suitable victims against caretakers’ wishes, would there be any legal recourse? The bold mercy killer would inevitably face charges of ordinary murder from angry caretakers.  If the killer had failed to adopt a law against ordinary murder, he would quickly wind up dead at the hands of an aggrieved caretaker. Unless, of course, every one of the caretakers lacked any basis for showing that the killer had acted beyond the authority of his own reasonable mercy-killing law. In which case, the killer’s aptitude for selecting suitable victims would be uncanny indeed.

What if the mercy killer acts under an unreasonable mercy-killing law? Such a killer faces several risks. For one, a jurist might hold that the unreasonable mercy-killing defense is an affirmative defense, which will not be applied under TROTWET. Second, by publicly adopting an odious law, the killer shows himself to be a monster, losing friends and making enemies. Finally, the killer risks being mercy-killed unreasonably by any other person, if his law is deemed to be a positive law, under principles of TROTWET as have previously been explained.

Intertwined voluntary law societies obviously cannot and should not be expected to provide one uniform resolution to divisive and difficult social issues. These societies will instead permit experimentation, transparency and above all, acceptance of conflicting beliefs on difficult moral and legal questions that fit within its foundational limits. Abortion, infanticide and euthanasia provide examples of such difficult questions, which are fully capable of resolution within voluntary frameworks. In the case of the laws to be applied when harms to dependent potential persons are litigated, voluntary law provides a framework for dispute resolution that is both considerate of the practical realities of sustainable societies, and deeply rooted in respect for the life and self-sovereignty of every society member, present and potential. Voluntary law can do this without contradicting the essential meaning of a “person” as one who is capable of acting intentionally and deliberately with knowledge of articulated laws governing social conduct.

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Dependents, Introduction To Voluntary Law (Book)

Children and Other Dependents

Different voluntary laws are in some sense “compatible” when consistent with the three pillars as defined earlier: personhood, voluntariness, and publication.  A logical system for resolving conflict of laws follows by rational deduction from these core principles.  There may be incompatible systems of voluntary law; for example, those that use an incompatible definition of person.   Here a distinction must be made: systems that define personhood based on some arbitrary characteristic (for example, color of skin, language, eye color, beliefs, etc.) are not systems deserving of interest.  They may arise and exist as backwards curiosities, but will not thrive in the face of universal definitions of personhood that rest on the corporeality of the individual, possession of a moral sense, and the capacity to understand, adopt, and follow rules governing resolution of conflicting rights or claims on a reasoned basis.  There may exist debate about these fundamental prerequisites to personhood, and when they apply.  Some issues of such debate were touched upon in an earlier chapter.  Interesting real-world problems do arise, however, over treatment of “temporary” non-persons, such as minors or mentally disabled persons, treatment of collective entities, animal rights.  More exotic questions such as artificial or alien life may deserve a little attention as future possibilities.

Speaking of fetuses, infants, children, or others incapable of looking after themselves, when is intervention justified in a caretaker-dependent relationship? What law should be applied to justify intervention, when the subject is incapable of adopting her own law?  An ancillary question concerns what actions are justified when no legally responsible caretaker can be found for such a person.  If every dependent person (or potential person) has an uncontested caretaker, who treats the dependent in a manner consistent with prevailing customs, legal controversies do not arise.  Legal questions can arise chiefly when dependents are abandoned, are the subject of caretaker disputes, or are treated in a way that those willing to take defensive measures regard as abusive.

For purposes of voluntary law, we may divide dependency questions into two essential classifications: those in which the dependent was at least at some relevant time capable of functioning as a legal person, and those in which the dependent has never acted as a person in the legal sense and is reasonably regarded as lacking the capacity to do so for all relevant times.  There may be, of course, controversy or doubt as to which class a person belongs to, or gradation along a spectrum from incapacity to capacity.  Nonetheless, exploration of the legal middle ground depends from the opposite classifications that define its boundaries.   We shall explore how voluntary law might work in the gray, intermediate zone between clear legal capacity and clear incapacity, after first considering how dependency works in the end conditions.

“Relevant times” means those times relevant to the legal question at hand.  For example, in considering the validity of a power of attorney, the relevant time is that time when the power was granted.  At some time afterwards, the grantor may be completely incapacitated (e.g., may be suffering from a severe brain disorder).  The subsequent lack of capacity may not be relevant to the validity of the power, depending on its terms.  For further example, the relevant time for an aborted fetus is the time up until abortion and death of the fetus.

A dependent relationship between two legally capable persons may take the form of a contract or agreement, a grant of power, a temporary agency or rendering of assistance or other circumstances in which one legally capable person depends on the actions of another.  These relationships are easy to analyze.  In a wholly voluntary law society, any controversies arising out of such dependencies are treated under the laws adopted by the participants, using some rational system for resolving conflicts of law, such as TROTWET.  The capacity of a person to act in the adoption of law may be an issue in certain cases, just as is it conventionally for purposes of contracts, criminal intent, testamentary capacity, and in other cases.  There are many different possible factual scenarios.  For example, a dependent who previously adopted a first law ‘A’ and later ‘B’ might have the adoption of either ‘A’ or ‘B’ challenged.  If there is sufficient evidence that the adoption was not made intentionally by the dependent while being in a mentally capable state, the adoption of law might be nullified by judicial action.  For example, a later adoption of law ‘B’ might be nullified and the dependent’s law therefore might be considered to be ‘A’ and only ‘A’.  If the adoption of law ‘A’ is also nullified, the dependent may fall into the status of a dependent outlaw, similar to a child who has never adopted any law.  Treatment of dependent outlaws will be considered below.

First, however, consider the possibility of conflicts between the law of a non-outlaw dependent and the law of another person who acts as a caregiver.  Such conflicts may come into play, for example, when the caregiver brings an action to spend assets belonging to the dependent for the dependent’s care, or for a declaration of property interest in the dependent’s estate.  Conversely, another acting as a guardian under the dependent’s law might bring an action to recover damages from a negligent or abusive caregiver, or to seek termination of the caregiver relationship.  In the sense used in this essay, a “guardian” should be understood as nothing more than a self-appointed  legal representative who asserts the dependent’s law on behalf of a dependent.  A “guardian” is not appointed by any jurist, and has no special powers to act on behalf of the dependent.  In bringing a case before a jurist, the guardian bears the risk that the jurist will not interpret the applicable law in a way that favors the guardian, just as any other litigant.

Consider the result if the property claim or asset request is permitted under the caregiver’s law but not under the dependent’s, or vice-versa.  In either case the claim will fail, under TROTWET.  Naturally, this will create a shortage of payment for continuing care, if the dependent has not previously executed an agreement permitting the caregiver to spend the dependent’s property for the dependent’s care.  Unless some legal action can be taken, a dependent who is incapacitated and unable to act on his own behalf will be deprived of the benefit of his own property.  On the other hand, if the dependent’s law clearly preserves the estate to the detriment of continued care in the situation at hand, the jurist cannot assume that the dependent would prefer that the estate be wasted for continued care and not be inherited by an heir.  In these cases, the legal effect of adopting a clear law on the question would be similar to the granting of a “durable power of attorney” or a “do not resuscitate” order, under the law of many U.S. states and other places.  No person should be required to waste their estate on extraordinary care for the last days of life.

In case of action by a legal guardian under the dependent’s law against a caregiver, consider what happens if the recovery is permitted by the law of the dependent but not the caregiver, or vice-versa.  In either case, the recovery is not permitted.  Such an outcome can easily be guarded against before the disability arises, either by appropriate adoption of law or appropriate selection of a caregiver or class of caregiver, by the future dependent.  For example, the dependent’s law might provide that no person can be regarded as the dependent’s appointed caregiver whose law does not adhere to specified minimum standards for caregivers.  Thus, a person acting as an invalid caregiver would be vulnerable to claims of a general nature, e.g., trespass or assault, for care of a non-emergency nature.

Finally, we consider the treatment of dependent outlaws, of which the largest but not exclusive class consists of children.  Dependency of a legally incapable outlaw on a legally capable society member raises various possibilities for determination of law.  One possibility is to treat the relationship wholly under the law of the legally capable person, while treating the legally incapable person as an outlaw like any other.   Under this approach, the poor dependent person in the relationship would be deprived legal recourse for abortions, infanticides, child abuse, euthanasia, kidnappings, and all manner of horrors heaped upon her.  She would be treated under voluntary law as if she had consciously chosen to be an outlaw, despite lacking ability to escape by adopting a law.  Such an approach would create incentives for abuses against children and other dependents.  It is not worthy of serious consideration.

Another possibility is to apply the law of the caregiver, as if it were also adopted by the dependent.  This is the nearest choice.  Nearest perhaps, but applying the law of the caregiver to the rights of the dependent invites abuse by unscrupulous caregivers.  At the same time, abuse is no less likely if a third person with some interest in the outcome of a dispute is empowered to craft the law governing the relationship between the caregiver and the dependent outlaw.   For example, a rational parent would prefer to have no legal obligations to his children, and would be content to perform the duties of parenting under purely moral obligations such as felt by the parent’s conscience.  Conversely, a rational person in the business of child protection (without state intervention, of course) would recognize the essential need for a standard of legal protection of children, to enable the activity of child protection to be legally recognized.  Both classes of persons are capable of abuses, as well as good deeds.

There is really only one solution consistent with equal rights under natural law: to presume the child is person of good conscience who would not adopt a law against her self-interest, if she were capable of adopting any law.  The alternative, to regard the child or other dependent as entitled to no more rights than the property of the caregiver until emancipation, is contrary to nature: children are plainly not equivalent to livestock, being of the same kind as those who care for them.  Children are the fabric of future society, destined (with luck) to become equal participants in a society based on personal sovereignty and adoption of law.  Livestock and other animals incapable of language do not share the destiny of children, and belong to a different class of being.  In a system of law based on personal sovereignty, it is inconceivable that any child or immature person could be regarded as nothing more than the property of another.  That is not to say that the relationship between a caregiver and a child cannot resemble a bilateral property interest, in some respects.  Such a resemblance is indeed possible, as we shall see.

The question at hand is which law to apply to a dispute involving the rights of a child, when parties in conflict disagree about the law to be applied.  There will always be some conflict between persons in such disputes, because a dependent (not emancipated) child will be incapable of bringing her own case.  Put another way, a person of any age capable of bringing his own case, if it is truly his own without any legal claim of dependence on another, deserves to be regarded as a person with all the rights and responsibilities of self-sovereignty.

Conflicts touching directly on dependent children will often take the form of custodial disputes between estranged parents or relatives, and less frequently, allegations of parental abuse by child protection agencies, whether in the person of interested family members or neighbors, or as organized benevolent societies.  Other cases may involve a dispute between the child and an adult.  For example, the property rights of the child may be at play, or damages for an alleged wrong committed by or against a dependent child.   We shall consider the first class of disputes first.

Assessing the weaker tool is based on comparing the burdens that a law places on the sovereign parties to a dispute.  The underlying principle is that one cannot impose legal burdens on another that are not consented to, and that one would not accept for oneself, if the tables were turned.   However, this principle does not hold when the object of the claim revolves around the rights of a dependent person who has not selected any of the laws to be assessed.  If there is to be a weaker law selected, the analysis must not fail to consider the perspective of the dependent person, who has brought no claim.

Lacking any adopted law from the perspective of the dependent, if the dependent is to be regarded as a person, the jurist is compelled to consider what law a reasonable person in the circumstances of the dependent would adopt regarding the disposition of her rights, knowing that all the burdens and responsibilities of that same law would be applied to her if she were to someday become a parent.  This imaginary law cannot be fabricated from nothing; it must be supported by credible evidence and be developed objectively by a neutral, unbiased jurist.  It must not be standardized or imposed by some authority on community norms.  On the contrary, the law that is imputed by the child must be reasonable, contextually appropriate and customized to the child’s individual circumstances, as determined by an independent, neutral and unbiased jurist.

Such an imaginary law might resemble norms of the community to which the child and her family belong.  It might also bear a resemblance to the laws held by the disputants in the case.  Finally, the stated preferences of the dependent child and her siblings, if she or they are capable of expressing any, cannot be ignored in the determination of such an imaginary law, provided that the preferences are drawn out in a balanced and unbiased way by a neutral counselor, or estimated in some objective way from statements of similarly situated persons (e.g., siblings or fellow travelers).  For each person chooses law that fits their psychological preferences and is compatible with the community in which they are raised, and will raise their own children.  When a dependent outlaw is incapable of choosing his own law, a jurist must do it for him, from the perspective of the dependent.  Such a job will never be perfectly accurate, but nonetheless the justice of such estimations can be measured against standards such as suggested above, which is all that any law can do.

For example, circumcision may be considered conventional and desirable in some communities, and merely abusive in another.  Suppose a pair of parents circumcise their child for cultural or religious reasons.  Suppose that a grandparent who considers circumcision to be a grave form of child abuse unless medically necessary sues for guardianship of the child.  Assignment of caretaker responsibility for circumcision is clearly justified under the law of the grandparent, but not recognized by the law of the parents.  We might be tempted to recognize the law of the parents as the weaker tool, because it provides no remedy (change of guardianship) for the conduct complained of.  But what if a severer form of trauma had been complained of? Can we really accept an absence of any legal remedy for caretaker abuse?  Justice requires vision from the perspective of the child, so that the law that places the least burden on the child is the weaker tool. That would leave us wondering how to determine the “least burden,” in a circumstance without any lawmaker and thus, no justification for applying the weaker tool in the first place.  More simply, we cannot rely on the natural balancing of interest normally provided by the Rule Of The WEaker Tool in an action that directly impinges on the dependent outlaw, because the consequences of holding a weak tool do not fall on the law maker, but on someone else – the child, who holds to no law.

Accordingly, the jurist must identify the law that the child or other dependent outlaw would most likely choose were it capable of reasoning through the benefits and burdens involved.  This is a high degree of discretion, but a jurist who cannot reason persuasively and fairly in accord with the sensibilities of those who come to judgment will not be long in business.  Suppose the child lived in a community where circumcision was considered to be as ugly and depraved as most today would consider cutting off of noses and ears, the parents who circumcise their child would likely suffer some penalty, such as paying for reconstructive surgery and loss of, or restrictions on, their caretaker status.  Conversely, if the child’s community feels that circumcision is a desirable mark of honor or social belonging, there would be no remedy despite the opposition of the grandparents.

How can a jurist determine a law to be imputed to a fetus, or to an infant?  Just as in other cases; except that statements of these dependents cannot be taken into account, because they are incapable of speech.  Therefore the imputed law is mainly based on prevailing norms in the child’s community and the adopted laws of the persons at issue.  In the case of a fetus, there is plainly no closer person to the fetus than the mother, so the laws of the mother cannot be lightly disregarded, and will likely prevail in the vast majority of cases.

What if a community believed it necessary to sacrifice children to some god or demon?  If this were a community standard, must a jurist enforce it?  This is a nonsensical question.  A group of people who sacrificed children to the gods would not be a voluntary law society; it would be a group of outlaws who deny voluntary cooperation and use irrational fear and violence to oppress less privileged classes.  Such outlaws would not submit to the jurisdiction of a voluntary law jurist, and the question would never arise.  Nonetheless, somewhere between child sacrifice and circumcision lies a spectrum of parental behavior about with reasonable people might vehemently disagree.  Corporeal punishment provides a good example: to some, corporeal punishment is an inexcusable crime, no matter how implemented; to others, is it a useful if not necessary means of discipline. When disputes arise about corporeal punishment of a child, a voluntary law jurist will weigh the three factors of community norms, interested caretaker beliefs, and dependent statements (perhaps among other reasonable factors) to determine the limits of corporeal punishment in particular cases, and what remedies to apply when the limits are exceeded, as if crafting the law that the dependent would craft for herself if she could.  The judgment would be tailored to the individual circumstances of each case, including the underlying conduct, identities, and laws of the parties, community norms at the time, the age and statements of the defendants, and so forth.

The respect to which the judgment would be given would depend mainly, as always, on the strength of good reputation of the jurist, and the thoroughness and neutrality with which the record indicates that the case has been examined.  Results would not be perfectly consistent (nor have perfectly consistent results ever been achieved by any system of justice), but on the whole would tend towards greater justice than is possible when imposing a uniform rule on controversial questions.  Voluntary law permits diverse and conflicting opinions to coexist, with pressure towards uniformity coming mainly from the grassroots.  It is not an instrument for imposing uniformity against opposition.  Anyone publicly holding to a controversial law, however, will do so at the risk of her relationships with her community.  There can be social pressure to conform, but no aggressive coercion requiring it.

If a law is imputed by a jurist to a dependent person, is that law then subject to moderation under TROTWET or other conflict resolution principle?  Generally, the answer is no, assuming that the dependent is not a party to the action.  Most actions involving dependents, except those in which the dependent is close to capable status (e.g., is a teenager) will be brought by a guardian against a caregiver.  Suppose, for example, a guardian’s law provided for payment of the guardian’s reasonable expenses by the caregiver, if corporeal punishment by a caregiver is found to be abusive.  Suppose that the caregiver’s law provides no such remedy, even in the event of abuse.  If there were no dependent involved no damages would be assessed, but the caregiver would be vulnerable to attacks motived by vengeance as has been explained previously.  Because the controversy revolves around the rights of the dependent outlaw, TROTWET does not apply.  If the jurist determines that the dependent’s law requires payment by the caregiver for the guardian’s protective services, that will be the law applied.

The case of the intermediate-capable dependent is answered by the solution to the pure dependent:  the statements of the dependent are given more weight in judicial determination of its law, as the dependent approaches the full capabilities of independent personhood.  The teenager has more rights and responsibilities than the toddler.  The other factors diminish in importance.  Once the full capacity is personhood is reached, the jurist no longer determines the person’s law; the jurist merely reads and interprets what the person has adopted.  Determination of capacity in the intermediate zone works like a sliding scale.  These determinations may not always be exactly correct, but neither will they be far from a just result, and results in aggregate should tend towards justice.

A fully capable person may be recognized by the absence of any claim of dependency on another.  If a precocious youngster is able to articulate and understand his own law, but not to support himself by his own wits and labor, he is not fully capable.  His abilities and statements will be given weight, but to the full weight afforded to a voluntary law adopted by a capable and independent person.

If voluntary law can be imputed to the dependents of voluntary law society members, can voluntary laws also be imputed to the children or other dependents of outlaws?  In a philosophical sense, yes.  But in a practical sense, generally not.  Regimes outside of voluntary law will have their own rules governing dependent persons, or will be lawless.  In either case, there is no basis for bringing any adult person involved with the dependent unto a voluntary law forum.  If an abandoned child of an outlaw somehow comes before a voluntary law forum, and a society member appears as an interested caretaker, the justifications for providing the dependent with the benefit of voluntary law are as valid as for the child of any society member.  It is permissible to make provisions for the dependent within voluntary law, where the society of outlaws has broken down.  It is equally valid to return the dependent to the society of outlaws, if there is no caretaker willing to bear the risk of caring for a dependent of outlaws.

Providing dependent outlaws with the protection of an imputed personal law might sometimes create a relationship of mutual servitude between a caregiver and a dependent.  The caregiver might be deemed to owe a legal duty of care to the dependent, while the dependent may owe a duty of obedience to the caregiver.  Such obligations, however, will rarely if ever be involuntary, so long as the caregiver’s sincerely held choice of law is given its due weight in the analysis determining the law to be applied.  Voluntary servitude does not offend classical libertarian principles.  Voluntary law, however, may provide a means for guardians to legally enforce obligations of care under circumstances when the caregiver seeks to renounce obligations that he or she has previously undertaken.  Likewise, legal enforcement of the duty to obey may be exercised in the case of dependents who wish to receive the benefits of the caregiver’s duty of care.  If a dependent is able to emancipate himself or herself from a caregiver, she is always free to do so, consistent with classical libertarian principles.  However, a caregiver who by adoption of law has undertaken a duty of care to a dependent child can be legally required to honor that duty until the time of emancipation.

Promissory estoppel as known in the common law of contracts may exist when the promises of a person create detrimental reliance by another.  This concept may be extended to “promises” implied by publicly adopting a law. Suppose, by example, that a prospective father adopts a law under which he recognizes a legal obligation to support any natural offspring or adopted child until the age of eighteen or until emancipated, whichever is earlier.  While holding to this law he attracts a mate, who bears him a son.  Suppose the father then renounces his earlier law and adopts a new law without any legal obligations for child support.  If it can be shown that the mother relied on his law providing for an obligation of support in deciding to mate with him, the father may be said to be estopped from escaping the duty he had previously proclaimed openly.  Under voluntary law, the analysis can be directly based on the relevant time for the applicable law; there is no need to make a specific finding of estoppel, although it may be implied under such facts.   The relevant time for choice of law can be found to be the time that the son is conceived, because all the obligations of the father arise from the act of inseminating the mother under conditions in which he held to a law that obligated him to child support.  So long as the mother held and holds to a law obligating her also to child support, she has a legally enforceable claim for child support against the father.  If the mother hypocritically disclaims support obligations, she cannot claim more from the father than she is willing to provide herself.

Thus, when both parents acknowledge an obligation of support, voluntary law may provide similar but hopefully more efficient and individually tailored outcomes than we are accustomed to under some state-imposed family laws.  When one or both parent have by adoption of law disclaimed child support obligations at the time a child is conceived, voluntary law will provide a different outcome.  If one parent only has adopted support obligations while the other has disclaimed (or has not adopted) such obligations, the parent without obligations cannot enforce obligations against the other parent.  A guardian may step in to enforce the dependent’s rights against the supporting parent only, under the dependent’s imputed law.  In such case support would be paid in trust to the dependent only, not to the other parent.  Naturally, any person considering parenting a child would be prudent to investigate the law of the other parent before proceeding to conception.

If both parents disclaim or do not acknowledge support obligations at the time of conception, can a guardian of a dependent child legally enforce support obligations on the child’s behalf?   It will depend on the circumstances, but in general the answer is no.  But neither will any parent be able to prevent the guardian from intervening and assuming caretaker status.  Under an imputed law analysis, no rational person in a state of dependency would accept any claim or duty of obedience to a person who disclaims all duties of support.  Thus, if both parents disclaim support from before conception, they will not have any legal right to assume the exclusionary privileges of a caretaker with respect to the child, unless they adopt the attendant obligations of child support in a timely manner.  If imputing law to a child has any consistent result, it is certainly this: there can be no parental rights where there are no acknowledged parental obligations.

The extent of those obligations may vary based on voluntary law.  Nothing requires an absolute obligation of support, regardless of consequences.  For example, the parent’s law may provide that they are not legally required to sacrifice their survival for the survival of the child, or to do without basic comforts or medical care to provide every possible opportunity to the child.  Elegant expression of such limits may be left to the unlimited creativity of the writers of voluntary law.  Perhaps some will be inspired by the ancient Golden Rule, and provide that the duty of care owed by the caregiver to the dependent, or the parent to the child, is equal to caregiver’s duty to care for herself, neither greater nor less.

Being without legally enforceable support obligations to a helpless dependent does not equate to no obligations at all.  Nearly everyone’s law will include some duty of care to helpless persons.  For example, if a person faints suddenly in the middle of the road, most would recognize a legal duty of others to exercise due care to avoid running them over.  These principles are well known in tort law, sometimes expressed as a duty to not create an unreasonable risk to others. While some may disclaim such basic social obligations, they would be foolish to do so, both because it would greatly harm their reputations, and put them at greater risk of harm from others.  In the case of the helpless infant or child, such widely recognized duties would ensure that the parents locate a willing caretaker for the child before abandoning it, at least under normal circumstances in which some willing caretaker can reasonably be found.  Since there is no legal penalty for abandoning a child so long as a willing and capable caretaker can be found, the parents would not fear legal repercussions, and could openly seek a caretaker to assume responsibility.  In normal times, willing caretakers could easily be found.   Under circumstances of extreme stress, such as during widespread prolonged famine or military attack, legal duties of support have little meaning anyway, and difficult choices must be made.

When the dependent outlaw commits some harm against another, what is the law applied?  For this particular class of problems, there will be little controversy in selecting the weakest law from law of the caregiver and the law of the injured person, using a TROTWET analysis.  In most cases, the laws at play will call for restorative damages that the caregiver in the dependent relationship would be liable for anyway.  Few would disclaim such liability, lest they also lose timely recourse for harms committed by the children of others.  However, if the prevailing law does disclaim liability for the caregiver, liability for damages would fall to the child, under the law of the child as determined by the jurist.  Collection of the liability could be postponed until the child is reasonably able to earn money for paying a judgment.  The child would be eager to repay its debts, if it wished to participate as a reputable member of the larger society.  The child would find it difficult to establish a good reputation without showing that it has paid, or is in process of repaying, for debts arising from its own misconduct.  In the case of the most serious offenses, for example, murder, the fate of the child will depend on the findings of the jurist and the three principal factors previously discussed: community norms, the involved persons adopted laws, and the perspective of the dependent.  The child may receive a lighter penalty for her dependent status, or not: the outcome will depend on the context of the case.

In the case of abandoned dependents, a similar analysis applies.  The imputed laws of the dependent are paramount, and the role of the jurist in identifying the law to be imputed is magnified.  Capable parties in such action will be those with an interest in the welfare of the dependent, and any accused of shirking their responsibilities.  There will always be at least one party acting as a guardian, or the matter will not appear before a jurist.  If there is no parent or family member interested and able to take on the obligations of a caregiver, this role will be assigned to a friend of the family or even to a stranger, based on the determination of the jurist.  In any prosperous society, there will be intense competition for caregiver roles of young, non-disabled children, because of the social security afforded by the caregiver-dependent relationship.  In the absence of the state, one’s prosperity and security in old age may come to depend on one’s social status, of which membership in a large extended family will be an important part.

Even older dependents or disabled dependents will not lack options, which may be better that what can be provided by state central planning.  Older children without caregivers will arrive in such a condition by a diverse array of events, for example, a long period of undiscovered abuse by a caregiver, a rare tragedy wiping out the child’s family, or misconduct on the part of the dependent causing them to be abandoned.  Likewise, disabled children will suffer from diverse disabilities.  The point being that there are no “one size fits all” solutions to these unfortunate situations and each case needs to be considered on its own merits.

Consider some of the various possibilities.  In the case of disabled dependents whose caregivers lack the financial means, but not the will, to care for the disabled dependent to the extent the law imputed to the defendant requires, contributions for support can be solicited from various charitable sources.  Such charitable sources would certainly exist in a voluntary law society, in which a good reputation is more desirable than gold.  Some such sources would be involved in research for curing or coping with the disabled conditions, and others would support such care out of their general charitable mission.  If the caregivers lack both the means and the will to provide care, the situation would be much the same, with the exception that caregiver privileges could be assigned to another person.

In the case of a rare tragedy wiping out a dependent’s caregivers, new caregivers could easily be found.  Such stranded dependents are nearly as desirable as young children, and in some cases more desirable, because they may have a record of prior good conduct that reduces the inherent risk of accepting responsibility for a dependent.  In a voluntary law society, slight needs come with slight responsibilities, and every good deed enhances the reputation of the giver.  Many would find themselves blessed to provide care for such unfortunates.

The older dependent with a record of misconduct would face the least favorable options from the short-term perspective of the dependent, but even these options would be better than can be provided by a state under centralized political authority.  With a young offender, there is a greater chance of rehabilitation than an older person.  In a free society, markets will exist to meet the natural demand for managing troubled teens in a way that produces positive outcomes.  The most difficult teens are often the brightest and most energetic, and institutions with effective programs would produce their share of illustrious alumni.  Most of these alumni superstars would support the institutions that helped them in their time of need.  Not only so, many wealthy parents with difficult teenagers would pay dearly to send their children to such institutions.  These institutions for human development of troubled youth would compete to take in troubled youths who lack caregivers of means, because doing so enhances their reputations for success as well as for compassion, and adds to the talent pool for development of successful, motivated alumni.

Where caregivers of means are available, a jurist may require them to send the dependent to an institution, and to pay the institution’s tuition charges, per the law imputed to the dependent.  Caregivers may ignore a jurist’s ruling without fear that their child will be kidnapped by the institution, with rare exceptions when safety of the community requires that a violent youth be deprived of freedom for a while even against the caregiver’s wishes.  In most cases, however, the caregiver will consent to temporary incarceration of a youth with a record of harming others, to manage liability for the harm that the dependent youth may do to others in the future, and for the youth’s own protection.  If the jurist is of good reputation, and the dependent decides of her own will to attend the institution, the caregiver will receive an invoice for the tuition that cannot ignored without damaging caregiver’s credit rating or creating a risk of collection action.  On the other hand, if the caregiver forcibly prevents the dependent from attending the institution, the caregiver will be liable for any resulting damages that accrue to the dependent, or that the dependent inflicts on others, during the remainder of its dependency.  Accordingly, whenever a guardian has sued for an order admitting a dependent to an institution for restoring the reputation of a youth, diligent caregivers will work assiduously with the jurist to identify a solution that complies with the law imputed to the dependent and is mutually satisfactory for all people involved in the controversy, if possible.  Jurists in these cases would likely come to resemble family counsellors possessing a degree of social power to motivate cooperation from the family members appearing before them.

The principle of imputed laws for dependent outlaws can be applied to treatment of abortion, infanticide, and euthanasia under voluntary law.  These subjects will be considered in a following post.

It may not take a village to raise a child, but the environment in which a dependent is raised, including its “village,” may become a factor in the determination of the laws that should be applied to achieve justice in the dependent’s case.  The call for objective determination of the law of the dependent arises naturally from the bedrock of personal sovereignty.  This determination will require the insights of neutral, informed, compassionate and wise jurists.  Caregivers are generally the most important pillars of their dependent’s community, but in no case are they to be considered tyrants over their dependents, lest the core principle of personal sovereignty for every person be subverted.

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