Preventive Law and Liberty
The state should require parents to be licensed. That is, there is no moral right to raise a child, and we would do well to think of it as a privilege that the state grants and can refrain from granting to certain individuals. If you don’t like that way of putting it, I am comfortable with a weaker claim: whatever moral right to raise a child there might be is defeated when the parent-to-be is significantly likely to cause the child substantial and avoidable harm, or, of course, if the parent does cause the child such harm. Those that should be refused a license to parent a child are those who are likely, in parenting, to harm the child. Those that should have a parenting license revoked are those who do harm the child. (In our society, the latter is called “termination of parental rights” because there is an assumption of such rights. Its worth pointing out that I have not seen a good defense of the claim that natural biological parents should be assumed to have the right to raise the child they create.)
This and the arguments made in favor by the author were clarified by another blogger on the site (Jacob Levy):
He’s engaging in what I think is a problematic kind of supposedly ideal theory. He can answer all of our as-applied objections by saying that his question is ”What authority should a state have, assuming that it’s an ideally just libertarian state?
I’m not going to discuss the merits (or lack of) to the arguments in the piece. I’ve made my own comment on the article in question already. However, these ideas do raise what I think is an interesting question: Should any government — including an “ideally just libertarian state” — have the right to place such laws upon her constituents as to attempt to prevent criminal behavior? That is, as there are already penalties in place for mistreatment of fellow citizens, should the State have the right to impose further regulation to stop the potential of commission of such a crime?
In the case noted above, for example, Cohen suggests that, even though there are clearly laws against child abuse, endangerment, neglect, and murder, such acts still occur. To better deal with the problem, he says, the State should perhaps impose mandated psychological tests, a financial survey, and licensing before an individual is allowed to even raise a child?
Let us not forget how often infanticide has been linked to postpartum depression. So, as the author is suggesting this tack, ostensibly, to combat such things, it can be assumed that a person with a tendency toward deep bouts of depression would be denied the right to raise her own child.
So, a mother-to-be would, in Cohen’s world, sit down with a psychoanalyst who would determine her “fitness” to be a mother, based upon a psychological profile. In essence, you have The State determining whether somebody is able to raise his or her own child because of what a bureaucrat believes he or she might do.
This is the essence of preventive law: restrictions against a particular group of people based, not upon past actions, but upon the determination by a third party of actions they may or may not take, according a particular set of parameters. But in fact, the tendency of individuals to act individually is intrinsic to libertarian philosophy.
Law, in a just society, is necessarily reactionary and punitive. Individuals who act in bad faith are punished, while those who do not harm their fellow citizens are left alone. Preventive law, such as the example above, is built seemingly upon the belief that “justice” requires for all individuals to be equally inconvenienced, in order for bad actors to not be given the chance to break the law. All are treated as guilty — or at least potentially guilty — until they have proven otherwise. This is not justice.
To impose regulation designed for the prevention of crime can only be antithetical to the concept of Liberty.
The reality is, liberty is hard. In practice, it is callous. Liberty is the risk that the innocent may sometimes be hurt by those who act in bad faith. However, liberty also includes the right to defend one’s own life and property against those who would do harm. A just society is one in which the citizens have agreed to live under that set of guidelines which prevents their taking advantage of or wounding those with whom they have established community. When that trust is broken — and not before — is when a just society will step in to limit the freedom of that individual (and only of that individual) who has acted in bad faith.