Aborto e discriminação III

Recorrendo a CHILDREN AND RIGHTS / Ethics of Liberty - Murray N. Rothbard.

1. Ética e Moral

O que está em causa é se achamos adequado e consistente que o aparelho legislativo criminalize questões morais mesmo quando a imoralidade do acto não esteja em causa (pelo menos para uma grande maioria). Portanto, o primeiro passo é saber se estão em causa direitos negativos (Éticos) ou se "direitos" positivos (Morais).

O facto da expulsão provocar a morte é comparável (não em grau mas no princípio) à expulsão de alguém da nossa propriedade (casa) deixando-a à sua sorte (será que consegue sobreviver?).

A imoralidade parece óbvia, mas a classificação como direito positivo, da reivindicação de sustentação por terceiros, do uso da sua propriedade/meios, obrigando (coercivamente) a albergar/alimentar na sua propriedade, também parece certa.

Portanto, a questão Liberal é a acomodação de "direitos" positivos.

E aqui, a contradição à esquerda parece sempre óbvia. Reclamando toda a espécie de "direitos positivos" nega logo o "direito positivo" do feto quando o que está em causa é a sua vida.

À direita, a abertura a que uma "moral" seja coercivamente-colectivisticamente imposta, abre caminho a que ela própria fique sujeita ao intervencionismo (umas vezes amoral, outra moralista desde que isso lhe interesse particularmente) do Estatismo (ver ponto 2).

Ter em conta que o carácter do "Ethics of Liberty" é de constituir uma inquirição "total" aos princípios dos direitos naturais, retirando todas as consequências práticas da filosofia, o que é de celebrar. Quantas vezes é mais cómodo falar em termos abstractos e abster-se de retirar as devidas consequências.

"We must therefore state that, even from birth, the parental ownership is not absolute but of a “trustee” or guardianship kind. In short, every baby as soon as it is born and is therefore no longer contained within his mother’s body possesses the right of self-ownership by virtue of being a separate entity and a potential adult. It must therefore be illegal and a violation of the child’s rights for a parent to aggress against his person by mutilating, torturing, murdering him, etc.

On the other hand, the very concept of “rights” is a “negative” one, demarcating the areas of a person’s action that no man may properly interfere with. No man can therefore have a “right” to compel someone to do a positive act, for in that case the compulsion violates the right of person or property of the individual being coerced. Thus, we may say that a man has a right to his property (i.e., a right not to have his property invaded), but we cannot say that anyone has a “right” to a “living wage,” for that would mean that someone would be coerced into providing him with such a wage, and that would violate the property rights of the people being coerced.

As a corollary this means that, in the free society, no man may be saddled with the legal obligation to do anything for another, since that would invade the former’s rights; the only legal obligation one man has to another is to respect the other man’s rights.

Applying our theory to parents and children, this means that a parent does not have the right to aggress against his children, but also that the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights.

The parent therefore may not murder or mutilate his child, and the law properly outlaws a parent from doing so. But the parent should have the legal right not to feed the child, i.e., to allow it to die.[4] The law, therefore, may not properly compel the parent to feed a child or to keep it alive.[5]

(Again, whether or not a parent has a moral rather than a legally enforceable obligation to keep his child alive is a completely separate question.)

This rule allows us to solve such vexing questions as: should a parent have the right to allow a deformed baby to die (e.g., by not feeding it)?[6] The answer is of course yes, following a fortiori from the larger right to allow any baby, whether deformed or not, to die. (Though, as we shall see below, in a libertarian society the existence of a free baby market will bring such “neglect” down to a minimum.)"

2. As outras intrusões do Estado no direito dos pais e crianças

"In the libertarian society, then, the mother would have the absolute right to her own body and therefore to perform an abortion; and would have the trustee-ownership of her children, an ownership limited only by the illegality of aggressing against their persons and by their absolute right to run away or to leave home at any time. Parents would be able to sell their trustee-rights in children to anyone who wished to buy them at any mutually agreed price.

The present state of juvenile law in the United States, it might be pointed out, is in many ways nearly the reverse of our desired libertarian model. In the current situation, both the rights of parents and children are systematically violated by the State.[14]

First, the rights of the parents. In present law, children may be seized from their parents by outside adults (almost always, the State) for a variety of reasons. Two reasons, physical abuse by the parent and voluntary abandonment, are plausible, since in the former case the parent aggressed against the child, and in the latter the parent voluntarily abandoned custody. Two points, however, should be mentioned: (a) that, until recent years, the parents were rendered immune by court decisions from ordinary tort liability in physically aggressing against their children—fortunately, this is now being remedied;[15] and (b) despite the publicity being given to the “battered child syndrome,” it has been estimated that only 5 percent of “child abuse” cases involve physical aggression by the parents.[16]

On the other hand, the two other grounds for seizing children from their parents, both coming under the broad rubric of “child neglect,” clearly violate parental rights. These are: failure to provide children with the “proper” food, shelter, medical care, or education; and failure to provide children with a “fit environment.” It should be clear that both categories, and especially the latter, are vague enough to provide an excuse for the State to seize almost any children, since it is up to the State to define what is “proper” and “fit.” Equally vague are other, corollary, standards allowing the State to seize children whose “optimal development” is not being promoted by the parents, or where the “best interests” of the child (again, all defined by the State) are promoted thereby.

A few recent cases will serve as examples of how broadly the seizure power has been exercised. In the 1950case of In re Watson, the state found a mother to have neglected three children by virtue of the fact that she was “incapable by reason of her emotional status, her mental condition, and her allegedly deeply religious feelings amounting to fanaticism.” In its decision, fraught with totalitarian implications, the court stressed the alleged obligation of parents to bring up children respecting and adjusting to “the conventions and the mores of the community in which they are to live.”[17]

In 1954,in the case of Hunter v. Powers, the court again violated religious freedom as well as parental rights by seizing a child on the ground that the parent was too intensely devoted to a nonconformist religion, and that the child should properly have been studying or playing, rather than passing out religious literature. A year later, in the case of In re Black, a Utah court seized eight children from their parents because the parents had failed to teach the children that polygamy was immoral.[18]"