How Will We Protect Children in a Free Society?

This quote from the somewhat judgmental wife of The Simpsons character Ned Flanders is broadly recognizable and has even become, for some, culturally iconic. It lampoons the spirit of demagoguery and moral preening that so often accompanies political discourse, and is thus an entirely justifiable piece of social commentary. There is an area of political discourse, however, in which raising the question of children makes sense and poses an important challenge: self-government.

When discussing how a free society—that is, a society without involuntary governance and forcibly imposed “social contracts”—might work, children are always a complicating factor. Those who advocate for such a society believe that the freedom and consent of individuals should be respected. Yet difficulties arise when attempting to apply this principle to children.

Children are born helpless and must remain in the care of adults until they are able to care for themselves. As human beings, they can never be property, yet they do in some sense “belong” to their parents. And their parents, as the people who created these temporarily helpless beings, are responsible for providing that care.

These natural realities make the otherwise simple prescriptions for a free society a bit more complicated. Children cannot competently consent, especially younger ones, so their parents must hold their consent in proxy. Protecting children requires that parents assume a form of authority over them—a kind of authority that proponents of a free society hold that no adult may rightly have over another adult.

So, how, in a free society, can children be protected when parents fail to discharge this responsibility in a way that respects the personhood of their children? How would a free society deal with problems of abuse and neglect?

This is precisely the question my wife posed on one of our many road trips. I was waxing rhapsodic (as I am wont to do) about the ideas of human freedom when she, being ever-practical (as she is wont to be), interjected the inevitable “Okay fine, but….” I am grateful she did, for two reasons:

Many advocates for a society of freedom and self-government rely on a small number of thinkers for creative ideas on how, from a practical standpoint, such a society might work. We all know what is wrong with involuntary governance, but we don’t all put in the difficult creative work of envisioning practical alternatives. My wife’s question forced me to get creative, and that is a good thing.

This conversation also produced the kernel of another potent realization: that arguments against self-government often begin, however unwittingly, with a logical fallacy—one that I have named argument from the brochure. Simply put, they describe government services not as they are in reality, but as they would appear if government officials were writing a sales brochure about them.

Protection (police and the military), justice (courts), and infrastructure (roads, etc.) all placed in the best possible light, rather than being described as they truly are. Meanwhile, any proposed alternatives that might arise in a condition of self-government are summarily dismissed as being two hot meals away from total barbarism.

Thus, before we explore ideas for how children might be protected in a condition of self-government, we must acknowledge the current system as it is, rather than how it appears in its own glossy brochure.

The reality is that governments of varying levels of size and intrusiveness claim authority over virtually every human being on the planet, and yet there is plenty of abuse and neglect of children. It is a problem that no amount of effort from bureaucrats or government enforcers can entirely stop, no matter how much they ratchet up the intrusiveness of those efforts. Sadly, some children have the terrible misfortune of being born to bad parents, or to parents who themselves suffer from certain difficulties or deficiencies.

Yet the matter is worse still. Government enforcers and bureaucrats, in their putative efforts to protect children, often become agents of abuse themselves. Several recent high-profile instances in the United States are quite shocking:

In February, for example, “one-month-old Roxana was wrested at gunpoint from her mother Emily Yazdani’s breast by police and Child Protective Services (CPS) of Loudon County, Virginia,” on nothing more than a baseless allegation of abuse from an embittered ex. The father, who had committed no crime, was handcuffed, arrested, and abused by police.

In that same month, in Massachusetts, government agents told Isael Rivera and Ruth Encarnacion that they would be taking their five children away, on the pretext that the parents had chosen, for religious reasons, not to allow their nine-month-old baby to be vaccinated. Massachusetts law allows for religious exemptions, but that did not stop the state’s Department of Children and Families from issuing the order anyway. To avoid this fate, the family fled to Texas, and the parents are now being charged with kidnapping their own children.

Parents are having their children taken, and are even being arrested, on a wide variety of pretexts. Government agents seize children from loving families where there is no abuse, on the grounds that the family’s poverty constitutes “neglect.” Ethnic minorities suffer a disproportionately large share of such actions. The “crime” of misgendering is a recent addition to an increasingly long list of pretexts. And meanwhile, contra the “brochure,” real instances of abuse continue.

It is tempting to say that the solution is to “reform” the system. Yet the system itself creates the incentives that make these abuses inevitable.

Agents of government must get paid. Even if we set aside the fundamentally violent means by which their money is extracted (through involuntary taxation), this fact still poses a problem. All government operatives share the incentive to keep their jobs and increase their pay. As such, all government agencies have the same basic objective: to secure more funding. In the arena of government “protective” services for children, this produces an especially tragic result: agents of such bureaucracies have an incentive to invent pretexts for the seizure of children.

The government quite literally pays these agencies based on the number of children they seize, and even provides bonuses for making the seizures permanent. Plenty of egregious examples exist, but the problem is not malfeasance within an otherwise good system. The system itself is inescapably corrupt and irredeemably broken.

And still, the system fails to stop many instances of real abuse. In the brochure version, government “protects” children. In reality, child-protective services are as much a taxpayer-funded kidnapping operation as they are a source of succor for abused and neglected children.

So, can a free society do better? Can we envision people and entities, operating with market incentives (instead of perverse government incentives), doing a better job?

This was the topic of conversation between my wife and me on our way back home—a conversation that took place for a good portion of our northward drive through Virginia. We played around with the idea, trying to envision different possibilities. Adding in some insights from elsewhere, here are a few thoughts:

In a free society, some people would choose to contract with various private agencies for the kinds of services over which the government currently claims exclusive purview. Could such agencies also provide mechanisms for the protection of children? Without the kind of inescapable force that government agents claim the authority to project, how could such agencies “enforce” their efforts?

One possibility involves the broader concept of a protective agency. In a free society, some people contract with private agencies that provide protection services and insurance against aggression. Such agencies would likely also take on the role of indemnifying others against acts of aggression perpetrated by their clients. They would have to pay victims’ claims, pay the fees of the private courts with whom they contract, and expend resources dealing with problems caused by their clients. This gives the agencies a market incentive to charge lower premiums to clients who will not cause them such problems.

The protection of children might be folded into this equation. Dealing with claims of abuse—and such claims might be made by neighbors, community organizations, churches, family members, or the children themselves—requires resources, thus increasing costs. Counterclaims by unhappy parents cause further expenditures. It is in the agency’s interests to prevent abuse if possible and to mitigate it efficiently if it occurs.

As such, parent clients of such agencies might receive discounted premiums if they take beneficial courses (parenting strategies, anger management, addiction assistance, etc.). Parents might receive further discounts for contractually agreeing to specific procedures in case of any allegations of abuse.

Real situations of abuse and neglect would be adjudicated in private courts, just as they are in government courts now. Private law codes would stipulate rules for the protection of children. (How these courts would function is a matter for separate discussion. Operating with market incentives, such courts would likely be more effective than the government version.)

We can also envision market-based charitable entities arising to meet this need. Such entities might approach the situation in a variety of different ways. Some might create a mediation process among stakeholders. Others might provide a safe environment for older children escaping extreme abuse. Legal services might be added for those who wish to assert their independence and be emancipated. (At what age should such a thing be allowed? There are no perfect answers, but are government agents, with their many perverse incentives, best-suited to come up with an answer and impose it upon everyone by force?)

Concerns about enforcement, affordability, access, and the lack of uniform standards are common to any discussion of a private-law-based free society, and there isn’t room in this space for detailed responses. In brief, however…

Enforcement is, and always will be, a matter of force. Wrongdoers are no more interested in surrendering to private security agents than they are to the police. However, in a condition in which people are willing customers of private agencies, there will be at least as high a willingness to keep the peace as there is now. People and their hired protectors are human beings with the same moral incentives in either scenario, but the market forces of a free society add further positive incentives.

Affordability and access are easy. No force in human history has done more to lower prices and turn luxuries into everyday items than the free market. Again and again, goods and services that were once the sole province of the rich become affordable for all. There is no reason to believe that the market would not do the same with security, justice, and infrastructure services.

Today’s large insurance agencies all have different rules and procedures, yet they manage to interact with one another and resolve disputes without ever setting foot in a government court. Common procedures and uniform standards arise through such intra-agency interactions, and in a private-law society, this would produce a kind of common law. This common law would emerge through a bottom-up market process rather than being imposed from above (whether it be by autocrats, bureaucrats, or elected officials).

I have herein asked the question: Can private agencies do a “better” job? There is no such thing as perfection, and we proponents of self-government must no more argue from the brochure than others do in support of involuntary government. The argument is that self-government would be better, not that it would be utopia.

Given government’s real record when it comes to protecting children, and its general moral deficiencies, and the market incentives of a free society, it is entirely fair to posit that a free society would indeed do better.