Monday, January 7, 2013

Walter Block and Evictionism: Who Has Property Rights Around Here, Anyway?

I return to this subject once again (previously here and here).  If you have not read the first two posts, I suggest you do so as this one builds on those. 

I have looked at several of the additional links provided by Block regarding his position, and find this one worth additional comment.  Here, you will find a short, five-minute video of Mr. Block going through his theory of evictionism, and his defenses against two of the more common criticisms of his theory.

There is no transcript.  I have typed out the following myself based on the video.  I suggest you watch the video as well, to confirm and double-check my work.  Please let me know if I mistyped something of significance.

According to Block, the first common objection raised by critics is that there is an implicit contract between the mother and the unborn child.  Block rejects this, stating there is no implicit contract, because at the time of intercourse, there is not an unborn child to have a contract with:

“I insist for there to be an implicit contract, there have to be two parties.”  He goes on (paraphrased): at the point of intercourse, there is no second party (the unborn child) for the mother to have a contract with. “At the time of intercourse, there were no two people.”

I have addressed this in one of my earlier posts.  I believe the idea of causation is directly applicable here – the woman’s conduct caused a result.   The result (the unborn child) cannot be separated from her action (intercourse).  This places on her an obligation – one which her action directly caused. 

Block is incorrect that a contract requires two parties – at least at the time a contract is enforceable.  A unilateral contract requires only one known party at the time of contract.  A unilateral contract is a contract in which only one party makes an express promise, or undertakes a performance without first securing a reciprocal agreement from the other party.  The other party need not even be known at the time of the contract.  It is further defined as an agreement to pay in exchange for performance, if the potential performer chooses to act.
A typical example would be an offer of a reward, where the one making the offer does not know who, if anyone, will take him up on the offer; however, if someone does, the one making the offer is obligated.

I view the obligation of the mother based on a unilateral contract – not an implicit contract, as Block suggests.  The potential performer is the unborn child.  He kept up his end of the bargain.  There is a contract that obligates the mother.

Block’s second example of objections raised by critics is that of the obligation to save.  Block suggests there is no obligation to save:

“If I push someone into the water, then he starts to drown, I owe a positive obligation, which I otherwise wouldn’t owe a positive obligation to.  What they are trying to say is that by having a child [presumably before term – evictionism], you are putting him at risk, and therefore you owe him to keep him alive for nine months.  My claim is that by giving birth to a child, you are not harming him; you are not putting him in a worse position – you are putting him in a better position because before the sperm and the egg meet, there is no person at all.  Surely it’s better to be a person for a little time than not at all.  So I reject the analogy.”

Libertarians “don’t believe in good Samaritan laws.  You don’t have an obligation to fetch drowning people out of the water because if you don’t, you haven’t violated their rights unless you put them in there.  But I deny that having a child is like putting them in deep water and they can’t swim.”

“Surely it’s better to be a person for a little time than not at all” can be said to any human.  Does this justify murder?

Block can “reject the analogy” and “deny” this all he wants.  He is just wrong.  By delivering the child before term and before viability, this is exactly like pushing a non-swimmer into the water and then letting him drown – taking an action that directly causes another to be placed in physical jeopardy, up to loss of life.  In fact, it is worse – the mother took an action to bring the unborn child in a position to be pushed.  You could say the mother tricked the child into thinking it was wanted.  It would be like personally inviting a non-swimmer to a boat ride to the center of the lake and then throwing him in.

Here, I come back to causation, but on the other side – not the causing of the pregnancy, but the causing of harm to the unborn child from abortion:

For example for the defendant to be held liable for the tort of negligence, the defendant must have (1) owed the plaintiff a duty of care; (2) breached that duty; (3) by so doing caused damage to the plaintiff; and (4) that damage must not have been too remote. Causation is but one component of the tort.

This is precisely the sequence of events in pushing a non-swimmer into the water, and it is precisely the sequence of events in an abortion.

I will now return to the idea of property rights, and specifically property rights in the womb.  I return again to one of my earlier posts, and quote Block and his co-author:

The position put forth here, in contrast, is one of eviction not of killing. However, if the only way to evict is by killing the fetus, then the woman's right to her property - that is, her womb - must be held above the valuable life of the fetus.

In the earlier post, I rejected this on the grounds of proportionality.  Property rights are not to be defended in disproportion to the violation – shooting the six-year-old who is leaving the store without paying for a candy bar, for example, cannot be justified with the statement that the shopkeeper’s right to his property – the candy bar – must be held above the valuable life of a child.

In this post, I will suggest the idea that the unborn child has more claim to the womb than does the mother – in the same way that a tenant has more right to occupy the rental home than does the landlord.  I suggest this is true for the unborn child precisely because of causality and unilateral contract.

The mother took an action that caused the pregnancy – causality.  Her conduct caused a result for which she is responsible.  Can she be relieved – by her unilateral choice – of the obligation that came to be as a direct result of her action?  I don’t see how.  The obligations, caused by her actions and not those of the unborn child, are hers because of a unilateral contract – the one the mother extended to the potential taker – the unborn child.  In this case, the unborn child took up the offer at the moment of fertilization.  That he did not exist when the offer was made is irrelevant.

The property (the womb) belongs to the unborn child for the term of the lease – a fixed-term tenancy tied to a specific event: birth.  I conclude that the unborn child, not the mother, has property rights in the womb for the duration of the pregnancy.

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