Sunday, July 12, 2015

Walter Block, Specific Performance Contracts, and Abortion

I agree with the vast majority of Walter Block’s positions on the application of the non-aggression principle to the various concerns of the humans that inhabit this planet.  One topic on which we disagree is abortion, with Block advocating evictionism – the unborn child can be evicted but not murdered.  It’s a headscratcher for me, as the “eviction” of any unborn child prior to the last (X) months will likely result in death, but such is the intricacy and nuance of Block’s argument (remember, I am a simpleton).

I suggest that the unborn child has the right to the use of the womb for the term of the pregnancy.  The mother owns the womb (obviously), but the child is a tenant, if you will; a tenant who in no way breached the lease agreement.  My view is based on several aspects of contract and real estate law – all types of contracts upon which I rely I deem as perfectly compatible with the non-aggression principle.

With that as background, I refer to Block’s blog post at LRC regarding specific performance contracts – outlining the right of the counter-party to demand specific performance if the first party has a change of heart.  To make a long story short, he disagrees with those in the libertarian community who suggest that such contracts are invalid within the framework of the NAP.  He believes that enforcement of the terms of a specific performance contract is perfectly legitimate within libertarian theory.

I fully agree – and Block even offered a cite to one of my posts on this topic!

What does this have to do with abortion?  One of the types of contracts upon which I make my case regarding the unborn child’s rights to occupy the womb for the term of the pregnancy – and against the possibility of eviction – is a specific performance contract.  I offer a brief passage from my above-referenced post regarding abortion:

If the mother changes her mind – as Rothbard suggests she has every right to do – it will cause irreparable harm to the unborn child.  Money damages will most certainly not be sufficient for the benefit of the now-dead unborn child.  The counter-party (the unborn child) would be entitled to equitable relief, including specific performance, and such relief shall not be opposed.  What specific performance would the unborn child demand?  It is not difficult to imagine the answer.

Similar language is included in many contracts today, and one would expect in this most one-sided contract between mother and unborn child – where the party that set the terms of the contract could then break the contract and realize a gain while the counter-party suffers death – it seems reasonable that the expectation would be not less than what is standard in every-day commercial agreements – for exchanges much less significant than life and death.

Block has yet to reply to my arguments on this topic – he has agreed to do so if I get the post published in a refereed journal.  I have decided that attempting to do so is a complete waste of my time.

Perhaps one day I will learn why a specific performance contract does not apply to the case of the unborn child (and no, it is most certainly NOT because the unborn child cannot be contracted with; see section XI of the subject post).

But for today, I am glad Block agrees with this much.  One day, he will agree with the rest!


  1. Instead of a tenant, couldn't it be said the child is "homesteading" the womb? The womb has no use except to grow a new life. It isn't used for anything else. I think an argument could be made for it.
    Dr. Block used A,B, and C in his LRC blog today.
    If A is the baby, B is the mother, and C the father, could C force B to keep her contract to grow the child, even at the point of a gun?
    What would be the difference with that scenario and the tightrope walker?

    1. The more correct term would be squatting.

  2. Bob Wenzel won't post it? Or maybe I don't understand the term "refereed journal". This would be a great debate, and it's sure one that is talked about a lot among Libertarians.

    1. "Refereed journal" is apparently an academic or professional publication, where individuals who can't follow an argument decide if a piece is worth consideration.

      It is the kind of publication one approaches if they are seeking tenure and need to be published; at least this is my understanding.

    2. It is a filtering mechanism to reduce the low-reward demands on his time. It is inconvenient, but not unreasonable.

    3. Jim O, respectfully, Walter has written to me directly more than once telling me that the subject post is the best critique of his position he has ever read; he still disagrees with me, but he views it as the best.

      Further, he offers many rebuts in non-refereed forums - see his many such posts as LRC and Wenzel's site, for example.

    4. "It is a filtering mechanism to reduce the low-reward demands on his time."

      I seem to remember libertarian complaints on how academia uses similar methods to deal with arguments "not approved" by the establishment...

      Not saying that's what Block is doing here, but the result may be the same.

  3. "Block has yet to reply to my arguments on this topic – he has agreed to do so if I get the post published in a refereed journal."

    That, is....(let me choose my words carefully)...disappointing.

    Now that being said, I'm not sure the performance contract notion is the way to successfully assault "evictionism" logically, or abortion in general.

    The reason why in my humble opinion is because it confers this notion of "positivist rights" to the situation, which libertarians are obviously against. (unless the philosopher is "thin" it would appear)

    I have argued in the past against abortion on the basis of the new life having the right to said life on the basis of natural law....which is slightly different from a "performance contract" because there is no positivist requirement for the mother to adhere to a contract that she hasn't voluntarily accepted.(even though some might claim that getting pregnant obligates her....I don't follow that logically's positivist in nature IMO)

    For the record, I'm against abortion and think it violates natural law and find it abhorrent in general. I haven't dared to think about cases where it is determined a baby without a brain stem(I know of one such case personally) resides within the womb or similar equally horrific scenarios take place in which the mother's life is placed at risk, but in general I find abortion logically similar to murder in most cases.

    The only thing separating Block's notion of evictionism from abortion is the method by which the baby dies in most cases.

    In abortion, it's generally ripped apart- in evictionism it's removed and if no one steps up to claim it and care for it(assuming it is old enough to survive outside the womb) it starves and if it's not old enough to survive outside the womb it suffers death a various number of horrendous ways.

    Either way, it's a clear violation of natural law.(in most societies? culture?) The question one has to ask oneself in all these cases where logic as of today fails:

    When does arguing for a violation of natural law on a logical basis become abhorrent? Even if it's abhorrent, what then? It's not a NAP violation to do so, unless you get to the whole "accessory to crime" thing, an area that I think Rothbard is weak in and Block, while slightly different, is also inconsistent.

    Difficult topics for sure....

    I love your posts on the role of culture in general... I think they are relevant in ways not fully logically sorted out yet. On the very surface, there is something to the notion of contracts on behavior but it usually leads to some for of "government", which is no good....yet somehow still relevant to the notion of culture in a specific societal type of way. (clans, distinct societies/cultures, etc.)

    As Roddis mentions from time to time, a libertarian larger society should be able to make room for different cultures within said agreement on interaction....and let's face it...the NAP would be nothing more than an agreement by men on how to deal with one another.

    Maybe the places where logic falls short currently constitute said culture and boundaries between differing groups of men.

    Regardless, it's an excellent post on your part and I would be honored to join your "simpleton" club.


    1. Nick, thank you for the comment. Allow me to address a couple of your comments:

      “The reason why in my humble opinion is because it confers this notion of "positivist rights" to the situation, which libertarians are obviously against.”

      It is not against the non-aggression principle for two individuals to contract with each other. Off of the top of my head, most contracts obligate each party to positively perform some action to the benefit of the other. This has nothing to do with non-voluntary obligations associated with “positive rights.”

      “Maybe the places where logic falls short currently constitute said culture and boundaries between differing groups of men.”

      I would modify this slightly, as follows: Maybe the places where libertarian theory does not apply constitute said culture and boundaries between differing groups of men.

      This could be so. I think of examples such as proper punishment for violations of the NAP (and even defining what, exactly, are violations of the NAP) and the application of the NAP toward minors (and toward their parents) as two examples. I would also suggest this regarding intellectual property, but I prefer to avoid that hornet’s nest. :-)

      And I would be honored that you would join the club!

    2. "Off of the top of my head, most contracts obligate each party to positively perform some action to the benefit of the other. This has nothing to do with non-voluntary obligations associated with “positive rights.”"

      Well, let me further explain:

      If you claim the mother has violated a "performance contract" in relation to not aborting her baby(do I misunderstand your argument?), then one would have to assume she agreed to said contract to start, no?

      As far as the "Simpleton's Club", it officially exists! It's you and me, a good start I say.

      Should we setup a structure? Would you like to be acting President or should we set it up like a committee?


    3. " would have to assume she agreed to said contract to start, no?"

      Let me tell ya 'bout the birds and the bees
      And the flowers and the trees
      And the moon up above
      And a thing called 'Love'

      Let me tell ya 'bout the stars in the sky
      And a girl and a guy
      And the way they could kiss
      On a night like this

      In all seriousness, did you read the subject post?

      Regarding the simpleton club, let's keep it...simple. No structure to confuse things.

    4. "In all seriousness, did you read the subject post?"

      lol...ok, I read it again but I'm clearly not following.

      Are you saying the act of sex itself becomes the basis for an implicit contract? (the fact that such an act can result in a child)

      Maybe we should reconsider the structure of our club, it seems I have the background to be President.


    5. Bingo, but not an implicit contract; a unilateral contract (see section XI).

    6. Ok...fair enough. Good argument. I never clicked on section XI.

      I'll be curious to see the responses to your argument.

  4. "homesteading the womb"???

    talk about "wolves in sheep's clothing"

    Children are the hard problem in libertarian theory. Abortion is not.


    1. Interesting link, thank you. The article devotes a great deal of time to the notion of "pacifism" though, which is different from the non-aggression principle.

      The conundrum surrounding the issue of when a fetus/zygote has the "right to life" aside for moment, the reason the distinction between "pacifism" (which Sheldon Richman also conflated with libertarianism in the last year or so) and the NAP is important is that the NAP does not preclude violence used in self-defense or defense of others.

      So, that's a major weak spot in the link/article IMO.

    2. DL, you say in your article, which needs more than a cell phone in a hotel room to respond too, that the "anti- abortion" position is a pacifist position, which I disagree that one has to be a pacifist to be anti-abortion. A pacifist is "one who is against violence". So would this mean your AOD position is necessarily the violent positition?

  5. What I find interesting about the evictionism theory is how the pro-aborts hate it. They actively want the death of the child. It isn't enough that the child be out of the woman's body and no longer bothering her. It must die.

    Note, I separated pro-aborts from pro-choice, and that is an intentional distinction.

    I'm pro-life, but it isn't for me JUST about the life of the baby. Not only. Sexual restraint is the basis of civilization. The pro-choice people complain that pro-life people have as a sub-goal the roll back of the sexual revolution. I agree that for me this is so.The difference is that I believe that such a thing can't be accomplished by the state without destroying society in other ways.

    1. Modern hedonism/radical individualism (as opposed to methodical individualism) are problematic. If you view all of history and civilization to this point as serving the sole purpose of creating a playground for you, and you have no moral obligation to improve on it for the sake of the next generation, I can't (and wouldn't) compel you to see things otherwise, but I can refuse to confer social status and urge others to do the same. People who do care about the world their children grow up in are right to have low regard for you.

      Absent a social safety net, such people would (on average) find their old age to be rather poor and lonely. Absent a state to force society to confer false-status on such people they'd have incentive to think longer term sooner rather than later.

      The state is the engine of social destruction.

    2. Who says so? The evictionism/child abandonment notion is more-or-less abortion - a foetus or child has no right to be raised by anyone any more than an adult can be expected to be taken care of regardless if death results from neglect. Heck for the longest time child abandonment was legal and every child knew they could be on their own at the drop of a hat.

  6. The "tenant" example is another way of avoiding reality. There is no such thing as a "tenancy" because first of all, there was no "agreement" and second of all the "tenant" is not paying rent. An agreement such as this is the result of a desire for an exchange. There is no exchange here. The fetus lives in the womb but without the mother's permission and without compensating the mother for its stay in the womb. It is, as Gil said, acting as a 'squatter.'

    Analogies that do not make analogies with ALL aspects thereof is merely a rationalization.

    Second of all, the womb is not a room or house, but a physical body with all potential discomforts, diseases and injuries that entails. No person can claim a right to someone's body, and including the potential discomfort, diseases or injury this may cause (not least of which the horrible pain of actually giving birth).
    Furthermore, the claim on a woman's womb means a fetus would not merely occupy a space without in any way inconveniencing the landlord. The pregnant mother - if the fetus has rights to his own life and bodily integrity - must not be allowed to engage in any activity that may threaten this life, its health or bodily integrity. This means certain habits of consumption, certain types of physical exercise; certain types of sporting activities that are potentially hazardous to the pregnancy.
    To lay a claim on a woman's womb is - to a certain degree - to lay a claim on her entire body and her decisions and behavior. The woman is de facto rendered a slave to the fetus' needs. The only way to avoid this is to hypocritically and arbitrarily decide that the fetus has no right to its safety or bodily integrity in such situations.

    Ultimately however, the fact remains that the fetus *cannot* live without subjecting another person's physical body (and all the other aspects mentioned above) to a sort of serfdom. It is, to use a blunt and ugly term, living a parasitic life. One cannot have a right to life, if this life can ONLY be maintained by rendering another a slave. And since a fetus cannot live without rendering another a physical slave to its needs, it cannot have a right to live. It does not have any more right to live under these conditions, than a socialist poor man has a right to live at the expense of productive people in society.

    The good thing about Walter Block's argument, is that he proposes evictionism as an alternative to abortion, the moment the fetus can survive outside of the womb, in which case an abortion would be homicide because there were less violent and deadly alternatives available to end a pregnancy.

    1. “The "tenant" example is another way of avoiding reality.”

      A nice way to open an argument if you want to be sure I don’t take you seriously.

      “There is no such thing as a "tenancy" because first of all, there was no "agreement"…”

      An appropriate second sentence to demonstrate that you have not read or understood the underlying post.

      Read the actual post – it is cited in the above post. Make arguments based on what is written there. If you want to have these addressed, be respectful.

      You are making several arguments that Block doesn’t make (that I can address), or, in fact, that Block disagrees with (and on these I agree with Block and can explain why). I was writing in rebuttal to Block. Your arguments can certainly be addressed if you demonstrate that you have taken the steps cited above.

      Finally, your most egregious logical fallacy:

      “It is, as Gil said, acting as a 'squatter.'”

      An appeal to authority that relies on Gil? You haven’t visited very many libertarian / Austrian sites, have you.