Present Objections to Walter Block’s Evictionism

In my previous article, I summarized Walter Block’s theory of eviction which he proposes is the libertarian alternative to the current abortion debate. Block hasn’t gone entirely unchallenged on his theory, but the criticisms he’s received have fallen short of the libertarian principles of self-ownership, property rights as human rights, and the non-aggression principle. Before presenting my case against Evictionism (in a forthcoming article and debate with Block in December), I will briefly summarize the major criticisms and Block’s essential responses. I’ll also add why I agree these other critiques don’t work well.

Jakub Bozydarv Wisniewski

In 2010, Jakub Bozydarv Wisniewski published this short critique of Evicitonism.

Wisniewski’s primary objection is that no property owner can “evict” a trespasser into potentially lethal conditions. He uses an example of pushing someone out of one room into another that’s on fire or filled with poisonous fumes. Wisniewski believes that the obligation to allow an unwanted person to remain on your property (if leaving would result in death) is derived from the non-aggression principle.

Block counters Wisniewski with another example of a 10-years long violent storm formed outside during a visitor’s invited stay. Block appeals to the question of how long (duration) the law could enforce compliance of you to keep that person on your premises in order to wait out the storm. If the expectation is 9 months, why not 9 minutes? Why not 9 years? Why not 99 years?

Introducing the expectation of duration means using arbitrarily determined lengths of time in which you must allow your property to be used against your will. Since libertarianism opposes legislating positive obligations (which would be necessary to Wisniewski’s objection), Block argues libertarian theory cannot require property owners to allow unwanted persons to remain on the owner’s property, for any duration, even if that unwanted person will inevitably die once they leave the property.

On parental abandonment

In an effort to avoid claims of positive obligations, both Block and Wisniewski affirm that a libertarian view of abortion should reject theories that necessitate legislating positive obligations. Wisniewski makes a caveat for Long’s view of derivative positive rights.

However, because positive rights are “anathema” to libertarianism, according to Block, he allows for the possibility that parents may rightly abandon their children in the event they no longer want to be parents and surrogate caretakers are not forthcoming.

Wisniewski objects to Block asserting the parents are responsible for bringing their offspring into the world (without the offspring’s consent), and that the relative harshness of the world on a child necessitates an obligation on the parents’ part to at least provide a safe haven until a surrogate is forthcoming, or, ostensibly, until the child becomes an adult – whichever occurs first.

Wisniewski’s argument can be simplified to this: If X voluntarily initiates Y obtaining P, then P cannot be a trespasser. Or, If Mary (X) voluntarily initiates a dinner party (Y) obtaining in Suzy (P) coming to dinner, then Suzy (P) cannot be a trespasser.

Block is quick to point out where positive obligations are created in his critics. Though Block would consider child abandonment to be of moral concern, he intends to protect a legal right to abandon on the basis of trespassing. So Block might respond to the above scenario this way:

Suzy passes out inexplicably and Mary wants Suzy to leave. Suzy can’t because she’s passed out. Is Mary legally obligated to resuscitate Suzy? Is Mary legally obligated to resuscitate Suzy before making Suzy leave? Is Mary legally obligated to resuscitate Suzy in order to prevent Suzy’s death? According to Block, Answering any of these questions in the affirmative means legally obligating “good Samaritan-ism” or a forced altruism. If we can do it in this scenario, then we can do it in any scenario.

My brief response to Wisniewski

Wisniewski and I agree that lethal eviction options still count as murder. However, using a relative measurement (eg. the harshness of the environment) introduces an insurmountable problem. And though I do agree that parents are responsible for the offspring they create, his argument favoring parental obligation is problematic because he argues from the position the fetus is, in fact, a trespasser.

I disagree with the premise that the fetus can be a legitimate trespasser.

In the example above, Suzy may indeed become a trespasser once Mary ends the dinner party and Suzy doesn’t agree to leave. Why is this? Suzy is a person that ultimately came from outside Mary’s property. Suzy has no legitimate claim to Mary’s property, even if there are harsh conditions outside or she is unconscious.

I concur with Block on this. Mandating a duration for its own sake is as arbitrary on the prolife side as is mandating a developmental milestone for personhood on the prochoice side. Arbitrariness is unhelpful in determining a libertarian legal theory here.

Sean Parr and Departurism

Departurism is the idea that an ‘innocent trespasser’ – a trespasser lacking mens rea, that is, “criminal intent” – must be given adequate time to vacate the premises. Since, in Block’s view, a fetus is an innocent trespasser, it must be given adequate time to vacate the mother’s womb.

“The departurist position argues that, in cases where eviction would prove fatal, the gentlest manner by which a property owner may affect the removal of the non-criminal trespasser on his premises is to allow for this trespasser, if in the process of stopping his aggression, to complete this departure. In the same way, departurism affirms that mother ought to allow for the fetus in her womb to come to term and for its parturition.”

Parr gives some creative examples showing how, under Evictionist theory, an impatient property owner may fling unwanted guests out of his 9th story window (to their death) because it’s more expedient than waiting for them to go through the process of vacating the building. Eg, walking out the door, taking the stairs or elevator, and walking out the primary entry way. Parr argues this from the “gentleness axiom” created by Block in his evictionist theory.

Block responds in a number of ways, that are not unlike his response to Wisniewski, but Block concludes that there is no discernible difference between Parr’s Departurism theory and the current conservative pro-life position which has proven to be a failure. Block is not merely trying to reconcile the two sides, he’s trying to present a completely distinct third, or libertarian, theory on abortion.

My response to Parr

I agree with Block that libertarianism provides a completely distinct theory to abortion than the current abortion paradigm presents. Aside from this, my objection to Parr is that his theory doesn’t make clear a woman’s right to deliver her fetus early in the case of medical necessity. Parr specifically states, “departurism affirms that mother ought to allow for the fetus in her womb to come to term and for its parturition.” Women choose to induce labor for a multitude of reasons that have nothing to do with “unwantedness.” If a woman is legally obligated to “allow for the fetus … to come to term and for its (natural birth),” then this would prevent women from medical inductions which do not constitute “parturition.”

Conclusion

Without a libertarian legal basis for positive obligations, any positive actions toward the fetus to provide life support is seen as altruistic. That is, morally good, but can’t be legally required. In most political theories, obligations on parents to provide certain things for their offspring are dictated by legislation or bureaucratic actions of some kind. Libertarians rightly oppose this. But since they oppose this, there is little room for making a case that parents are legally obligated to provide anything, even basic life support.

Furthermore, since ‘good Samaritan’ obligations are something that libertarians want to avoid, it paints parenthood as a completely moral venture. Again, Block is not concerned that this rubs against our moral sensibilities, and not because of some idea that altruism is inherently antithetical to a free society (viz Ayn Rand), but because legally obligating altruism opens the door to socialism, thus falsifying libertarianism.

If property rights disambiguate human rights, then introducing legally obligatory altruism makes human rights ambiguous.

In order for Evictionism to be a valid libertarian theory, it must

a) disambiguate the human rights of property owners, and

b) it must be consistent regardless of the particular characteristics of the non-owner.

In other words, the innocent trespass of the fetus cannot be considered any differently than the innocent trespass of an adult. In my next article, I intend to explain why the fetus cannot be considered a trespasser under libertarian legal theory.