Andrew Cohen

As a libertarian, I generally oppose the state interference that is licensing. In most cases of professional (or occupational) licensing programs, I see no benefit that warrants state interference. I am not claiming that there are no such programs (programs to license airplane pilots may be such).

What are the qualifiers?

1. By “licensing program” I mean a legal program that makes it necessary to have a state-provided license to practice an activity. We currently have programs of this sort for driving, but also for practicing medicine and law, and perhaps more surprisingly, hair-cutting, interior-designing, etc. I would abolish many of these. I would abolish all that were not necessary to prevent harm to non-consenting others.
2. By contrast, I have no opposition to “certification programs” that would largely mimic licensing programs, but be run by private agencies and thus not be legally mandated. Such would not legally prevent anyone from practicing a trade or profession.

Thus far, I don’t think I’ve said anything controversial for a libertarian. Over the last few years, with a clearer window into the world of bad parenting, I have come to think parental licensing would be well worthwhile, even in a libertarian state. So here is the controversial part:

3. The state should require parents to be licensed. That is, there is no moral right to raise a child, and we would do well to think of it as a privilege that the state grants and can refrain from granting to certain individuals. If you don’t like that way of putting it, I am comfortable with a weaker claim: whatever moral right to raise a child there might be is defeated when the parent-to-be is significantly likely to cause the child substantial and avoidable harm, or, of course, if the parent does cause the child such harm. Those that should be refused a license to parent a child are those who are likely, in parenting, to harm the child. Those that should have a parenting license revoked are those who do harm the child. (In our society, the latter is called “termination of parental rights” because there is an assumption of such rights. Its worth pointing out that I have not seen a good defense of the claim that natural biological parents should be assumed to have the right to raise the child they create.)

Licensing vs Certification

I should begin by referencing Hugh LaFollette‘s excellent work on the topic. (See his “Licensing Parents” in Philosophy and Public Affairs Vol 9 #2, 1980: 182-197 and, more recently, his “Licensing Parents Revisited” (gated) in the Journal of Applied Philosophy, Vol 27 # 4, 2010: 327-343). According to Lafollette—and in accord with many US laws and, I think, common sense—we license people in a particular profession when practitioners of that profession are in a position to significantly harm those they are supposed to serve and there is some testable competence for working responsibly in the profession. Since doctors, lawyers and the like are in positions to harm those they seek to serve and there are testable competencies for their fields, it follows that they should be licensed.

For those enamored with the status quo, the immediate question is, “Are you seriously suggesting that we don’t test and license medical doctors but we do test and license parents?” (One can imagine the annoyed utterances following the question.) The answer is simply yes.

Again, I assume most libertarians (RL, BHL, LL) will be with me in thinking certification programs for medical doctors and other professionals are sufficient. The reasoning is simple: what we care about with such professions is quality service. The state licensing someone to perform a service does not really guarantee quality service; if it does, it guarantees minimal quality only (indeed, that is all it is designed to do). Those of us with the wherewithal, though, don’t just go to a doctor that has a license—we check into their credentials (including what schools they went to, where they did their residencies, what hospitals they are affiliated with, etc.). We are not satisfied with a license; we want further evidence of ability and certification programs can offer that. Certifying institutes can offer their own certifications (medical schools basically do that already)—and can offer multiple layers of certification. I suspect they can do so more efficiently than government, but that is beside the point for me since I do not think efficiency is reason for government action.

Importantly, certification programs, unlike licensing programs, do not limit anyone’s freedom to practice medicine (in the sense that no one will stop anyone from practicing without a certificate; not in the sense that anyone will be guaranteed customers/patients). When we require licenses, on the other hand, the state can and does interfere with those that “practice medicine without a license” and those that would purchase their services—even if they have already been successfully helping people. Licensing programs serve to limit the suppliers of services so that the prices of those services are inflated. Of course, it is claimed that they guarantee those that cannot judge well for themselves do not get subpar service. But there is no reason that a certification program can’t do that at least as well, in much the same way that Consumer Reports and Underwriters Laboratory do (directly and indirectly).

In some fields, it should be pointed out, the above arguments are clear to most. Few believe, after all, that we need licensing programs to protect people from bad haircuts or bad interior-designing. Yet in some locales, these professions require licenses, a government-imposed burden required in order to enter the profession. (“You must come to our office, pay a fee, and take and pass an exam; only then can you sell your services.”) When it comes to doctoring and lawyering, I think, licensing is similarly unjust. It serves as a barrier to entry in the same exact way—perhaps more so as you must first finish 3 or 4 years of expensive schooling before you can even apply to take the exam to get a license. Licensing is always the government giving professionals an ability to charge their customers higher prices.

Should someone be able to practice medicine if they did not go to medical school? Certainly, they should not be allowed to practice medicine on anyone who does not, with full information, rationally consent to their treatment. (So they perhaps could not work in emergency rooms.) But if Joe NoMedSkulio develops a reputation as an excellent healer after independently studying biology and pharmacology, I do not think the state should disallow people using his services. Perhaps every doctor should have a large sign in their office indicating their credentials (degree?) and every patient should have to read a short bio of the doctor and sign a statement indicating they understand the doctor’s credentials to be X, Y, and Z. But if those credentials are limited to “studied pharmacology by looking at for 100 hours in February, 2010,” and a medical patient is OK with that, I am inclined to think there is no reason for state interference. To be clear, I would not go to Joe’s practice—and I might try to dissuade those I care about from doing so—but I see no reason rationally autonomous and fully-informed adults should not have the freedom to use Joe’s services if they wish. (I understand that there are many instances where an individual going to a doctor is not—while seeing the doctor—rationally autonomous, but I don’t think that is the standard case and, even if it is, I think we should seek a world in which it is not—in which, in fact, it is only the case in emergencies.)

What about parenting, then? Why require a license there? The first important point here is that the children who are going to be the recipients of the care (or “services,” though “customers” is clearly the wrong word) are not rationally autonomous and fully formed adults capable of making their own decisions. They are, by contrast, vulnerable beings that we hope will become fully formed persons. Until they do, they are decidedly vulnerable to those they come in contact with—and more often vulnerable to those they come in contact with regularly: parents. The duration of exposure to one’s parents is a factor. The intensity of the exposure is as well (see Note below). No one is in a position to harm a child as often as a parent. And the damage they can do is extreme. We know of a case of a father raping a two week old, a mother throwing boiling water on her daughter, another parent drowning her children, and the list goes on. These are the sorts of harms that a licensing program might avoid. As it is now, these are the sorts of harms that get the state involved—after the harm is already done.

I should be clear: I am not proposing a licensing requirement for pregnancy. I am not sure I would oppose such, but a parental licensing program is not a licensing program for pregnancy. With a parental licensing program, if you get pregnant, you go to get a license to raise the child or you decide to give up the child. You violate no law by becoming pregnant. Once pregnant, you violate no law until the child is born—and only then if you decide to raise it without getting a license. And perhaps you are allowed to take the licensing test multiple times if you fail at first. Perhaps you do so after taking parenting classes.

Criteria for Licensing

It will be asked: Is it feasible? I think so. To see this, we need to know what sort of licensing test are we talking about. I’m inclined to think there are two tests that are involved. First, a means test—that is, no one that cannot afford to raise a child should have a child. Importantly, though, this is fully consistent with having any number of charitable or state welfare programs that provide the means for the parent. If Susie is pregnant and broke but The Sisters of All Children commit to providing her housing, food, etc. until the child is 18 years old (or Susie gets on her feet), she passes the means test. Similarly, if the state has a program to help poor people with children, they will pass the test (if the state provides the means for all those who have the need, there is no reason to actually test means since all would have it). The second, and more important, test would be a psychological exam that indicates whether the individual (a) understands how to parent and (b) can handle the stress a child brings. Regarding (a), the point is to make sure the person doesn’t think its OK to leave a child in closet, to starve it, to have sex with it, etc.—the point is not to require that every parent raise their child in the same way. Someone might suggest that (b) is impossible to test, but I see no reason to believe that. When the military accepts soldiers into special forces units, they are tested. The soldiers sent to Pakistan to capture or kill Osama Bin Laden had undergone tests (formal or not) to be sure that they would not “crack” under the pressure. We could surely do the same for parents-to-be. Indeed, people that adopt children or provide foster care now must go through some training and can be denied if they appear unstable.

There is an obvious question now: say I am right about doctoring and lawyering, on the one side, and parenting, on the other. What about driving? I have no settled view here. On one hand, drivers can harm others who in no way consented to the activity (in the extreme, they are in their own home and the driver rams his car through their wall). On the other hand, when you use the roads, you do (or should) recognize the risks. More importantly, I simply don’t know if certification programs can work for drivers, though I don’t really see why not. (Imagine the certification company gives you a device to put on your car and that device is what gives you access to roads—much like “EasyPass” does now on some roads.) However, if it turns out that the only feasible way to keep unsafe drivers from driving is a licensing program, I would be OK with a driver-licensing program. The point here is that I am convinced the only way to keep unsafe parenting agents from parenting is a licensing program. Would it prevent all bad parenting? No, but it would, I think, greatly reduce harmful parenting.

Note: I owe the thoughts about the duration and intensity of the relationship to Shanna Slank. Shanna and Jon Ravenelle both read a draft of this post and gave me useful suggestions to improve it.

This article was originally published on Bleeding Heart Libertarians.

Posted by The Indian Economist