n A Deeper Dive on Every Child’s Right to a Fair Start as the First Human Right: The Constitutive Fallacy. |
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Introduction

Zero Baseline (or “Fair Start”) Modeling (ZBM) corrects critical errors in all theories of social organization (from states, to corporations, to families etc.) that center around how we derive legitimacy, and political obligation, in the process of organizing. These errors retard personal sovereignty, or relative states of self-determination, and hence freedom. While there are several errors that drove the development of the ZBM, they can be summed up as the “constitutive fallacy,” or the belief that legitimacy and obligation can be fundamentally derived from anything other than the norms that determine our creation, and hence determine our initial relations and forms of organization. 

The ZBM is a proposed creation norm to correct the fallacy and to legitimate forms of social organization. It operates primarily by 1) treating social contract theories of political obligation as inherently intergenerational (such that we are constituting states rather than having been constituted in the past), 2) prioritizing relative self-determination (relative to zero, or the absence of human influence, including 300ppm and lower climate crises baselines required to meet restorative/ecocentric/rewilding standards of environmental protection) as a value, but one that should diminish as members are added to the contract and the sovereigns displace one another, and 3) expanding our conception of power to include any form human influence or affect, like climate emission and bad parenting. The ZBM thus serves 1) as an interpretation of the moral and legal right to have children – one focused on collectively giving all children an ecosocial fair start in life as a means of limiting and decentralizing human power so that it can be subjected to norms, and 2) a formula by which to assess optimal world population. 

The following discussion will situate the ZBM in the relevant literature, detail some of the costs of the constitutive fallacy, and finally present the ZBM in more detail as a basis to move social organization from top-down relations based on coercion, or incentive, towards bottom-up relations based on inclusive systems of relative self-determination derived from child development. 

Situating the ZBM in the Literature 

The ZBM combines work from several theorists and overlapping subjects, most obviously: 

  • Hans Kelsen’s work on the basic norm, 
  • deontological population ethics, 
  • social contract, natural law, and Rousseau’s democratic theory, 
  • the intergenerational justice work of Lukas Meyer, Axel Gosseries and David Archard, 
  • theories of political obligation, constitutional identity, baselining, as well as personal and political autonomy, 
  • the work of Joel Feinberg on children’s right to an open future,
  • related work from Sarah Conly, Christine Overall, Onora O’Neill on the right to have children, 
  • Hugh LaFollette’s proposals for parental licensing
  • And the practical realm of family law and reproductive rights.

That said, the ZBM is unique because it corrects the constitutive fallacy where it appears in the work above, like the common presumption that the claimant is who they should be, were created justly, and as such operate from the position of a justifiable social organization. Instead of political obligation theories like “fair play,” or relying on the harm principle for measuring liberty, the ZBM reserves legitimacy for states of affairs in which people were created fairly. Unlike many theories on the right to have children, the ZBM rejects procreative autonomy, and even places autonomy in the form of choosing not to have children subsequent to collective obligations not to have them if they would fall below minimum thresholds of civic quality necessary for a democracy. 

The failure to develop and implement a just creation norm, like the ZBM, has created significant social and ecological costs. The following will discuss some of these costs, before moving onto a more detailed discussion of the model as a solution, and as a baseline to seek restorative justice. 

The Underlying Errors 

The errors – almost all conceptual – underlying the fallacy include, among others: 1) Treating things like national constitutions, or even rules of recognition, as the fundamental norms or grundnorms, when in fact the norms that determine our creation would have preceded these forms. 2) Using abstracted conceptions of the person focused on adulthood, and rationality, that are insufficiently dynamic to account for the key early stages and drivers of personal development, and the cumulative and collective impact of that development. And specifically for liberalism, 3) the failure from Locke to Rawls to account for how (the harm principle aside) the creation of persons controls their relative states of self-determination (e.g., vote dilution), and how this failure to account disenfranchises the majority of constituents, or future persons, who along with nonhumans are the most numerous and vulnerable category of moral entities.  

The underlying errors also include using 4) limited conceptions of human power (and the borders of that power), e.g. that are focused on coercion, as opposed to using a conception that includes all human influence or affect, 5) myopic conceptions of autonomy that are self-contradicting, e.g. procreative autonomy and which presume we are whom we should be rather than the products of unjust creation norms, and in 6) in population ethics, using a concept of persons focused on quantity, when the concept of population inevitably at least five incommensurable and primarily qualitative values discussed below. 

The Costs of the Errors

There are many costs that flow from the fallacy and underlying errors. Because the fallacy enabled in 20th Century a misinterpretation of the right to have children that focused on procreative autonomy and parental subjective desire rather than the objective needs of future children, population growth exploded past optimal levels, and continues to do so, backed by pronatal policies. That continued explosion drives the climate crisis and other ecocides, child poverty, massive inequity, and the degradation of systems of human rights and democracy. Because of the fallacy – which ironically seeded subjectivism, unlimited power (parental) and “might makes right,” at the fundament of human rights – neoliberal, colonial and patriarchal systems were able to use future generations and the nonhuman world as resources to fuel economic growth. 

They used the misinterpretation to enable that growth (and subjectivism more generally) over systems of early childhood and civic development. This had the result of physically constituting economies, or shopping malls, rather than the antecedent systems of democracy, or town halls, that regulate economies. Often this process used religion as the driver, in violation of separation principles. The trend continues today, as falling fertility rates – a phenomena with twenty times the long-run impact reducing climate emissions – are treated by the dominant discourse an economic “baby bust.” 

The Solution to the Constitutive Fallacy: ZBM

If the constitutive fallacy involves skipping the step of creation in determining the justifiability and legitimacy of relations, the solution involves a norm that literally creates normativity, or the inclusion of relatively self-determining and reasonable agents into social organizations that reflect their constituents. In other words, if we want just systems we must begin with a just creator or creation norm, one who gives all children a Fair Start in life. That will in turn allow us to maintain the constant and antecedent “we,” or group of free and equal people, necessary to constantly reconstitute participatory democracies that empower their members to actually control the rules under which they live. 

The Fair Start grundnorm or ZBM  (the constituting norm) is comprised of four interdependent evaluative requirements, or objective values that act as necessary conditions that enable true human subjectivity and choice: To minimize the loss of political autonomy in a human-rights-based democracy, and hence maximize consent, integration, and justified political obligation, would require, as a matter of lexical primacy, that (1) each new entrant be of a minimum constitutive quality or capable of constituting with others, (2) that there be a maximum number of members constituting the human-rights-based democracy, (3) that they enter relative to each other so that they exclude equally, and (4) that they are capable, given their quality, quantity, and relativity, of reconstituting their legalities relative to (or approaching) some level of nonpolity, or nature, that represents their capacity to convert power into law. 

The existence of these four variables are inevitable in the act of procreating. The grundnorm thus necessitates backdating the standards, e.g., requiring conditions of entry that ensure constitutive quality and emancipation, rather than ignoring entry and subsequently excluding persons as insufficient in some way. 

The values that comprise the grundnorm, which try to maximize obligation and autonomy through entry, role, and exit are the following: Treating procreation as the improved continuation of the parent’s life (“improved continuity,” or IC), a minimum level of welfare at entry, the nexus or zero-baseline point at which the values are first determined, fairly defined by the welfare of other entrants (> MW(F)). A qualitative threshold of a minimum quality of equitable individual sovereignty defined by the standard for emancipation, or reason (> E). A quantitative threshold of a maximum number of individual sovereigns defined by a minimum of individual sovereign roles, or capacities, in their democracy (< R). And finally, a quantitative threshold of a maximum number of individual sovereigns defined by nature (< N), the nexus or zero-baseline point or balance point at which the values are last determined. 

To constitute is to maximize relative self-determination by approaching – given that constituting is dynamic – the zero baseline, or beginning to make people count or count, on a simple scale of 0, 1, 2 . . . 0

The thresholds above can be set using existing legal standards we claim to already adhere to, like basic parental fitness, the Children’s Rights Convention, biodiversity and wilderness restoration targets, education benchmarks, federalism and representative ratios, redistribution polices that attempt to create equality of opportunity, etc. The model will show that, by our own standards existing in law today, we are not who we should be or who we claim to be, but the products of a truly original sin.  

The model above represents the implied and justified antecedent “we” in any normative claim, assuming the fundamental value of relative self-determination, or the grouping of persons from which the claimant is operating and in which they matter. At its base, democracy involves the capacity to influence, which in turn begins with the existence of the person. If we take democracy (or individual sovereignty, from the appropriate and more compelling individualized perspective) seriously, we must focus on the creation of individuals and thereby unravel the age-old legal conundrums of balancing community and autonomy, unified independence, and ordered liberty. 

Taking Action

Beyond theory, the ZBM is the subject of a growing social movement demanding a shift from preconstitutional, parent-focused, and subjective family planning systems to a future child focused Fair Start system that – as grundnorm – should be treated as the fundamental and overriding human right. The vision and mission of the work involve bending the world population arc downwards, using a universal policy of smaller families working together to plan for and equitably invest more in each child. The goal is to create a future of smaller and truly democratic communities surrounded by nature, constituted of free and equal people who each have a meaningful role in making the rules under which they live, and where each was empowered by the conditions in which they were born and raised. 

The movement uses a simplified application of the ZBM, and includes dozens of legal, policy, institutional, cultural and direct action interventions supporters can use to further the change. The interventions include, among other things, international law reforms, celebrity appeals and Fair Start family modeling, tax measures, litigation, contraceptive funding, demands for climate compensation relative to the zero baseline, corporate divestment campaigns, and fact checking and reporting on claims relevant to the modeling. 

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