Departurism

Gentleness is an ex ante element of law—akin to the ex post element, proportionality—which states that the victim of such an invasion, if he means to halt it while it is occurring, must use only the least severe measures necessary in order to do so. Failure to bring the non-criminal aggression to an end via the gentlest means possible places the victim “at risk of falling on the wrong side of the non-aggression principle (NAP),"[9] violating it “to a far greater extent than is the trespasser.”[10] Because all fetuses “are equally innocent,”[11] this attempt to curtail property owners from dealing with such trespassers “more severely than libertarian punishment theory allows”[12] is applicable to unwanted fetuses who are the result of rape no less than those whom are consensually conceived.[13]

Departurism illustrates a potential expression of S₁ which includes all of its relevant conditions (a-d). This illustration posits a property, owned by M and on which F is trespassing, which abuts a cliff on its southern border. F, whose mental state or capacity is such that he is incapable of knowing that he is trespassing,[23] is travelling along this cliffside from west to east and off of M’s property (that is, unwitting F happens to be vacating the premises). Importantly, there is nothing about F's trespass which is seriously endangering M's life.[24] M knows that should F be pushed off the cliff while on the western end of the premises (the black area), F will certainly die due to the severe height of the fall. Further, M is aware that a fall from the eastern end of the premises (the white area) will not prove fatal for F due to the negligible distance from the cliffside to ground below. A fall from in between these ends (the gray area) may or may not be deadly. According to departurism,

whether or not a fall from the gray area is fatal depends on the technology available at the time to prevent it from becoming so. To wit, 1000 years ago the gray area would have been all black; 1000 years from now, with technological advances, the gray area will be all white. Currently, falls from the gray area are more likely to result in death and serious injury the closer they are to the black area, and less likely to result in the same the closer they are to the white area.[25]

Departurism makes the case that the evictionist-proposed course of action (that M may legally shove F headlong off the cliff and unto the black or western gray areas) is not transformed into a less harsh means of ending the trespass simply because the evictionist notification requirement has first been satisfied (e.g., someone was told about this fatal cliff-tossing beforehand). The departurist indictment goes on to state that this evictionist position represents “nothing if not a textbook example of the very response on the part of the victim that gentleness was placed into libertarian law so as to preclude.”[26] Moreover, the supposed gentleness of evictionism falls short when compared to the departurist-proposed course of action (that M be prohibited from evicting F unto the black or western gray areas when so doing constitutes a degree of severity inappropriate for bringing an end to this particular trespass). That is, departurism’s means comport better to gentleness (and, so, to libertarianism) in that they are

• consistent with stopping the aggression, and
• comparatively less harmful than evictionism’s means (e.g., they don’t entail that the inadvertent trespasser be subjected to unjustifiable life-taking or NAP-violating violence).[27]

Evictionism concedes that the following conditions of S₁ are present in S₂:

(a) The trespasser is incapable of purposeful behavior.[28]

(b) The trespasser is in the process of departing the property owner’s premises.[29]

Although the evictionist has made no quarrel with either of these points, departurism has elucidated how the latter condition relates to S₂ in the following way:

It can be assumed that every pregnancy begins at the western end of M’s premises. From fertilization to parturition, the process of gestation takes the fetus from the western to the eastern end (and off) of M’s premises. The fetus, as a matter of fact, is departing the premises of the property owner and he is so doing from the moment that he first arrives there—regardless of the point at which he is deemed a trespasser.[30]

Furthermore, evictionism does not dispute the presence in S₂ of the remaining conditions of S₁—as these conditions represent, respectively, the most prevalent and the most relevant instances of uterine trespass:

(c) The trespasser is not jeopardizing the proprietor’s life via aggression against property rights in the person.

(d) The trespasser's eviction from said premises would necessitate his death.

Practical consistency prohibits the trespasser in S₂ from being treated differently from the trespasser in S₁ because all of the relevant conditions of the latter situation are found also in the former. It is for this reason that departurism holds that

just as it ought to be illicit for M to send F fatally off into the wild blue yonder, it ought also to be illicit for a mother to kill, or otherwise unjustifiably maim, the unwanted fetus in her womb by eviction.[31]

Departurism charges evictionism with radically conceiving of the gentleness principle not as the least harmful manner possible consistent with stopping the aggression, but as the most expedient manner possible consistent with stopping the aggressor. The departurist claim is that this comprehension destroys the spirit or intended purpose of the gentleness principle by twisting it in order to permit victims of non-criminal aggression to engage in severe reactions and over-responses—the very things which are the principle’s purpose to prohibit.[32]

Both evictionism and departurism contain requirements that the mother withhold the eviction of the unwanted child for some amount of time. For the former, that amount of time is the duration required for the mother's notification of the authorities; for the latter, it is the duration required for the child's continued departure to reach the point at which his eviction no longer necessitates a NAP-violation. The departurist claim is that the evictionist notification requirement constitutes a positive obligation, and so is anathema to libertarianism. Evictionism's requirement, unlike departurism's, is a positive one because it neither derives from nor constitutes the gentlest manner possible of bringing the fetal trespass to an end.[33]

It is the departurist view that evictionism transforms libertarianism into an ideology of squatters by means of its positive obligation that the mother notify the authorities prior to her lethal eviction of the fetus. The departurist claim is that this permits the fetus to occupy the mother's premises, without her permission, for the duration of that notification.

Departurism further holds that evictionism transforms libertarianism into an ideology of corpses. The evictionist view is that because the trespasser in this case cannot engage in purposeful behavior, the phenomenon of implicit contracts is impotent to prevent his lethal eviction from the mother’s uterus (even if the duration of his trespass is not onerous). But womb-aged children are not the only category of persons to whom it can be argued that implicit contracts are not applicable. The departurist claim is that, under evictionism, any guest who is mentally or developmentally incapable of entering into a contract may have his invitation rescinded by his host at any time, and this newly-designated "trespasser" can then be lethally and lawfully removed from the premises.[34] The evictionist has not balked at this characterization of his view, stating that the departurist makes a "not totally unreasonable point."[35] The evictionist has even gone on to concede that this "of course sounds horrible,"[36] before attempting to justify it on consequentialist grounds.