Some countries require state approval before you can name your children. This is a petty nanny-state intrusion, right? But, wait a minute. What if you wanted to give your kid a name that others found offensive, like, say, “Adolf Hitler”? This is a public nuisance that governments must keep a lid on, says law professor Richard Epstein. Epstein is notable for a “libertarian” approach to law that consists mainly of exceptions to libertarianism, such as defending eminent domain (otherwise known as “theft”).
Let’s take a look at Epstein’s reasoning:
The solid part of the naming hypothesis gives each person the exclusive right to name himself or herself, or for parents to name (jointly–another potential can of worms) their children. But it hardly follows that an exclusive right must necessarily be an unlimited one. After all, my exclusive use of my own land doesn’t allow me to pollute my neighbors with impunity. Quite simply, there are some names at least that have to be regarded as off limits.
Here’s the problem with this logic: exclusive use of my own property necessarily consists in forbidding others to use my property in any way, damaging or otherwise, without my permission. Otherwise it would not be an exclusive right. My use of my own property to pollute my neighbor’s consists of a violation of his property right, otherwise we would have to say that only some individuals have full property rights. Recognizing this violation is simply consistent with the definition of the right, which remains “unlimited”. Epstein thinks he has found an exception to a right, but he hasn’t. Even if he has, is he justified in applying the same principle to names? Are names property?
Analytically, names have two distinct functions. The first is to designate one individual to the exclusion of all others, for which a nine-digit social security number will do just fine. But many names carry an expressive content, as by naming a daughter Chastity or a son Jesus. In most cases, the right response is for others to use the name even if they do not like the message it conveys.
I have little quarrel with this so far, except an instinctive libertarian shiver at the thought of calling everyone by their social security number (something out of a Zamyatin or Ayn Rand dystopia) and the fact that all names carry an “expressive content”, regardless of intent, just as all words do. Epstein is just reminding us of the “denotative” and “connotative” duality of words. This “expressive content” is irreducibly subjective, and will vary from culture to culture, and even from person to person. This is not a small point when the defense of banning certain names is based on the concept of “offense”, which is culturally relative. Granted, the “expressive content” of the name “Adolf Hitler” is rather stable worldwide, given the notoriety of the man’s crimes. But if we grant free speech rights to neo-nazis (and I believe we still do), than I cannot see any justification for not allowing them to use the name Adolf Hitler.
Hitler is not the only monster history has provided us. Can I name my kid Joseph Stalin, Ghengis Khan, Gilles de Rais, Oliver Cromwell, Jeffrey Dahmer, Vlad Dracul, Pol Pot? I have heard English speaking Christians incensed at (what they perceive as) the impiousness of the latin tradition of naming children “Jesus”. And one commenter on the article points out that Christians should be offended if someone names their kid “Pontius Pilate”. It’s no good responding that few would actually do this, because few would dare name their child “Adolf Hitler”.
Oh, and by the way, a person’s name, legal or preferred, imposes no duties upon others whatsoever to call them that (a baleful fact that lies at the origin of most nicknames). While I’m on the subject, Bono’s real name is “Paul David Hewson”, and John Wayne a.k.a. “The Duke” was born “Marion Robert Morrison”.
I also take issue with what Epstein sees as the legal status of names, comparing them to trademarks, which I do not see as legitimate.
Yet there are fuzzy limits. A name enjoys a peculiar monopoly status. It is the only moniker that anyone else can use to designate the named person. It follows therefore that names do impose what might be termed a “soft” externality on other individuals that becomes really hard to bear when the name in question forces people to be respectful to someone whom they rightly hate.
Names have monopoly status? Well, no, actually. The name on your birth certificate is not the only monkier any one else can use to designate you- has Epstein never heard of nicknames? Nor does it confer a monopoly status on any one person- check the phone book for “John Smith”. Epstein tries to invoke the economist’s term “externality” for his defense, but his “therefore” is a non-sequitir. Externalities to not necessarily follow from monopoly, and can arise in non-monopolistic situations. (In fact, they usually do.) What is a “soft externality”? It is simply anything that anybody finds displeasing that they are exposed to from an outside source. So we are back in the realm of the subjective. If the government’s job is to regulate “soft externalities”, then they ought to have standards of attractiveness for children, too. Same goes for Epstein’s claim that parents have “no right to saddle them with names that are sure to expose them to ridicule”. (Johnny Cash’s song “A Boy Named Sue” would have gone quite differently in Epstein’s world.) Then they have no right to produce unattractive nerds either. (See the irony here? The logic that seeks to ban using the name “Adolf Hitler” leads to a defense of a eugenics program. This from a “libertarian” no less.)
In short, names for people do not belong in the legal realm of property rights and trademarks, but in the cultural realm of tradition and convention. Naming your child “Adolf Hitler” is tasteless, offensive, and cruel, but there are plenty of conventional, nongovernmental means of dealing with such antisocial types. And occassionally you’re just going to find yourself offended. Such is the price of freedom.
P.S.- This issue is not merely academic. Epstein’s article is inspired by a recent incident, which you can read about here.