What Does the Natural Law Say About Individual Persons? Guardianship and Incompetence [No. 86]
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What Does the Natural Law Say About Individual Persons? Guardianship and Incompetence [No. 86]


If somebody believes in this natural law view,
it comes down to the following very simple proposition, which was a rarity in virtually
every legal system until the mid to the late part of 19th century, which is namely that
every natural person, i.e., every human being, is a separate legal person who has full rights
as against everybody else. Any effort essentially to limit the ability
of an individual to transact on himself had to be done under a guardianship type of arrangement
where the keynote was that the arrangement was put into place for the protection and
benefit of an individual that lacked full capacity. The most common case of this is of course
parent against child. At this particular point, it’s quite clear
that the parent has large fiduciary duties to the child in terms of nurture and upkeep. But it’s not as though under these kinds of
relationships that they don’t have any rights to make sure that they themselves are able
to survive. There is this very difficult balancing act,
particularly in times of scarcity, as to how much resources should be devoted to the child
and how much to the parent. Everybody understands how awful and ugly these
situations are, and how important abundance is in order to eliminate these problems. Why is it that the legal system tends not
to intervene in these cases? Also pretty clear. The genetic overlap between parents and child,
that I mentioned, indicate that the parents themselves have a huge incentive to take care
of the child because of the common pool of genes between them; and the love between parents
is essentially designed to secure cooperation in the protection of the child. So that generally speaking, it’s very different
for a legal system to intervene if what you’re doing is making mistakes at the margin. So the review standard that’s adopted virtually
everywhere, in one form or another, is a standard of abuse or neglect. Abuse covers those cases where essentially
you treat the child as a tool for the benefit of the parent, and neglect is a situation
where, even though you have the resources that might be able to care for a child, you
choose to devote them to some other person. Cinderella gives you the key lesson on this. It’s the wicked step-mother who’s much more
likely to be abusive than the natural parent, and so when they assume guardianship obligations,
it’s much more likely that they will be breached than when it’s their natural parents. At the other end of the spectrum, you have
people who are old and people who are senile, and people who are insane; and again you have
to impose a guardianship relationship upon them. Sometimes it’s not natural love and affection
that guides this, it may be a more commercial relationship of some kind of an institution
and so forth. The same basic principles start to apply. But here, the fact that you probably have
to do more external monitoring, because the natural bonds of love and affection are not
necessarily there, and all modern legal systems try to develop some kind of relationship to
handle these things. The social arrangements on guardianship and
competence are important to everybody, so long as old age and frailty of judgment turns
out to be an issue. So when we start to say that every natural
person has full and independent rights, it’s always understood the two ends of the guardianship
arrangement are there.

One Comment

  • sciblue27 anangrymaninthelightofthelord

    Ty for putting together these videos and keeping them short concise to the point. Plz keep it up

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