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What Does the Natural Law Say About Individual Persons? Guardianship and Incompetence

If every person has natural individual rights, what considerations should guide decisions made by a guardian of another person? Professor Richard Epstein discusses guardianship arrangements and duties between parents and children. Parents are naturally inclined to nurture their children, and the legal system only intervenes if there is abuse or neglect. Similarly, in the case of an elderly parent or incapacitated relative, the family should exercise a considerate guardianship and closely monitor any third party caregiver. https://youtube.com/watch?v=Ai7Lp0sGyQY


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.

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