{"id":3298,"date":"2020-04-29T11:12:14","date_gmt":"2020-04-29T15:12:14","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=3298"},"modified":"2020-09-23T21:27:21","modified_gmt":"2020-09-24T01:27:21","slug":"now-you-see-it-now-you-dont","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/04\/29\/now-you-see-it-now-you-dont\/","title":{"rendered":"Now you see it, now you don’t"},"content":{"rendered":"

Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n

\n

Book the First.  Chapter the seventeenth.  Of GUARDIAN and WARD.<\/em><\/a><\/p>\n

This is a small chapter<\/a> about a big and vexing subject.  The very word \u201cguardian\u201d fills me with vague unease.  For one thing, I don\u2019t really know what it means, but I think I should.  It\u2019s a common word; unlike a lot of legal terms, you hear this one in everyday conversation.  So how come I don\u2019t know the definition?<\/p>\n

Blackstone says the relation of guardian and ward \u201cbears a very near resemblance\u201d to the parent-child relationship and \u201cis plainly derived out of it.\u201d (p. 448  ) But it turns out that parents themselves are guardians, though only some parents \u2013 or is it all parents, some of the time? \u201cFor if an estate be left to an infant, the father is by common law the guardian, and must answer to his child for the profits. . . . There are also guardians for nurture<\/em>, which are, of course, the father or mother, till the infant attains the age of fourteen years.\u201d (p. 449 ) So, in the course of a couple of pages we\u2019ve got guardians as substitutes for parents, something like parents but not exactly like them, and we\u2019ve got parents who are guardians.<\/p>\n

Is guardianship an aspect of parenthood?  If so, which part is it?  Or is the guardian role something additional to parenthood that some parents take on? Or is it a substitute, a kind of synthetic parenthood \u2014 a polyester or Splenda parent \u2013 when the real thing isn\u2019t available, or isn\u2019t good for you?<\/p>\n

The problem isn\u2019t just ambiguity.  There is an aura of danger associated with the guardian role, reflected, for instance, in the rules for appointing \u201cguardians in socage,\u201d<\/em> when a minor is entitled to lands.  Blackstone explains that under the common law this type of guardianship goes to the child\u2019s \u201cnext of kin to whom the inheritance cannot possibly descend.\u201d  (p. 449)  Got that?  The point is, as Blackstone delicately puts it, \u201cthe law judges it improper to trust the person of an infant in his hands, who may by possibility become heir to him; that there may be no temptation, nor even suspicion of temptation, for him to abuse his trust.\u201d ( Id.<\/em>)  In other words, someone in charge of a kid whose property the guardian could inherit might just kill the kid in order to get the land.<\/p>\n

Impossible to figure out the chicken-egg question here.  To what extent are the law\u2019s queasy regulations protecting people from their guardians the product of a widespread societal distrust of protectors and to what extent are those regulations helping generate the distrust?  You might think this is all about a classic Anglo-libertarian mistrust of any motive other than narrow self interest. Blackstone, however, notes that Roman law assumes guardian behavior that is just as self-interested, but far more benevolent, and so gives the guardianship to the person next in line for the land on the assumption that someone who stands to inherit land is going to take good care of it. (p.Id.<\/em>)<\/p>\n

Confusing as all this is, there wouldn\u2019t be much reason to get all het up about it if the guardianship relation was confined to the limited situation Blackstone\u2019s chapter<\/a> delineates, namely some temporary period during which an adult is responsible for a young child or her property.  But  of course the whole concept of guardianship has a much more wide ranging and central, though just as ambivalent, role to play in our legal culture.  In some sense we all are wards of a guardian state, and in another, it is the very business of law to interrupt that relation \u2013 to ensure the autonomy of citizenship and protect our capacity for independence.  Guardians, on some level, always represent the state \u2013 and that raises the whole problem of the force needed to guard citizens from evil and to guard the state from evil citizens.<\/p>\n

The dementors of Azkaban <\/a>come to mind as a current cultural icon of  extreme distrust \u2014 and aversion \u2014 for government officials charged with protecting citizens from harm.  These are the monster prison guards in the Harry Potter <\/a>books \u2014 vaporous supernatural creatures whose presence literally brings a chill and who maintain control by threatening and inflicting the \u201cdementor\u2019s kiss,\u201d leaving their victims in a soulless state worse than physical death.  Originally charged with keeping the enemies of the wizard state in line, the dementors eventually begin attacking ordinary citizens.  Note that the problem here is not self interested corruption.  The dementors aren\u2019t going around sucking out people\u2019s souls to get their inheritance.   Rather they embody the problem of government authorized violence and the idea that bad government means eventually overwhelm good government ends.<\/p>\n

Prison guards are obviously different from guardians.  No one wants to be in prison, but all of us want to have someone looking out for our interests.  Guardians, at least in theory, are doing just that \u2013 looking after us, taking care of us and our property, safety, security \u2013 keeping evil at bay, making good things possible.  What is so unappealing about that?  Why does the idea of a having a \u201cguardian\u201d leave me as cold as room full of dementors? For that matter, if you stick with Harry Potter, you\u2019ll find guardians who are practically as noxious, if not as dangerous, as dementors, in the persons of Harry\u2019s hideous aunt and uncle, whose care of him might be characterized as a kind of malign neglect.  Come to think of it there\u2019s an even more recent mainstream cultural incarnation of an unambiguously evil legal guardian:  the sadistic Advocate Bjurman in Stieg Larsson\u2019s wildly popular Girl Who . . .<\/a><\/em> series. <\/a>What gives?  Why are guardians so distrusted?<\/p>\n

The fact that Bjurman is a lawyer highlights the relationship between the legal system and the guardian role, and it has to be said that there is a certain amount of bad faith here.  Guardians stand up for those who are unable to stand up for themselves in legal matters.  If there is one thing our legal system cannot (in theory) abide it is a person who is less than ready to defend his own rights, needs and desires \u2014 because an adversarial system like ours obviously can\u2019t produce just results if the parties engaged in legal combat can\u2019t take care of themselves. Appointing guardians suggests that the system is alert to the issue of some individuals\u2019 inability to assert their rights and has instituted the necessary compensations.  The problem, of course, is that many more such people exist than the ones who get guardians. Leaving aside finer grained issues of quality, many people simply can\u2019t afford legal representation \u2014 and there is no right to a lawyer in most civil cases.  So the appointment of legal guardians helps cover up inequalities of power in the legal system that routinely lead to injustice.  But that isn\u2019t weird and creepy, it\u2019s just predictably institutionally self-protective.  What makes guardians so goddamned scary?<\/p>\n

Here\u2019s what I think it could be.  It\u2019s that guardians are simultaneously real and not real.  On the one hand, a guardian is someone you might meet for coffee. On the other hand, guardians exist only<\/em> in law\u2014they are a conceptual creation born to fill an abstract need. That explains why the guardian job description is so illogical \u2013 why it is both a parent and not a parent, a part of a parent and something different than a parent, an aspect of parenthood generally and a special role played only by some parents in some situations.<\/p>\n

The guardian\u2019s role can crisscross and conflate the boundaries of the real world, because it\u2019s a legal fiction, as imaginary as J.K. Rowling\u2019s dementors, if not as monstrous.  And just as shallow.  Guardians\u2014as guardians \u2014 are never protagonists.  They are one dimensional. Ironically, what makes guardians less than human is not their ruthless self interest but the utter lack of it.   Nothing empties out a character and makes it harder to identify with her than the absence of desire.  Guardians are oddly superficial not because they are corruptible, but because they have been definitionally determined to set aside their own appetites in order to pursue faithfully someone else\u2019s goals and interests.<\/p>\n

There is something else.  While there are plenty of other legal fictions out there \u2013 for instance, corporations, or, for that matter, states \u2013 I think the guardian\u2019s correspondence with something that occurs \u201cnaturally\u201d in our culture makes it peculiarly distasteful.  Whereas a corporation is plainly not like anyone\u2019s corporal body, a guardian (to return to Blackstone and where this all began) is something like a parent.  We understand what a legal guardian is supposed to do \u2013 and the need for one \u2014 in part because of our ordinary experience with parents.  But a guardian is not a parent. Isn\u2019t that Freud\u2019s definition of the uncanny \u2013 something at once familiar and strange?  (<\/a>Sigmund Freud, The Uncanny<\/a><\/em>, 1919)<\/a> There is something uncanny about the way the person appointed guardian never quite matches up with the guardian role. Either there is more to the person or more to the role \u2013 the edges don\u2019t align \u2013 so we keep seeing the person outside the guardian character.   And, of course, once you glimpse that gap between person and persona, once you recognize the potential for the familiar mask to drop, revealing who knows what, it is hard to avoid the realization that this problem is not limited to roles as recognizably artificial as \u201cguardians in socage<\/em>,\u201d but in fact pervades social relationships.  You might see it, for instance, in the relationship of marriage \u2013 a relation primarily legal, that is both like and not like the biological relation of  a mate in much the way guardians are both like and not like parents.  Now that\u2019s scary . . . .<\/p>\n

First published August 15, 2010.<\/a><\/div>\n<\/div>\n\n
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Jessie Allen, School of Law, University of Pittsburgh Book the First.  Chapter the seventeenth.  Of GUARDIAN and WARD. This is a small chapter about a big and vexing subject.  The very word \u201cguardian\u201d fills me with...<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[268,255,492],"tags":[132,200],"class_list":["post-3298","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-william-blackstone","tag-news","tag-william-blackstone"],"jetpack_shortlink":"https:\/\/wp.me\/pasVL2-Rc","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3298","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=3298"}],"version-history":[{"count":3,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3298\/revisions"}],"predecessor-version":[{"id":3322,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3298\/revisions\/3322"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=3298"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=3298"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=3298"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}