Now you see it, now you don’t

Book the First.  Chapter the seventeenth.  Of GUARDIAN and WARD.

This is a small chapter about a big and vexing subject.  The very word “guardian” fills me with vague unease.  For one thing, I don’t really know what it means, but I think I should.  It’s a common word; unlike a lot of legal terms, you hear this one in everyday conversation.  So how come I don’t know the definition?

Blackstone says the relation of guardian and ward “bears a very near resemblance” to the parent-child relationship and “is plainly derived out of it.” (p. 448  ) But it turns out that parents themselves are guardians, though only some parents – or is it all parents, some of the time? “For 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, which are, of course, the father or mother, till the infant attains the age of fourteen years.” (p. 449 ) So, in the course of a couple of pages we’ve got guardians as substitutes for parents, something like parents but not exactly like them, and we’ve got parents who are guardians.

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 — a polyester or Splenda parent – when the real thing isn’t available, or isn’t good for you?

The problem isn’t just ambiguity.  There is an aura of danger associated with the guardian role, reflected, for instance, in the rules for appointing “guardians in socage,” when a minor is entitled to lands.  Blackstone explains that under the common law this type of guardianship goes to the child’s “next of kin to whom the inheritance cannot possibly descend.”  (p. 449)  Got that?  The point is, as Blackstone delicately puts it, “the 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.” ( Id.)  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.

Impossible to figure out the chicken-egg question here.  To what extent are the law’s 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.)

Confusing as all this is, there wouldn’t be much reason to get all het up about it if the guardianship relation was confined to the limited situation Blackstone’s chapter 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 – to ensure the autonomy of citizenship and protect our capacity for independence.  Guardians, on some level, always represent the state – and that raises the whole problem of the force needed to guard citizens from evil and to guard the state from evil citizens.

The dementors of Azkaban come to mind as a current cultural icon of  extreme distrust — and aversion — for government officials charged with protecting citizens from harm.  These are the monster prison guards in the Harry Potter books — vaporous supernatural creatures whose presence literally brings a chill and who maintain control by threatening and inflicting the “dementor’s kiss,” 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’t going around sucking out people’s 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.

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 – looking after us, taking care of us and our property, safety, security – keeping evil at bay, making good things possible.  What is so unappealing about that?  Why does the idea of a having a “guardian” leave me as cold as room full of dementors? For that matter, if you stick with Harry Potter, you’ll find guardians who are practically as noxious, if not as dangerous, as dementors, in the persons of Harry’s hideous aunt and uncle, whose care of him might be characterized as a kind of malign neglect.  Come to think of it there’s an even more recent mainstream cultural incarnation of an unambiguously evil legal guardian:  the sadistic Advocate Bjurman in Stieg Larsson’s wildly popular Girl Who . . . series. What gives?  Why are guardians so distrusted?

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 — because an adversarial system like ours obviously can’t produce just results if the parties engaged in legal combat can’t take care of themselves. Appointing guardians suggests that the system is alert to the issue of some individuals’ 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’t afford legal representation — 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’t weird and creepy, it’s just predictably institutionally self-protective.  What makes guardians so goddamned scary?

Here’s what I think it could be.  It’s 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 in law—they are a conceptual creation born to fill an abstract need. That explains why the guardian job description is so illogical – 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.

The guardian’s role can crisscross and conflate the boundaries of the real world, because it’s a legal fiction, as imaginary as J.K. Rowling’s dementors, if not as monstrous.  And just as shallow.  Guardians—as guardians — 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’s goals and interests.

There is something else.  While there are plenty of other legal fictions out there – for instance, corporations, or, for that matter, states – I think the guardian’s correspondence with something that occurs “naturally” in our culture makes it peculiarly distasteful.  Whereas a corporation is plainly not like anyone’s 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 – and the need for one — in part because of our ordinary experience with parents.  But a guardian is not a parent. Isn’t that Freud’s definition of the uncanny – something at once familiar and strange?  (Sigmund Freud, The Uncanny, 1919) 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 – the edges don’t align – 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 “guardians in socage,” but in fact pervades social relationships.  You might see it, for instance, in the relationship of marriage – 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’s scary . . . .

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