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Custodial Duty

As a general concept, we should recognize the custodial duties and for specific types of custody the law should ultimately regulate them.

A custodian is a person or an organization that holds persons or non-human animals in its care for they are unable to care for themselves. That inability can be legal (in case of incarceration, for example) or practical (infirmity or by being too young or a non-human animal). Custodial duty often arises in thinking about law and politics, as failures often result in many of the problems we see in our news feeds and lives.

There are pretty universal concepts that, unfortunately, are not enforced upon all kinds of custodians. They include things like ascertaining the identity of the ward, and providing safety, security, room, and board. Custodians should also provide reasonable sanitary facilities, access to some kind of meaningful interaction or stimulation.

There is a whole host of these duties, which are thrust upon the custodian by the fact that being in their custody deprives the ward the opportunity to provide the things for themselves (or in case of practical custody, the ward is actually unable to do so).

The circumstances and types of custody differ a lot. In some respects, military service puts the enlistee in a ward position to the military’s custodial one. It is a less pure form of custodial relationship, but still represents enough of one (the military having at least gross control over where the enlistee will live) that some duties do fall on the military. That is, the duties depend on the context of the custody.

Jail and prison are purer, as is the custodial duty of a pet owner to the pet. As is the duty of a parent or guardian to a child. But the legal recognition of duties is often very circumstantial, even when constitutional and treaty recognition of duties exist (in the case of the incarcerated both domestic and prisoners of war).

At some point, humanity will likely establish a direct set of obligations on custodians, linking particular types of custody to particular obligations. But for now it must be recognized that if you take a life into your custody, you have a duty to it.

Other forms of custodial duty may extend beyond organisms. For example, we might examine the custodial duty the various judges and justices have toward the law and Constitution, and doing so might help to separate areas where they act as owners rather than custodians. Those decisions and practices should be eliminated by practice and by regulation. The law, living in some respects, should be treated properly by its custodians and not be subject to the ongoing abuses we see.

Corporations, including nonprofits and religious organs, are owed some amount of care by their officers, to protect their assets and reputations and qualities. The organization has a right not to be used to cause harm to civilians or employees, to not become polluters, and so on.

Or where major sports leagues represent the canonical form of a game, do they have any moral obligations toward fans and amateurs alike, to properly steward that game’s development?

The other side of that kind of obligation is that of artists and art. While often artists are treated as owners of their art, the reality is quite different. Once a piece of art gains a life of its own, the artist ceases to be its custodian, even as we afford legal protection to the artist to continue to profit. The art has become enmeshed in our common culture, and as such the artist has lost some amount of control no matter what the law recognizes.

In whatever activities you find yourself a custodian of sorts, do take care to be a good one. Whether it’s to your computers or pets or children or students or art, we should all try to be good custodians.

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