THE CASE OF TERRI SCHIAVO is almost as controversial as it is tragic. In 1990 Mrs. Schiavo, who reached her 40th year in 2005, fell victim to brain damage. She has been in a vegetative state ever since, kept alive not under her own power, but aided by a welter of feeding tubes and other paraphernalia of modern medicine. The controversy? Her husband Michael is adamant that the doctors pull the plug on Terri, and her parents are just as determined to keep her alive. Earlier court decisions in Florida where all parties reside were in favor of the husband’s position, whereupon in 2003 Jeb Bush, Governor of that state prevailed upon the state legislature to pass “Terri’s Law.” This enabled the Governor to override these judicial findings and keep her alive. However, on 9/30/04 the Florida Supreme Court unanimously found this law invalid and ordered all life support systems to be disconnected. Who is in the right in this heart breaking medical controversy? According to the legal philosophy now prevailing, a spouse has the final say regarding the well being of an incompetent mate, even superceding those of her parents, unless he is himself incompetent, or guilty of malfeasance. In the present case, the fact that Michael Schiavo has involved himself with another woman after his wife fell ill, and despite the claim of his in-laws that he is motivated in his decision by money stemming from a medical malpractice suit, the Supreme Court of Florida made no such finding. They ruled on the basis that he was the proper guardian, and in effect took his word that his wife either would have preferred death to her present predicament, or had previously indicated this preference to him. How would this case be decided under the libertarian legal code? In order to apply such a code to the Schiavo case, we will have to take a detour and examine this philosophy in some detail. In this John Lockean perspective, rights to control persons and also real property are all based upon homesteading. Let us start with the relatively simple case of rights inland, and then move on to the more complex issue of rights to control persons. In this philosopher’s famous phrase,
"Homesteading" is not quite the right word to use in this context, though the analysis is correct. A better legal analogy might be a "constructive trust"--as is the case with someone who unilaterally steps in to take care of property of an absentee owner, someone who unilaterally assumes the role of guardianship/conservatorship does not become the full owner of a dependent person they are caring for, using and disposing of their charge as they please, but rather someone who voluntarily takes on a positive obligation of preserving intact a living equivalent of a trust estate so that it can be delivered to its rightful owner should that person gain/regain their capacity for independent action.
As a trustee, one can exclude everyone except the beneficiary from use and disposal of the estate. However, once someone subsequently declines the responsibilities associated with delivering the estate intact to its beneficiary, they can no longer exercise this power of exclusion against third parties. The analogy of a guardianship to a constructive trust suggests that someone who is willing to undertake the expense of preserving another's life does indeed take priority over someone who unilaterally wants to pull the plug.
Under libertarian principles, nobody can be coerced into keeping another alive (or taking care of another's property in their absence, etc.), but libertarianism poses no obstacles to someone who volunteers to do so, subject to the volunteer doing no permanent harm that would prevent the rightful owner from resuming the exclusive use and disposition of oneself and one's property.
"Homesteading" is not quite the right word to use in this context, though the analysis is correct. A better legal analogy might be a "constructive trust"--as is the case with someone who unilaterally steps in to take care of property of an absentee owner, someone who unilaterally assumes the role of guardianship/conservatorship does not become the full owner of a dependent person they are caring for, using and disposing of their charge as they please, but rather someone who voluntarily takes on a positive obligation of preserving intact a living equivalent of a trust estate so that it can be delivered to its rightful owner should that person gain/regain their capacity for independent action.
As a trustee, one can exclude everyone except the beneficiary from use and disposal of the estate. However, once someone subsequently declines the responsibilities associated with delivering the estate intact to its beneficiary, they can no longer exercise this power of exclusion against third parties. The analogy of a guardianship to a constructive trust suggests that someone who is willing to undertake the expense of preserving another's life does indeed take priority over someone who unilaterally wants to pull the plug.
Under libertarian principles, nobody can be coerced into keeping another alive (or taking care of another's property in their absence, etc.), but libertarianism poses no obstacles to someone who volunteers to do so, subject to the volunteer doing no permanent harm that would prevent the rightful owner from resuming the exclusive use and disposition of oneself and one's property.