On Wise Judges and the Law

This is spurred by an earlier comment by TAO.  (You can find the comment here.)   In response to my musing about the need to resolve individual disputes about who gets to raise a child, TAO invokes the ideal of the wise judge.  This is an ideal I, too, find appealing and I wanted to take a few moments to think about it further.

Even as it seems that so much in family law/parenting is constant (and surprisingly unchanging–which is the point I was trying to make with Silas Marner), each case is unique.  Every child is different just as every human is different.  Each child has their own unique needs and stands in their own unique circumstance.   Each putative parent is also unique and brings their own set of unique circumstances.    And surely there is no legal decision more personal–to both child and parent–than the decision of who will raise a child.

In this context, the idea of individualized determinations seems really appealing.   If each case is different–as they must be–than each case should be given individual attention and decide on its own particulars.   And as long as the decision maker was a wise and compassionate judge, this might maximize well-being (not sure I can substitute happiness) all around.

But is this practical?   The first objection might just be cost.  For each case to receive proper individualized consideration you need to devote a lot of time/energy to each case.   Now I could respond that nothing should be more important in terms of expenditures (because I think the cost has to be born by the state, which is to say the taxpayers.)  But even if I say that/think that, do enough other people?  In other words, even if it is easy to overcome this objection on a theoretical level (“it’s worth money”) what about the practical level?  We clearly do not adequately fund services directed towards the well-being of children generally (think education or medical care or nutrition) so why would I expect we’d fund this?

Having noted this I’ll put the topic of cost aside and move to a second objection, which seems to me more fundamental.   I’m going to call it the “wise judge” problem.   And this has at least two aspects.

One is definitional:   What exactly is a wise judge?   Or maybe what makes a judge wise?   I’m afraid this is one of those “we know it when we see it” things.   And if we see things differently, then perhaps we really have different specific ideas of what a “wise judge” is.   So while we might all agree (in a general sort of way) that wise judges should decide these cases individually, we may disagree about who exactly the people who will be wise judges are.

The second aspect of the wise judge problem is that I wonder if we really have enough of them.   Maybe I’m too skeptical.  Maybe I’m too picky.  But we would need a lot of wise judges.   Even assuming we agree about who they are, will there be enough of them?  Or is a wise judge a rare creature?

And this takes me to a third objection–which is really about whether the construct of a wise judge can actually exist.   Perhaps my problem here is that I take two things as given:  First, we are all riddled with biases of various sorts, many of which I’m sure we cannot even see clearly.   It’s just impossible to go through life without making simplifying  assumptions about how things are.   Some of these things grow out of our own experience.   Some of these things are probably learned at our parents’ knees.   Not all of them are bad.   And maybe I shouldn’t even call them “biases”–maybe I should say “pre-existing beliefs.”   But in any event, I think we all have them, whatever we call them.  (Hope I’ve been clear enough here.)

Second (of the two things I take as given)  a wise judge should not have preconceptions, but should take each case as unique, to be considered on its own.   Perhaps I’m wrong here, but it seems to me that a judge who has already made some judgments (like that women are better parents, to take an extreme example) cannot qualify as a “wise judge.”

Take those two things together and you can see that I might doubt that wise judges can even exist.   And I suppose I do.  In a way, this just takes me back to the previous point–I think my “wise judge”, if such a figure exists, is probably a judge who starts with preconceptions I share.   Which means that my “wise judge” won’t be your “wise judge” unless we happen to share the same preconceptions.

I’ll stop here for now, but I’d like to come back to this topic, because there’s one more looming question–if we did the “wise judge” thing, would it actually be “law?”  I know that’s very abstract, but I’m going to think it over.

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13 responses to “On Wise Judges and the Law

  1. Some of your thoughts make me think you might enjoy some Canadian work on judging and diversity, e.g. By Jennifer Nedelsky. Here is one link:
    http://www.lawjournal.mcgill.ca/userfiles/other/5576315-42.Nedelsky.pdf
    We had a controversial case (RDS) go to the Supreme Court of Canada in the late 90s about the question of impartiality and how, despite the need for impartiality, we need to also take account of inequalities and differences, e.g. On basis of race or gender. So, for sure, it’s not appropriate to always say ‘women are better parents’ but it might be appropriate to take account of gendered differences in parenting responsibilities and patterns based on social science research.

    • Thanks for that link. Looks really interesting. Perhaps as I get things rolling here I can work it into the mix.

      The gendered nature of family structures (and I for one do think those structures are very much gendered, although this does not mean that all families conform to a gendered ordering nor does it mean that the gendered structures are “natural” or unchangeable) raises all sorts of important questions along the lines you mention. If in fact women generally do more of the hands-on child rearing than men do, do we take note of that somewhere and, if so, how?

  2. Here is the Canadian case, RDS, which spawned a huge interesting literature on judicial impartiality and diversity:
    https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1549/index.do

  3. My parents donor is my father

    Of course there is bias in just about every law. De facto, “intended parent” is where the law is heading in family law.

    • I wonder sometimes if it is possible not have have bias? And perhaps there are different sorts of bias?

      Also de facto parent and intended parent are two different things, so the law might be heading for one or for the other but it cannot really head for both.

  4. Isn’t the difference between intended parent and de facto parent only a matter of time? As in time spend with the child?

    • I suppose I must begin by saying that I’m not sure there are universal definitions of the terms, but for me there are at least potential crucial differences.

      Intended parents are people who intend to be parents. So for instance, a commissioning couple (as they might be called) in a surrogacy are intended parents. They may not have done much in the way of parenting, but they have set things in motion (or are about to) with the intention of becoming parents to the resulting child. Similarly, if a single woman uses a sperm donor and the idea is that she will raise the child on her own, then she is an intended parent and he is not. If the same women is inseminated with the same man’s sperm and the agreement is that she will give birth to the child but he will raise the child on his own, then he is an intended parent and she is not. From a distance, these two situations–woman inseminated by a man’s sperm–look the same, but when you consider what the parties involved are planning, they are different. Intention matters here. (Not saying anything about good/bad for the moment–just trying to define terms.)

      De facto parents are sometimes called functional parents and that’s not about what you plan to do but instead about what you actually do. People who invest time to develop a parent-like relationship with a child are de facto parents, no matter what the original intentions were. So you could have the situation I just described, with either of the intentions discussed, but in fact the woman and the man could end up raising the child together. In this situation, even though the man wasn’t an intended parent, he might be a de facto parent.

      If people follow through on their intentions then there isn’t any difference, in the long run, between intentional parents and de facto parents. The intended parents become de facto parents over time. But as I suppose we all know, people do not always follow through on intentions, so there are situations where the intentions are clear–X was not intended to be a parent–but in real life X has served the social/psychcological role as a parent. If push comes to shove, which controls–intention or practice?

      There are two other related reasons why the difference between intention and de facto matter. Intention can be hard to prove and really can only be determined at a particular point in time. I’ll take the second one first. When I got up today, I intended to do laundry, but now I’ve changed my mind and don’t plan to do laundry. If you ask “did you intend to do laundry” I cannot answer you until you tell me what time you want to know about. If a couple (or an individual) enteres into a surrogacy agreement, there’s obviously some point at which they intend to be parents. But can they change their minds? What’s the critical time-frame where they are bound? It’s this changing intention over time that often leads to conflict. If you go back to the man/woman single parent scenario above, if both function as parents, then obviously they changed their minds at some point. Does it matter when? What counts, for legal purposes?

      And the difficulty of proving intention. How would I prove I intended to laundry when I got up today? I suppose I’d tell you that this was my intent. And maybe you’d believe me. But what if my intention was disputed? What if the man and woman above do not agree about intention? It could be that one or the other is lying, but it might also be that they didn’t really make an agreement but didn’t realize that. There may be nothing written down so it’s all memory and who’s telling the truth. Difficult to decide reliably. By contrast, figuring out who has actually been taking care of the child is pretty easy.

      I’ve gone on too long so will stop now. Will probably end up putting all this in a post sometime soon.

  5. I don’t see much of a conflict (in law) between intended and de facto. If an intended parent doesn’t step up to the plate and a de facto parent does then de facto trumps intended. But a ‘surrogate’ could be considered a de facto parent up until a formal/legal transfer of parenting duties after birth (since she spent the most time with the child). Where I do see a problem is when child support issues arise – that is where genetic parents still often are held responsible. There also is no universal definition of ‘donor’ (a person who didn’t intend to parent – regardless of conception method). That’s where the public gets involved (ie. taxpayers, welfare etc).

    • It seems to me that you do see the difference, but you also offer a way to resolve any conflicts that might arise: De facto wins over intended. I agree with you that the surrogate might be considered a de facto parent. I’ve written and thought about that a lot.

      What always ends up hanging me up here is my need for some sort of coherent, consistent set of rules. Thus, if I say de facto is the most important, what do I do with the surrogate? One could say “oh, surrogacy is different and so has a different set of rules” but I resist that.

  6. This is an example of what I’m referring to re: definition of ‘donor’, intent, genetic/responsibility in law. There are all kinds of other examples…
    http://nypost.com/2016/06/12/professor-who-donates-sperm-in-city-bathrooms-has-sired-22-kids/

    • I’m not ignoring this. There is much to be discussed here. I just don’t want to relegate it to the comments. I’m almost at the end of my travels so I promise to pick this one up soon as a full post.

  7. “The first five women he worked with successfully sued him for child support, and nearly half of his paycheck is garnished for his offspring.

    “I don’t know what’s more surprising: that five sued or that 17 didn’t,” Nagel says. “They were all well aware there was no financial obligation on my part. They all promise in advance they won’t sue.”

    Crystal, a Connecticut woman who has two sons, 6 and 7, by Nagel, says she wasn’t aware of any such arrangement.

    The 45-year-old mom, who took Nagel to court for child support, says that she was expecting to co-parent with him and that she didn’t know of his plans to father an entire baseball team.

    “My kids got left in the dust,” says the woman, who conceived both boys through intercourse. “You can’t co-parent with 20-something kids.”

    (The other four who sued could not be reached or had no comment.)

    The big daddy says that the angry moms are just hungry for money and that there was no misunderstanding.

    “I think they went in with the intention to sue,” he claims.

    Still, he hasn’t bothered taking preventative legal measures, because such agreements are rarely binding.”

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