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.