If you doubt for one moment our membership in the animal kingdom, spend some time in family court in a high-conflict case. I swear you can all but hear the parties snarling at one another in territorial rage. The claims of reason are tenuous when what’s at stake is an affair of the heart. We are, as David Hume observed long ago, slaves to our passions.
That’s a good thing, I say. I want a tactile, sensuous connection to the world around me. Reason is unbounded. There are an infinite number of possible worlds, each rational in its own terms. Values, placing a priority on one the thing rather than another, define communities of like-minded people. Destroy common commitments, and destroy a community.
Hence the savage, even primitive character, of the family courts. Put a family under reason’s microscope and it suddenly looks altogether random. Press decisions to the point of trial, and provoke warfare. The zero-sum logic of the adversarial system yields one winner and one loser. People fighting for their way of life take few prisoners. It has been that way since we first started writing histories.
Asking reason to do the work of the passions is a fool’s errand. Reason is a tool, an instrument, in the service of larger, passionate, ends. Justice is less a matter of the right balance of competing doctrines and ideas than it is a sense of inchoate fit. How are the values of a community reflected in a given situation? Justice is neither fairness, nor just desserts; justice is simply a feeling that all the pieces in a puzzle cohere. It is less an idea than an accommodation.
Who best to make decisions about how the pieces of a community should fit together? Juries, I say. When conflict rips through a community, a communal response best repairs the tear. Justice should be administered by the folks who have to live with the consequences of conflict.
I say we should let juries decide child custody decisions, and that these decisions should take place promptly. Our current method of resolving such disputes is costly, time-consuming and results in little more than intelligent guesswork intended to satisfy an impossible standard: what is in the best interests of a child?
Everyone, it seems, has opinions about how best to raise a child. Spare the rod, and spoil one. Empower kids to make decisions. Give them unconditional, but tough, love. Don’t let them split parental authority. And on, and on, and on, it goes. If the species depended for its survival on the sum of this conflicting advice, we’d be doomed. There just isn’t time for a battle of the experts when diapers need changing, or meals need to be prepared.
We prattle about the best interest of the child as though we knew how to breed a better species. Who are we kidding? We’ve five percent of the world’s population, but 25 percent of the world’s prisoners. We incarcerate more people per capita in this the land of the free than anywhere else on Earth. We’re the land of the free, all right; we’re free, apparently, to tear and to rip at one another with the disguised rage of people who ought to know better.
Plato wrote in the Republic that the task of raising children was too important to be left to individual families. Children ought to be raised by the State, he held. Of course, Plato knew nothing of the First Amendment, and the fundamental right to familial association. But he emphasized a truth we all know but are afraid to act on: Children become members of a larger community. The task of parenthood is to transform these tiny savages into citizens. There’s no right way to accomplish this task; we all do the best we can amid circumstances we do not choose.
When a marriage fails and parents cannot agree on how to raise their children, the work of the courts should end, not begin. Let a jury decide how to divide the marital estate and who should have custody of the children. If the parties cannot abide by this decision, then perhaps children ought to be sent to foster homes until the parents come to their senses. That has to be less costly and less destructive than our current practice of making children into expensive litigation pawns.
Let’s stop pretending we know the best possible answer and realize that all must live with the consequences of a family’s destruction. Letting juries decide will impose community standards on parties raging in a state of nature.