Repairing Family Law
Fordham University School of Law
Duke Law Journal, Vol. 57, No. 101, 2008
U of Colorado Law Legal Studies Research Paper No. 08-12
Scholars in the burgeoning field of law and emotion have paid surprisingly little attention to family law. This gap is unfortunate because law and emotion has the potential to bring great insights to family law. This Article begins to fill this void, and inaugurate a larger debate about the central role of emotion in family law, by exploring the intriguing and significant consequences for the regulation of families that flow from a theory of intimacy first articulated by psychoanalytic theorist Melanie Klein. According to Klein, individuals love others, inevitably transgress against those they love out of hate and aggression, feel guilt about the transgression, and then seek to repair the damage.
This Article argues that the legal process embodied in the substance, procedure, and practice of traditional family law is at odds with the human process of love, hate, guilt, and reparation. In contexts as far ranging as divorce, child welfare, and adoption, family law is predicated on a binary model of love and hate, with no accounting for guilt and the drive to reparation. This Love-Hate Model actively thwarts the cycle of intimacy, greatly diminishing the opportunity for repair in familial relationships. In short, reparation as a normative goal receives far too little attention in family law. Although several important reforms have begun to move family law away from the Love-Hate Model, these reforms are undertheorized and incomplete and sometimes actively challenged. An overarching theory is needed both to undergird current reforms and to encourage others, thus moving family law more fully in a reparative direction.
To replace the prevailing Love-Hate Model, this Article proposes a Reparative Model of family law that would recognize the full cycle of emotions and facilitate the reparative drive. A Reparative Model would modify the substance of family law to recognize the ongoing relationships that often persist even after legal relationships are altered. It would reform the process of family law by de-emphasizing adversarial decisionmaking. And it would change the practice of family law by reconceiving the role of the family law attorney. Ultimately, the Reparative Model yields new perspectives on a range of theoretical and practical problems in contemporary family law, providing a framework for the law to account for the full, and complex, emotional reality of familial relationships.
Number of Pages in PDF File: 76Accepted Paper Series
Date posted: April 9, 2008
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