Private Tragedies? Family Law as Social Insurance

by ANNE L. ALSTOTT

Family law is full of private tragedy. Case after case pits one family member against another in a zero-sum struggle for resources. Spouses battle over limited assets; parents clash over child support; and children fight each other for resources when parental income is stretched across multiple families. Bad choices and bad luck, it seems, precipitate calamity; and there is little that the law can do when families self-destruct amidst unemployment, poverty, mental illness, disability, substance abuse, domestic violence, child neglect, and other problems.

By legal tradition, family law is private law: it governs relationships between individuals, rather than between individuals and the state. On this view, family law, like other forms of private law, exists primarily to foster private order. On this view, family law should implement individuals’ intentions— and should not redistribute risk and resources according to some public ideal. As private law, then, family law’s core mission is to resolve disputes among family members when private order breaks down. Accordingly, functional families should have little to do with the law; they manage their own affairs without legal supervision. Dysfunctional families, by contrast, involve the law in inevitable tragedy. Once affective bonds have frayed and private order has failed, the courts must resolve disputes as best they can, and all too often any decision will harm one party or the other.

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