A Judicial Dilemma In The Age Of Fault-Based Divorce
Posted: April 11, 2014 Filed under: Dilemmas 2 CommentsWhile reading some historical materials the other day, I came across an interview of a judge, long since deceased, who described how he resolved an interesting divorce case in the years before Connecticut adopted its no-fault divorce statute. I’m interested in readers’ reactions to how the judge handled the case.
The parties seeking the divorce had been living apart for nearly a decade and had entered into relationships with new partners, which had produced new children. The parties came before the judge and described these facts, which clearly revealed that both parties had committed adultery. Under the fault-based divorce regime in effect at the time, a party who had committed adultery could not obtain a divorce. Thus, on the facts as presented to the judge, where both parties had committed adultery, neither could obtain a divorce from the other.
Confronted with this state of affairs, the judge picked up the phone and called a colleague elsewhere in the courthouse. The judge said, “Mike, I’m sending you two parties who want to get divorced. Don’t ask too many questions.” The parties went to the new judge, who did not ask too many questions, and were granted a divorce.
Was justice done? Did the two judges effectively conspire to achieve an outcome contrary to the law? Do you think their actions were justified?
Appealingly Brief! 
Q1: Was justice done?
A1: Perhaps, under the theory that if a law is unjust, those who break the law do justice.
Q2: Did the two judges effectively conspire to achieve an outcome contrary to the law?
A2: Yes, very effectively.
Q3: Do you think their actions were justified?
Q3: Yes, justified like prison guards who release prisoners whom the guards believe deserve freedom, or like privates who “frag” their lieutenants in battle to reduce the effectiveness of a war effort the privates deem immoral. Sometimes you have to rise above morality and your own personal oath and just do the right thing, even if surreptitiously.
Was justice done?
Yes and no. The judges probably doled out subjective justice. With today’s values in mind, we see that a contrary result is absurd and stupid on its face.
As Bastiat instructs, though, you can’t just look at what is seen–you have to look at what is not seen too. What is not seen here is the damage to procedural justice, the undermining of the legitimacy of the judicial system and rule of law, and the mercy that was not extended to other people who might have been deserving too.
I tend to favor procedural justice–the rule of law and due process. The right result in my view would have been to deny the divorce and craft an opinion explaining how foolish the mandated result was, imploring the legislature to change the law. Perhaps the case would have gotten the media and accelerated a liberalization of attitudes toward sexuality and marriage. Harry Weller wrote a letter to the editor of the aba journal on a similar subject, and I tend to agree. Bad laws should be enforced so that the legislature changes them–else there is a serious danger that mercy is leveled in a biased way.
Were the actions justified? I don’t know. I wasn’t in the room and I live in a glass house. I think though that this kind of bending of the law does lots of harm that isn’t easily seen. I concede that there’s a long, long common law tradition for this kind of justice–difficult situations like the one that this poses is how the law of theft evolved. But I am skeptical of people and question how unbiased mercy really is, and I favor the rule of law over the rule of men.