IS THE TURN TOWARD COLLABORATIVE LAW A TURN AWAY FROM JUSTICE? |
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| Authors: | Ronalda Murphy |
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| Institution: | Ronalda Murphy is an associate professor of Law at Dalhousie University, Halifax, Nova Scotia, the oldest school in Canada. Her LL.B. is from Dalhousie and her LL.M. from the University of Toronto. Her doctorate is from Harvard Law School. She clerked at the Supreme Court of Canada upon graduation from her first law degree and was a litigator in one of Canada's leading law firms for a few years, with a focus on commercial and constitutional matters. Prior to living in the United States, Professor Murphy lived and taught law in Johannesburg, South Africa, and worked on the transition to constitutional democracy between 1991 and 1994. While completing her doctorate in the United States, she also clerked at the U.S. District Court in California for a short time. She started at Dalhousie Law School in 1999 and has taught a wide variety of upper year courses: constitutional law, comparative constitutional law, evidence, civil procedure, and the specialized seminar for graduate students in law. Despite the fact that several of her courses are mandatory, she is a popular and highly regarded member of faculty, and she speaks regularly on teaching to members of the wider university community. In addition, Professor Murphy is a sought-after public speaker and gives talks on legal topics throughout Canada as well as in other countries. Her work is usually comparative in nature, and publications have been in the areas of constitutional law and theory, evidence law, aboriginal law, feminist legal theory, and postmodernism. |
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| Abstract: | The new trend in Collaborative Family Law (CFL) in the United States and Canada raises new questions about theories of justice. CFL achieves many of the goals of a viable theory of justice and its implicit critique of the legal system is a valid one. However, it unnecessarily demonizes law and has yet to explicitly articulate where it fits in terms of its own theory of justice. After considering the claims made by CFL, it is apparent that while some are productive, others are problematic and should be discarded. Specifically, CFL's rejection of factual determinacy may be inappropriate in some cases. The CFL approach has the potential to ignore problems of power imbalance, and may sacrifice just outcomes for the sake of efficiency. The emphasis on relationships and the need for their protection is not always an appropriate approach, and in demonizing law in favor of private ordering, CFL unnecessarily rejects the importance of law as a site for public participation in the creation and defense of norms. CFL is an important step forward in law reform, but if it is to fulfill its potential, it needs to incorporate within its practice a theory of justice that avoids the pitfalls of liberal individualism and allows for the public authorship of norms. |
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| Keywords: | Collaborative Family Law (CFL) theories of justice philosophy of law alternative dispute resolution (ADR) criticism of Collaborative Family Law |
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