Volume 1997 Issue 3
Family Law in a Nutshell by Harry D. Krause
J. Neville Turner*
It is both the fascination and frustration of American law that one can find authority, from one or the other of its 53 jurisdictions, to support any proposition under the sun.
This is particularly true of an area so volatile as Family Law.
Harry Krause's great quality is the ability to provide a balanced synthesis of the extraordinarily diverse approaches which have gained credence. He does more. He examines trends, he forecasts developments, and he queries conventional wisdom. Above all, his style is so trenchant and witty that he is hard to put down. Concise this book may be. Superficial it certainly is not.
Krause's treatment of Marriage Regulation (chapters 3, 4 and 5) is typically provocative. American laws of marriage are stricter than those of Australia--which, in fact, are the most liberal in the world. But Krause argues for even more state control over the conditions of entering into marriage. He debunks fashionable notions of homosexual marriages and suggestions that non-marital cohabitation should have the same consequences as marriage. He examines the policy behind consanguinity and incest, and finds current prohibitions (and non-prohibitions) wanting on both eugenic and social grounds. He examines health prerequisites for entry into marriage--which again are far more stringent than those in Australia, which are non-existent. An Australian reader must surely find it hard to justify this country's failure to test potential spouses for VD and AIDS. But should we emulate the prescriptions of some American States for testing for TB, German measles, drug addiction or Rh compatibility?
What Goethe said about language is true about law. "A person who does not know foreign languages knows nothing of his own."
The value of reading a "panoramic" book such as Krause (and I know of none of such intensive brevity) is that it forces one to query laws which we Australians have taken for granted. For instance, "openness" is now translated into the adoption laws of every Australian state. But the USA Uniform Adoption Act recommends anonymous adoption. Indeed it would permit release only of non-identifying information--that is to say, information of a genetic nature.
Drawing on the experience of the several states influenced by their Hispanic, Mexican or French pedigree, Krause convincingly argues that a regime of community property for spouses is in no way the panacea that some Australian commentators, unfamiliar with European systems, would suppose. His animadversions on the artificial creation of children (especially on surrogate motherhood) deserve careful consideration--especially as Krause is widely regarded as being the most influential American reformer of laws improving the status of children born outside of marriage.
This is a stimulating and literate work of a scholar who can be classified as neither a conservative nor a radical. He deserves, rather, what might be the highest compliment payable to a scholar--that of being a balanced commentator who examines the pros and cons of each issue without doctrinal tendentiousness.
On reflection, he deserves an even greater accolade--he is a writer of style and panache.
* Senior Lecturer in Law, Monash University, Clayton, Victoria, Australia.
This book review is reprinted by permission of Monash University Law Review, which published it in Volume 22, #1 (1996), and the author.