Some years ago when I was developing the ideas for this book I tried to establish rules that would parallel the ones that guide the three branches of most democratic governments: legislative, executive, and judicial.

I found it easy to imagine how a family using the idea of all of its adult members serving as a family assembly could develop a legislative branch. I imagined that this branch would have the following responsibilities:

The second branch of family governance, the executive, was also relatively easy to envision. I imagined that in this branch, normally called the family council, representatives of the family as selected by the family assembly would have the following responsibilities:

When I moved to the establishment of a judicial branch, however, I ran into a roadblock. I could not intuit what kind of body I could introduce into a family governance system that could take on the following roles:

The answer lay right under my nose; I simply hadn't looked carefully enough at how my own family works. In our family governance system, we have a family assembly consisting of my parents, my siblings and their spouses and significant others, and the eleven grandchildren and their spouses. We meet annually as an assembly to do the work of the legislative branch. During the year, between meetings, we have a family council acting as the executive branch, which administers the family foundation, a family limited partnership, and whatever other work the assembly assigns to it. On those infrequent occasions (and we as a family are working very hard to keep them infrequent) when a dispute arises among family members, these matters naturally flow up for decision to my parents, and to such other members of the sibling generation as my parents choose to invite to participate with them in resolving the matter. This informal system has served us well during the transition in leadership from my parents' generation to mine and has provided us with a judicial branch of family governance, although at first we didn't recognize it as such.

We have now formally acknowledged that we have a judicial branch, and we call it the council of elders. In addition to dispute resolution, we use the judicial branch of family governance to deepen our sense of our family's differentness, its uniqueness. We ask the elders to remind us at our family meetings of our core values as they pass down to us from prior family generations and through their telling of the family's stories. We ask them to remind us of the seventh generation wisdom of the Iroquois that "It should be our hope that the care and thoughtfulness we bring to our decision making today will be remembered and honored by our descendants seven generations from today." We ask them to remind us that we are a long-term enterprise endeavoring to preserve our family differentness and thus to "hasten slowly." We have also asked the elders to provide us their wisdom in developing a mission statement for our family's charitable foundation and other business activities. Finally, as we evolve our system of representative family governance, we ask the council of elders to remind us when we don't follow our own rules properly and to assist us, using our core values, in creating new procedures to meet new situations. In each of these roles, the council of elders is performing the role of the judicial branch in family governance.

From the point of view of cultural anthropology, families, as they extend into the third, fourth, fifth, and later generations, become clans and eventually tribes. These family tribes then recreate, as if new, the same basic governance structures that anthropologists have observed are common to all tribes as far back into prehistory as we can infer. In this process, families recognize that as their numbers grow by birth and by marriage, they have a need for greater structure to successfully manage the family's business, whether it lies in the human, intellectual, financial, or social-capital dimensions of the family's activities.

Tribal governance generally consists of elements analogous to the three branches that we have already discussed: an assembly, normally consisting of the adult members of the tribe; an executive or family council, embodied in the chiefs and the medicine men and women; and the council of elders, frequently embodied in the oldest female and sometimes male members of the tribe. Anthropologists often refer to these elder females as "crones."^[31] It is not surprising that this role of resolving disputes and holding the tribe to the rules of its governance that have arisen out of its history has so often fallen to the eldest women in the tribe. These women are normally the longest-lived members of the tribe and therefore have the greatest experience of the tribe's history and process of governance. C. G. Jung taught that women, as they age and pass through their change of life, often move from a period of life focused on relationship into a period of power and leadership within society, a process Jung describes as women seeking to integrate their female principle of anima with the male principle of animus.^[32] In this light, much of what our society defines as new feminism is not new but is rather the rebirth of the fundamental female role in tribal society—the role of the crone in its governance.

Thinking deeply about the development of a judicial branch can answer two questions posed by many families as they evolve their systems of family governance.

These two questions and the answers to them are critical to whether or not a family will make the decisions and take the actions necessary to implement a system of family governance. In my early work with families, I couldn't understand why the family would meet, have excellent discussions, make decisions—and then nothing would happen; the process would never take off. After asking more and more searching questions of these families, I discovered that the above two questions were present in the minds of the two generations called to form the system of family governance. However, the questions were thought too risky to the family dynamic to be voiced. In the parent generation, the parents often feared that if they gave up part of their prior monopoly on family decision making to the family assembly, they would gradually be pushed aside and lose their place and influence. In the children's generation, there was a fear that they would take responsibility as requested by their parents, and then at the first opportunity to actually exercise this authority, their parents would pull the proverbial rug out from under them by vetoing their decisions. When you have both parties to any joint decision making process entering that process with fear about its outcome, rather than positive commitment to its outcome, it is highly unlikely the process will work. In my opinion, for the successful evolution of a judicial branch of family governance, both generations of a family must enter the process of joint decision making with positive enthusiasm. For positive enthusiasm to exist, answers to these two questions and to the fears that underlie them must be found.

I believe the answers lie in defining a role for the parent generation that is appropriate and natural and that reflects the traditional roles of elders that tribal organizations have evolved for their successful governance. If the parent generation feels that it can relinquish day-to-day decision making while retaining a role in the family's longest-term decisions, where its wisdom and knowledge of family tribal history will have their greatest impact, successful generational transitions in family governance can and do occur. The families I work with are proof positive of this, as is my own. The spiritual evolution of the family and the settlement of internal family disputes are two critical areas of family governance where elders can be of immense help. These are roles that the parent generation will immediately see as appropriate to its stage of life and that will usefully employ its wisdom and experience. Appealing to the higher instincts of human beings will always bring out the best in each of us. In this area of family governance, that proposition will work to a family's benefit when it assists the parent generation in using what it considers best about itself as a gift to the future generations of its family.

A family evolving toward joint decision making over a long period of time can help this process significantly if it finds a way—as each generation moves from third to second to first—to capture the wisdom and experience of its forebears. A council of elders, in which to repose the family wisdom and history and from which the resolution of family disputes can flow, offers a place and role in family governance to which all family members can aspire. It offers a recognition to the elders in our family tribes of their usefulness and their critical importance to our families' successful journeys to excellent family governance and to the retarding of the dismal prognosis of the shirtsleeves proverb.

In conclusion, I realize that readers who consider themselves the first or second generation of a family, or who have no earlier living generations, may be wondering, if an inter-generational dispute occurs, how will it serve family governance and the family's joint decision making process if only one generation decides the dispute? Clearly this doesn't seem fair. In general, my remarks assume that a family has enough members of the elder generation to provide objective individuals who are perceived to be able to resolve each dispute. In the event that a particular dispute leaves no elder family member in such an objective position, I recommend that the parties then choose an elder from within the learned professions or from another family to whom they are closely related or aligned to act in this capacity. The settling of such a dispute should be viewed by the family as exceptional and in no way limiting to the future role of the family's council of elders in all of its other important functions, including the settling of other disputes.

My wish and hope are that your family will use all of its human and intellectual assets to their greatest potential. In this process, it is my hope that you will especially honor the gifts of wisdom and knowledge of tribal history that flow from your elders, and that you will find a proper place within the judicial branch of your system of family governance to repose these invaluable treasures.