Family Law

Family Law



Family Law

1. Introduction

The title of this review article is a deliberate response to John Dewar's provocative article 'The Normal Chaos of Family Law'. Dewar argues that 'family law can be characterised as chaotic? contradictory or incoherent' and that this is normal because 'family law engages with areas of social life and feeling—namely love? passion? intimacy? commitment and betrayal—that are themselves riven with contradictions or paradox'. For Dewar the main restraining force on the 'chaos' of family law is the 'practices of legal and other professionals associated with its day to day interpretation? application and administration.'

Whilst provocative? this account of family law is unsatisfying and unappealing. All law is about what particular lawyers and judges do in the particular case; there is always an interpretive element. At a deeper level? the 'chaos theory' distracts thinking from the development of a coherent theory of family law. It hands family law over to a professional elite. (Diduck, and Kaganas, 2006 Pp 110-120)

John Eekelaar? who has thought about family law from a theoretical perspective throughout his distinguished career? presents in his latest book? Family Law and Personal Life? a theory of family law which I have termed the 'normal order' of family law. By 'normal order' I mean the enduring forces which have kept family law going for many centuries as a body of law separate from politics? in a plurality of jurisdictions and legal systems.

At the core of John Eekelaar's theory is that? formally and informally? the regulation of family practice 'has been through the exercise of power'. The major theoretical contribution feminist scholarship has made to family law is through its analysis of power relations between the genders. Critical theorists of family law? such as Michael Freeman? have emphasized that family law 'needs to be socially located and that family law cannot be understood if it is expected to operate neutrally? arbitrarily or cocooned from indices of power'. (Diduck, and Kaganas, 2006 Pp 110-120)

It has been the 'normal order' of family law from earliest times for it to be about the exercises of power and constraints on power—not only power as between individual family members? but power as between different ideas of what family should be. Harold Berman in his book Law and Revolution: The Formation of the Western Legal Tradition says that 'from earliest times the church had a great deal to say about marriage and the family'? but 'had to do battle with deeply rooted tribal? village and feudal customs. (Hale, et al, 2008, Pp 65-68)

In Family Law and Personal Life the exercise of power in family law is not just analysed from the viewpoint of power relations between the genders? or between parents and children? or between the state and the family.

There is a particular emphasis on the exercises of power between the present generation of adults and the next—'the attempt by previous generations to contract their successors is a major pre-occupation of the text'. This approach is based on Karl Popper's idea of the 'open ...