Family, Law and Theory

Abstract

Once upon a time, things were easy for family lawyers. Their object of study was clearly marked out (marriage, divorce and their consequences), while theoretical debate about the subject was rare or non-existent. Although it is difficult to locate this Garden of Eden in real time, most family lawyers would share the perception that things have become more complex of late. For one thing, it is no longer obvious where the boundaries of the subject lie. Recent events have shown that marriage is only one of a number of legally significant concepts implicated in the legal regulation of family life, with parenthood and cohabitation increasingly presenting themselves as alternatives. There has been a move away from exploring exclusively the role of law when 'things go wrong' (divorce, for example) towards an interest in how law regulates the ongoing family. In addition, and allied to this, there has been an explosion of theoretical interest in law and the family, with most traditions being represented in the growing literature. These developments are reflected in the pattern of book publishing. While the grand texts continue to soldier on through successive editions (their authors presumably having to make increasingly difficult 'boundary' decisions), there has been a tendency for other writers to concentrate on specific aspects of the subject. In consequence, the monograph format has come into its own. Two recent examples of this genre are Richard Collier's Masculinity, Law and the Family* and Barton and Douglas's Law and Parenthood. These are very different books, but they testify to the vitality and diversity of the subject. Collier is interested in the way legal discourse assists in the construction of masculinity, especially in the areas of law dealing with the family; while Barton and Douglas concentrate on the legal aspects of parentage and parenting, in their view a hitherto neglected subject. Although they differ in focus, scope and methodology, they reflect some common themes of central importance in contemporary family law.