The Normal Chaos of Family Law

AuthorJohn Dewar
DOIhttp://doi.org/10.1111/1468-2230.00157
Publication Date01 Jul 1998
THE
MODERN LAW REVIEW
Volume 61 No 4July 1998
The Normal Chaos of Family Law
John Dewar*
Over the last 20 years, different explanatory frameworks in family law have waxed
and waned. John Eekelaar’s Family Law and Social Policy,1which enjoys its
twentieth anniversary of publication this year, was a pathbreaker in this respect. I
first read it as an undergraduate, when it was still a recent book. I remember being
fascinated by the methodological daring of it: for Eekelaar was suggesting that we
could better understand family law if we thought in terms of its functions, of what
it did. The idea that functionalism, an explanatory model associated with 1960’s
Parsonian family sociology, could be relevant to understanding law, struck me then
as an exciting one.
Since then, legal scholarship has moved on, and family law in particular has felt
the powerful imprint of both feminism and post-structuralism, to the extent that
functionalist accounts, such as Eekelaar’s, are probably not taken very seriously
these days (after all, who gets to decide what those functions are and who judges
whether family law does function as the model suggests?).2Instead, theoretical
interest today centres on what might be termed ‘constructionist’ accounts of family
law, that is, the way legal discourse privileges certain family forms, individual
behaviours or orientations, or more generally ‘constructs’ sexuality, or our
subjective sense of ourselves. Books that are representative of this trend would be
Katherine O’Donovan’s Family Law Matters3and Richard Collier’s Masculinity,
Law and the Family.4
I am convinced that both functionalist and constructionist accounts of family law
offer rich insights5– but I’m not convinced that they tell the full story. This is
ßThe Modern Law Review Limited 1998 (MLR 61:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 467
*Faculty of Law, Griffith University, Brisbane, Australia.
Earlier versions of this article were delivered as seminars to the Postmodern Legal Theory Workshop at the
University of Hong Kong, at the University of New South Wales and at Griffith University. I would like to
thank Reg Graycar, John Murphy, Bill MacNeil, Shaun McVeigh, Peter Nygh and Stephen Parker for their
valuable comments on those earlier versions, as well as the anonymous reviewers.
1 (London: Weidenfeld & Nicholson, 1978).
2
Eekelaar himself has substantially modified his own position: see ‘Family Law and Social Control’ in
J. Eekelaar and J. Bell (eds), Oxford Essays in Jurisprudence, 3rd Series (Oxford: OUP, 1987) ch 6.
3 (London: Pluto Press, 1993). Although O’Donovan’s work is not exclusively constructionist in my
sense, there is a strong constructionist thread to this book: for example, of the law of marriage, she
suggests that it ‘has a limiting effect on ontological possibilities – the ways in which we see
ourselves, how we project our futures’ (at 33).
4 (London: Routledge, 1995). Collier is an overt constructionist: his book aims ‘to explore the
construction of masculinity in areas of law pertaining to the family’, ibid 1.
5 See, for example, the (in my view) highly successful deployment of a constructionist account in A.
Diduck, ‘The Unmodified Family: The Child Support Act and the Construction of Legal Subjects’
(1995) 22 Journal of Law and Society 527.
because both schools of thought, although quite different from each other in many
respects, have one feature in common: namely, that they tend to ascribe more
coherence to law than it seems to me actually to possess, the better to enable it
either to function, or to construct the world around us.6Yet it seems to me that to
the extent that family law deals in ideas of what families are, how their members
should deal with each other, and what the role of law and the state should be with
regard to them, it is not coherent at all.
Instead, I want to suggest that many contemporary developments in family law
can be characterised as chaotic, contradictory or incoherent. By ‘family law’ for
these purposes, I mean primarily Anglo-Australian family law,7since England and
Australia are the two jurisdictions with which, for reasons of personal history, I am
most familiar. I suspect, though, that a lot of what I want to say may have
application to family law in other jurisdictions. By ‘chaos’, I mean simply to
convey a sense of disorder or lack of system, at least at the level of legal text.8But
even this language may not be strong enough, and I shall also rely from time to
time on what Frederic Jameson calls ‘antinomy’, that is, ‘two propositions that are
radically, indeed absolutely, incompatible, take it or leave it’.9Whereas contra-
dictions are thought to be susceptible in the long run to productive resolution,
antinomies are not. Family law, I shall suggest, is contradictory, disordered,
incoherent and, in part at least, antinomic.
In saying this, I am not diagnosing a crisis of any sort. Indeed, I want to suggest
that this is a perfectly normal state of affairs: normal, because family law engages
with areas of social life and feeling – namely love, passion, intimacy, commitment
and betrayal – that are themselves riven with contradiction or paradox.10 Just as the
family is the backdrop against which many of these contradictions are played out,
so too is family law an arena in which some of these contradictions emerge in the
language and form of law. So questions about rights, justice, autonomy,
relationships and values rise to the surface of legal debate in ways that are often
readily visible to even the untrained eye. It may be that family law is more
cognitively open to its social environment, or less systematic, than other areas of
law, so that it is easier to see a continuity between law and its context. But family
law is more than just a specialised form of ethical debate or ideological text: it is
also part of the wider legal system, and therefore to some degree autonomous, or
disconnected from its environment, a fact which, as I shall argue, can contribute
contradictions of its own.
6 Writers of the constructionist school acknowledge that legal constructions of the family contain their
own ambiguities (see, eg Diduck, ibid 538–542), but not (it seems) to the extent that they threaten to
undermine the power of law to construct families in particular ways, or to convey particular
ideologies about family life. In other words, the ambiguities, or contradictions, identified in
constructionist accounts are kept within sufficient limits to ensure that the constructive project of law
remains possible. My argument is that those contradictions may be more profound than this suggests,
and that we must look beyond legal texts themselves to understand how those contradictions are
stabilised or normalised.
7 I take this to refer only to ‘private’ family law (marriage, cohabitation, divorce, property, main-
tenance and children) and to exclude the ‘public’ law aspects of child care and medical treatment of
children, although it may be that some of what I have to say could apply to both. There are, of
course, important differences between English and Australian family law, in content, and constitu-
tional and institutional setting. I have highlighted relevant differences where they seem relevant or
important.
8 I shall suggest later that this chaos may serve some coherent political purposes.
9 ‘The Antinomies of Postmodernity’, in The Seeds of Time (New York: Columbia UP, 1994) 1–2.
10 U. Beck and E. Beck-Gernsheim, The Normal Chaos of Love (Oxford: Polity, 1995) from which I
have borrowed my title.
The Modern Law Review [Vol. 61
468 ßThe Modern Law Review Limited 1998

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