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Lecture notes - family law
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Family Law Lecture Notes
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Week 1 – Themes and ConceptsFamilies are regulated my multiple laws
- Family law is quite diverse and diffuse
- Families are regulated by multiple rules. There isn’t really one thing called family
law
- Rather, what we get is the regulation of various aspects of family life, including
the construction of families and then there are different laws relating to adult
relationships and to parent child relationships.
- Then there are a series of laws dealing with the kinds of problems that might
happen within families such as domestic abuse and child abuse.
- Then there’s a sort of connection there because between child abuse and parent,
the construction of new parent child relationships through adoption.
- And then there’s another set of laws that deal with various aspects of family
breakdown, with divorce, with financial separation of a couple, with child
arrangements after a couple separate.
- In relation to financial separation and child arrangements, there’s also various
forms of dispute resolution that might be available and issues around access to
justice in helping people to resolve their family disputes.
Overreaching themes
- These overreaching themes are under a big umbrella and can all be subsumed
under the heading of liberalism
- They all fall within the sort of dominant political and philosophical mode of
thinking that is dominant in our society which is liberalism.
- Liberalism is associated with the valuing of things like the individual rather than
the collective with valuing the market rather than sort of state intervention, with
valuing the family unit rather than other sort of means of organising society.
, - Are there also some sort of characteristics, well, themes and concepts,
philosophical ideas within liberalism which are certainly not exclusive to family
law, but which we find threading through the whole of family law.
Public/private divide
- This is the notion that there are 2 spheres of activity within society, one of which
is public, and the other is private.
- And there are different meanings and different activities associated with the
public and the private.
- The kinds of things that are associated with the public include the world of work,
the world of commerce, but also the world of law, the polity (the state and the
activities of the state such as parliament and the courts etc.)
- And notably it tends to be associated with a world of men
- In contrast, the private is seen as its obviously internal rather than external, it’s a
place for much more gentle pursuits, it’s not a place of competition, it’s a place
of love and affection.
- The bonds within the public are formal, arms-length.
- Whereas the bonds within the private are based on love and affection and care
and those kinds of voluntary relationships and also a place where family life
occurs.
- The place where children are brought up and is a place that is associated with
women.
- The public sphere tends to be male dominated or has historically been male
while the private sphere has been the sphere of women.
- The fact that family is located within the private sphere tells us something about
some assumptions that are made about family law and the extent to which the
law should intervene in families.
- So, if the public is the area of regulation and the private is the area of freedom
and in fact, in practice, the freedom of a patriarch to determine his own rules,
then what does that tell us about the extent to which the law is willing to
intervene in the family or tries to leave families to sort out their own
arrangements?
Autonomy and consent
• attached to the ‘private’ sphere
(vs ‘public’ regulation)
• how realistic is individual
(liberal) autonomy?
- This is another liberal concept, another highly valued concept within liberalism,
and that’s associated with the private is the notion of autonomy
- If were talking about in the public sphere, we have regelation; in the private
sphere, people have freedom and autonomy to make their own rules, to make
, their own life choices to decide on their own version of the good life and to
pursue it for themselves.
- An autonomous liberal being is someone who consents, so that persons consent
to something indicates their exercise of autonomy.
- E.g., if we think about consent to get married or consent to enter a contract,
these are things that people are thought to do freely and therefore, because they
have freely chosen to do it, then it must be okay for them to do so.
- Autonomy is highly valued within liberalism and the notion of not taking
direction from anybody else, but of setting your own course in life.
- But we may ask about how realistic this notion of individual liberal autonomy is –
whether the individual is really, truly independent in the ways that autonomy
assumes?
- Can people make their own life plans and decisions without having to refer to
anybody else? What about the fact of dependency in relationships?
- What does it mean to say that a mother who has a dependent child is
autonomous? Does it mean that these types of people are excluded from the
concept of autonomy?
- So, there is this kind of dichotomy as just as there is between private and public,
a dichotomy or a binary between autonomy a dependency.
- Therefore, people who are able to autonomous within the liberal sense are seen
as having a greater value in life than people who are dependent.
- Another way of thinking about dependency is to notice that we are all
dependent at various stages in our life.
- In fact, throughout our lives, on other people and on other institutions to enable
us to do the things that we do.
- E.g., children are reliant on parents, employees on employers for their jobs
- It may make more sense to think about relationality and the nature of
relationality and the kinds of relationships that foster our autonomous rather
than denying relationships or imagining that people can be autonomous being
separate from anybody else.
- Another thing that will come up quite frequently in family law is the notion of
family autonomy or couple autonomy and when these notions come up it is
important to think carefully about what it means for a family to have to exercise
autonomy.
- E.g., do they actually make decisions as unit? What about if there are differences
within that unit, whose autonomy is being prompted?
Equality
Another key concept within liberalism is the concept of equality
attached to the ‘public’ sphere
- We think about equality as being a value that is important in education,
employment, in us all being equal citizens, we have equal voting rights.
- We have equal rights to participate in decision making, in electoral politics, in
standing for office and all of those kinds of things
what about the ‘private’ sphere?
, - But there’s a real question about the extent to which this sort of public value of
equality extends to the private sphere
- When we come to be talking about equality within family, what kind of equality
exists within families?
- Are family members equal to each other? or are there relations of power and
relations of domination and subordination?
- There’s a liberal feminist theorist called Susan Moller Oki, who wrote a famous
book called Justice Gender and Family.
- She talked about the need to extend the ideas of equality and justice into the
family.
- Otherwise, people will not sort of grow up with a model of what equality truly
means.
- In many families, you do not find equality, you find a hierarchical relationship,
you often find fathers having power over mothers or parents having power over
children.
- Therefore, the notion of equality is a complex one when it comes to the issue of
families.
formal vs substantive equality
- There are 2 different concepts of equality, formal equality and substantive
equality.
- Formal equality means treating everybody the same regardless of their
differences.
- Substantive equality means taking into account people’s differences so that you
get an equality of result rather than simply equality treatment.
-
Rights
- Another key concept with liberalism is rights and what we mean by rights within
families
• differing/conflicting rights within families?
- Are people within families equal? Do we have differing or conflicting rights within
families? Can we say a family is a bounded unit?
- Once we look inside the family do, we see perhaps conflicting rights and
particularly in this context between the rights of children and the rights of
parents or the interests of children and the interests of parents.
• parental rights vs parental responsibility?
- Do we talk about parental rights over their children or should we be thinking
about parental responsibility for their children?
- Many parents think they have rights over their children
- The law says that they don’t have rights – they have responsibility
• children’s rights vs children’s welfare?
- When we think about children do, we think about them in terms of their rights or
do we think about them in terms of their welfare
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