Family law and personal life

208 Pages·2007·0.84 MB·English

by  John

FAMILY LAW AND PERSONAL LIFE
This book is dedicated to The New
Zealand Law Foundation.
Family Law and
Personal Life
JOHN EEKELAAR
1
1
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ISBN 0–19–921382–8 978–0–19–921382–5
1 3 5 7 9 10 8 6 4 2
Contents
Preface vii
Table of Cases x
1. Power 1
Family Practices and the Diffusion of Power 1
The Open Society 6
The Welfarism Thesis 9
The case of divorce 17
Homosexuality 22
The New Era: From Family Law to Personal Law? 22
2. Friendship 32
Friendship and Brotherly Love 34
‘Full’ Friendship as a Paradigmatic Value 35
Friendship and Public Constraints 38
Marriage and Friendship 40
Friendship and Legal Rights 43
Betrayal and Loss 45
Friendship Plus 49
Why Consider Friendship at All? 53
3. Truth 54
‘Physical’ Truth and ‘Legal’ Truth 55
Truth, Kinship, and Manipulation 57
Truth and Personal Relationships 62
Truth and Identity 70
Truth and Justice 73
Conclusion: Truth and Shame 75
vi Contents
4. Respect 77
What is Respect? 77
Love 81
Community Values 86
Care and Nurture 89
Religion 94
Procreation 99
Respecting Children 101
5. Responsibility 103
Historical Responsibility: The Case of Divorce 105
Prospective Responsibility: Allocation 111
Prospective Responsibility: Exercise 118
Divorce 118
Parenthood 122
A Fuller Concept of Responsibility 127
6. Rights 132
The Central Case of Rights 133
End-states 135
Grounds for entitlement 137
Weight 139
Rights in Personal Law 140
Rights claimed through political action 140
Rights developed through judicial lawmaking 143
Human rights 148
Children’s Rights 155
Personal Law and Cultural Rights 162
Group or collective rights 164
Cultural rights, personal law, and the open society 166
Bibliography 175
Index 189
Preface
When I was invited by the Faculty of Law of the University of Otago
to visit New Zealand in 2005 as the New Zealand Law Foundation
Distinguished Visiting Fellow, I had already written a paper on the
theme of friendship which forms chapter 2 of this volume. That
paper arose as a result of an interview I conducted in a research
project with my colleague Mavis Maclean at the Oxford Centre
for Family Law and Policy (OXFLAP), in which it emerged that
the household contained an additional person as a result of quite
remarkable circumstances. These are explained in the chapter. An
early version of that paper appears in a memorial volume to my
friend and colleague, Professor Dr Petar Sarcevic, and is published
with permission of Selliers European Law Publishers. I then decided
to explore family law as refracted through other ‘themes’, and, as
the invitation required lectures and seminars to be given at the main
New Zealand law schools, I thought I would try these ideas out on
my New Zealand hosts. In the end I was able to discuss the papers
on ‘Friendship’ and ‘Truth’, and another which later became ‘Power’
in New Zealand, while I presented a short version of ‘Respect’ as a
keynote address at the 12th World Conference of the International
Society of Family Law, at Salt Lake City on the way there. The
responses encouraged me to think of combining these papers into
a small book, which I have now done with two additional papers,
one on ‘Responsibility’ and the other on ‘Rights’. The former was
presented to a Conference on Responsibility in Family Law held at
the University of Sussex in September 2005.
I must record my intense gratitude to The New Zealand Law
Foundation, to whom this volume is dedicated, not only for its
generosity, but also for providing the occasion to prompt me to
viii Preface
undertake this project. In particular, I must thank Mark Henaghan
and his colleagues at the Law Faculty of the University of Otago for
all they did to make the visit so useful and enjoyable.
While engaged on this process, it seemed to me that I was pursuing
a wider purpose, which was to suggest how the legal regulation of
people’s personal lives might be defended. This involved making
political, or ideological, assumptions against which justifications for
such regulation could be set. The assumptions I have made will look
like those of liberalism, but I have been careful not tomake any claims
about the nature of liberalism. Instead, I have preferred to use an
expression which carries less theoretical baggage: the ‘open’ society.
I argue that the historical manifestation of formal and informal
regulation of family practices has been through the exercise of power.
This inevitably owes much to feminist scholarship, whose analysis
of family law in terms of power relations between the genders is
now taken for granted. However, my exposition puts as much, if
not more, emphasis on the exercise of power between the present
generation of adults and the next as on gender relations. Indeed,
the attempt by previous generations to control their successors is
a major pre-occupation of the text. Furthermore, the exercise of
power is shown to have adopted two main forms: instrumentalism
and welfarism. In counterpoise to this account, the book concludes
with the argument that modern notions of rights have created the
possibility of redistributing the exercise of power achieved under
welfarism. That argument requires the exposition of a theoretical
understanding of rights, including children’s rights, cultural or group
rights, and human rights, and an evaluation of their role in an open
society.Within this framework, the text explores the interrelationship
between the legal regulation of people’s personal lives and the values
of friendship, truth, respect, and responsibility. In doing this, a
variety of controversial issues are examined in the light of those
values: these include the legal regulation of gay and unmarried
heterosexual relationships; freedom of procreation; state supervision
over the exercise of parenthood; the role of fault in divorce law; the
way parenthood is allocated; the rights and responsibilities of parents
to control their children; the place of religion in the family; the rights
of separated partners regarding property and of separated parents
Preface ix
regarding their children; and the freedom of children to determine
their own destinies.
The result provides, I think, a new way of looking at much of
family law (or, as I now prefer to call it, personal law). The area
of legal activity covered is wide. In order not to weigh down the
text with too much detail, I have made extensive reference to the
literature, including the occasions when I have discussed the detail
at greater length. This has, I hope, allowed a sharper focus on the
issues raised by the themes and values. If it is, as I think, instructive
to view one area of law in the context of these themes and values,
it is also instructive to reflect on the concepts they represent in the
light of the part they play in this area of life. But again, I did not
want the book to become a detailed theoretical analysis of all aspects
of these concepts. I have provided such analysis as seemed necessary
in order to engage with them, and to consider how their practical
application in this context could influence the ways we think about
them. To that limited extent this is not just a book about personal
law, but is also a comment on legal theory.
I hope that the book will demonstrate that personal law, possibly
more than any other area of law, affects the most profound aspects of
people’s lives and of what it means to live in human communities. In
writing it I have had to confront and try to take a position on these
issues, which I hope amounts to a coherent whole. There are many
things over which others are bound to disagree with me. But if I have
set out a framework for thinking about them, and even as a means
of evaluating laws and policies, I will have achieved my objective.
John Eekelaar
Oxford
May 2006