Family law and its discontents

Abstract

This article suggests that family law is undergoing as dramatic a shift in its underlying assumptions, objectives and techniques as it did a quarter of a century ago in the shift from fault to no-fault divorce. The difference is that the current shift is not allied to a single cause or embodied in a single set of concepts, but can instead be detected only in a number of sometimes contradictory tendencies. This article proposes four thematic perspectives which may help map out the current muddled terrain: the decline in the significance of marriage; a shift from discretion towards rules as a characteristic technique of family law legislation; a diversification in the sources of legal norms in family law, to include private contracting and global human rights norms; and a complex fragmentation of the family law system, understood as a set of concrete practices and institutions. The article nevertheless concludes by offering a defence of the role of law in family matters, a role which is increasingly called into question by progressive as well as conservative forces.