Principles of U.S. Family Law

Abstract

What explains U.S. family law? To answer this question, this Article undertakes a conceptual analysis of the legal practices that govern families. This analysis has yet to be done, and its absence hamstrings constructive thought on our family law. The Article develops a typology that conceptualizes U.S. family law and exposes its underlying principles: First, it identifies the significant elements, or rules, of family law. Second, it demonstrates that these rules reflect or embody four important concepts - conjugality, privacy (familial as well as individual), contract, and parens patriae. Finally, it shows that the concepts of family law in turn embody two distinct underlying principles - Biblical naturalism and liberal individualism. From these powerful principles, we can derive modern U.S. family law: they explain what our family law is. With this deepened understanding of its structure, the Article next evaluates family law as the expression of it principles. It concludes that each principle is individually flawed; and, taken together, they are too often in unproductive tension. They thus doom U.S. family law to incoherence and must be revised. At a minimum, this Article seeks to launch a much-needed debate in family law on whether our current foundational principles are desirable, or even defensible. More ambitiously, the Article aims to ground a new jurisprudence of family law that better reflects the social goals and needs of contemporary U.S. society.