In positivist terms, family law can be defined as a collection of statutes and cases regulating the family. Such a definition hides more than it reveals, however. Family law can also be said to have a functional role in relation to dispute resolution and the protection of children. It also constitutes some families in particular ways and excludes others.[50] It constitutes individuals in particular ways, as well; it is ‘an arena for the ideological struggle over what it means to be a mother, daughter, wife and so forth’.[51] If ‘family’ has become an ambiguous or at least flexible concept in law, it follows that the concept of family law is also potentially extendable. If family law is about the regulation of what it means to be, and the public or social, as well as the personal, consequences of being, a mother, father, son or daughter, then family law is also employment law,[52] criminal law,[53] youth justice,[54] tax law,[55] immigration law,[56] public and constitutional law,[57] property law,[58] social security law[59] and EU law.[60] In addition, a pluralist approach to law also locates family law in the social as much as in the state,[61] at the level of conscience, feeling and expectations. Family law, as a form of regulation, is about the manipulation of social norms as well as legal ones, and the idea of family law must now grow also to encompass all the ways our family practices are captured by both formal and informal regulation.[62]
In the light of the many roles or functions family law can serve, then, we must try to be as clear as we can about what we want it to do and what we do not want it to have any part in doing. While, for example, many feminists would agree that there is some value in law playing some role in encouraging and supporting caring relationships including the care of children, we must remain aware, first, that there is a difference between supporting relationships and supporting only certain acceptable forms of relationships, and second, that family law’s concurrent role, ‘the public enforcement of private responsibilities of individual family members’, acquires a new importance in ‘an era of privatization’.[63]
At the same time, while we may wish family law to promote some idea of justice in the ‘family’ group and ensure that the social, economic and political consequences of belonging to that group are not disproportionately distributed according to gender, generation, sexual orientation, class or culture, we must remain alert to the ways in which feminist ideas of equality or justice may be hijacked in a number of ways. They may, for example, be incorporated into the mainstream where they lose their feminist character.[64] Carol Smart observes how the feminist ethic of care has become transformed ‘from a potentially progressive concept into a new form of governance over family life’ by its elision with responsible caring in New Labour’s family policy agenda.[65] Alternatively, or additionally, feminist ideas may be adopted by those working outside a feminist frame,[66] again, as Smart observes, by fathers who position themselves against mothers and make their claims to fatherhood within a combination of narratives that includes an ethic of care. As Smart states, ‘no longer can the ethic of care be seen as a feminist corrective to the influence of the ethic of justice’[67] formerly promoted primarily by fathers and by law and social policy. Feminist ideas may also be hijacked by ‘family traditionalists’ or by their conversion into claims to formal equality, as Kaganas[68] shows in the context of men’s groups’ claims to be equal victims of domestic violence.
Family law is, therefore, about the regulation of individuals and the regulation of the relationships those individuals form, and one of the tensions inherent in feminist family law is the treatment of the family rather than the individual as the unit of analysis. Looking at both simultaneously, or leaving the choice to persons as to where they situate themselves, seems to be desirable. For feminism this has meant that, while the ‘family’ is often a closed door behind which power is exercised and abuse takes place, belonging, intimacy and a private life also remain important. And so the critique of family undertaken by feminists in the 1970s was of marriage as an unwritten contract, the terms of which were dictated by male power and upheld by the state through a liberal non-interventionist policy in the private sphere.[69] The feminist response was to open up family and open up silences about intimacy and the individual, about the body, sexuality, emotions, personal identity and private life, and the power of those who draw lines between the hidden and the revealed.[70] Much work has been done, therefore, and things are not the same for families as they were even twenty years ago, but there is still much left for family law to do. We hope to continue the project here, by offering tools for analysis of the three themes that preoccupy those in the new millennium who are critical of family law as part of a process of the normalisation or regulation of gendered lives in ways that sustain, rather than expose, the silences.