Family and Family Law

Much contemporary writing on ‘family’ and ’family law’ cites extensive changes to the family as evidence that the very concept of the ‘family’ is redundant, or that the family has disappeared. Conceptual questions (What counts as a family?) should be distinguished from normative ones (Is the family a good thing? Are some families better than others?). The use of the term ‘the family’ can be normatively innocent such that there are different family forms none of which should be privileged. Having distinguished ‘the family’ as an extra-legal concept and as a legal construct, I defend a functional definition of the family. This value-free definition can serve as the basis of evaluative judgments about the family. There are good reasons why law might recognize the family, consistent with law also recognizing non-familial personal relations. Nevertheless we need not accord familial status to such relations, or abandon the term ‘family’.