Family Law and Personal Life

Citation

Eekelaar, J. (2017). Family Law and Personal Life (2nd ed.). Oxford University Press.

Chapter Summary

Context and Argument

This is a short book of seven chapters, about 195 pages of text before the bibliography and index. It does not proceed by legal topic (marriage, divorce, children, property). It sets the governance of personal relationships in the context of the exercise of social and personal power, and argues that this power is counterbalanced by individual rights. Against that background it examines the values of friendship, truth, respect and responsibility, and asks how individualism and community can coexist in an open society. The second edition adds developments in law, scholarship and research since 2006. The recurring topics include the regulation of married and unmarried relationships, same-sex marriage, state supervision of parenthood (including surrogacy and assisted reproduction), fault and responsibility in divorce, children's rights and welfare, religion and family rights, the rights of separated partners over property and of separated parents over children, and the state's response to cultural diversity.

Chapter 1: Power

The opening chapter examines how power operates in family practices and in family law, drawing on historical and anthropological perspectives to show how authority has been exercised by fathers, husbands and institutions. It introduces Karl Popper's idea of an "open society", in which individuals are not required to conform merely to preserve a social order. It ends by introducing the "welfarism thesis", which contrasts the historical use of family law as an instrument of social ends with a modern concern for the well-being of individuals.

Chapter 2: Rights

Rights are presented as the counterweight to power. The chapter looks at the nature and development of human rights and of children's rights, at the "best interests" principle, and at the way rights claims have entered personal law, with attention to the tension between individual rights and social structures of power.

Chapter 3: Respect

The chapter develops respect as a value for intimate and family relationships. It considers care, nurture, religion, procreation and the respect owed to children, and asks what respect requires of the law in regulating family life.

Chapter 4: Friendship

Friendship is treated as a central value in personal relationships, set against marriage as an institution. The chapter discusses friendship in public and private life, how legal constraints affect it, and "full friendship" as a model against which relationships may be measured.

Chapter 5: Responsibility

Responsibility is analysed in personal relationships and in family law. The chapter distinguishes responsibility that looks back to past conduct from responsibility that looks forward to what a person should now do, and considers the legal and moral obligations that follow from each.

Chapter 6: Truth

The chapter asks why truth matters in personal relationships. It links truth to kinship, identity, justice and shame, and considers what telling the truth means for the law's treatment of family relationships.

Chapter 7: Community

The final chapter addresses the balance between individualism and obligations to a community. It takes up cultural diversity, the rights and duties of communities, and how a legal system should respond, including the role of caring communities in supporting personal relationships.

Key Concepts

Chapters 1–2: Power; Rights

• Open society: Popper's idea of a society in which individual autonomy is respected and conformity is not demanded for its own sake.
• Welfarism thesis: the claim that family law has moved from serving social purposes to serving the well-being of individuals.
• Best interests: the standard applied to children's welfare, treated here alongside the rights claimed on their behalf.

Chapters 3–4: Respect; Friendship

• Respect: a value covering care, nurture, religion, procreation and the way children are treated.
• Full friendship: a model of personal relationship used to assess family forms such as marriage.

Chapters 5–7: Responsibility; Truth; Community

• Backward-looking and forward-looking responsibility: responsibility for what one has done, and responsibility for what one is now to do.
• Truth: its connection to kinship, identity, justice and shame.
• Cultural diversity: the question of how a state should respond to differing family and religious practices.

Critical Analysis

Strengths

• A clear organising argument. The publisher states a central claim: social and personal power is counterbalanced by individual rights, and values such as respect and truth are worked out against that background. Because every chapter is tied to the same argument, the book reads as one case rather than a collection of topics.
• Law examined through values. Each chapter after the first two is named for a value (respect, friendship, responsibility, truth, community), which gives readers a vocabulary for judging legal rules and reform proposals rather than only for describing them.
• Range of contemporary questions. The publisher lists same-sex marriage, surrogacy and assisted reproduction, fault in divorce, religion and family rights, and cultural diversity among the issues covered, so the argument is tested against live disputes.
• Compact. At about 195 pages of text, the book can be read in full in a short time.

Limitations

• Not a doctrinal text. The book is organised by values, not by legal topic, so it does not set out the rules of marriage, divorce, finances or children step by step. Students preparing for an examination on the statutes and cases will need a textbook alongside it.
• A single theoretical position. The book advances a thesis (rights as the counterweight to power, and a move from social purposes to individual well-being) and is not presented as a neutral survey of competing schools; readers should treat it as one author's argument to be tested against other views.
• Edition and jurisdiction. The second edition (2017) adds developments since 2006, so later reforms are not covered. Because the chapters are organised by value, it cannot replace a text on a specific jurisdiction's current law.

Where It Fits in the Course

Eekelaar's book is the theory-led companion to the doctrinal textbooks in this course. Cretney and Probert's Family Law and Herring's Family Law are course textbooks that set out the law of England and Wales on adult relationships and on children, the second also giving sustained attention to the theories and ethical dilemmas behind it. Bromley's Family Law is the long, detailed reference with close attention to statute and case law. Herring's Family Law: A Very Short Introduction is a brief entry point that explains why the law takes the shape it does.

Eekelaar's book is best read after one of the short introductions or alongside a textbook, as the source of an argument about why family law should look the way it does. Fenton-Glynn's Children and the European Court of Human Rights is a specialist monograph on how human rights case law has developed for children, and follows naturally from the chapter on rights.

How to Use This Book

The book is for students who already have, or are acquiring, a basic outline of family law and want an organising argument about its purposes. It does not assume specialist legal training, but a reader will get more from it with a textbook on hand for the underlying rules.

A practical plan:

• Core: Chapters 1 and 2 (Power and Rights), which set up the argument and the welfarism thesis on which the later chapters depend.
• Value chapters: Chapters 3–6 in order. Chapters 3 and 4 (respect and friendship) go together as accounts of what makes a personal relationship worth protecting, and Chapters 5 and 6 (responsibility and truth) as the pair on obligation and honesty.
• Application: Chapter 7 on community and cultural diversity is a natural point to connect the argument to current disputes, and works well as the final reading before an essay.

While reading, note for each chapter one statement of the author's claim and one legal rule or reform it could be used to judge. This turns the book from an argument to read into a tool for writing evaluative essays on any topic in the course.