We have seen in Chapter 1 that the doctrinal ideal of ‘black-letter’ law continues to dominate the intellectual and cultural climate of law, notwithstanding the periodic crises occasioned by legal realism, socio-legal studies, the sociology of law and, more recently, critical legal studies. With regard to the law relating to the family, the legal subdiscipline ‘family law’ has been maintained and constructed through a range of legal textbooks (for example Bromley and Lowe 1987; Dewar 1989a; Cretney 1990, 1992). These proclaim what the author considers to be the relevant laws which apply to the family. Usually this has involved consideration of laws on marriage and divorce and the ‘private’ obligations of husband and wife, with a heavy bias towards legal regulation of the care and control of children and the allocation of property entitlements following the termination of relationships. In the 1990s many university family law courses in the UK continue to construct the subject in terms of the rights and responsibilities of husband (H) and wife (W) and through reference to the ‘sacremental associations’ of the sacred texts and myths of family law (O’Donovan 1993:9). Yet for all its increased respectability the subject family law continues to be perceived within the legal academy and profession as in many ways inferior to the ‘proper’ doctrinal subjects such as contract, tort and criminal law.
What this conception of the subject of ‘family law’ singularly fails to do is to question the inherent theoretical presuppositions of the object of analysis and its method of inquiry. What exactly is ‘the family’ in law? What do we mean by ‘state intervention’ in the family? Where does ‘family law’ come from in the first place (not simply in the sense of deriving from common law, legislation, custom and history; see O’Donovan 1993:Ch 2)? Perhaps most