Philosophical Foundations of Children's and Family Law

ISBN : 9780198786429

Elizabeth Brake; Lucinda Ferguson
368 ページ
171 x 246 mm

This volume brings together new essays in law and philosophy on a broad range of topics in children's and family law. It is the first volume to bring together essays by legal scholars and philosophers for an integrated, critical analysis of key issues in this area, marking the 'coming of age' of a comparatively new field of family law.

Debates in children's and family law are at once theoretical and empirical in nature. Not only does children's and family law have significant consequences for individuals' intimate lives, the field's impact on lived experience highlights the socially constructed nature of law. Approaching this area of law often involves exploring a legal concept familiar from daily life, such as the very notion of 'marriage' or 'family', and examining it within its social, economic, and historical context. The normative basis for law regulating intimate personal and family life extends beyond any narrow legal philosophy or social context to its broader foundations in theories of morality or justice.

The chapters included bring together a representative and broad range of pieces that engage with long-standing and contemporary debates. A wide range of perspectives is represented on topics such as same-sex marriage, polygamy and polyamory, alimony, unmarried cohabitation, gestational surrogacy and assisted reproductive technologies, child support, parental rights and responsibilities, children's rights, family immigration, religious freedom, and the rights of paid caregivers. There is also philosophical discussion of concepts such as care, intimacy, and the nature of family and family law itself.


Elizabeth Brake and Lucinda Ferguson: Introduction: The Importance of Theory to Children's and Family Law; Part One: Definitions; 1 John Eekelaar: Family Law and Legal Theory; 2 David Archard: Family and Family Law: Concepts and Norms; Part Two: Relationships; 3 Elizabeth Brake: Paid and Unpaid Care: Marriage, Equality, and Domestic Workers; 4 Ron Den Otter: A Perfectionist Argument for Legal Recognition of Polyamorous Relationships; 5 Robert Leckey: Cohabitants, Choice, and the Public Interest; 6 Charlotte Bendall and Rosie Harding: Heteronormativity in Dissolution Proceedings: Exploring the Impact of Recourse to Legal Advice in Same Sex Relationship Breakdown; 7 Matt Lister: The Rights of Families and Children at the Border; Part Three: Rights and Obligations; 8 Diane Jeske: Moral and Legal Obligations to Support 'Family'; 9 Colin Macleod: Are Children's Rights Important?; 10 Scott Altman: Parental Control Rights; 11 Lucinda Ferguson: An Argument for Treating Children as a 'Special Case'; Part Four: Regulation and Intervention; 12 Brian Bix: Private Ordering in Family Law; 13 James G Dwyer: Regulating Child Rearing in a Culturally Diverse Society; 14 Mary Lyndon Shanley: Reconceptualizing Family Relationships in an Age of Reproductive Technologies


Elizabeth Brake is an Associate Professor of Philosophy at Arizona State University. She is the author of Minimizing Marriage: Marriage, Morality, and the Law and editor of After Marriage: Rethinking Marital Relationships (both with Oxford University Press). ; Lucinda Ferguson is Associate Professor of Family Law, University of Oxford; Tutorial Fellow in Law, Oriel College, Oxford; and an Associate Member of 1 King's Bench Walk. She has published numerous articles and book chapters on conceptual puzzles within family law, such as the justifiability of financial obligations upon relationship breakdown and arbitration, as well as children's law, particularly debates over children's rights.