Backlash and the Construction of Legal Knowledge: The Case of Child Custody Law

Abstract

This article argues that legal knowledge is socially constructed rather than "given" and that law reform and legal change represent struggles over meaning and over desired norms. When struggles over legal norms arise between groups that have unequal power in society, analysis of the process must consider the relationship between knowledge creation and power. The article first reviews literature on 'backlash' or resistance to progressive social and legal change. It then explains why, as producers of legal knowledge, law schools must ensure that students understand that law is not a neutral set of norms, but rather a site of struggle over social meanings. A case study is then offered of how backlash discourse has influenced the construction of legal knowledge in child custody law reform. This part argues that gendered power relations influence both the ways in which statistics and social science studies are invoked in law reform processes and the direction of law reform itself.

Keywords: Canada, Family law, Child Custody, Legal knowledge, Backlash