The Canon of Family Law
89 Pages Posted: 19 Nov 2004
What is the canon of family law? By canon, I mean the ways of thinking about family law that are widely shared by legal scholars and especially by legal authorities, like legislators and judges. The existing literature on canons, which has long centered on the literary canon and has recently turned to the constitutional law canon, has most commonly understood a canon to be a set of foundational texts that exemplify, guide, and constitute a discipline. In part, the family law canon tracks this traditional focus on the inclusion and exclusion of texts, even if the family law canon does not take the form of a short and definitive reading list. Some of the shared ways of thinking about family law address which official legal sources, such as statutes and judicial decisions, fall within family law and which fall outside of it. But canons are not necessarily limited to texts like cases and statutes. Stories and examples can also be part of a canon. In fact, there is widespread agreement among legal authorities and legal scholars that certain stories and examples explain and describe family law and its governing principles. The family law canon consists of both official legal sources and these stories and examples.
No one has examined family law as a field that might have a canon. Yet the family law canon importantly determines what counts as family law, what constitutes a good reason or a convincing argument in a family law debate, what explanations have to be given, and what does not have to be explained. The family law canon operates, moreover, at the level of common sense, powerful enough that its tenets are taken to require no reappraisal. Indeed, the family law canon casts stark light on a feature of canons that has been given too little attention in the scholarship on the literary canon and even in the scholarship on the constitutional law canon: the practical consequences that a canon can have in the world. The family law canon, for example, has enabled state legislatures and state courts enacting and defending changes in divorce law to contend that family law no longer supports women's inequality and so no longer needs to worry about women's position upon divorce. The family law canon has allowed courts, judges, judicial organizations, congressmen, and legal scholars to mount powerful and effective campaigns against federal statutes simply on the ground that the statutes constitute federal family law and are supposedly unprecedented and inappropriate for that reason alone. The family law canon has permitted courts and Congress to avoid explaining why the law employs very different rules to regulate the familial rights and responsibilities of the poor. The silence about the family law canon does not indicate the absence of a family law canon, but it does reflect more general trends in the work of academic theorists. Academic theorists have devoted much less attention to family law than they have spent on thoroughly examining legal subjects like constitutional law. Academic theorists have also frequently written about legal canons as if they emanate only from prestigious, powerful, centralized, and federal institutions like the United States Supreme Court. These theorists may have ignored the family law canon because they incorrectly assumed - ironically, because of the power of the family law canon itself - that an institution like the Supreme Court has played little role in the development of family law.
This Article examines the family law canon, analyzes the consequences of the way that the canon is constructed, and explores how contesting the canon's construction might make a difference in practical terms. At present, the family law canon misdescribes both the content of family law and its governing principles. The family law canon distorts how legal authorities and legal scholars understand family law in a way that can distort their judgments about specific family law disputes. Challenging the family law canon's construction - opening to scrutiny and question what is now taken to be a matter of common sense - can reorient our perspective on family law and our ways of thinking about the field. It is the first step toward changing the family law canon and restructuring family law debates, altering the terms on which they take place, transforming what counts as a convincing argument, and reforming how decisions are made.
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