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61 Mod. L. Rev. 467 (1998)
The Normal Chaos of Family Law

handle is hein.journals/modlr61 and id is 483 raw text is: THE

Volume 61                             July 1998                                   No 4
The Normal Chaos of Family Law
John Dewar*
Over the last 20 years, different explanatory frameworks in family law have waxed
and waned. John Eekelaar's Family Law and Social Policy,' which enjoys its
twentieth anniversary of publication this year, was a pathbreaker in this respect. I
first read it as an undergraduate, when it was still a recent book. I remember being
fascinated by the methodological daring of it: for Eekelaar was suggesting that we
could better understand family law if we thought in terms of its functions, of what
it did. The idea that functionalism, an explanatory model associated with 1960's
Parsonian family sociology, could be relevant to understanding law, struck me then
as an exciting one.
Since then, legal scholarship has moved on, and family law in particular has felt
the powerful imprint of both feminism and post-structuralism, to the extent that
functionalist accounts, such as Eekelaar's, are probably not taken very seriously
these days (after all, who gets to decide what those functions are and who judges
whether family law does function as the model suggests?).2 Instead, theoretical
interest today centres on what might be termed 'constructionist' accounts of family
law, that is, the way legal discourse privileges certain family forms, individual
behaviours or orientations, or more generally 'constructs' sexuality, or our
subjective sense of ourselves. Books that are representative of this trend would be
Katherine O'Donovan's Family Law Matters3 and Richard Collier's Masculinity,
Law and the Family.4
I am convinced that both functionalist and constructionist accounts of family law
offer rich insights5 - but I'm not convinced that they tell the full story. This is
*Faculty of Law, Griffith University, Brisbane, Australia.
Earlier versions of this article were delivered as seminars to the Postmodern Legal Theory Workshop at the
University of Hong Kong, at the University of New South Wales and at Griffith University. I would like to
thank Reg Graycar, John Murphy, Bill MacNeil, Shaun McVeigh, Peter Nygh and Stephen Parker for their
valuable comments on those earlier versions, as well as the anonymous reviewers.
I (London: Weidenfeld & Nicholson, 1978).
2 Eekelaar himself has substantially modified his own position: see 'Family Law and Social Control' in
J. Eekelaar and J. Bell (eds), Oxford Essays in Jurisprudence, 3rd Series (Oxford: OUP, 1987) ch 6.
3 (London: Pluto Press, 1993). Although O'Donovan's work is not exclusively constructionist in my
sense, there is a strong constructionist thread to this book: for example, of the law of marriage, she
suggests that it 'has a limiting effect on ontological possibilities - the ways in which we see
ourselves, how we project our futures' (at 33).
4 (London: Routledge, 1995). Collier is an overt constructionist: his book aims 'to explore the
construction of masculinity in areas of law pertaining to the family', ibid 1.
5 See, for example, the (in my view) highly successful deployment of a constructionist account in A.
Diduck, 'The Unmodified Family: The Child Support Act and the Construction of Legal Subjects'
(t995) 22 Journal of Law and Society 527.
0 The Modern Law Review Limited 1998 (MLR 61:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 IJF and 350 Main Street, Malden, MA 02148. USA.        467

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