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Philosophical Foundations of Children's and Family Law$
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Elizabeth Brake and Lucinda Ferguson

Print publication date: 2018

Print ISBN-13: 9780198786429

Published to Oxford Scholarship Online: April 2018

DOI: 10.1093/oso/9780198786429.001.0001

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Family and Family Law

Family and Family Law

Concepts and Norms

(p.59) 2 Family and Family Law
Philosophical Foundations of Children's and Family Law

David Archard

Oxford University Press

Much contemporary writing on ‘family’ and ’family law’ cites extensive changes to the family as evidence that the very concept of the ‘family’ is redundant, or that the family has disappeared. Conceptual questions (What counts as a family?) should be distinguished from normative ones (Is the family a good thing? Are some families better than others?). The use of the term ‘the family’ can be normatively innocent such that there are different family forms none of which should be privileged. Having distinguished ‘the family’ as an extra-legal concept and as a legal construct, I defend a functional definition of the family. This value-free definition can serve as the basis of evaluative judgments about the family. There are good reasons why law might recognize the family, consistent with law also recognizing non-familial personal relations. Nevertheless we need not accord familial status to such relations, or abandon the term ‘family’.

Keywords:   family, family law, children, functional definition, intimate relations

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