Family Law and the Pursuit of Intimacy

In recent years, family law has catapulted from the shadows to the spotlight in public consciousness. The issues that family law addresses--divorce, custody, single parenthood, same-sex marriage, prenuptial contracts, unmarried cohabitation, alternative families--have attracted enormous public attention and have become the subject of celebrated legal disputes, newspaper and magazine articles, television shows and movies, and Presidential campaigns. The modern family serves as a highly-charged symbol of the conflicts that arise within an American culture that professes devotion both to individual rights and family obligations. Family law has shown increasing willingness in the last two decades to resolve these conflicts in favor of individual rights. It has placed heightened emphasis on the autonomy of individual family members, exhibiting greater suspicion of the family as a constraint on self-development. This has translated into a waning influence for the moral vision of family life that assigns rights and obligations to those with formal legal identities such as spouses, parents, or children--a vision expressed in the legal model of status. In its stead has entered the alternative vision of contract, which enables individuals themselves to establish the terms of their relationships, with regulation limited to cases of imminent harm. This vision strives to free individuals from the fetters of communal expectations so that they can pursue genuine intimacy with others. In this timely work, Regan delves into recent legal cases, social theory, and family history to challenge the assumption that contract should serve as the governing principle of family law. The devaluation of status, he claims, puts us at risk of losing the resonance of the family as a cultural model of the responsibilities that flow from relationships with others. In a postmodern world marked by fragmentation of both identity and personal relationships, intimate commitment may rest more than ever on the ability of culture to orient the individual within shared norms of conduct. The challenge therefore is to construct a new model of status--shorn of sexist assumptions, yet based on commitment and responsibility--that will preserve the distinctive character of family law as a narrative about self and other in intimate relationship.