Back to the future: The perils and promise of a backward-looking jurisprudence

Research output: Chapter in Book/Report/Conference proceedingChapter

Abstract

Family law once regulated sex and family by providing bright-line definitions of status (marriage principally among them) that served to inculcate and reinforce the prevailing norms of the day. In contrast, the Principles would replace the nineteenth century insistence on the marital monogamous family as “the foundation of civilization” with a rush not to judge. The Principles strive to treat all families and intimate relationships on equal terms and insist on few, if any, preconditions for the recognition of family relationships. Rather than police rigid status boundaries – and the draconian consequences that follow from them – they suspend judgment, moral and practical, long enough to create a private space for the creation of relationships free from the historical weight of family regulation. When families break down, however, the Principles do not hesitate to intervene, to secure protection of the vulnerable and to provide a foundation for family members to continue on the basis of what has come before. To do so, the Principles necessarily rest on existential uncertainty with respect to the legal obligations they would enforce. After all, what is the status of a premarital agreement, valid when entered, whose enforceability can only be determined at the time of implementation? Or of an intimate relationship whose partners have exchanged no formal promises and forged no understandings, but who may be substantially obligated to each other when the relationship ends?.

Original languageEnglish (US)
Title of host publicationReconceiving the Family
Subtitle of host publicationCritique on the American Law Institute's Principles of the Law of Family Dissolution
PublisherCambridge University Press
Pages209-233
Number of pages25
ISBN (Electronic)9780511617706
ISBN (Print)0521861195, 9780521861199
DOIs
StatePublished - Jan 1 2006

Fingerprint Dive into the research topics of 'Back to the future: The perils and promise of a backward-looking jurisprudence'. Together they form a unique fingerprint.

  • Cite this

    Carbone, J. (2006). Back to the future: The perils and promise of a backward-looking jurisprudence. In Reconceiving the Family: Critique on the American Law Institute's Principles of the Law of Family Dissolution (pp. 209-233). Cambridge University Press. https://doi.org/10.1017/CBO9780511617706.013