Misused Concepts and Misguided Questions: Fundamental Confusions in Family Law Debates

Abstract

Autonomy and privacy are common terms in family law discourse. Many of the most popular family law scholarship topics are characterized as posing the question whether the state should regulate or intervene in family relationships, an action viewed as infringing on autonomy or privacy or both. Those who argue in favor of greater parental control over children's lives, or greater freedom for parents in the way they treat their children, typically speak of regulation and intervention in a pejorative manner and ostensibly stand opposed to them and in favor of what they call "parental autonomy," "family autonomy," and "family privacy." Even those who would like to see state agencies more aggressively protect weaker parties in family relationships against more powerful persons in those relationships use the terms regulation intervention in a way implying that non-regulation and nonintervention are possible and, in fact, constitute the default state of affairs. They view state regulation of or intervention in the family as a departure from a natural-that is, state-free-situation. They differ from those who characterize themselves as anti-regulation by arguing in favor of such a departure.
Yet autonomy and privacy and their attendant concepts are almost always inappropriate in a family law context, and the question whether the state should regulate family relationships is a nonsensical one.