What is Family Law?: A Genealogy Part II

Abstract

This Article offers a genealogy of domestic relations law (later renamed family law). It comes in two Parts. Part I is an account of how it emerged as a distinct field in American law in the latter half of the nineteenth century. This Part, Part II, is an account of its successive transformations over the course of the twentieth century. I argue that domestic relations/family law did not always exist; rather, it was invented, and the ideological implications of that act of creation remain embedded in the field today. The central idea which, I argue, recurrently characterizes the field is that the family and its law are the opposites of the market and its law. Born in the middle of the nineteenth century as the notorious status/contract distinction, it has shown amazing powers of resilience, surviving three highly intentional and collectively organized attacks and gathering to itself new ideological and practical implications as the presuppositions about law that permeate legal consciousness have changed and changed again over time.