Family Law: Values Beyond Choice and Autonomy?
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Springer Nature B.V. 2020
BRIAN H. BIX*
FAMILY LAW: VALUES BEYOND CHOICE AND AUTONOMY? (Accepted 17 October 2020)
In The Choice Theory of Contracts, Hanoch Dagan and Michael Heller offer what they characterize as ‘a liberal view of contract law.’ (xi) Theirs is a contract theory that sounds more like prescription than the combination of description and conceptual analysis one finds in more familiar theories of doctrinal areas of law (promissory theories of contract law, corrective justice theories of tort law, etc.).1 The theory is ultimately grounded on the value of ‘individual autonomy – with self-determination, with self-authorship’ (1). As the theory builds out from discussions of individual contract law doctrines to a broader understanding of what part the governments should play, the Choice Theory ultimately focuses on the role of the state in helping to increase individual autonomy through supporting (and, where necessary, creating) a variety of contract types, across a range of activities. (67–78) The range of activities where Dagan and Heller prescribe more contract types extends to ‘the development of alternatives to conventional contract types in family settings.’ (119) Family law is an area which has, in recent decades, significantly increased the role of party (contractual) choice – a trend which some celebrate and others greet with dismay. This review will dig deeper into this area to investigate the extent to which the Choice Theory is a helpful guide to how government does or should act in relation to families.
1 The authors characterize their approach ‘as an interpretation of existing contract law in liberal societies, one that crafts a theoretical framework for tis doctrines that present them in their best light.’ (12) I think that this understates the prescriptive force of the work, while overstating its descriptive fidelity to current practices, but I do not have time here to give the necessary detail to ground this conclusion.
BRIAN H. BIX
Part I offers an overview of the choices (through agreements and state-provided options) made available to individuals in relation to American family law,2 and how such choices are currently regulated. Part II summarizes the reasons given by courts and commentators in favor and against the provision of such options. Part III revisits the Dagan/Heller argument for the Choice Theory in the context of these discussions, before concluding. I. AGREEMENTS AND OPTIONS
In family law, autonomy-enhancing choices can be provided either by the enforcement of agreements or by the provision of alternative arrangements among which individuals, couples, or families are allowed to choose. As will be seen, most of the available choices in American family law are some form of enforceable agreement, but other sorts of options are mentioned where relevant. What follows is a brief overview of family law choices. A. Premarital and Marital Agreements Premarital agreements are contracts entered on the eve of marriage, in which the spouses-to-be agree to modify the financial
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