The Moral Limits of Family Law

Abstract

Questions about the moral limits of state intervention have usually been asked about intervention in the actions of individuals, and only rarely asked about intervention in the behavior of families. In this chapter we will discuss these questions as they pertain to families by using the same normative principles employed in familiar discussions about the limits of state intervention in the conduct of individuals: harm-to-others, legal paternalism, and moralism. In this discussion we will introduce and critically examine the doctrine of family privacy which says that the state has no business intervening in internal family conduct which does not harm the interests of anyone outside the family. Using the language of J.S. Mill (quoted in the epigraph), we will ask whether it is true to say "Over itself, over its own members, the family is sovereign." Before we attempt to answer this question we need to respond to the objection that questions about the limits of state intervention wrongly assume that there is a concept of the family that is pre-political or pre-legal. It has been argued that this assumption is false because the family, like the personal, is essentially political. Is the assumption false? Or is there a concept of family that allows us to refer meaningfully to unjust or wrongful legal interventions in family life? 5.1 Legal Intervention in the Family In Chap. 4 we examined three normative theories of interpretation, each informing us of the best way to determine the constitutional limits of family law: the limits set by the U.S. Constitution regarding the amount and kind of control that parents should have over their children's education, that married couples should have over "The only part of conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign." John Stuart Mill, On Liberty (1860)