Brian Bix, ‘Family Law: Values Beyond Choice and Autonomy?’

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). 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.

Part I offers an overview of the choices (through agreements and state-provided options) made available to individuals in relation to American family law, 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.

Brian H Bix, Family Law: Values Beyond Choice and Autonomy?, Law and Philosophy. Published: 21 November 2020.

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