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This book explores the importance of autonomy in family law. It argues that traditional understandings of autonomy are inappropriate in the family law context and instead recommends the use of relational autonomy. The book starts by explaining how autonomy has historically been understood, before exploring the problems with its use in family law. It then sets out the model of relational autonomy which, it will be argued, is more appropriate in this context. Finally, some examples of practical application are presented. The issues raised and theoretical discussion is relevant to any jurisdiction.
This collection of original essays explores the social and relational dimensions of individual autonomy. Rejecting the feminist charge that autonomy is inherently masculinist, the contributors draw on feminist critiques of autonomy to challenge and enrich contemporary philosophical debates about agency, identity, and moral responsibility. The essays analyze the complex ways in which oppression can impair an agent's capacity for autonomy, and investigate connections, neglected by standard accounts, between autonomy and other aspects of the agent, including self-conception, self-worth, memory, and the imagination.
An interdisciplinary text that investigates mental capacity and considers how relationships can affect an individual's ability to make decisions.
Jennifer Nedelsky claims that we must rethink our notion of autonomy, rejecting the usual vocabulary of control, boundaries and individual rights. If we understand that we are fundamentally in relation to others, she argues, we will recognize that we become autonomous with others.
This book breaks new theoretical ground by constructing a framework of ‘relational vulnerability’ through which it analyses the disadvantaged position of those who undertake unpaid caregiving, or ‘dependency-work’, in the context of the private family. Expanding on existing socio-legal scholarship on vulnerability and resilience, it charts how the state seeks to conceal the embodied and temporal reality of vulnerability and dependency within the private family, while promoting an artificial concept of autonomous personhood that exposes dependency-workers work to a range of harms. The book argues that the legal framework governing the married and unmarried family reinforces principles of individualism and rationality, while labelling dependency-work as a private, gendered, and sentimental endeavor, lacking value beyond the family. It also considers how the state can respond to relational vulnerability and foster resilience. It seeks to provide a more comprehensive understanding of resilience, theorising its normative goals and applying these to different hypothetical state responses.
Describes the concept of the relational self and its potential significance to the law.
There is a tension at the heart of family law and policy between the increasing influence of individual autonomy and the demands of caring for children. Individual autonomy envisages decisions made in one's own best interests, whereas decisions around care are often made for the good of the family, and may conflict with the caregiver's individual interests. Whereas individual autonomy valorises economic self-sufficiency, caregiving responsibilities constrain choice and conflict with paid work. This book explores this tension to consider how, given changing social trends, family law and policy should take account of caregiving responsibilities on parental separation. Crucially, it suggests that we need to rethink family law by placing care at its centre. This book draws on original empirical data to explore the experiences of parents in England and Wales, where the division of paid work and care is considered a choice, and Sweden, where parents are encouraged to work full-time, supported by wellfunded state childcare. This comparative perspective sheds light on whether the clash between the ideas of autonomy and care could be reconciled in a more gender equal society. The book argues that caregiving is hidden from, and undervalued by, law and policy in both jurisdictions, underscoring the need for the proposed new approach. The law needs to think more deeply about what it means to care, and how the care provided by parents differs. Anna Heenan outlines how family law might look different if the proposed framework, based on placing care at the heart of family law, is adopted.
Law and legal discourse both presuppose and produce legal subjects. Views on the nature of the legal subject will constantly shift, therefore, with changes in the law. Contextual Subjects argues that a new view of the legal subject has indeed emerged and that it is now embedded in the social context and relationships. This claim is developed through a contrast of Canadian family law and administrative law as it was in the mid-twentieth century and as it is today. Robert Leckey argues that it is not only the subject that is contextual. Legal discourse and adjudication have also become more contextual, making family law and administrative law themselves contextual subjects. Leckey bolsters this argument through the use of relational theory, a rich strand of feminist political theory that advocates a contextual method and seeks to promote constructive relationships that enable relational autonomy. Developments in family law and administrative law, therefore, exemplify the contextualism called for by relational theorists. Leckey points to the importance of contextualization, but he is not uncritical of relational theory, insisting that it should articulate more forcefully its normative vision of good relationships and offer clear recommendations in contested areas. Contextual Subjects is the most thorough and sustained application of relational theory to legal examples to appear to date. It is unique in Canadian legal scholarship for the way it pairs family law and administrative law, and within legal scholarship in English for its integration of common law and civil law.
This collection of articles critically examines legal subjectivity and ideas of citizenship inherent in legal thought. The chapters offer a novel perspective on current debates in this area by exploring the connections between public and political issues as they intersect with more intimate sets of relations and private identities. Covering issues as diverse as autonomy, vulnerability and care, family and work, immigration control, the institution of speech, and the electorate and the right to vote, they provide a broader canvas upon which to comprehend more complex notions of citizenship, personhood, identity and belonging in law, in their various ramifications. Chapter 7 of this book is freely available as a downloadable Open Access PDF at http://www.taylorfrancis.com under a Creative Commons Attribution-Non Commercial-No Derivatives (CC-BY-NC-ND) 4.0 license.