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InternationalJournalof Law, Policy and the Family 12, (1998), 107-119

MUST THE PERSONAL BE POLITICAL?

FAMILY LAW AND THE CONCEPT OF
FAMILY
LAURENCE D. HOULGATE*

ABSTRACT

This paper looks at the ongoing dispute between traditionalists and feminists
about the nature of the relationship between family law and the family. The
traditionalist position is that since the family is a group of persons who are in
a particular ethical relationship with one another, then there is an essential
dissimilarity between the family and positive family law. The feminist, on the
other hand, argues that the family and family law are identical. According to
one interpretation of the now famous slogan 'the personal is political', the
feminist position is that the family is a political or legal institution in which
the rights and obligations of family members are defined by and cannot exist
apart from the legal system. Hence, on her view, the suggestion that the law
'intervenes' in the family is a 'myth'.
The aims of this paper are first, to offer an interpretation of the idea of legal
intervention in the family that makes this a meaningful notion. Second, to
examine several interpretations of the feminist claim that the law necessarily
intervenes in the family. Third, to show that although there is only one version
of this claim that is plausible, this interpretation is consistent with some of the
central claims about the relationship between law and the family that have
been made by traditionalists.

1. INTRODUCTION: THE TRADITIONAL POSITION

Those who attempt to answer the question 'What is the nature of the
family?' or the question 'What is the nature of law?' often also consider
how the family and law are related. Some answers emphasize an 'essen-
tial' difference between the two. Other more recent answers emphasize
an 'essential' similarity.
Some of those who emphasize an essential difference between the
family and the law argue that the word 'family' connotes a moral rela-
tionship between individuals. Let us refer to this as the 'traditional'
* Philosophy Department, California Polytechnic State University, San Luis Obispo, CA 93407,
USA. A version of this paper was presented to the Cal Poly Philosophy Discussion Group. Special
thanks to Diane Michelfelder, William Wilcox, and James Cushing. I am especially grateful for
the comments of the editors of IJLPFon an earlier draft.
(D Oxford University Press 1998
108 LAURENCE D. HOULGATE
position. Perhaps the most famous expression of this position is by Rous-
seau: 'The most ancient of all societies and the only natural one is that
of the family'.' In the same passage Rousseau makes it clear that the
relationships in the ancient society to which he refers are moral, not
biological. He writes that the children are morally 'bound' to the father,
that they 'owe' the father obedience and he 'owes' them his care. By
'natural' Rousseau means that these moral relationships are non-
voluntary or non-conventional.2 Neither the duties of children to obey
their father nor the obligations of the father to care for his children arise
from any agreement, promise or contract between them.3
The second feature of the traditional position is its conception of the
relationship of positive law to the family. Although the obligations
within the family are natural, the obligations arising from positive law
are man-made. Unlike the moral obligations that parents have to their
young children and the children have to them, the obligations and rights
that exist in a legal system containing laws that affect or concern the
family are created by convention. Hence, although the legal system
might provide a definition of the term 'family', and define and enforce
duties of parent and child, these definitions and duties exist logically
separate from and independent of the moral idea of family and the moral
duties of family life. The 'family' and 'family bonds' not only can exist
independently of laws regulating them, but there were human families
and moral relationships within families long before there were legal
systems.
Third, the traditionalist insistence on the logical independence of the
family from family law provides an account of the idea of 'legal interven-
tion' in the family. The State intervenes in the family whenever (1) it
enacts rules prohibiting or requiring particular behaviour of those per-
sons it defines as family members, eg rules prohibiting child abuse,
spousal violence; and when (2) it enacts rules enabling persons to enter
into various kinds of family relationships, eg rules empowering persons
to marry. In both case (1) and in case (2), the rights, duties and private
powers of family members created by the legal rules are logically inde-
pendent of the corresponding moral rights, duties and powers.
Finally, the traditionalist derives from this account of intervention
and the relationship of family law to the family an explanation of the
public-private distinction. The words 'public' and 'private' are used to
mark areas of family life within which she thinks it is morally justifiable
(public) or unjustifiable (private) for the state to legally intervene. Con-
temporary philosophers of family law join with Rousseau and other
traditionalists in emphasizing that there is a private sphere defined by
the morality of the family, even while rejecting most other aspects of
Rousseau's discussion of the family.' Ferdinand Schoeman, for example,
defines the family as
 FAMILY LAW AND THE CONCEPT OF FAMILY 109
an intense continuing and intimate organization of at least one adult and child,
wherein the child is extensively and profoundly dependent on the adult, in
which the adult supplies the child with its emotional and material needs, and
in which the parent is dependent on the child for a certain kind of intimacy.?
Schoeman concludes this passage with the remark that 'this relationship
is to be understood as moral, not biological'. He then argues that
because the family is an intimate organization, it must be accorded
privacy and autonomy, that is, legislators have an obligation to enact
legislation that guarantees that others (including the State itself) will
be excluded 'from scrutinizing obtrusions into family occurrences'.'

2. THE FEMINIST POSITION

Those who emphasize an essential likeness between family and family

law take a position that is diametrically opposed to the traditional view.
Let us call this the 'feminist' position. The feminist sometimes expresses
her position in a saying that sums up her views on both the family and
family law and on the likeness between them. The saying, now famous,
is: 'The personal is political'. Although the saying has been given several
interpretations,7 in the present context it is taken to mean that the family
itself is political, that is, law and social policy together determine which
groups of persons count as a family and which do not, who is a parent
(mother, father) and who is not, who is a child and who is not, and what
specific rights and duties people have within those groups designated as
families. It follows that the family cannot exist apart from or independ-
ently of a legal system. To say that families might exist independently
of a legal system is as nonsensical as the claim that wills and codicils
might exist independently of a legal system.
Second, the idea of legal intervention in the family is a 'myth'." If the
State intervenes in the family, then there must be families the existence
of which are logically prior to the existence of the laws that define and
regulate them. But since the very idea of family is a legal construct,
families do not exist apart from legal systems. Hence, there can be no
such thing as legal intervention in the family.
Third, it also follows that there is no such thing as non-intervention.
The term 'non-intervention' like the term 'intervention', is meaningless,
for this term also presupposes that the family exists independently of
the legal system. 'The state defines the family and sets roles within the
family; it is meaningless to talk about intervention or nonintervention,
because the state constantly defines and redefines the family and adjusts
and readjusts family roles. Non-intervention is a false ideal because it
has no coherent meaning'.
Fourth, it follows that Schoeman's ideal of a private family immune
from state intervention is also incoherent. A legislative decision not to
110 LAURENCE D. HOULGATE
protect intimate relationships is a political choice as much as is the
decision to take Schoeman's advice and protect such relationships. Both
choices are examples of intervention in the family.

3. 'THE PERSONAL IS POLITICAL'

The feminist claim that the personal is political appears vulnerable to

obvious objection. If the claim is, as it is taken to be above, that the
family is only a political or legal construction that does not exist apart
from political systems, then it is only necessary to point out that there
are plausible non-legal meanings of the term 'family' under which it
makes perfectly good sense to say that families exist independently of
political systems. For example, if we use the word 'family' as it is some-
times used in biology to refer to people who are genetically related,
then we have a conclusive demonstration of the fact that families exist
independent of political society. Again, if we use custom or 'subjective
intention' as the determinant of family, then we have even more counter-
examples to the claim that the personal is political. Custom, but not
law, allows a man to call another man from his father's village 'my
uncle'. And 'subjective intention' allows a lesbian couple in a long-term
monogamous relationship to refer to themselves as a family after one of
them is artificially inseminated, conceives and gives birth to a baby.' °
But has the point of the saying 'the personal is political' been missed
by the preceding refutation? Could the feminists who think that this
saying is true have been oblivious to the fact that law is not the only
determinant of the meaning of 'family'? It seems reasonable to suppose
that feminists who have questioned the traditional public-private dis-
tinction were getting at something other than the literal identification
of the family (the personal) and family law (the political).
This is the view adopted by other feminists. Susan Moller Okin, for
example, reports that she and several other prominent authors do not
accept 'a complete overlapping or identification' of the personal and the
political." She agrees that 'the concept of privacy and the existence of
a personal sphere of life in which the state's authority is very limited
are essential'.12 However, after saying this, Okin proceeds to defend
'four respects in which the personal is political'.' 3
1. The law necessarily intervenes in the family. To the extent that
there is a domestic sphere, a sphere of the family, the limits that define
it, and the types of behaviour that are acceptable and not acceptable
within the family 'all result from political decisions'."
2. What happens in family life is not immune from the dynamic of
power. Power, especially physical violence, is a factor in family life.
Violence within families historically has either been legally sanctioned
or in practice ignored by the police and courts.
 FAMILY LAW AND THE CONCEPT OF FAMILY III
3. Most of a person's early socialization takes place within the family,
for example, gender is reproduced specifically through gendered
parenting.
4. The division of labour between men and women within most famil-
ies raises psychological as well as practical barriers against women in
other 'public' spheres.
Each of these claims about families is worth examining in some detail.
But my goal in this paper is relatively modest. I am interested only in
the first claim. My aims in this paper are (1) to offer an interpretation
of the idea of legal intervention in the family that makes this a meaning-
ful notion; (2) to examine several interpretations of the feminist claim
that the law necessarily intervenes in the family; (3) to show that although
there is only one version of this claim that is plausible, (4) this inter-
pretation is consistent with some of the central claims about legal inter-
vention that have been made by traditionalists.
There are two sources of obscurity. First, if someone says 'The law
necessarily intervenes in the family', we may be unsure what would and
what would not satisfy this claim. What is legal intervention? Second,
how do we confirm or disconfirm the claim that there must be legal
intervention in the family? What is the status of this claim? Does it
make any difference to its validity, for example, that biological families
exist independently of legal systems, or that custom and tradition pro-
vide definitions of family that have nothing to do with the law?

4. THE IDEA OF LEGAL INTERVENTION IN THE FAMILY1 5

Let us stipulate that a family law is any law that concerns a person by
virtue of his or her status as a family member, that is, as a spouse, a
parent, a legal guardian, or a child. For example, a law that prohibits
child abuse is classified as a family law because it prohibits parents or
legal guardians from harming a minor who is in their custody or control.
But a law that prohibits assault is not a family law because it is not the
case that either the victim of the prohibited act or the perpetrator must
have the status of family member (spouse, parent, or child) in order to
violate the law.
Laws can be classified according to their function or 'technique'.
Family laws are no exception. Laws that affect or concern the family
have either a penal, remedial, regulatory, or power-conferring function.
If their function is penal, then they impose fines or use imprisonment
to ensure compliance, for example, family laws that provide criminal
penalties for parents found guilty of torturing, maiming, or mutilating
their children. If their function is remedial, then they define particular
grievances and specific remedies, for example a law that holds parents
or legal guardians liable for the wilful or malicious conduct of their
unemancipated children that results in property damage to another. If
112 LAURENCE D. HOULGATE
their function is regulatory, then the family law is designed to protect
specific persons from suffering harm, for example, child neglect laws
that give courts the power to deprive neglectful parents of legal and/or
physical custody of their child. Finally, if the function of a family law
is power-conferring, then the law defines a particular type of family rela-
tionship and gives persons the legal power to enter into that relationship,
for example, legal rules defining marriage and describing the procedures
and conditions under which a marriage can be accomplished.
Are there any generalizations that can be made about what the words
'legal intervention' and 'legal non-intervention' in the family might
mean in the preceding cases? First, with regard to the penal, remedial
and regulatory functions of law, I do not find anything in principle to
distinguish between what is meant by legal intervention in the family
and what is meant by legal intervention in any other kind of social,
non-legal practice or behaviour. For example, when we speak of legal
intervention in sexual behaviour we usually mean that there are specific
kinds of prohibited sexual behaviour and that the State is prepared to
punish those who engage in one of the prohibited acts. Those who
believe that the State has prohibited a particular kind of sexual behavi-
our that ought not to be prohibited (eg homosexual acts between con-
senting adults), express this by saying that this is 'unjustifiable' state
intervention. They also express this by saying that consensual sexual
behaviour constitutes a 'zone or privacy', and/or that such behaviour
'is not the law's business'. If the State respects these zones of privacy,
then they use the term 'non-intervention' to indicate that the state does
not prohibit the specified behaviour.
By analogy, when the traditionalist speaks of legal intervention in the
family she usually means that there is a penal, regulatory or remedial
family law that prohibits or requires specific behaviour. She may also
mean by the terms 'legal intervention' that there is a power-conferring
rule defining a kind of family relationship (eg marriage) and providing
a facility for realizing a desire to enter into this relationship.
It follows that the phrase 'non-intervention' would refer either to any
behaviour by and between family members which is not prohibited or
required by a penal, remedial or regulatory family law, or to any family
relationship which the law does not empower one to create. For
example, in our society there are no regulatory laws requiring parents
to provide their children with religious instruction. Hence, with regard
to the question whether a child does or does not receive religious instruc-
tion, there is a policy of non-intervention in the family. Again, we might
imagine a society which has no legal concept of marriage. Marriage in
this society would describe a moral but not a legal relationship between
persons. 6 In this society it would make sense to say that the State does
not intervene in marital relationships.
 FAMILY LAW AND THE CONCEPT OF FAMILY 113

It is important to distinguish between legal intervention per se and

legal intervention by family law. I have said that a sufficient condition of
legal intervention in the family is that there is a penal, regulatory or
remedial family law that prohibits or requires specific behaviour. There
is a good reason that the words 'family law' are used in this formulation.
For suppose that a hypothetical state 'S' has no specific family laws
prohibiting parents from the kind of acts that constitute 'child abuse'
(ie using force on or against children that is either designed or known
to cause a substantial risk of death, disfigurement, or serious bodily
harm). In this case, the traditionalists would say that S has refrained
from intervening in the family. At the same time let us suppose that
S does have laws prohibiting murder, assault, torture, maiming and
mutilitation. Shall we conclude from this that the traditionalist is mis-
taken when she argues that state intervention exists only when there is
a specific family law prohibiting child abuse? For although parents in
S who intentionally cause serious bodily harm to their children cannot
be punished under family laws that specifically prohibit child abuse,
they can be punished under general criminal laws in S that prohibit
assault.
The question is ambiguous. If the question means: does S intervene
and punish persons who in fact are members of families, then the answer
is that S does intervene. But if the question means: does S intervene
and punish persons because they or the person they have harmed are
some kind of family member, then the answer is that it does not inter-
vene. In the former case the only situation which would qualify as one
of complete non-intervention in the family would be a government which
granted immunity from criminal7
prosecution to anyone who harmed a
member of his own family.'
This is clearly not what the traditionalist (or anyone else) means by
non-intervention. In the latter case, non-intervention would describe a
situation in which a government had no specific legislation prohibiting
harm to a family member, ie in which there were no family laws in the
sense defined above, but in which the State could pursue one family
member who harmed another in violation of a criminal law. It is only
when the State enacts and enforces specific family laws that a tradition-
alist would say that it has a policy of state intervention in the family.
Finally, to say that there is legal intervention in the family does not
always imply the formal enactment of a family law. Since the enactment
of a law is a deliberate dateable act it seems obvious that not all family
laws need to have their origin in legislation. Another traditional source
of family law is custom. That is, in some legal systems a customary rule
might, like statute, be law even before the court applies it. This would
be the case if the system contains a superior rule (an 'ultimate rule of
recognition')' which stipulates that all customary rules are valid. For
114 LAURENCE D. HOULGATE
example, if it is the custom in a particular society for the husband of a
woman who bears a child to be the presumptive father of the child (with
an obligation to provide financial support for the care of the child), then
the courts must enforce this rule even if it has never been formally
enacted or previously adjudicated.

5. MUST THE LAW INTERVENE IN THE FAMILY?

What is the feminist thinking of when she says 'there must be legal
intervention in the family'? There are several possible interpretations of
this claim.
First, she may have in mind no more than the desire to make the
empirical point that legal systems provide definitions of marriage and
family and establish rules that set roles within the family. When con-
fronted with a case in which there is something that we would call a
marriage the definition of which is not provided by the rules of a legal
system she may simply limit her generalization and admit that there
are exceptions to her claim.
Second, the feminist may wish to put forward a moral demand. The
claim might be construed as 'it is morally undesirable for the state to
refrain from intervention; it ought to define the family and roles within
the family'. The person who holds this view reacts to instances where
the State does not intervene by regulating or defining the family in this
way: (1) she doesn't withdraw her statement or claim, however many
instances there are of societies that refuse to intervene in the family;
(2) she is not necessarily inclined to say such things as 'these are not
really families'.
Third, the claim that the State must intervene in the family may be
understood as a conceptual remark. Something is being said about the
concept of the family. This, I think, is the most favoured interpretation
of 'the family is political'. But exactly what is it that is being said? Let
us look at three different analyses of the conceptual relationship between
family law and the concept of family.
(a) Some philosophers believe that all concepts of right and wrong,
duty and obligation, justice and injustice are essentially linked to the
law.' 9 For them a necessary condition for a rule to confer rights or
obligations is that it be a legal rule. Such philosophers may also believe
that the family is defined in terms of rights and obligations. They might,
then, conclude that there could not be families independently of legal
systems. They would reach this conclusion because they believe there
exists some necessary connection between rights and obligations and
the law. This is one possible line of argument, but it contains the false
premise that there are no obligations and rights independently of those
defined by a legal system, that is, it has all the limitations associated
with the view that there is no separation of morals and the law.20
 FAMILY LAW AND THE CONCEPT OF FAMILY 115
(b) The connection between a group of persons being a family in
a particular society S and S having laws defining the family and
regulating conduct within the family might be like the connection
between being a bachelor and being male. That is, if S had no laws
defining the family and regulating conduct within the family, then
there would be no families in S. If there were any groups in S of
two persons of the opposite sex who mated, procreated and resided
permanently with their children, this philosopher would say 'such
groups are not really families'.
Now I think that what might lead the feminist to this counter-
intuitive conclusion is that she correctly notices that the family is
something more than a group of genetically related persons. Although
a biologist might use the word 'family' to indicate a group of genetic-
ally related individuals, the primary use of "family" is normative.
That is, it is used to refer to a group of persons (not all of whom
may be genetically related) who have rights and obligations with
respect to each other (for example, the obligation of parents to satisfy
the needs of their young children, and the correlative right of young
children to have their needs satisfied by their parents).2 Since legal
systems define and enforce rights and obligations, the feminist wrongly
concludes that the concept of family must be connected in meaning
with the concept of a legal system. But it seems clear that the
concepts of family and law are not connected in this way. Not all
rights and obligations are legal. Some are moral; others are derived
from the proscriptions of religion.
(c) There is a third way in which the concepts of family and family
law might be conceptually connected. It might be argued that these
concepts stand to each other in the way that the legs of a chair stand
to the idea of a chair. 'Neither the absence nor the presence of such a
feature is determinative of a thing's being of a certain kind though it is
relevant to a thing's being of a certain kind.'22 One can imagine a chair
without legs. However, the absence of legs is certainly relevant to
(evidence for) a thing not being a chair.
Do the concepts of family and family law stand to each other in this
way? In order to answer this question, let us imagine two different types
of legal system both of which lack family law (that is, neither system
contains laws that affect or concern persons by virtue of their status as
a family member): (1) A system in which all laws are the result of formal
legislative enactment or past precedent-settling decisions of the courts.
(2) A legal system that in all relevant respects is like the preceding
system with the additional feature that customary (moral) rules are also
regarded as an important source of law.
With respect to system (1), the question before us is not whether the
presence of family law is a necessary condition for the existence of a
normative concept of family, but whether its absence in a legal system
116 LAURENCE D. HOULGATE
is relevant to a determination that persons in that society lacked a norm-
ative concept of family. If family laws were entirely absent, would this
weigh against our saying that persons in that society possessed a norm-
ative concept of family?
I have said that a normative concept is a concept the definition of
which employs such ethical terms as 'obligation', and 'rights'. Accord-
ingly, a normative concept of the family would be one in Which the
family is defined as a social group made up of persons who are related
to each other by particular obligations and rights. One way to discover
whether members of a social group possess this concept is to ask whether
they have a critical reflective attitude about the rules governing family
relationships.23 For example, do they generally regard violations of the
rules as lapses or faults open to criticism? Do they meet threatened
lapses with pressure for conformity? Is the fact that a rule has been
violated regarded as a good reason for making the criticism?
Since the only source of law in (1) is legislative enactment and judicial
precedent, we need much more information about the beliefs and atti-
tudes of those who are subject to the law if we are to answer these
questions. Suppose, for example, that there is only one person (a
monarch) who decides what is law in the society, and the monarch has
never enacted a family law. It is doubtful that we would take the absence
of family law in this society as having any relevance to the question
whether its members had a normative concept of family. That the mon-
arch does not enact any family law might show that he or she does not
regard family relationships as important, or it might indicate that the
monarch believes that the moral rules governing family relationships
are adequate. But we can draw no conclusions either about the attitudes
or behaviour of the monarch's subjects. For example, we would not
know whether they exert any pressure on parents to feed, shelter and
clothe their children, nor whether they criticize those parents who fail
to do this. In short, the failure of the monarch to enact family law tells
us nothing about whether members of this imaginery society do or do
not possess a normative concept of the family.
If we turn now to a consideration of system (2), there is a much
stronger pull than with the first system to say that persons in it would
lack normative concept of family. Since customary rules in this system
are regarded as one of the sources of law, the complete absence of family
law provides strong evidence that this society lacks a normative concept
of family. Without customary rules to guide their behaviour, it is likely
that members of this society would not have a critical reflective attitude
toward their own behaviour or that of others within families. However,
because a system of religious laws governing family relationships might
take the place of custom in some societies, we cannot claim with cer-
tainty that the absence of customary rules is determinative of the absence
of a normative concept of family.24
 FAMILY LAW AND THE CONCEPT OF FAMILY 117
6. CONCLUSION

This paper opened with a description of a dispute over how the concepts
of family and law are related. Traditionalists emphasize an 'essential'
difference between the two, whereas some contemporary feminist
answers have emphasized an 'essential' likeness. Have we, ironically,
resolved this dispute not by endorsing one view and rejecting the other
but by showing that there is no fundamental conflict between plausible
versions of them? When traditionalists speak of an essential difference
between the family and family law, they imply a moral ideal of marriage
and family that they believe the State should enforce through one or
more of the various functions of law. But this is surely consistent with
the feminist claim that there is a kind of conceptual connection between
the family and family law. Interpreted as the position that there must
be legal intervention in the family ('the personal is political'), this is
best defended as the claim that the existence of family law is at least a
relevant factor indicating the presence of a normative concept of family,
at least in those societies whose laws are informed by the customary
rules embodied in its legal system. Indeed, the two positions can be
regarded as complementary. For if one agrees with the thesis that legal
intervention in the family is a sign of the commitment of a society to
ethically ideal types of interfamily relationship," then it is only a short
step to the thesis that where such an ideal exists, there you are likely
to find a legal system that supports it through one or more of the several
techniques of family law.

NOTES

' Rousseau (1762) 18.

2 Similar theories about the non-voluntary nature of moral relationships in the family are held
by many contemporary philosophers. See, for example, Schoeman (1980) 6-19; Becker (1984);
Sommers (1986) 439-56.
3 Rousseau also maintains that the reciprocal obligations of children and their father arise from
the need of the children for their father's care. 'As soon as the need ceases, the natural bond is
dissolved' and father and children 'return equally to independence'. The children no longer have
an obligation to obey their father and he no longer has a duty to preserve or to protect them. The
father and children may at this point 'continue to remain united', but 'this no longer takes place
naturally but voluntarily, and the family maintains itself only by means of convention'. If the
children continue to reside with their father and he persists in providing for their support even
when they no longer need it, this is only because father and children have entered into a voluntary
agreement to this effect. See n. 1 above.
' Most contemporary philosophers of family law have endorsed the ideal of promoting justice in
family relationships. They reject Rousseau's claim that there is a natural hierarchy of family roles
in which the husband is the breadwinner and decision-maker and the wife is to care for the
household and the physical needs of the husband and children. See, for example, the discussion
of liberal feminism in Tong (1989) and the defence of the ideal of the just family in Okin (1989).
5 Schoeman (1980) 9-10.
6 Schoeman does not mean that the State should never intervene in the internal affairs of family
life. He follows others in setting 'strict threshold conditions (amounting to a clear-and-present
danger criterion) which must be met before coercive state intervention is permitted'. (Ibid, at 11).
118 LAURENCE D. HOULGATE
Similar views on the boundaries of state intervention have been expressed by Houlgate (1980)
119-37; Houlgate (1988) 135-49; Coady and Coady (1992), and Archard (1993) 122-32.
See the discussion in Part 3 below.
Olsen (1985), 835.
9 Ibid, at 842.
"0 Macldin (1988) 35. Macklin distinguishes between four different 'determinants' of family:
biology, custom, law, and subjective intention. Under the latter determinant, almost any intimate
group of persons residing together in a long term relationship might plausibly refer to themselves
as a family.
" Okin (1989) 128. The authors to whom Okin refers are Pateman (1983); Nicholson (1986);
O'Brien (1981) 193; and Allen (1988). See also Bell (1993), and Cass (1992).
12 Ibid, at 128.
13 Ibid, at 128-33.
14 Ibid, at 129, with particular reference to Olsen (1985).
15 Parts of this section are discussed in greater detail in my paper 'What is Legal Intervention
in the Family? Family Law and Family Privacy', forthcoming in Law and Philosophy.
"' John Locke's description of marriage in the pre-political 'state of nature' is a description of a
moral relationship between persons 'made by a voluntary compact between man and woman ...
[that] consists chiefly in such a communion and right in one another's bodies as is necessary to
its chief end, procreation'. Locke (1960) II, 78.
'7Olsen refers to this as a 'state of nature' within the family. Ibid, at 855.
m A rule of recognition specifies 'some feature or features possession of which by a suggested
rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported
by the social pressure it exerts'. Hart (1960) 97.
1" See, for example, Hobbes (1651) ch 13.
2 Hart (1983) 49-87.
21 Macldin, ibid.

• Morris (1976) 20.

Hart (1960) 55. Hart refers to this feature as the 'internal aspect' of rules: if a social rule is to
exist some at least must look upon the behaviour in question as a general standard to be followed
by the group as a whole.
24 Of course the system of religious laws might be identical with the customary rules of the
society, eg Islamic law on the family appears to be identical with custom in many mid-Eastern
countries.
' Consider, for example, Susan Moller Okin's advocacy of the just' family as the ideal that
should be promoted in a legal system. Okin (1989) 170-86.

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