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Book Chapter

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Reconceiving The Family: Critique On The Ali’s Principles Of The Law Of Family Dissolution

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Family law is again in turmoil, and the ALI Principles are an ambitious and sometimes inspired effort to increase clarity and fairness. This turmoil can be attributed to two major factors. First, family law is ground zero in the gender wars. Second, family law is reeling from the upheavals of globalization. These factors provide the backdrop against which the dilemmas addressed in Chapter 7, Agreements, play out.

Chapter 7 focuses on a particularly intriguing tension, between commercial contracts and premarital agreements. This tension is grounded in the broader tension between American views on freedom of contract and autonomy in general, on the one hand, and American views on freedom of contract and autonomy in the specific context of the family, on the other. While the emphasis on freedom of contract may be peculiarly American, tension between legal regimes and private contractual regimes governing the family is quite common from an international perspective. As it is here, the tension between competing regimes in other countries reflects deep cultural tensions. Rather than being grounded in the sacrosanct principles of autonomy and contractual freedom, however, private contractual regimes in other countries are generally grounded in religious or customary practices. Prominent examples include the Islamic and Jewish marriage contracts. While these tensions have been addressed by a broad range of domestic courts relying on domestic law, here and abroad, my focus is on the international mediation of these competing interests under international law. International law addresses these conflicts through private international law, such as the Convention on the Recognition of Foreign Judgments, and through public international law, specifically international human rights law. My thesis here is that the ALI Principles on Agreements should incorporate, and be subject to, the relevant human rights law.

While there are certainly good reasons for incorporating human rights law in all areas of family law, there are especially strong reasons for adopting it here. First, any consensus regarding "appropriate rules" must be grounded in a coherent rationale. Because of the stature of the norms to which they are an exception, including constitutionally protected religious freedoms, the underlying rationale to justify different treatment between marital and non-marital contracts should be grounded in law of commensurate stature. Second, because of the growing diversity of the American population, and the proliferation of disparate cultural norms, that law should not be grounded in the amorphous and irrelevant conceptions of equity, but in well-established and widely accepted international human rights law.

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