Much of the literature on nonmarriage uses autonomy and choice as central values. This article explores the conscriptive side of family law, where choice is irrelevant. For example, genetic parents can often be conscripted into legal parentage, and no parent can “divorce” their adult children. These rules arguably represent substantive normative judgments about what it means to be a “parent.” To be sure, the state does not have a good track record when it asserts its right to define “family.” But substantive normative judgments about what a “family” is, and what membership in a “family” entails, do not have to be tools for oppression and exclusion. This article explores ways that they could support progressive projects like imposing support obligations on former cohabitants and current co-parents. Each of these reforms needs a defense that is not solely grounded in autonomy and choice. One such defense is that certain relationships constitute a “family” and members of a “family” have obligations toward one another, regardless of choice.
Choice, Consent, Family, Normative Judgment, Relationships