Document Type


Publication Date



In this Essay, I want to reflect on no fault-divorce and the social attitudes that underlie it. In particular, I want to consider that reform in light of an article I wrote some years ago entitled Moral Discourse and the Transformation of American Family Law. There I argued that in recent years the language of American family law has changed notably: today family law issues are decreasingly discussed in the language of morality. In other words, legal institutions have decreasingly talked about those issues in moral terms. Rather, they have tended to avoid handling some moral issues altogether-often by transferring responsibility for such decisions to the people the law once regulated-or to discuss those issues in other than moral terms. This argument might be misunderstood in one respect. I am not suggesting-I have never suggested-"that lawmakers' decisions are necessarily less moral, that family law is necessarily deprived of a moral basis, or that lawmakers may not have moral reasons for avoiding moral discourse." Quite obviously, much of this change can be defended in quite conventional moral terms-as an expression, for instance, of a number of standard liberal views. My point,·rather, is that "the terms lawmakers use in explaining (and presumably in thinking about) their work are decreasingly drawn from the vocabulary of morals and are increasingly drawn from the discourse of economics, psychology, public policy studies, medicine, or from those aspects of legal doctrine which speak in other than moral terms." Thus the language of morals is being displaced by other discourses or even by silence.