1. INTRODUCTION

Family law scholars typically contribute to our understanding of family law doctrine. Some go further and give us a better understanding of family law from either a theoretical or empirical perspective. Very few try their hands at both theoretical and empirical inquiry, and almost none make major contributions in both of these arenas. John Eekelaar has pulled offthis feat. Put simply, John has improved our understanding of both family law facts and family law values. He has even provided guidance on how facts, values, and law should relate to each other.

This last contribution is increasingly important. For, as John himself has explained, the facts – of individual motivation and behaviour, family relationships and economics, the way the law in the books translates when applied in practice – play an increasingly important role in determining the content of family law. The search for facts is now a fundamental component of family law development: legislatures, courts, and law commissions not only rely heavily on empirical research in reaching conclusions about how the law should evolve, but at times they even commission studies when they conclude that critical evidence is lacking.

This ‘empirical turn’ in family law is not uncontroversial. Some scholars have argued that it is dangerous, and at least one has urged that it is fundamentally misguided. In this chapter, I briefly describe the debate over empiricism. Using John’s contributions to that debate, I then re-evaluate the role of empirical research in integrating facts and values in family law.

2. THE RISE OF EMPIRICISM IN FAMILY LAW: HOW NEW VALUES PRODUCED NEW INTEREST IN FACTS

The rise of empiricism in family law dates from the pivotal 1960s and 1970s, a period when family law moved rapidly away from fault- and gender-based rules toward a more pragmatic, gender-neutral approach. A key example of this shiftis divorce law. The old rules required a showing of grave marital fault as a basis for marital termination and assigned post-divorce rights and entitlements based largely on gender. The new rules permitted divorce based on a showing that the relationship had irretrievably broken down and assigned rights and entitlements based on a gender-neutral evaluation of marital contributions and need.

Of course, both the old divorce rules and the new ones relied on facts and values.