1. INTRODUCTION

When, as an undergraduate student, I read John Eekelaar’s essay on children’s rights, I was struck by the graceful writing, the lucid argument and the degree to which John’s pragmatism was philosophically and historically informed. All of this appealed to the budding scholar in me; John has been a beacon in my intellectual life ever since. I feel deeply privileged to be able to participate in this project in his honour.

John has an extraordinary capacity to challenge us (even on ‘easy’ or’settled’ issues). His essay on power (‘Power’) is, therefore, unsurprisingly provocative. I have long believed that lawyers often exaggerate law’s power in family regulation. For me, the exaggeration of law’s power is responsible for some unwise legal rules and some unreal expectations. The rule against promoting homosexuality as ‘a pretended family relationship’, for example, was never going to retard the legal recognition of same-sex families. Rules privileging marriage and limiting recognition of unmarried cohabiting relationships were never likely to stem the incoming tide of those relationships. Law is a small part of a much larger power game. Additionally, power within personal relationships themselves also creates intractable problems for law. Should law exert power to remedy unevenness of power in those relationships? Law’s caution has often frustrated me.

I read ‘Power’, therefore, hoping for much. But, although the essay is thoughtprovoking, John went about analysing power differently than I had hoped he would. He was less interested in the nature of power, and the way in which it might be better harnessed, than in the broad policy directions in which it is exercised in personal life.

In this chapter I will, therefore, offer my own reflections on the concept of power. I hope that this will contribute towards a more sophisticated and robust use of power in family law. I do this because:

• 1. Law and its agents are popularly understood to have power, and to exercise it. It would be useful to know, more precisely, what this means.

• 2. In both the making and enforcement of law, assumptions are made that the exertion of legal power will be effective.