Abstract
Membership categorisation analysis (MCA) is a well-accepted approach in the areas of conversation analysis and ethnomethodology―yet it is hardly known in mainstream semiotics, let alone in social semiotics; and even less so in the comparatively recent uptake of social semiotics by legal scholars. Despite this, we think the basics of MCA could have important consequences for the emergent field of legal semiotics and we try to show this here by reference to aspects of family law in Australia.
In the beginning was the deed
J.W.Goethe
Source: SUMMERFIELD, TRACEY & MCHOUL ALEC: “Family as a commonsensical device and its place in law” in: International Journal for the Semiotics of Law, 2005, p. 243–261
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
For a fuller explication of Sacks and MCA, see David Silverman, Harvey Sacks: Social Science and Conversation Analysis (Cambridge: Polity, 1998), at 74–97.
- 2.
Harvey Sacks, “On the Analyzability of Stories by Children”, in Directions in Sociolinguistics, eds. John Gumperz and Dell Hymes (New York: Holt, Rinehart and Winston, 1972), 325–345.
- 3.
On all such matters, see Rod Watson, “Categorizations, Authorization and Blame-Negotiation in Conversation”, Sociology 12/1 (1978), 105–113. Also: Maria T. Wowk, “Blame-Allocation: Sex and Gender in a Murder Interrogation”, Women’s Studies International Forum 7/1 (1984), 75–82.
- 4.
Charles Sanders Peirce, Collected Papers (Cambridge: Harvard University Press, 1931–1958), at 2.623.
- 5.
(1866) LR 1 P&D 130, per Sir James Wilde.
- 6.
Per Mason and Brennan JJ in Calverley v Green (1984) 155 CLR 242 at 259–60 and Brennan J in The Queen v L (1991) 174 CLR 379 at 392.
- 7.
s65E.
- 8.
s65C.
- 9.
The exception is WA which has established a parallel legislative regime, which replicates the FLA but with application to families headed by de facto couples (heterosexual and same-sex): Family Court Act 1975 (WA).
- 10.
For example, it was presumed by the Family Court until the mid-1970s that it was in children’s best interests to be with their mother (the ‘mother principle’). The principle was rejected by the High Court in Gronow v Gronow (1979) 144 CLR 513. The Family Court had also relied on the correlating presumption that the father’s role was to be out working. McMillan v Jackson [1995] FLC −92–610 was an appeal from a decision that the father should not be granted custody because it would mean than he would become dependent upon social security. The Full Court noted that ‘his Honour’s pre-conception that the father should be out working to support his son, rather than staying at home to look after his day to day needs, played a significant part in his determination of this case’ (at 82,084, per Baker, Lindenmayer and Burton JJ). Other cases have invoked s43 to support the view that a child’s best interests are better served in the care of the parents than in the care of an extended family member or some other non-related person: Obrenovic v McCauley [1985] FLC–91–655 per Gee J and Drew and Drew (1993) FLC −92–360 per Treyvaud J. However, more recent cases have stated that there is to be no presumption that the natural parents should be favoured, over other persons, and that each case is to be determined by reference to the facts and the individuals before the Court. For example, Re Hodak [1993] FLC −92–421 per Lindenmayer J, and the Full Court in Rice v Miller [1993] FLC −92–415 and Re C and D [1998] FLC −92–815.
- 11.
As affirmed in the above cases.
- 12.
Rebuttable presumptions of parentage reflecting biological connection are provided under Part VII, Div. 12. Section 60D provides that parenting includes adoptive parents and that adoption refers to adoption under the law of the place of adoption.
- 13.
Re Patrick and An Application Concerning Contact (2002) FLC −93–096.
- 14.
Supra n.13 at 88 870.
- 15.
Supra n.13 at 88 927.
- 16.
Supra n.13 at 88 927.
- 17.
Supra n.13 at 88 927–928.
- 18.
Supra n.13 at 88 926.
- 19.
Supra n.13 at 88 927.
- 20.
Supra n.13 at 88 895, 88 918.
- 21.
‘Other person’, to this extent, is effectively a secondary category even though the FLA is not limited to such a reading. Implicit in our argument is the idea that ‘other person’ is semiotically open and could include persons seen to be actively ‘doing family’.
- 22.
The order in this hierarchy is significant, that is that the relationship with a parent is more important than the relationship with significant others, as indicated by the lexical ordering of the clauses of the provision, and confirmed by Guest J. Supra n.13 at 88 924.
- 23.
Supra n.13 at 88 903.
- 24.
Supra n.13 at 88 884. Our ellipses in square brackets; others original.
- 25.
Supra n.13 at 88 885.
- 26.
Supra n.13 at 88 886.
- 27.
Supra n.13 at 88 929.
- 28.
New South Wales Law Reform Commission Review of the Property (Relation- ships) Act 1984 (NSW) Discussion Paper No. 44 (Sydney NSW, 2001) at −1.19.
- 29.
s3.
- 30.
Umberto Eco, A Theory of Semiotics (Bloomington: Indiana University Press, 1976), at 97.
- 31.
Charles Sanders Peirce, Collected Papers (Cambridge: Harvard University Press, 1931–1958), at 2.265.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2015 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Summerfield, T., McHoul, A. (2015). Persons II: Family as a Commonsensical Device and its Place in Law. In: Broekman, J., Catá Backer, L. (eds) Signs In Law - A Source Book. Springer, Cham. https://doi.org/10.1007/978-3-319-09837-1_22
Download citation
DOI: https://doi.org/10.1007/978-3-319-09837-1_22
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-09836-4
Online ISBN: 978-3-319-09837-1
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)