Family as a commonsensical device and its place in law★

This paper is in five main parts. The first introduces membership categorisation analysis (MCA) as originally outlined by Harvey Sacks and, here, as a possible extension of semiotic analysis. MCA is broadly a contribution to discourse analysis in general and to conversation analysis in particular. The approach concerns membership categorisation devices such as family, the categories they can contain such as ‘mother’, ‘father’, ‘child’, etc. and the category-bound activities or predicates commonsensically attachable to such categories. The second section looks at the legal background to family law in Australia and shows that its basic assumption is, by and large and with some exceptions, to work from categories (what people are) rather than from predicates (what they in fact do). In the third section, we examine a particular Family Court case (Re Patrick) which highlights the contestation between these approaches. Following this, we examine some recent shifts in the Australian states and territories towards more predicationally-based legislation and argue for their coherence in contemporary society and its increasingly flexible conceptions of what may constitute a family. Finally, we return to the question of semiotics generally and make a case for our MCA-based distinctions as contributions to a possible semiotics of law. In the beginning was the deed – Goethe