Vulnerability and the Human Condition

by Martha Albertson Fineman

Image via Pixabay.

“The civil societarians claim the family as their domain, its salvation as their mission. The family is a foundational concept-the “cradle of citizenship”-which teaches  “standards  of  personal conduct that cannot be enforced by law, but which are indispensable traits for democratic civil society.”‘ Problems with the family, therefore, are clearly seen as problems for democracy, justifying legal and political responses. In recent years a number of civil societarian groups have met, held conferences and hearings, and generated position papers and calls for action in an effort to engage the  nation in a discussion of civil society.

I will address two reports which set forth the purported diminished state of civil society and suggest proposals for civic renewal: A Nation of Spectators: How Civic Disengagement Weakens America and What We Can Do About It, prepared by the National Commission on Civic Renewal (the “Commission”), and A Call To Civil Society: Why Democracy Needs Moral Truths, prepared by the Council on Civil Society (the “Council”).    There is significant overlap in the membership of both bodies, which may explain the similarity in analysis and in policy recommendations.  Of particular interest is the fact that William Galston is both a member of the Council and the Executive Director of the Commission. Professor Galston has been an active and influential advocate for policies encouraging the traditional two-parent family. The reports evidence that he  has played a strong conceptual role in both bodies.

Professor Galston’s position on the family exemplifies the civil societarian approach. My basic argument is that his emphasis on the decline of the two-parent family, evidenced in the reports of both the Commission and the Council, operates to eclipse concern with social and economic forces that are truly destructive of families  regardless of their form. Of particular concern in this process are the political implications of civil societarian discourse, which is replete with allusions to crisis and family breakdown. I am also troubled by the way that civil societarians construct arguments using public opinion polls as though the responses to certain questions by a majority of those polled represented some  transcendent  “truth”  about  the state of American society.  That “truth” then becomes the justification for legal policy punishing some families and privileging others.

Civil societarians justify coercive action based upon opinion polls that show that the American public agrees with their dire observations about the family. But the term “family” is susceptible to a variety of definitions. In addition to the “traditional” family populated by formally married sexual affiliates and their biological children, family can be understood to include other couples­ unmarried sexual affiliates, whether heterosexual or homosexual, with or without children. To some people, family may also mean collections of people related by blood or kinship systems, sexual affiliation not being paramount. Slightly different is the sense of family associated with lines of descent – an intergenerational concept of family.

There are other possible meanings of family, but the point I want to emphasize is that it is by no means clear what definitions respondents have in mind when replying to opinion polls inquiring about “the family.” For example, agreement with the statement that breakdown in the family is a major indicator of moral decline may evidence concern with divorce and single motherhood. It may also indicate concern with the breakdown of intergenerational ties evidenced by the fact that adult children no longer care for their aging parents at home, or with a breakdown in family discipline evidenced by the fact that overworked parents (married as well as single) do not discipline their children into civility.

In addition to definitional problems with the concept of family, terms such as “breakdown” chosen by the civil societarians serve an ideological function. Using “breakdown” to describe changes in patterns of intimate behavior generates a sense of crisis, transforming demographic information into societal problems. The civil societarians have not merely identified an existing crisis for democracy and called for solutions. The civil societarians have constructed a crisis in morality, as well as for democracy, by turning the evolution of the traditional family form into a primary organizing analytical tool. Marriage becomes more than a legal category. It is reconfigured into public policy and presented as the path to personal and family salvation.

But marriage is nothing more than a legal category. The term itself does not necessarily indicate how individuals are living their lives or performing their societal functions. And it is family functioning, not family form, with which we should be concerned. The question is not what is happening to marriage, but how those members of our society who are dependent are faring and what institutional adjustments are warranted in order to address their needs. By focusing exclusively on family form, these are the questions the civil societarians never ask.”

by Martha Albertson Fineman

Image via Pixabay

Introduction

“As a nation, this is one of our definitive moments.  We are making determinations about our social welfare system with significant and widespread implications for the weakest and most defenseless Americans. It is widely understood that the social safety net is being torn apart by the rhetoric of budget necessity and professed American moral values. Yet, most of us stand outside of the debate, complacent or paralyzed in disbelief as our political leaders substitute market ideology for moral responsibility and sacrifice “realities” to symbol and myth.

The articulated assumptions and assertions advanced for the proposed changes in welfare must be challenged. Various academics and other researchers have produced a  multitude of studies questioning the premises behind putting welfare mothers to work and indicating that punitive measures designed to curtail reproduction do not work. These scholarly efforts at providing empirical information relevant to the current political debates are not widely reported in the media, nor do they persuade in the legislature. This particular set of reforms seems driven by ideology as uncomplicated by empirical studies as it is resistant to appeals for caution and compromise in the name of compassion.

Continue reading The Nature of Dependencies and Welfare ‘Reform’

by Martha A. Fineman

“It was an honor to present the Second Annual Ruth Bader Ginsberg Lecture. Justice Ginsburg has been a leader on the United States Supreme Court in the fledgling battle over whether and how to integrate international human rights concepts with traditional American Constitutional jurisprudence. The tasks of acceptance and integration have proven difficult to accomplish, with recent attempts generating a backlash that seemingly sprung from a deep well of belief about American superiority and exceptionalism.

Justice Ginsberg is not an isolationist in her approach to the U.S. Constitution, nor does she think America an exception when it comes to assessing the merits of comparative analysis. A few years ago, she wrote that an international comparative approach is “relevant to the task of interpreting constitutions and enforcing human rights.” She recognized that the United States loses an opportunity to expand upon its historic understanding of equality if we neglect the struggles of others in trying to address the disadvantaged status and bias shown against women, and other historically vulnerable societal groups. In this context, Justice Ginsberg was referring to affirmative action policies. In developing arguments in favor of affirmative action it has been productive when countries such as Australia, Canada, and South Africa consult the experiences and resolutions of their sister states, a practice in which they engage routinely. Noting the comparative lack of integration of other countries’ reasoning, as well as the relative silence in regard to international human rights generally, Justice Ginsberg wrote: “the same readiness to look beyond one’s own shores has not marked the decisions of the [United States Supreme Court].”

At the time she wrote this article in 1999, Justice Ginsburg found only five references to the Universal Declaration of Human Rights in United States Supreme Court opinions. Only two references were found in the opinions of Supreme Court majorities and the most recent citation at that time had appeared thirty-two years earlier in a dissenting opinion written by Justice Thurgood Marshall.

Continue reading Equality Across Legal Cultures – The Role for International Human Rights

by Martha A. Fineman

Image via Pixabay

“INTRODUCTION

In recent years, much political attention in the United States has focused on the family as an institution in a state of crisis and transition. Advocates of various reforms assert that the stresses of modern life, par­ticularly the high divorce rate, will certainly change the family. The family is viewed as an institution in a transitional stage and, as such, is the subject of ideological struggle within the context of the political sys­tem. Of particular interest is the form and substance of the various characterizations of the perceived problems associated with the family. The way we define the issues, to a great extent, dictates the solutions. The assumptions underlying a variety of suggested reforms in the rules that govern families reveal the tensions in conflicting attitudes concerning the familial institution. Separated out for particular concern have been the children, anointed as the “victims” of the dislocations in the modern family. For example, moral and political concerns over the implications of the no-fault, freely accessible divorce systems adopted by the states have tended to center on the resulting precarious position of the “children of divorce.”

Characterizing children as innocent victims in need of protection is typical of professional reformers’ rhetoric in this age of no-fault di­vorce. Continue reading The Politics of Custody and the Transformation of American Custody Decision Making

by Martha Albertson Fineman

by Martha Albertson Fineman

“America is a deeply divided nation. We differ on such basic issues as how we should order our lives and the role of society and its institutions in shaping human behavior. We have divergent views on the importance of duty and obligation as contrasted with liberty and individuality. Various traditions, religious, cultural and otherwise, have produced very different and as strongly held beliefs. Caught in the cross hairs of this diversity is the American family.

The American family has changed dramatically, particularly over the past four decades, and these changes are reflected both in modern family law and in contemporary movements to alter that law. Social movements have organized around these changes that have goals that are in stark opposition to each other: one group seeking to use law to expand our ideas about the family and provide more people the benefits of family status, the other mobilizing to remove innovations and steer society back to the more exclusive (and excluding) ―morally-mandated‖ traditional family.  Representing polar opposites in this struggle are the feminist approaches to family law reform, which is individualistic and rights-centered and fundamentalist rhetoric, which is steeped in religious imagery, symbols, and metaphors.

Continue reading Religious Resistance to Family Law Reform in the US

by Martha Albertson Fineman

Image via Pixabay

“In this paper I undertake a very pragmatic and focused consideration of whether it is possible to rework existing legal concepts of privacy in a way that would be ideologically compatible with dominant social norms in order to shield single mothers from excessive state regulation and supervision. I ultimately conclude that my desire to protect the decision-making autonomy and the dignity of poor and/or single mothers cannot be satisfied by resort to this area of law. At the constitutional level, this is so because notions of privacy are typically articulated as rights belonging to individuals, not family entities. And in the common law, the concepts of “family” or “entity” privacy similarly fail to protect poor and single mothers because these concepts have been developed and employed in the context of widely shared ideological constructions of what constitutes the “natural” family. This image of the natural family in turn serves as the norm in our understandings of intimacy in discussions of the family. For the law to assert that poor and/or single mothers are, or should be, included within the realm of “normal” and “natural” families, and therefore entitled to  privacy, would require a leap of legal imagination not likely to be undertaken without the safety net of dominant social and cultural concurrence.

The development of privacy doctrine has thus been limited by societal assumptions about intimacy, families, and individuality, and by ideas concerning fairness and just deserts. The question arises, how­ ever, whether privacy, even if it is a concept embedded in social and cultural presuppositions, could be rehabilitated or reworked to include single mother families? There are both ideological and doctrinal barriers to this endeavor. As things now stand, it does not seem likely that an emphasis on privacy will do anything other than further reinforce the ideology of the natural or normal family. In fact, it may be that continued emphasis on privacy as the concept to constitutionally protect certain sorts of intimate behavior will serve to deter the development of other legal principles  that might  help to limit state regulation of poor and single mother families.

Continue reading Intimacy Outside of the Natural Family: The Limits of Privacy

by Martha Albertson Fineman

‘Cohabitation between unmarried persons has become in­creasingly common during the past two decades. Various levels of emotional commitment are found among cohabitors. Cohabi­tation may be a casual temporary relationship, an experimental stage preceding formal marriage, or an alternative to marriage and the various legal consequences that status carries.

This paper explores the legal system’s adjustment to these changing behavior patterns with the underlying assumption that as incidents of cohabitation increase, cohabitation will eventu­ally be viewed as both legally and morally acceptable. The con­clusion that cohabitation is becoming acceptable does not, in and of itself, reveal anything significant about either cohabita­tion or the process of legal change. Cohabitation may be toler­ated or even approved if it is purely private conduct and does not  conflict  with  wider  public  concerns. As cohabitation  in­creases and becomes more public, however, the tensions caused by incomplete societal changes in attitude toward the behavior are exposed. When cohabitation “goes public,” legal institutions (the legislature, the prosecutors, and the courts) must resolve some of the conflicts which are presented. Each of these institutions operates under different constraints. The legislators deci­sions regarding adaptation of the cohabitation laws are more ex­ posed than those of the district attorneys or courts. The district attorneys and judges can modify the law or eliminate its impact through application in individual cases.

If the legal system is to reflect the increasing public accept­ance of cohabitation, it must progress through three separate but related phases. First, criminal laws must be changed so that cohabitors do not risk direct sanctions from the state. In addition, laws must be developed to protect cohabitors from discrim­inatory or retaliatory conduct by others who disapprove of their choice. Finally, laws should evolve which regulate the relation­ship and define its consequences for the cohabitors themselves.

Historically, cohabitation was considered “deviant” behav­ior (and was criminally sanctioned in most states. Society’s long recognized preference for formal, ceremonial marriage was com­plemented  by the threat of punishment for cohabitation.  Criminal statutes punishing  cohabitation were repealed in   many states after the appearance of the  authoritative recommenda­tions of the American Law Institute in the Model Penal Code and an avalanche of commentary which criticized the use of the criminal law to punish “victimless crimes” or “moral violations.” Some states, however, have resisted attempts at repeal.

This resistance continues although cohabitors have been seeking and receiving from courts and some state legislatures protection from employers, creditors and others who discrimi­nate against them because of their choice of lifestyle. Common law judges have also begun to fashion rules which regulate and define the civil relationship between the cohabitors. A cohabitor may find himself with an obligation to support or to share his property with his partner on much the same terms as if he had married her. In the civil area, doctrinal and statutory treatment of cohabitation has begun to add cohabitation to that category of human relationships which carries certain legal consequences. The shift from the traditional legal position that cohabitation was a choice to be discouraged or punished is difficult to make. Competing societal values and attitudes concerning co­habitation and its place within society are reflected in the legal system’s inconsistent treatment of cohabitation. Some statutes may be changed or new doctrines developed in response to co­habitation, but other statutes and cases will continue to reflect the traditional negative legal judgment. Cohabitation is not yet a legally neutral alternative to marriage.

The first part of this paper is an examination of the resis­tance to repeal of criminal laws punishing cohabitation: a description of how legislators, prosecutors and judges have re­sponded to the increasing incidence of cohabitation in Wiscon­sin, where cohabitation is a crime. The conflict with other social values appears most clearly in the criminal area. An appreciation of the difficult political position of legislators indicates that it may be difficult to make predictions about formal repeal of co­habitation laws. The criminal laws have, however, been effec­tively altered on the prosecutorial level. District attorneys either refuse to prosecute cohabitors, or prosecute only those who are suspected of other illegal conduct.

As the second part of this paper demonstrates, the trends toward acceptance of cohabitation are visible in a variety of situ­ations in the civil law. Civil penalties for those who cohabit, such as loss of custody or reduction in alimony, are now less likely to be assessed. In addition, mutual obligations are beginning to arise from cohabitation relationships. There are also clashes with other values in these areas, but the trends described in the second part of this article point toward an acceptance and recog­nition of the changing behavioral patterns. The changes in the civil area have been fashioned largely by the courts. The judges’ decisions are more shielded from public view than are those of the legislators, and, perhaps it is this fact which allows change to take place more easily.’

by Martha Albertson Fineman

Image via Pixabay

Introduction

“This Article is an exploration of the tension between “instrumental” and “symbolic” law reform.  It examines this phenomenon in the context of the feminist reform movement to revise the rules governing the economic incidents of divorce in Wisconsin. The tension in this particular reform movement arose from the potentially conflicting goals of result equality (which I will argue would have been “instrumental” reform), and rule equality (which I consider “symbolic” reform). Both of these concepts of equality incorporate and depend upon certain theoretical and factual assumptions about society, the role of women and the function of law. Yet there are important areas where these underlying assumptions, and reforms that might be based on them, diverge from each other. It is my argument that, given the socioeconomic factors that typically disadvantage women in the market while simultaneously favoring their assumption of the major domestic responsibilities, result equality must be the primary focus of any effective reform of the economics of divorce.

Symbolic divorce reform, in the form of rule equality, expresses the more traditional association of equality with sameness of treatment. Rule equality avoids the pitfalls of protective or paternalis­tic rules, which can be used to hurt women as well as to help them. Rule equality assumes that the groups subjected to the rules are fun­damentally the same, a view that is compatible with the highly im­portant symbolic task of defining the appropriate relationship between the sexes.

Continue reading Implementing Equality: Ideology, Contradiction and Social Change

by Martha Albertson Fineman & George Shepherd

Image by Mariana Anatoneag

“VII. PROHIBITING HOMESCHOOLING

Because of the harms homeschooling causes to children and society, it should be prohibited. We reach this conclusion  recognizing that even if homeschooling is prohibited, parents would still be the primary influences on children.

A. Prohibiting Homeschooling to Protect Children and Society

One strong reason for prohibiting homeschooling is the harm it causes the child and society. It is an unreliable way to ensure children gain the necessary resilience they need to take advantage of future opportunities in both education and the workplace. It also may impair their sense of solidarity and citizenship by eliminating empathy-building encounters with people who are different demographically or ideologically.

Although these arguments for prohibiting homeschooling are not often heard in the United States, where homeschooling has unusual support, they are mainstream in the many countries where homeschooling is prohibited. For example, the European Court of Human Rights used similar reasoning when it held that the CRC made homeschooling illegal in Germany. Germany is not alone in prohibiting homeschooling. Many other countries similarly prohibit or do not legally recognize homeschooling, including Argentina, Brazil, Bulgaria, Croatia, Greece, Kenya, Malta, Netherlands, Romania, South Korea, Spain, Sweden, and Turkey.  In  many other countries, homeschooling is legal but heavily regulated, often requiring home inspections and yearly exams. Such countries include Aruba, Czech Republic, Estonia, France, Hungary, Iceland, Malaysia, Norway, Portugal, and Slovakia. Even in the countries that do permit homeschooling, the number of children who are homeschooled is much smaller than in the United States, both as a fraction of total students and in total numbers.

Continue reading Homeschooling: Choosing Parental Rights Over Children’s Interests