Implementing Equality: Ideology, Contradiction and Social Change

by Martha Albertson Fineman

Image via Pixabay


“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.

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Homeschooling: Choosing Parental Rights Over Children’s Interests

by Martha Albertson Fineman & George Shepherd

Image by Mariana Anatoneag


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.

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Masking Dependency: The Political Role of Family Rhetoric

by Martha Albertson Fineman

Image by Gerd Altmann from Pixabay

“In this Article, I want to explore the schizophrenic nature of the interaction between social ideals and empirical observations concerning dependency. I am particularly interested in the family as a social and political construct that facilitates this interaction. Specifically, I argue that continued adherence to an unrealistic and unrepresentative set of assumptions about the family affects the way we perceive and attempt to solve persistent problems of poverty and social welfare. In the normative conclusions that are generated and reiterated in political and popular discussions about family, we assess the “justice” of particular policies addressing societal problems with reference to concepts such as the individual and dependency.

Images of the traditional family pervade contemporary political and legal discourse. Rhetoric about this family’s form and function ignores or obscures the nature and extent of individual dependency. It also masks the costs of necessary caretaking of dependents, costs that are disproportionately assumed by women. Dependency should be understood to be both inevitable and universal. My argument that in a just society there must be a fundamental obligation for the community to provide for its weaker members is built upon this proposition. Of necessity, fulfilling that collective obligation in a society that has historically appropriated, rather than economically rewarded, caretaking labor will have some redistributive (or market correcting) consequences when those who currently care for dependents at substantial cost to themselves are finally compensated.

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Vulnerability in Law and Bioethics

by Martha Albertson Fineman

Image via PublicDomainPictures

  1. Introduction

Both law and bioethics are disciplines concerned with establishing principles, norms, and values to govern those subjects and situations within their jurisdictions.  The rules that emerge from discussions about necessary ethical principles must be considered just, and must also clearly define appropriate institutional practices and individual behavior.

The primary subject of both law and bioethics is the human being.  While the social and professional roles of the lawyer (and/or legislator and judge) and the bioethicists may be different, both professions are concerned with human beings and the societies in which they live.  Therefore, the fundamental question for both disciplines has to be: “What does it mean to be human?”  This question must be answered before a determination of what is just can be made in defining professional ethics and responsibility.

In law, vulnerability has been developed as a term of art, with a particular and specific meaning.[1]  Therefore, a legal theorist immersed in vulnerability theory would respond: “To be human is to be vulnerable.”  Vulnerability is the universal, continuous human condition.  It is the ultimate  characteristic that defines what it means to be human.[2]

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Equality: Still Illusive After All These Years

by Martha A. Fineman

Image via Geralt

“The title of this chapter owes a debt to Paul Simon, although his phrase is “still crazy after all these years.”1 He uses it to describe the feelings that are generated when he meets an “old lover” on the street, who seems glad to see him. After a few beers together, they go their separate ways, and he reflects on the fact that he is not the kind who tends to socialize, but seems to “lean on old familiar ways,” “longing [his] life away,” “still crazy after all these years.” I think of equality as that old lover, as illusive as ever, meeting and mixing, then going its separate way, leaving the feminist leaning and longing for it – still crazy after all these years.

In this chapter, I will propose that one way to render equality less illusive is to move beyond gender and build a more comprehensive framework on the concept of universal human vulnerability. I propose a new theoretical investigation, one that focuses on privilege as well as discrimination and reflects on the benefits allocated through the organization of society and its institutional structures. Such an approach could move us closer to securing substantive equality and social rights in the United States. Continue reading Equality: Still Illusive After All These Years

Bowling Alone in Georgia

By Jennifer Hickey, Postdoctoral Fellow, Vulnerability and the Human Condition Initiative, Emory University School of Law

Image via Pixabay by Skitterphoto

Strikes and gutters; ups and downs. Twenty-five years ago, Robert Putnam published his influential essay, Bowling Alone: America’s Declining Social Capital.  The essay highlighted a generational decline in civic engagement, evidenced by decreased participation in bowling leagues despite increased interest in bowling. At the heart of Putnam’s work was the larger question of the proper role of civil society in a democracy. Conservatives have long invoked romantic Tocqueville-inspired notions of civil society as an alternative to government. What happens if, instead of banding together to solve our nation’s problems, the people decide to go bowling alone?

And now, bowling once again takes center stage in the ultimate “battle” of civil society versus government. Georgia’s Governor Brian Kemp recently became the first in the United States to take significant measures to “reopen the economy” in the midst of the coronavirus pandemic, despite indications that relaxing social distancing measures so soon will surely result in more deaths. Kemp announced that businesses previously considered “non-essential,” including bowling alleys, could reopen with “appropriate” safety measures. The very idea of bowling as essential was deemed laughable and has been the target of nationwide parody.

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Introduction: Feminist and Queer Legal Theory

by Martha A. Fineman

Image via Max Plieske

‘The Emergence of Queer Theory


During the 1980s and 1990s, the LGBT community faced a very particular constellation of pleasures and dangers around sexuality. For example, as AIDS and government neglect of the pandemic ravaged the gay community, sex and spaces of sexual culture became suspect and shadowed by public-health panics. Moreover, whereas some feminists considered turning to the state for protection, it was the state itself that was identified as a substantial source of danger for queer communities. This seemed an inevitable conclusion following the 1986 decision Bowers v. Hardwick, which upheld state prosecution of same-sex sodomy. Further, while formal legal barriers were falling for women, it was clear that for LGBT communities many barriers remained and more were being erected. For example, while discrimination on the basis of sex was becoming legally impermissible, discrimination on the basis of sexual orientation remained legal and affirmed: a lesbian could not be fired from work for being a woman, but she could be fired for being lesbian.

While there were a variety of responses to this situation, the one that came to predominate gay and lesbian politics tended to naturalize binary sexual identities, even as some theorists criticized  that strategy. Further, building upon perceived successes of previous civil rights movements, gay and lesbian political leaders adopted a formal equality model that sought to equate the moral value and political status of homosexuality and heterosexuality. In practical terms, this meant trying to include gays and lesbians in existing antidiscrimination regimes, such as Title VII and Fourteenth Amendment jurisprudence, in order to gain access to existing institutions, such as marriage. There have been both successes and setbacks in this struggle: Bowers was overturned by the U.S. Supreme Court in Lawrence v. Texas (2003), but the policy  of  ―don’t  ask,  don’t  tell‖  continues  in  the  military.  The  right  of  same-sex  marriage  has  been established in some locales, but “Defense of Marriage” acts have become law in others.

It is in this context that queer theorists developed their critiques of both feminist and gay and lesbian theories. Continue reading Introduction: Feminist and Queer Legal Theory


by Martha Albertson Fineman

Image by Mohamed Hassan via Pixabay.

“I have argued for decades that the concept of formal equality, while perhaps useful in defining some relations between adults, is inadequate, even detrimental, in addressing the dynamics inherent in the family. In particular, the complicating factor is how to theorise motherhood (or caretaking), both ideologically and structurally. Furthermore, how could law and society and its institutions be restructured in light of those theories? In asking questions about motherhood, our focus moves from the male/female dyad of family law to that of mother/child. This relationship cannot be conceptualised as a relationship between equals founded on principles such as partnership and contract. Indeed, childhood is mired in an inequality founded on dependency and the child’s dependency historically has shaped the social and legal meanings of motherhood and fatherhood in America. Children are inherently dependent on others to care for them. This type of dependency is developmental and biological in nature. It is universally experienced (what I have called “inevitable dependency”). All human beings are dependent in this sense as infants and children, and many will be dependent as they age, or become disabled, or ill as adults.
In addition to inevitable dependency, I have theorised a structural dependency labelled ‘derivative’. The concept of derivative dependency captures the very simple, but often overlooked fact that those who care for inevitable dependents (such as mothers) are dependent on resources in order to successfully undertake that care. In contrast to inevitable dependency, derivative dependency is not universally experienced. Many in society avoid taking responsibility for caring for children, the elderly or ill. The role of being derivatively dependent is experienced only by some members of a society. Cultural, ideological and legal structures define the caretaker role and assign it to those who are expected to assume the work of caring for those who cannot care for themselves.


NEW PIECE – Beyond Equality and Discrimination

by Martha Albertson Fineman


The societal frame of the “economically disadvantaged” is rooted in a distinction between a conceptual status of equality and the actuality of discrimination and disadvantage. This paradigm provides the governing logic for both criticism and justification of the status quo. This Article questions whether and to what extent this equality/antidiscrimination logic has lost its effectiveness as a critical tool and what, if anything, should be the foundation of the rationale that supplements or even replaces it.


The theme of this Article for the SMU Law Review Forum focuses us on the challenges faced by the “economically disadvantaged” in the past decade and in the future. This framing is rooted in a distinction between that conceptual status of equality and the actuality of discrimination and disadvantage. This is the lens through which contemporary legal culture tends to assess the nature and effect of existing laws and determines the necessary direction of reform. As such, this paradigm provides the governing logic for both criticism and justification of the status quo. It is rooted in an understanding of the significance of the human being and a belief in their fundamental parity under law that also asserts the inherent value of individual liberty and autonomy, and thus is skeptical of state intervention into the “private” sphere of life.I believe that one of the most significant questions for the twenty-first century for those concerned with “the disadvantaged” has to be whether and to what extent this equality/antidiscrimination logic has lost its effectiveness as a critical tool and what, if anything, should be the foundation of the rationale that supplements or even replaces it. To raise questions about the current dominant paradigm is not to argue that equality and antidiscrimination are not important or necessary concepts.

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by Martha A. Fineman

image via Pixabay

“Perhaps the law and economics analysis represented in this article is attractive precisely because it offers pat, formulaic answers to the chaos generated by the critical questions increasingly raised about American politics and society by vocal and diverse groups, such as women, who have historically been excluded from institutions of power.  This attraction (and the ultimate utility of the simplistic, formalistic answers) is enhanced by the fact that law and economics is cast as merely a  “methodology,” allowing it to aloofly masquerade as something neutral and susceptible to universal application.

Any claim to neutrality and universality should give pause to any modern student of rhetoric and cultural metaphor. The claim to neutral method, the asserted rationality of the approach, obscures the function  of law and economics which is maintenance or reinforcement of the status quo in regard to existing distributions of power in society. The “economics” informing law and economics is typically inherently conservative.  It presents an ideologically confined and, in this sense, coherent set of principles proposed in pursuit of the ultimate goals such as “choice” and “rationalization.” Law is brought into service of the conservative economic ideology as a way to coercively secure the [re]institutionalization of historically repressive social practices such as patriarchical control over women’s reproductive lives. Continue reading A LEGAL (AND OTHERWISE) REALIST RESPONSE TO “SEX AS CONTRACT”