Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency

by Martha Albertson Fineman

Image by PublicDomainPictures from Pixabay

Feminist legal theorists can legitimately complain that most mainstream work fails to take into account institutions of intimacy, such as the family. Discussions that focus on the market, for example, typically treat the family as separate, governed by an independent set of expectations and rules. The family may be viewed as a unit of consumption, even as a unit of production, but it is analytically detachable from the essential structure and functioning of the market.

Similarly, when theoretical focus is turned to the nature and actions of the state, the family (if it is considered at all) is cast as a separate autonomous institution. Of course, the state may explicitly address the family as a site of regulation or policy, but in non-family contexts, the extent of societal reliance on the family is un- or undertheorized.
There is little recognition that policy discussions about economic and social issues implicitly incorporate a certain image of the family, assuming its structure and functioning. Continue reading Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency

What Place for Family Privacy?

by Martha Albertson Fineman

Image by Photo Mix via Pixabay

I. The Separate Sphere
Society has devised special laws to apply to the family. The unique nature of these rules has been justified by reference to the family’s relational aspects and intimate nature. In fact, “family law” can be thought of as a system of exemptions from the everyday rules that would apply to interactions among people in a non-family context, complemented by the imposition of a set of special family obligations. Family law defines the responsibilities of members toward one another and the claims or rights they have as family members. Family law literature typically focuses on how to use law to redefine, reform, or regulate intra-family dynamics.

But family law does more than confer rights, duties, and obligations
within the family. It also assumes and reflects a certain type of relationship between family and state. During the nineteenth century this relationship was typically cast as one of “separate spheres.”‘ Family (the private sphere) and State (the public sphere) were perceived as largely independent of one another. The metaphor of separation captured an ethic or ideology of family privacy in which state intervention was the exception. Continue reading What Place for Family Privacy?

Vulnerability, Resistance, and LGBT Youth

by Martha Albertson Fineman

Image by Johi Smedberg from Pixabay

“On January 19, 2013, an article written by Michael Schulman in the New York Times highlighted the increasing sexual and gender diversity of students in many universities across the United States. Entitled “Generation LGBTQIA,” Schulman described how the more “traditional” lesbian, gay, bisexual and transgender (LGBT) grouping has been augmented by students seeking new terms and categories to express diverse understandings of sexuality, gender, physical bodies, and evolving identities.

The “Q” in LGBTQIA can refer to questioning—indicating an individual who does not clearly identify with existing categories or who is in the process of exploring their sexual and/or gender identity. “Q” can also indicate “queer,” a term that was re-appropriated and reclaimed by activists in the 1990s and is sometimes used as an all-inclusive umbrella term, as well as referring to an academic perspective of inclusion. “I” indicates “intersexual,” someone whose anatomy is neither male nor female. The addition of “A” can stand for “ally,” indicating a friend of gay rights, and often a person who identifies as heterosexual. “A” can also connote “asexual,” representing those who are celibate or chaste, and perhaps even those who have low libidos.

Schulman also described a student group recently created at the University of Pennsylvania that found even the expansive LGBTQIA grouping inadequate. Focusing on gender variations, the group is called Penn Non-Cis, short for “cisgender,” a term described as denoting someone whose gender identity matches his or her biology.” In the article, bi-gender was used to refer to an individual with both traditional masculine and feminine qualities—the term was seen as more fluid than the designation of transgender, yet less vague than “gender queer.”

This creation of new terms and categories of sexual identity and gender expression is an exciting example of how human beings can intentionally create nurturing social spaces in which to foster community and a sense of belonging. These students are accomplishing this by rejecting existing categories and moving away from static identities. They also seem to recognize that although biology, sex, sexual difference, and gender are different inquiries, to a large extent, they must be studied together and in relation to each other. Continue reading Vulnerability, Resistance, and LGBT Youth