What Place for Family Privacy?

by Martha Albertson Fineman

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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.

The characterization of the family as distinct and separate from the state still resonates in our rhetoric about families. The family is designated the quintessential “private” institution. Family is distinguished from both the market (a chameleon institution, public vis-a-vis the family but “private” vis-a- vis the state) and the state (the quintessential public institution) by its privateness. For the modem private family, protection from public interference remains the publicly stated norm-state intervention continues to be cast as exceptional, requiring some justification.

What are the contours of the family that are protected by privacy? Historically, it was a reproductive unit-husband, wife, and their children-complemented by other household members like apprentices, servants, or extended family members. Today there is much less agreement about just who should be considered “family.” The traditional core of husband and wife, with or without children, seems to qualify in all definitions. In fact, many people consider this reproductive family to represent the “natural” form of the family. Some argue further that the reproductive family should be considered an exclusive vision of the family in terms of policy and law.

This nuclear unit is thought to be in “crisis” because of the tendency of many marriages to dissemble and dissolve. Some people claim that society is also in a state of crisis as a result of marital instability. Many are concerned by the assembling of “deviant” and competing intimate entities claiming entitlement to the benefits and privileges previously extended to marriage.” The family has become the symbolic terrain for the cultural war in which our society is increasingly mired. If one believes the family is not inherently limited to any essential or natural form, but is as contrived as any other societal institution, it affects one’s perspective of the relationship between state and family. The metaphor of “symbiosis” seems more appropriate than the separate spheres imagery: the family is located within the state. In this conceptualization, family and state are interactive; they define one another. Alterations in the scope or nature of one institution will correspondingly alter the scope or nature of the other. Although law initially defines the family by controlling entry and determining the consequences of its formation, once formed, the family is a powerful constituency within the state. The expectations for the family relieve the state of some obligations. Family actions (or inactions) can place pressure on the state and require adjustments and accommodation that alter the nature of the state. The family will demand resources, and the more favored the family is, the more pressure from outsiders to the institution demanding entry.

If this model of the family-state relationship is accurate, it has important implications for public policy. First, it indicates that the relationship between family and state is not fixed-it is potentially dynamic. Second, it illustrates that the family is not a natural entity with a form that is constant and essential – it is a societal creation. Family and state can be reconfigured, and have been reconfigured, to reflect different sets of expectations and aspirations for both. This suggests that society would benefit from periodic self-conscious considerations about the continued viability and desirability of historic assumptions about the family as an institution.

II. Expectations for the Private Family
In recent work, I have been rethinking the arrangement between family and state by articulating a theory of collective responsibility for dependency. The objective is to make an argument for the redistribution of responsibility for dependency among what I call the “coercive institutions” of family, state, and market. Our current (and historic) stated national ideology glorifies self-sufficiency and independence, both for the individual and for the family. Within this ideology, the primary responsibility for what I have previously labeled “inevitable dependency” is placed on the family. Dependency, which is seen, at least partially, in many other systems as a collective responsibility, is privatized in ours through the institution of the family. In our late capitalist system the state is perceived as having a role only in the case of family default. In such instances, the state might provide highly stigmatized assistance, such as welfare for those deviant families unable to provide for their members’ needs. By contrast, market institutions have little, if any, direct responsibility for the family, even for the families of their own workers.

My argument is that a more appropriate and equitable scheme would
more evenly distribute the burdens of inevitable dependency, with the market as well as the state assuming some up-front shares of the economic and social costs inherent in the reproduction of society. There is also a need for structural changes and institutional accommodation of the demands of caretaking. Dependency work produces things of benefit to society in general. It is the labor that generates citizens and workers, consumers, and voters. As things are now structured, the costs of doing dependency work are hidden in the family, in which, due to gendered role divisions, they are borne primarily by women. Further, this caretaking labor, which is performed for the good of the society, has individual costs for caretakers who often find themselves sacrificing career development, forgoing economic opportunities, and becoming derivatively dependent upon others for resources in order to accomplish their tasks.

One conceptual problem with the idea of collective responsibility is that it opens the door to a corresponding argument that assumption of such responsibility must be accompanied by collective control over the circumstances leading to dependency. If society has obligations to subsidize and support caretakers because there is a collective responsibility for dependency, then some will argue that society should have a correlative right to control intimate decisions that produce or affect dependency, including decisions concerning reproduction or related issues of family formation and function.

In addressing this assertion about the appropriateness of collective control a reconfigured concept of “privacy” will be useful. In regard to our current social scheme, we use some notion of privacy to give the very idea of family some coherence. We perceive a line of privacy drawn around certain intimate units, that distinguishes them as “family.” The privacy line defines the relationship of individuals within the family entity and mediates their relationship to the state. They are placed in the special category of family. This line of privacy, although it currently shields few entities beyond the traditional family for most purposes, could be drawn around caretaking or dependency units.

In fact, rethinking our ideas about dependency and self-sufficiency mandates a corresponding reconsideration of other assumptions about the family as an institution and a reconceptualization of the family’s relationship with the state. As part of this process, the question arises whether we can “modernize” the concept of family privacy, making it a complement to our restructured vision of the family. This will involve looking at both intra-family ties and the position the family occupies within the state.

The task of reconfiguring privacy has two related components: (1) a
shift in our understanding as to what privacy attaches-privileging family function and not family form-and (2) the development of the idea of family privacy as an entity-based entitlement to self-government or autonomy. Thus conceived, privacy would not be a right to separation, secrecy, or seclusion, but the right to autonomy or self-determination for the family even though it is firmly located within a supportive and reciprocal state.

After an initial disclaimer about my constitutional law prowess, I distinguish in the pages that follow family privacy from constitutional, individual based privacy. Recognizing the typical critiques of family privacy, I argue that we must think beyond the historic manifestations of the concept. My construction of family privacy is more ideological than doctrinal, and is dependent on (and essential to) the revisioning of family along functional lines.”

Fineman, Martha Albertson, What Place for Family Privacy? (June 1, 1999). George Washington Law Review, Vol. 67, 1999; Emory Public Law Research Paper Forthcoming. Available at SSRN: https://ssrn.com/abstract=2103306

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