by Martha Albertson Fineman
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.
Likewise, theorists who focus on the individual seem to deny the family any potential relevance or theoretical significance in their work. Jurisprudential constructions of justice or liberty, for example, consider the individual as the relevant unit of analysis. The implications of the fact that individuals exist in family or relational contexts are largely ignored. It is no surprise, therefore, that little attention has been paid to how assumptions about the family affect the theories expounded in regard to market and state or the nature of the individual. Few theorists recognize just how reliant their particular visions of the word-as ‘Just,” “efficient,” “natural,” or “empirically based”-are on the consensus that the family is the institution primarily responsible for dependency.
This reliance on what I have termed the “assumed family” distorts analysis and policy. The assumed family is a specific ideological construct with a particular population and a gendered form that allows us to privatize individual dependency and pretend that it is not a public problem. Furthermore, the gendered nature of this assumed family is essential to the maintenance and continuance of our foundational myths of individual independence, autonomy, and self-sufficiency.’ This assumed family also masks the dependency of society and all its public institutions on the uncompensated and unrecognized dependency work assigned to caretakers within the private family.
In economic and other important public policy discussions, we focus on the appropriate relationship between market and state, with the family relegated to the “private” sphere. Discussions proceed as though the policies that are designed to affect these institutions in the public sphere have only few implications for the unexamined private family. Even more fundamental, the discussions fail to grasp the fact that the actual (as contrasted with the assumed) family might profoundly affect the possibilities of success and failure of policies created for the market and the state.
II. PUBLIC AND PRIVATE CONCEPTS
To point out the neglect of the family in legal and policy theory differs from concluding that the family has been considered an unimportant institution. In fact, the importance of the family is asserted in its very segregation from other areas of human endeavor. This separation is exemplified in the often repeated characterization of family law as one of three separate pillars of civil society-the other two being property and contract. The division of the world (and law) into “public” and “private” realms also manifests the dual conceptualization of the family as both separate and as essential.
Not only is the family perceived as occupying the private sphere, it is also conceptualized as embodying values and norms that are very different from the institutions occupying the public sphere, particularly those of the market. Family relationships are cast as different in function and form than relationships existing in the public world. Families are altruistic institutions held together by bonds of affection. Of course, any serious consideration of the family reveals that it is a very public institution, assigned an essential public role within society. The family is delegated primary responsibility for dependency.
In this Article, I will bring into view the family, or more explicitly, the dependency hidden within the assumed family. Policy development and social theory considerations should center on assessing the appropriateness of the aspirations and expectations we have for the family. This assessment is crucial to one of the most compelling problems facing society at the end of the Twentieth Century-the increasing inequitable and unequal distribution of societal resources and the corresponding poverty of women and children.”
Fineman, Martha Albertson, Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency (2000). American University Journal of Gender, Social Policy & the Law, Vol. 8, No. 15, 2000; Emory Public Law Research Paper, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2132294