by Martha Albertson Fineman
“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.
In the traditional dominant patriarchal script of common law countries, dependency has been assigned to an ideal family, which is marital and heterosexual in form. This family is also gendered and hierarchically organised, with a wage earner and a domestic labourer complementing each other in addressing dependency. Economic contributions are privileged in relation to care work, which is not assigned a market value, but compensated through a duty to support placed on the wage earner. This family—at least in its ideal form—is also self-sufficient and independent and is expected to provide adequate economic and caretaking resources the inevitable and derivative dependencies of its members. It must do this without resorting to assistance from the state, or be deemed a failure.
This image of the ideally self-sufficient family achieved through complementary family roles has also determined the appropriate relationship between that family and the State, as well as that between the family and economic or market institutions. The self-sufficient family is separated from other institutions—it is a private family. The family is the quintessential private institution, while the State represents the quintessential public sphere. The market and its institutions are more fluid and chameleon-like; they are not seen as public vis-à-vis the family, but private vis-à-vis the State. The appropriate relationship between the public State and the private family (as well as the state and market institutions) in the United States is that of non-intervention. The self-sufficiency of the private family is rewarded with a conferral of privacy. Further, this self-sufficiency removes the need for the State to engage in policies and programmes that provide social goods to the typical family. State provision is stigmatised and reserved for the failed family through a process that is means-tested and supplies only limited subsidy and support.
The imagining of a gender neutral egalitarian family has not done away with either inevitable or derivative dependency; children still need care and caretakers still need economic and material resources to undertake that care successfully. Further, and more importantly, the family-based reforms did nothing to challenge the dominant cultural and political belief that dependency was primarily the responsibility of the private family and that care and economic resources should come from the family alone. That patriarchal legacy has had consequences for women’s equality.
Family law reforms have tried to mandate that the burdens and responsibilities associated with dependency be shared within the family by husbands and wives. Yet, if dependency remains primarily the responsibility of the private family, equal sharing will be difficult to accomplish. This is why many women find themselves still consigned to historically gendered roles—making sacrifices in order to care as mothers, wives, sisters, daughters and daughters-in-law for those who are dependent.”
Fineman, Martha Albertson, Women, Marriage and Motherhood in the United States: Allocating Responsibility in a Changing World (July 31, 2011). Singapore Journal of Legal Studies, pp. 1-17, July 2011. Available at: https://pdfs.semanticscholar.org/dc1b/1743d062db029af34895c8c8c7f93c91bf97.pdf