Our Sacred Institution: the Ideal of the Family in American Law and Society

by Martha Albertson Fineman

Image via Pixabay


“Law and the images of social organizations reflected and reinforced in law are important devices in the imposition and perpetuation of generalized societal norms. The relationship between dominant ideology and law is suggested in the processes of generation and interpretation of specific legal rules-in the creation of legal rhetoric. As lawgivers create and interpret law they also articulate, define, and shape the perceived interest of the larger society.

Societal interest is “found” by reference to many types of data, typically produced outside of the law-making process and incorporated through introduction as evidence or expert testimony in adjudications or legislative hearings. In drawing conclusions about society, human nature, and/or the interests to be expressed in law, lawmakers may reference information produced by a variety of methods, framed by specific disciplines-science, history, religion, logic, philosophy, sociology, etc.-or, perhaps, just derive answers from their own past experiences and present intuitions. Every method used for production of knowledge results in some controversial outcomes. Quite often there is conflicting, unclear, or dubious information about any specific “fact” or conclusion.

Often choices must be made from among competing assertions or interpretations as amorphous social and cultural concerns and areas of real and potential conflict are reduced to law. Shared beliefs, social and cultural metanarratives’ shaped in accordance with dominant ideology, influence what is chosen from among competing and contradictory facts and conclusions. And the law that is built around such choices, more than just another specific articulation of societal interest, operates as a potentially coercive or punitive force in the lives of people whose circumstances or preferences do not conform to the norms.

In regard to regulating intimacy, the law defines and enforces norms by referencing a specific and historically based metanarrative about “the family.” In our society only one form of intimate entity has been so venerated in the culture as to become institutionalized as the model or archetype of intimacy. People live in a wide diversity of intimate arrangements-plural marriages, same sex relationships, single parent families-but they do so at risk. Historically only the nuclear family has been protected and promoted by legal and cultural institutions.

The veneration of the nuclear family is coercive, with the state through its regulatory mechanisms (whether they be the criminal justice system, child welfare laws, or tax codes and other regulatory civil laws) defining and securing for the nuclear family a privileged if not exclusive position in regard to the sanctified ordering of intimacy.

But it is not just the law that has conferred on the nuclear family this sacred status. In fact, as I will address in a subsequent section, the law has been to some extent the most flexible of our normative institutions, offering the promise of a more relaxed and expandable model of families than many other discourses. Alternative sexual behavior has been decriminalized in many areas’ and even afforded protection or explicit quasi-family status.’ In spite of such legal relaxations, however, the grip of the traditional family metanarrative remains firm, in part because it resonates so strongly in certain extralegal institutions.”

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