by Martha LA Fineman
In my chapter for this collection, I was asked to revisit my critique of equality as the appropriate measure or objective for family law reform as it was set forth in The Illusion of Equality: The Rhetoric and Reality of Divorce Reform, a book published over fifteen years ago. In that book as well as in articles developed in the 1980s, I argued that equality and gender neutrality were not appropriate concepts to employ in thinking about reform of the family and family law. The gist of my argument then was that the family, as our most gendered institution, was not susceptible to the imposition of a regime of equality, at least not as it was understood in American law. This argument was built on the observation that the nature of the equality reforms urged in the family mimicked the equality reforms sought in the political and public arenas. Outside of the family, legal feminists seemed wedded then (as now) to a liberal regime of equality, which mandated sameness of treatment. I suggested that what we needed in the family was not formal or rule equality, but some notion of substantive or result equality that considered past circumstances and future obligations. The imposition of a mere formal equality regime would only further and deepen existing inequalities.
I identified three sites of entrenched inequality affecting most marriages. First was the inequality in wages and employment opportunity that existed in the market. Next was the inequality of power that persisted and was manifested in family negotiations over whose individual interests should be sacrificed for the larger family good. This was a process that systematically disadvantaged women due to their lower earnings and culturally imposed altruism (they were the ones who were supposed to be making sacrifices for others). Finally, there are inequalities post-divorce, with the responsibilities of custody overwhelmingly assigned to women. This continued and compounded the unequal allocation of the disadvantages and burdens associated with care work that often disadvantaged married women in the paid work force. It can be argued that those inequalities I wrote about a generation ago have lessened in our post-egalitarian family law world, but it is also true that they continue to persist in many marriages, even if to a somewhat lesser degree. While gender-neutral, equality-based reforms are firmly in place in the statute books and have proved successful on a rhetorical level, structural family disadvantages associated with caretaking still typically burden women more than men, even after decades of feminist equality reform.
My hope in 1991 was that we might fashion a more substantive or result-sensitive version of equality in the family context. The law would allow unequal or different treatment of divorcing spouses, such as unequal distribution of family assets and obligations in order to address the existing inequalities created or exacerbated by past and future family responsibilities. This more result version of equality – substantive equality – would be considered just and appropriate in that it would satisfy the need that arose because one spouse typically assumed primary responsibility for children both within and after marriage.
While I still believe in the justness of the substantive equality outcome, my vocabulary and arguments have changed to become less focused on gender and more inclusive of those whose family or other uncounted labour is not valued in a formal equality regime. I now talk about need in terms of dependency and vulnerability. This articulation may not be any more palatable to those who buy into the rhetoric of independence and self-sufficiency, but it is more theoretically promising. Vulnerability is universal and constant. As embodied individuals, we are all just an accidental mishap, natural disaster, institutional failure, or serious illness away from descending into a state of dependency. Furthermore, dependencies are multiple and complex in form.
There are two types of dependency with which I have been concerned. On one hand, dependency is inevitable – a part of the human condition and developmental in nature. On the other hand, those who care for inevitable or natural dependents through essential caretaking work are themselves dependent on resources in order to undertake that care. Those resources must be supplied by society through its institutions. In our American scheme of social responsibility, both dependencies are relegated to the family and, typically within that family, to women in their roles as mothers, wives, daughters, and so on.
When I look at the family through the lens of vulnerability and dependency, I find it enhances and expands beyond that institution the critique of the imposition of a formal equality regime that I earlier developed with marriage and divorce primarily in mind. My subsequent work in developing a theory of dependency, which led to work on the idea of universal human vulnerability, demonstrated to me that both state and market are of necessity implicated in situating the family within society. That work also convinced me that formal equality is a flawed and poorly articulated objective, even when applied beyond the realm of the family. In fact, some of the very same reasons that formal or rule equality is inappropriate for the family also illuminate why it is inadequate to address justice and allocation problems in the larger society. Formal equality is inevitably uneven equality because existing inequalities abound throughout society, and a concept of equality that is merely formal in nature cannot adequately address them.
Gender was an obvious entry point from which to build this larger analysis in part because women have historically been marked as different in relationship to the state and public sphere. Their citizenship and concurrent responsibilities were anchored in the family, not in the wider polity or free-wielding market. The residues of that distinction remain in many ways that implicate the image of women as citizens. We may have secured political and civil rights, been successful in our search for equality in a formal way, but we continue to stand outside the ebb and flow of mainstream power. Equality for women remains elusive in practical and material terms, in part because they remain mired in a prelegal notion of the family, in which they are understood to have unique reproductive roles and responsibilities that define them as essentially different and necessarily subordinate in a world that values economic success and discounts domestic labour.
Of course, the distinction between the position of women in the family and their position within the larger society is incoherent theoretically. The family is not a separate sphere isolated from the norms and standards applied in the larger society. The notions we have about the mandates of citizenship, the appropriateness of claims to liberty and autonomy, and beliefs about relative equality resonate across societal institutions. This is true on an ideological level as well as on a structural level.
The nature and functioning of other societal institutions profoundly affects the nature and shape of the family. By the same token, the nature and functioning of the family profoundly affects other societal institutions. As I have argued earlier, the metaphor of symbiosis seems more appropriate to describe the family in relationship to the state than does the separate spheres imagery. The family is located within the state and its institutions – they are interactive and define one another. Alterations in the scope or nature of one institution will correspondingly alter the scope or nature of the other. By the same token, if formal equality is inadequate or unattainable in the family, the chances are that is because it has failed or will fail as a regime in the larger society. These are the lessons we need to learn.