Friday, March 20th
Panel I. Framing Comparative Family Law
Kerry Abrams, University of Virginia School of Law
"Mapping the Family in Migration: Immigration Law as Family Law in Comparative Context"
This paper attempts to map out preliminary answers to two questions: what is the intersection of immigration law and family law, and what role might immigration law play within a critical comparative family law project. I focus on a discrete area of immigration law – the admission of immigrants as permanent residents, or “green-card” holders, to show how immigration law functions as a form of family law and shapes ideologies of the family. I then consider how this analysis might help us to explore immigration law in a critical comparative family law context.
Mary Anne Case, University of Chicago Law School
"What Comparative Legal History Reveals about the Remnants of Coverture and the Revival of Fixed Sex Roles in the Present-day Law of Marriage"
At the heart of the Anglo-American law of marriage as articulated by the likes of Blackstone were both fixed sex roles and female subordination, each of which was ruled constitutionally out-of-bounds for U.S. law by the Supreme Court in the last third of the twentieth century. Traces of coverture and of sex role differentiation still remain in U.S. law, however, as can best be seen when each is placed in comparative and historical perspective. My presentation at the conference will draw from two of my long term projects. The first is on the enforcement of bargains in an ongoing marriage. Contrasting the treatment of such bargains in early modern civil law and in Jewish law with the refusal to enforce them, even today, under U.S. law, highlights, not only U.S. family law exceptionalism, given that other ongoing relationships in modern U..S. law allow for such enforcement, but also the hidden remnants of Blackstone’s view of spousal unity. The second project is on the stake heterosexual feminists have in questions of same-sex marriage. Refocusing from a feminist perspective the discussions of same-sex marriage in recent U.S. state court judicial opinions, French legislative debates, and official pronouncements of the Roman Catholic Church highlights the role these discussions have played in re-inscribing into the law “fixed notions concerning the roles and abilities of males and females” in ways inconsistent, not only with late-twentieth century U.S. constitutional interpretation, but with medieval canon law.
Sylvia Wairimu Kang’ara, University of Washington Law School
"A Critical Overview of the Creation and Development of British Colonial Family Law in Africa"
Colonial legal systems are one among many ways laws regulating the family have emerged and developed. I intend to discuss three key fragments of colonial regulation of the family in “common law jurisdictions” such as Kenya, Nigeria, and Ghana. The first fragment – positivization and bureaucratization of law - rationalized as necessary for the governance and economic productivity of colonized territory and welfare of colonized peoples, became manifest in governmental institutions that, staffed with “civil servants”, codified laws, heard legal disputes, produced legal precedent, and quite importantly shaped and defined the legality of family. The second fragment – the displacement, albeit complexly incomplete, of the family as the site for law making and enforcement by the colonial state -followed the positivization and bureaucratization of law and constituted an important facet of colonial (and postcolonial) economic modernization agenda. It enabled the creation of a sharper public/private distinction than had existed in precolonial African society. It also set the stage for the realization of African statehood under international law and for African state responsibility to pursue, maintain, and sustain the modern family. The third fragment – the work of “problem solvers” ranging from colonial administrators, to colonial judicial officers, to Christian missionaries, to academic comparativists -responded to problems of a varied nature in order to make colonial family law more efficient. These works contributed to the development of a family law jurisprudence that sought to bridge conflicts between “western” and customary laws and to mitigate the impact of rapid economic transformation on virgin societies. In tracing this colonial history, I will draw examples from the thorny question of the validity of marriages contracted by non-Europeans. I will argue that continuous efforts to change the prerequisites for valid marriages demonstrate the tightening grip of positive bureaucratic law, of efforts to sharpen the public/private distinction, and of the growing influence of professional problem solvers in Africa.
Fernanda Nicola, Washington College of Law
"The Methodologies of Comparative Family Law: A Critical Approach"
This essay presents a typology of methodologies of comparative law in an historical sequence by showing their evolution in relation to family law. Since the early twentieth century, at different periods, the same sharp opposition of two forms of functionalism repeated itself in three different phases during which the family was part or exceptional to comparative law. On the one hand, social purpose functionalism stemmed from an organicist understanding of society entailing an objective understanding of legal norms and what is best for legal reform regardless of ideological preferences. On the other, positive sociology functionalism emphasized that there were no solutions guided by social purposes but rather by political choices. In sharp contrast with an organicist understanding of society, for this second methodology law is not only reflective, but also constitutive of social change. While family law is less prominent in social purpose functionalism, with some exceptions, it becomes more central in positive sociology functionalism. Today many comparative law scholars would say that their discipline is neutral and that they are not embracing explicitly a methodology when they compare. Instead, assured the choice of either method is critical, lawyers should consciously adopt any of the two comparative law methodologies surveyed by this article. I argue that the relatively anti-dogmatism of positive sociology functionalism by appearing value neutral is often a more effective vehicle to demonstrate contingent path dependency and political or value inflicted reasons for legal change. Because of its exceptional role, oscillating from being at the periphery and then at the center of comparative legal inquiries, family law provides a unique comparative ground to pursue different ideological stakes, distributive or anti-hegemonic projects.
Isabel C. Jaramillo-Sierra, Universidad de los Andes
"The Role of Family Law in Colonialism: Some Methodological Insights Using the Case of Colonial Colombia"
As Frederick Cooper pointed out in his book Colonialism in Question a couple of years ago, the recent surge of interest in colonialism is paradoxical in light of the loss of legitimacy of colonialism as a project since the 1970’s. As Cooper also points out, however, interest in colonialism has been associated to the disillusionment of failed modernization projects as much as to the disenchantment with modernity. This disillusionment and disenchantment are deeply related to the project of showing colonialism as less bound than it was hoped, in so far as we have come to see “the complex ways in which Europe was made from its colonies and how the very categories by which we understand the colonies’ past and the ex-colonies’ future were shaped by the process of colonization”. In this paper I would like to do three things. First, give an account of the present debates in colonial studies, including the dominant ideas about law and colonialism and the projects that they have inspired and continue inspiring. Second, expose some of my ambivalences about the benefits involved in centering the colonial. Third, show how my own work on colonial Colombia fits into this map, suggesting that we might have a better grasp on the production of race and gender in the colonies if we paid attention to (1) the ways in which the power to create and adjudicate marriage law was distributed among competing actors in the colonial context, (2) the ideas that sustained such distribution and (3) the effects of this distribution given the back ground rules concerning land and labor.
Saturday, March 21st
Panel II. Post- colonial Family Law: Colonization, De-Colonization
Rawia Aburabia, Washington College of Law
"The Conspiracy of Silence: Polygamy among the Palestinian Bedouins in Israel; a Cultural Practice on ColonialStrategy"
The practice of polygamy among the Palestinian Bedouins in Israel is increasing in the last decades. The percentage of polygamy among Palestinian Bedouins is about 30%. Family law in Israel is governed by the principle of religious personal law in family matters. Thus, Muslim women in Israel are governed the Shari’a Muslim religious law. According to Shari’a law in Israel, polygamy is permitted. However according to the penal code (“punitive statute”), polygamy is a criminal offense, and thus it is prohibited. The state of Israel does not implement the prohibition on polygamy in the Arab Bedouin community of the Negev. By lack of enforcement, the state of Israel subject Bedouin-Arab women to an impossible situation. On one hand, Bedouin women are trapped in the legitimacy of the cultural practice. And on the other hand, they are invisible citizens in the eye of the Israeli law. Behind the invisibility of the Bedouin-Arab Women lies the colonial strategy of the Israeli state toward the Bedouin-Arab citizens and in particular toward women, who are placed in the most vulnerable situation as part of the Palestinian minority and as part of the Bedouin-Arab patriarchal society. The Israeli state activates the colonial strategy by using mechanisms of power and control that operates to segregate the Arab-Bedouin. The state uses the laws and in particular family laws to support and strength the traditional patriarchal tribal systems. The cultural practice uses mechanisms of power that subjecting women to polygamy. In these spaces of power Bedouin women operate. And importantly resist. How do they operate and how do they resist? What is the counter narrative that Bedouin women are presenting? How can we have the discourse of polygamy without portraying Bedouin women as victims? Can Bedouin women deconstruct the mechanisms of power and suggest a counter narrative for polygamy?
Yun-Ru Chen, Harvard Law School
"Family Law Exceptionalism and the Making of Modern Family Law- A Peripheral World View"
My project aims at unfolding the structures and characteristics of how modern family law, as a distinct and exceptional legal sphere, came into existence in the peripheral corners of the world in the colonial and post-colonial contexts. Whether through brutal imposition, volunteer imitation, or many other ways in between, the modernization of non-Western legal systems on a global scale proceeded through the wholesale transplantation of Western laws. Yet the indiscriminate and wholesale transplantation ends when reaching the boundary between the market and the family. The colonizers often hesitated to “intervene” in native family law so as to ensure native-colonizer harmony. The new-born nations usually felt the need to “preserve” the traditional family practices and structures while embracing western commercial laws in order to catch up with the advanced countries. Consequently, the modernization of family law in non-Western countries led to concessions by the legal traditions in various degrees as a result of local legal battles. This suggests that modern family law appeared in the peripheral states of the world (as opposed to the European center) as an exception to the legal modernization projects. How are we to understand this paradoxical phenomenon, i.e. that modern family law emerged as an exception to the legal modernization project in the periphery? I would like to draw parallels with Frances Olsen’s analysis on the dichotomy between the market and the family in American feminist reform. On the one hand, one may criticize the colonizers or nationalist elites for splitting along the line between market and family, carrying out merely piecemeal legal reform in the area of family law and delaying the movement of family law toward a higher historical stage (lag theory). In other words, Family law Exceptionalism (FLE) represents the incompleteness of legal modernization and the failure of the emancipation of women. On the other hand, one may approve of the non-intervention policy on the ground that it enhanced the autonomy of the native/traditional family (with minimum adjustments required in order to adapt the non-Western family law to the new condition of modernization), which ensured that the difference between the market and the family, as well as between the West and the non-West, were duly respected (negation theory). That is to say, FLE simply responded to the fact that the family was, and is, radically different from the market and should be respected or preserved as the core, or last bastion, of (non-Western) culture. I would like to provide an alternative picture which makes clear the ambiguity and ambivalence of the discourse of non-intervention, the dichotomy between the Market and the Family, and the distinction between the West and non-West. The colonial or national state was not only responsible for selectively detaining family law from fully fledged legal reform, but also for rendering it as an embodiment of (non-Western) culture or tradition. The modern legal system not only intruded into the family arena as a new species, but also acted as a form of power that comprehensively restructured, redefined and governed the institution of family law in a pluralistic legal setting. In other words, family law as an exception, working through the oppositions of tradition vis-à-vis modernity, religion vis-à-vis the secular and custom vis-à-vis law, is not outside but rather inside the legal modernization project.
Domenico Francavilla, University of Turin
"The Age for Marriage and the Global Family: Child Marriages, Legal Discourse and Modernization in India"
I will analyze the evolution of Indian law on child marriages focusing on selected aspects of traditional Hindu laws, colonial intervention and legal reforms in post-colonial times. Through this analysis I will try to address some general questions relating to the nature, or the image, of Hindu marriages between modernity and tradition in a global context. First of all, I will elaborate on the changing nature of Hindu marriage between sacrament and contract. Secondly, I will try to highlight the interplay of different legal levels, conflicts between official law and unofficial law and the attitudes of legal actors in shaping official responses to child marriages. On this basis, I will try to explain how modernization and globalization have been resisted in modern Indian family law, through a series of legal strategies till recently. Particularly, child marriages have been seen as valid, although punishable under criminal law. In 2006, following the activism of movements for the rights of women and, generally, for international human rights, and due to a growing concern for the negative impact of child marriages on the living conditions of women and the social and economic development of the country, a new regime has been introduced. However, the questions underlying child marriages are still there: the effectiveness of state law, the diffusion of new global rules, self-understanding and identity.
Bianca Gardella Tedeschi, Universita’ del Piemonte Orientale
"Lambert's Idea of Comparative Law"
Édouard Lambert (1866-1947)’s interest in comparative law blossomed at the beginning of his academic career and influenced his whole life. Lambert was trained as an expert of Roman Law, as most jurists at the time, but he owed his bildung to Saleille and Gény who, each one in different way, criticized a formal approach to the law. He strongly believed in the possibilities of fruitfully comparing very distant systems. He developed a strong interest for Islamic law that brought him to Cairo where he was the director of the “école Khédivial du droit”. After few years, he had to leave, due to misunderstandings with the local authorities. He developed a strong scientific interest for the Soviet conception of the law and promoted the first translation of Russian Soviet Code. The long life focus of his studies was the working class legal protection and the role that legal norms could have for its improvement. He was attracted by the political role that judges had both in England and in the States in decisions that concerned the workers status. This interest fostered the many studies on standards v. rule dichotomy and the social unfolding of a doctrine as “abus de droit”. In that particular framework, which called for a “droit vivant” and the attention towards real aspects of life, flourished the approach to the social dimension of the law that made Lambert near to Roscoe Pound. The “Institut de Droit Comparé”, in Lyon, gathered students from the four corners of the world. The first group were the students that followed him from Cairo after he had to leave and that remained the most dear to him. The Institute became a shelter for refugees from Nazi Germany, Italy and Spain. Some students arrived from China, United States, Japan, where they headed back after their studies. In Lambert’s views, comparative law had to accommodate every aspect of life, included the family. He argued for the need to study the divorce regimes in every legal system in his first and assigned thesis on family law topics. After the first world war and especially after the second world war, the general understanding of what comparative law should be, changed severely. The focus of the discipline shifted and the ancillary role of comparison in private law harmonization became central. Private comparative law had to serve political and economic purposes, and couldn’t be just a scientific tool. In the new paradigm, family law became de facto excluded by the mainstream comparative law discipline, as it was felt “local” and not relevant for the Western legal tradition political agenda.
Havva G. Guney Rubenacker, Harvard Law School
"Form and Substance in No-Fault Divorce and Bargaining Under Its Shadow: The American, European and Islamic Triangle"
Despite of increasing calls for reforming no-fault divorce in the U.S and also calls for harmonization of family law within Europe, the exact meaning of no-fault divorce still remains ambiguous. Social conservative legal actors continue to accuse no-fault divorce for creating an “easy” access to unilateral termination of marriage, thus weakening of the institution of marriage and family, and also complain about the spread of individualism and decline of traditional moral values as one of the main reasons behind the introduction of no-fault divorce in western legal systems. However, both claims remain as unproven as it is still unclear what the exact definition of an “easy” no-fault divorce is, how widespread it is, and whether such a divorce is a unique characteristic of modern societies. In order to test the validity of these claims and clarify the meaning and implication of no-fault divorce, I conduct in this paper a comparative research on the existing models of no-fault divorce in the American, European and Islamic legal systems. My research shows that there is no one single “beast” that can be called “easy no-fault divorce” and that various jurisdictions have different no-fault divorce laws with vastly different substance and implication despite of an apparent similarity of their forms. Based on these findings, I propose a new classification for no-fault divorce laws and argue that the older classification of no-fault divorce laws in American jurisdictions that was originally presented by Herma Hill Kay, and which is still widely relied upon in the legal scholarship, does not accurately reflect the diverse reality of no-fault divorce and its most important substantive element. Specifically, I argue that among the three main types of no-fault divorce, namely mutual-consent no-fault divorce, uncontested unilateral no-fault divorce and contested unilateral no-fault divorce, it is the latter form of contested unilateral no-fault divorce, and the varient degrees of the easiness and difficulty of its availability, that matters most as it is the main type of no-fault divorce under whose shadow all marital bargainings for the other types of no-fault divorce take place. When examined comparatively, it becomes clear that contested-unilateral easy no-fault divorce, which is the most controversial form of no-fault divorce, is neither widely applied in western legal systems nor particularly modern.
Panel III. Modernization and Tradition in the Identity of the Family
Lisa Kelly, Harvard Law School
"Law, Ideology, and the Child in Early-Twentieth Century America"
With the rise of industrial capitalism, the legal regulation of children was transformed. During the transition away from the productive household to the modern family, the child emerged as both the vulnerable innocent and potential deviant. The dominant view of the bourgeois child, and later the working class child, was that she should not engage in market labor, but instead should retreat to the private spheres of home and school. There, she would be the object of nurturance and socialization. The costs if this nurturance and socialization failed were high; the deviant child was constructed as a threat to present social order and the future development of the nation. This modern view of the child had “infiltrated most segments of society by the nineteenth century,” and as Jamil Zinaldin argues, “nowhere did these ideas penetrate so deeply into popular sensibility as in the United States.” Using Phillipe Ariès’ and Lawrence Stone’s descriptive and analytical insights into modern childhood, this paper will consider the role that law played in reconfiguring the child during the transition from the household to the family. The introduction of the “best interests of the child” standard in the nineteenth century gave the state (via courts and policymakers) a greater foothold into the regulation of children. I will argue that from its inception the best interests test operated more as a placeholder for ideological positions than genuinely child-centered concerns. Once this best interests/child welfare approach was in play, the family would become subject to greater regulation in the early twentieth century. Drawing on Duncan Kennedy’s discussion of “the social” period of legal consciousness (1900-1968), I will consider how early twentieth century adoptive families were managed, studied, and regulated in an attempt to create “normal families.”
Lisa Jabaily, Washington College of Law
"Fade to Black: Dissonance between Race and Regulation after the U.S. Civil War"
My paper studies how the abrupt legal demise of the “slave” status in the post-bellum South reorganized racial regulation in the family, the market, and the state. Before 1865, the status-family generally organized and governed individuals as household heads and dependents. Slaves occupied a certain category of dependents, like wives or children. In addition, in the market, the slave status-category stabilized employment relationships during a time when "free labor" contract rules displaced status rules for white laborers. In the market, the slave category counterpoised free labor as a category of unfree labor (often indentured servitude). I suggest that the legal end of slavery destabilized these general regulatory regimes in both the family and the market, in turn forcing legal redefinitions of both family dependency and "free labor." A byproduct of the redefinition process was a need to redefine the ex-slaves to be governed. Would ex-slaves be husbands, wives, daughters, servants, wage workers, etc.? Would they be state dependents? How did redefinitions in the family reverberate in labor market regulation, and vice-versa? After discussing various "private law" legal schemes to redefine family and market governance of ex-slaves in this time of crisis, my paper turns to a new technique of racial governance: a direct regulatory relationship between the state and its "citizens," culminating in Jim Crow. I study public accommodations law, and railroad regulation in particular, as a pioneer of this new technique. After the Civil War, railroads, too, underwent a regulatory upheaval. In the early days of the railroads, passenger categories were defined by railroad-company regulations that, in turn, used as a compass certain family law rules (many trains had a "Ladies' Car") and market law rules ("first class" and "second class" cars). By the late nineteenth century, however, railroads had become exemplary systems of state-mandated segregation of black and white "citizens," with Plessy serving as a key architect and a symbol of Jim Crow.
Maria Rosaria Marella, University of Perugia
"Intrafamilial Torts: A Way Toward Modernization of the Law of Domestic Relations?"
My paper analyzes a specific aspect of the so-called privatization of the family, namely the intersection of family law with the law of torts, as experienced in some European civil law countries like France, Germany and Italy. It also takes into account parallel developments emerged in some common law jurisdictions and specifically in Canada. After a brief introduction about the actual structure of the market/family divide within the domestic domain, I focus on Canadian case law and Italian case law, the latter assumed as an exemplification of what is going on in continental Europe. The privatization of the family is largely understood as the epitome of the modernization of family law and, more broadly, as a sign of the progressivism of the legal system within which it occurs. It represents a new compromise between patriarchy and individualism in the law of domestic relationships, with a shift toward the latter pole of the continuum. In the context of the privatization of the family, tort law has been recently deployed in combination with traditional family law remedies in sanctioning breach of marital and parental obligations. In this framework, exceptions to the doctrine of interspousal immunity in tort, for instance, are justified in the light of a more effective enforcement of individuals’ fundamental rights within the family: Family law is no longer to be conceived as a closed, all-encompassing and isolated body of rules. On the contrary, the protection of fundamental rights cuts across the whole legal system. Thus the family should be envisioned as the place of one’s personhood’s self-fulfillment and development, rather than the site of fundamental rights’ defeat. But, although originally perceived as a way out of family law exceptionalism, the increasing defeat of the interspousal immunity doctrine surprisingly produces quite ambivalent effects on the market/family divide and, eventually, on the identity of the family as a symbol of the modernity of a given legal system. This paper aims to demonstrate that assessing familial relationships according to tort standards produces heterogeneous outcomes in terms of modernization/tradition in family law. On the one hand, it causes a visible shift of the family toward a market rationale, what is currently interpreted as a sign of modernization; on the other hand, this phenomenon has backlashes, which could be soundly appraised as a move backwards to the traditional family.
Michelle McKinley, University of Oregon
This project builds on a longer historical project of “maternal imperialism” that explores the 19th century colonial family welfare interventions implemented in African protectorates. These maternalist programs were launched by British suffragettes and elite philanthropists, to improve the lives of their less fortunate sisters in Africa and Asia. During the course of that research, I found a number of intriguing family law cases that were brought to African colonial courts under the “Repugnancy Clause.” Although colonial administrators were (in theory) deferential to African and Asian customary laws of family, marriage, and inheritance, they did intervene in cases that invoked the “Repugnancy Clause” (i.e. “customs that were so outrageous and repugnant so as to create a sense of revulsion.)” Most famously, the Repugnancy Clause was invoked in cases of widow burning (sati) and child marriage. But it was sporadically used to adjudicate cases of “woman to woman marriage.” Woman to woman marriage was a longstanding practice of proxy marriages between infertile women for the purposes of inheritance. Although this practice ensured the transmission of property through a procreative fiction, it was deemed “repugnant” not only by colonial administrators, but also by the relations of the biological children who strategically sought to assert property and inheritance claims of their own. Many of these cases were brought during the protracted tutelary transition to Self Rule of the 1940s-1960s, and thus provide an excellent lens through which to study some of the processes that the workshop proposes to interrogate: namely, the role and relationship of family law to national identity, nation-building and “modernization.” It offers us opportunities to look at family law transformations through changing economic circumstances, and how nations create “modernist” identities through the suppression and denunciation of customary practices that they had previously tolerated once these customs “failed” the civilization test.
Philomila Tsoukala, Georgetown Law School
“Marrying Family Law to Culture in the European Family Law Harmonization Debates”
Participants in the harmonization of European family law debate tend to take one of two positions: either that family laws are so closely connected to national culture (see tradition) that harmonization would be impossible or undesirable, or that European countries share core fundamental values regarding their family laws (see modernization), and thus harmonization would not pose a problem. I argue that the recurrence of the national or European culture argument in these discussions turns a debate about potential legal reform into a debate over cultures, which appear either fixed, or moving towards a predetermined destination, defined as modernity. I argue that this mode of discussing family law takes attention away from the institutional compromises called for by the proposed harmonization and the distributional stakes for different groups of stakeholders. Furthermore, I suggest that the themes emerging from the European harmonization debates resonate intently with a previous stage of identity formation, namely the construction of national identities. I use the case of modern Greek identity construction through family law to argue that just like then, lawyers-both supporters and opponents of harmonization- are in the process of constructing “imagined communities”, through arguments relating to tradition and modernity, and propose to shift the grounds of the debate from identity to distribution.
Panel IV. The Economic Family
Adrienne Davis, Washington University in St. Louis
"The Game of Love: Polygamy, Game Theory, and Bargaining for Equality"
For the conference, I anticipate discussing how debates over polygamy, including the seemingly more “progressive” efforts to characterize polygamy as “no different than” or “one among many” alternative family formations misses the underlying challenge polygamy poses to what I call dyadic marriage’s regulatory regime. The paper contests various discursive obfuscations and insists on attention to the material and distributive consequences of legalized intimacy. As a thought experiment it proposes a set of “default rules” to regulate polygamy, provocatively, default rules grounded in commercial law.
Daniela Kraiem, Washington College of Law
"The Free Market Economic Family: Long-Term Care Policy in the United States"
My project explores how long-term care policy in the United States shapes and is shaped by the neo-liberal conceptions of the economic family. Long-term care refers to personal care services provided to the frail elderly or persons with disabilities. Until recently, the federal government would only pay for nursing home long-term care. In the last decade the federal government allowed a new approach to long-term care called “Cash and Counseling.” In this model, the federal government gives a cash grant to Medicaid recipients, who may spend it on “home and community-based” long-term care, instead of a nursing home. This move reconceptualizes long-term care in free market terms by allowing recipients to use cash grants to pay the care providers who can give them the best services at the lowest cost—despite the fact that the market for caregiving labor does not operate like a traditional free market. The federal government is making these changes to drive down what will be the astronomical costs of caring for an aging population. Promoters also frame “Cash and Counseling” as a response to the needs of recipients, especially those in the disability rights community who have been vocal in their desire to live outside of institutions and control how and by whom their care is provided. Further, many states will use “Cash and Counseling” to pay family members to care for each other. “Cash and Counseling” is a classic neo-liberal response to a social problem; it is a cost saving measure wrapped in the rhetoric of autonomy and individual choice. While the current system is unsustainable, and the new model does offer advantages for some individuals, I contend the “Cash and Counseling” model as a whole reflects (1) an impoverished definition of social citizenship that equates autonomy with the ability to consume, and prioritizes market participation over community integration; (2) an emphasis on the “home” that creates rather than reduces the isolation of caregivers and the frail elderly and persons with disabilities; and (3) a narrow definition of community that reinforces boundaries of inclusion and exclusion by relying heavily on the labor of immigrant women who are unprotected by wage and hour, workplace safety, and employment benefit regimes. This project raises opportunities for comparative work, as models of long-term care reveal foundational assumptions regarding the balance between the roles of the state, family, and individuals in the life of the economic family.
Kathleen Lahey, Queen’s University, Ontario
“The Tax/Benefit Unit in Fiscal Policy: Gender, Race, Sexuality, and Class Impact of the Re-emerging 'Male Breadwinner' Model of the Family”
As early as the 1980s, countries like Denmark began to recognize that continued use of the adult couple or the family as the basic unit in tax and social benefit policy is inconsistent with the promotion of sex/gender equality, non-discrimination, and intra-household equity. Since then, there has been a discernable shift away from communitarian tax/benefit units toward the use of the individual as the core unit in fiscal policy. Ongoing research has demonstrated that even small changes in tax unit rules, such as reducing the tax subsidy to husbands who support economically-dependent wives, can produce measurable and sustained increases in women's labour force participation rates and incomes. As a result, one focus of feminist fiscal analysis has been on promoting increased use of the individual adult as the tax unit, or, as in the case of several countries, including Canada, on protecting what is left of individual policies. Despite strong evidence that individual tax/benefit measures do indeed help close after-tax income gender gaps, neoliberal and neoconservative governments have increasingly enacted joint fiscal instruments that offer valuable fiscal incentives to households organized around the 'male wage' or 'male breadwinner' model of the family, while, at the same time, imposing fiscal penalties on those that are not. Many of these new provisions give the impression of having been 'airlifted' from very dissimilar legal cultures without regard to their relevance or 'fit,' while others are adjusted to pursue gender, race, sexuality, or class outcomes of particular interest to the importing state. Examples are drawn from recent tax measures enacted in Canada, the US, the UK, Ireland, Israel, and Australia, and include income splitting measures and earned income tax credits.
Claire Smearman, University of Baltimore
“Second Wives’ Club: The Impact of Immigration Law on Women in Polygamous Marriages”
Each year thousands of immigrants enter the United States from countries throughout the Middle East, Africa and Asia where polygamy is practiced legally, often within the framework of plural legal systems that apply personal status laws to different segments of the population based on religious or tribal affiliations. These personal status laws, remnants of European colonialism, govern matters of marriage, divorce, child status, child custody, property rights and inheritance, and many of them permit polygamous marriage. Under U.S. immigration law, however, a polygamous marriage is not recognized as a valid marriage for immigration purposes, even when the marriage is legal in the country in which it was celebrated. This has significant consequences, since the determination of who qualifies as a spouse, child or parent for purposes of family-based or derivative immigrant status is decided, in whole or in part, on the existence and validity of a marriage. Since the practice of polygamy is almost universally the prerogative of men (polygyny), the prohibition against polygamy in U.S. immigration has a different impact on men and women. As the polygamy prohibition currently operates, it effectively empowers the husband in a polygamous marriage to choose which wife will immigrate to the United States, while allowing all of his minor children to qualify for status even if their mother is the second, third or fourth wife. The power to decide which wife will live in the United States, and which mothers will be separated from their children, resides in the hands of the husband, reflecting the gender inequality within polygamous marriage itself. Further, the polygamy prohibition harms battered immigrant women in polygamous marriages who are living in the United States; under the Violence Against Women Act, a battered woman must establish that she is in a bona fide marriage and has "good moral character," to receive the benefits of the act, yet a practicing polygamist is barred from doing so. Thus, the gender inequity inherent in polygamous marriage is perpetuated and reinforced by the operation of the polygamy prohibition in U.S. immigration law, resulting in social and economic harm to women.
Barbara Stark, Hofstra University
"State Natalist Policies and the Reproduction of Gender"
This paper explores the ways in which state natalist policies shape, and are shaped by, family law in general and reproductive rights in particular. States with burgeoning populations, such as China and South Africa, have adopted anti-natalist policies. States with plunging fertility rates, such as Germany and Greece, have adopted pro-natalist policies. Some state natalist policies infringe on reproductive rights. Some promote women’s equality, both within and beyond the family. Some do both, violating reproductive rights even as they seek to promote women’s equality. My thesis is that while state natalist policies need not violate women’s rights, they often do so, either by violating women’s reproductive rights or by what I refer to here as “the reproduction of gender,” that is, the perpetuation of gendered stereotypes. Careful analysis is necessary, accordingly, to consider the impact of a particular state natalist policy on those most directly affected, including the women who bear and care for children, the baby girls likely to be abandoned, and the female fetuses likely to be aborted.
Panel V. Comparative Rights/ Identity Discourse in Family Law as Public Policy
Libby Adler, Northeastern University
"The Gay Agenda"
The anti-gay right often speaks in the language of protecting traditional family values. This tends to elicit two species of rejoinders from advocates for gay, lesbian, bisexual and transgender rights. First, glbt rights advocates depict the gay family as morally indistinct from an idealized version of the heterosexual family, (i.e., wholesome, monogamous, bourgeois, and much more about love than sex). This is a species of normalization, and it is especially evident in the same-sex marriage campaign, but shows up on other frontiers, as well. Second, glbt rights advocates fight hard to impose on this battle within the culture war their preferred frame of equal rights. Both strategies have costs that have gone under-recognized as glbt rights proponents neglect to consider the indeterminacy of rights (including the possibility of rights claims provoking competing rights claims), the production of rights-bearing subjects, and the power of rights discourse to eclipse possibilities for change that could occur somewhere other than the height of constitutional vindication. This paper (forthcoming this spring in the Michigan Journal of Gender & Law) represents an effort to raise the profile of the costs of rights argumentation for glbt constituencies, especially but not exclusively in the context of same-sex marriage, and to shift reformist attention to less glamorous sites of possible reform.
Pascale Fournier, Ottawa School of Law
"Flirting with God in Western Secular Courts"
Through the journey of one symbolic legal institution—Mahr (a form of dowry), I will follow the ways in which Islamic marriage travels to Western secular courts, offering a panoply of conflicting images, contradictions, and distributive endowments in the transit from Islamic family law to Western adjudication. I insist on the importance that distributive consequences rather than recognition occupy central place in the assessment of the legal options available to Muslim women in Western courts. In family law matters, the enforcement of Mahr by Western courts carries considerable distributive power, although Mahr is often treated as a mere expression of religious recognition by the judiciary. Moreover, the distributional impact is far from homogeneous and predictable. At times, Mahr unfolds as an exceptional penalty imposed on the Muslim husband (courts add the amount of Mahr to the division of family assets and to spousal support), whereas sometimes it becomes an exceptional penalty for the Muslim wife (through conflict of laws, Mahr replaces alimony and equitable division of property). Still at other times, the unenforceability of Mahr for an economically dependent wife leads to an exceptional bonus (through conflict of laws, Mahr is rejected as against “public order” and Western equity standards are applied instead). To represent this distributive framework, I will introduce several short scripts in which a fictional Leila embarks on a bargaining tactic with her husband Samir upon divorce and uses Mahr as its central object. In offering the many conflicting faces of Mahr as bonus and penalty, I will assess the interaction between Islamic law and Western law, as well as the subjective gains and losses predicted by Leila in relation to the enforceability of Mahr. This presentation will implicitly address the stakes of conceiving Mahr as an autonomous legal institution rather than as a dynamic part in a larger marital web of rights and duties. Ultimately, I will claim that the stakes are the constitution of a romantic subject in the former (the husband offers a gift to the wife upon marriage to express his love for her and his respect for God; this gift must travel as a legal transplant to Western states), and a calculating subject in the latter (Mahr, inherently plural, is used by the parties to gain something from the other; this institution is always-already resisting claims of “true” and “authentic” Islamic law). A distributional analysis of Mahr is crucial, I will argue, because Mahr is encountered by actual parties and often used by them as a tool of relative bargaining power in the negotiation of contractual obligations related to the family. Moreover, Islamic law travels with a multiplicity of voices, and it is this complex hybridity which will be mediated through Western law upon adjudication.
Aya Gruber, Florida International University
"The Feminist War on Crime"
Within the global governance structure, transnational identity groups operate on many levels, often seeking legal reformation in local domains. This Article examines the specific intervention of feminist legal theory on the domain of American criminal law in the domestic violence arena. Feminists successfully pushed through structural changes in the highly politicized American criminal justice system that must be analyzed in terms of the alliances sought and meta-philosophies accepted. In the United States today, domestic violence reform is celebrated as an unconditional feminist success and credited with moving society away from characterizing domestic abuse as legitimate or merely private toward a belief that battering is a heinous crime, more egregious than garden-variety assault. I know all too well how far the pendulum has swung, having practiced as a public defender in a specialized domestic violence system. Day after day, prosecutors proceeded with cases against the wishes of victims, resulting in the mass incarceration of young black men. Could this have been the result feminist law reformers hoped for when they began their movement of resistance against patriarchy that legitimized abuse? Answering the foregoing question with a resounding “no,” this article demonstrates that domestic violence reform has become far removed from its progressive roots and now supports rather than supplants patriarchal ideology. It has transformed from a grassroots movement to a politically powerful lobby deeply allied with law enforcement. One of the reasons for this transformation was the interposition of discourse, ideology, and policy from the powerful victims’ rights movement. This movement originated as a conservative counter to Warren Court civil liberties, and it implemented an essentialist program of objectifying victims and characterizing defendants as purely autonomous agents to unmoor crime from its social roots. Unfortunately, in the name of taking abuse seriously, many feminists adopted the practice of objectifying battered women as helpless, scared, irrational, and sick and abusers as idiosyncratic deviants. Moreover, conservative power players happily appropriated the domestic violence issue to further pro-criminalization individualist agendas. The article suggests that feminists simply stop advocating criminal law reform as the solution to the problem of domestic abuse and proposes some pedagogical methodologies for de-essentializing the domestic violence issue in the classroom.
Ummni Khan, Carleton University
“Sex Work as a Constitutive Outside to the Family”
My research considers how prostitution-related laws and discourses affect notions of the family and contribute to its exceptional status. Particularly, I am interested in examining how the new targeting of johns (i.e. clients of sex work) in criminal law has shaped and been shaped by reified constructions of the family. One way that this manifests is through the use of alternative, informal or diversionary legal schemes that side-step a traditional trial proceeding. In such strategies, the family is sacrelized and the wife is invoked as both a partner of the state to discipline her johh-husband or paradoxically an accessory to the crime because she is not satisfying his sexual desires at home. My project will thus explore how the family is performed (anxiously and incompletely) through and by these alternative legal measures designed to manage the triangulated relationship between the john, his spouse, and the sex worker.
Rachel Rebouché, Washington College of Law
“Family-Proxies and Rights Enforcement in Abortion Law Reform”
My project’s general purpose is to understand how an issue like abortion, often regulated within the family, became the site of intervention for international human rights and global feminism, and the ways in which this intervention has consequences for reform efforts. I examine the transition of abortion legislation from a customary and common law basis to a rights framework in two countries – South Africa and Ethiopia. First, I will show how both countries evidence a dominant model of international reproductive rights advocacy over the last twenty years. It is a process by which local activists seeking to influence legislative reform rely on equality rights in international human rights documents as a legitimization tool and transplant those concepts into a domestic scheme of enforceable rights. This reliance on human rights is complemented by an approach that reacts to the perceived failures of privacy jurisprudence in the United States, supported by the accumulated expertise of Western-driven, feminist-aligned non-governmental organizations. Second, I will argue that this model may be suited to a project in which the primary aim is to create a rights-based framework that challenges colonial legacies. But this model avoids, by design, issues that strike at the heart of regulating the family (such as minors’ access to abortion) and ignores the tensions produced by shifting power to regulate sexuality to new institutions or persons. One consequence, for example, is an uneasy compromise struck by courts that rely on common law standards, which funnel decision-making to doctors (a proxy for family members), in order to avoid conferring control on community / family leaders or the new rights-bearer (the pregnant woman).
Jennifer Reich, University of Denver
"Public Health vs Individual Risk: An Examination of Family Autonomy and the Legal Frameworks of Compulsory Vaccination Law"
Compulsory immunization laws, passed in all 50 states, are credited with drastically reducing, and in many cases virtually eliminating, incidences of childhood illnesses in the United States. The success of these laws has largely been the result of enforcement in the public school enrollment process. Although rates of vaccine-preventable diseases have plummeted because of widespread vaccine programs, public health programs insist that maintaining a rigorous vaccine program is necessary to prevent the return of these diseases. As Health Canada, a federal agency to help Canadians achieve greater wellness, explains, “When immunization rates drop, these diseases come back. For example, a drop in pertussis (whooping cough) vaccinations in Britain in 1974 was followed by a whooping cough epidemic that killed 36 people in 1978.” Additionally, vaccines are seen as necessary in the face of patterns of immigration or international travel in which those coming to the US or Canada may expose children or children may become exposed when traveling to countries where disease burdens remain high. Finally, all public health proponents point to the need for compulsory childhood immunizations as a way to protect others in society who cannot be vaccinated because they are too young, are immune-compromised, or have a health condition that could be exacerbated by the vaccine. These policies of mandatory vaccination exist alongside state efforts to respect individual autonomy, familial privacy, and parental authority. As such, almost every state in the U.S. has a mechanism that allows parents to opt out of required vaccinations, either for religious beliefs, or as eighteen states allow, for philosophical, personal, or conscientiously held beliefs. In the U.S., it is unconstitutional for states to verify one’s religiosity or claims of religious membership. Canada’s system follows much of the same model, with specific provinces requiring vaccines for school attendance, while also allowing for exemptions on the basis of personal or religious exemptions. According to Vaccine Liberation, a Canadian group advocating against compulsory vaccines, "immunization is not mandatory in Canada; it cannot be made mandatory because of the Canadian Constitution.” Although some provinces require proof of immunization, the statement clarifies that "It must be emphasized that, in there three provinces, exceptions are permitted for medical or religious grounds and reasons of conscience; legislation and regulations must not be interpreted to imply compulsory immunization." This paper explores the tensions between individual rights to opt out of vaccinations and the public responsibility to participate. In the US, families opting out of vaccines are more elite, more likely to be white, with greater family resources. In the US, the history of mandatory vaccination reveals that by mandating vaccines in the 1960s, the US government insured that low income children would maintain access to them, as the government would become obligated to fund them. Thus, compulsory vaccination was originally conceived of in part as a social justice program. As rates of disease have plummeted, vaccines are perceived at the individual level as a greater risk than the risk of the disease itself. Rather than being viewed as a social justice campaign or obligation to the collective, vaccine decisions rest on an individual risk-benefit calculus that may jeopardize the foundations on which the program was built.