Relationship Between Law and Families - Essay Example

Family Law: Theoretical Approaches [ID The modern British family is in many ways in a serious crisis. Changing gender norms and roles have caused the family to be in an unstable state, with constant micro-negotiations as factors like the entrance of women into the workforce, the increasing preference for female children in in vitro fertilization, the “second shift” and the beginning of “housedads” and “househusbands” are causing the family to be very different. In addition, increasing patterns of cohabitation, “shacking up”, gay marriages or civil unions with adopted children or alternative non-marriage arrangements as well as frequent divorce are making the once-solidly-defined English nuclear family resemble something else entirely, something else that is thus-far undefined, vague and nebulous. In this changing atmosphere, family law will be of increasing importance in managing conflict, creating harmony and resolving issues before they arise, creating amicable arrangements when disasters do occur, and organizing society. Major theoretical approaches like feminist theory, the public-private divide and functionalist theory deserve analysis, but the most salient for modern circumstances is feminist theory, at least insofar as it recognizes gender differences and difficulties. The changing nature of the British family deserves special comment and analysis. “Earlier this year, women became the majority of the workforce for the first time in U.S. history. Most managers are now women too. And for every two men who get a college degree this year, three women will do the same. For years, women’s progress has been cast as a struggle for equality. But what if equality isn’t the end point? What if modern, postindustrial society is simply better suited to women?” (Rosin, 2010). Rosins question is obviously somewhat hyperbolic, but there is an underlying fear and anxiety there. Girls are being preferred over boys for in vitro fertilisation in America, and similar phenomena are occurring in Britain. The delocation and loss of jobs caused by the recent economic meltdown have only exacerbated this phenomenon. “He writes on the board: $85,000. “This is her salary.” Then: $12,000. “This is your salary. Who’s the damn man? Who’s the man now?” A murmur rises. “That’s right. She’s the man” (Rosin, 2010). This basic conflict between men and women in terms of new gender norms will cause major issues for family law. Add in the other factors such as cohabitation, gay marriage and civil unions, other changing sexual orientation norms, continued risk of economic dislocation and poverty, and family law will have to deal with an ever-changing family that has different expectations for alimony, child support, divorce payments and arrangements, child custody and other elements of family and child law (Morgan, 2001). It is important to identify, though, that women in the UK and America continue to face systematic discrimination, so that it is inaccurate to say that there is an “end of men” on the horizon. The UN found that “British women are under-represented in Parliament, paid less than men at work and increasingly being sent to prison for committing minor offences” (Verkaik, 2008). Another major study found that women face ongoing discrimination such that “[a] partnered mother with a child aged under 11 is 45% less likely to be in work than a partnered man” and finds that that the underemployment of women costs the economy about £28 billion annually (BBC, 2007). Guyard-Nedelec outlines ongoing discrimination in the legal industry, including “glass ceiling” type discrimination, maternity leave and the “mommy track”, the feminisation of female lawyers and a segregation into different tasks, an “old boys club” controlling promotion and advancement and “a cultural legacy, the permanence of a "philosophy" which disregards women” (2007). Women face systematic discrimination in media, industry, employment and the economy. This brings us to family theory. Given the changing roles and relations of gender and family structure, what theories bring the most light? Foundationalist theories in law and sociology in general take the stance that social institutions tend to evolve to serve a legitimate social function for the bulk of the population (Giddens, 1979; Collier, 1995, 56). The nuclear family evolved, in this view, according to responses from the economy and surrounding social structures. This means that family law should tend to support existing family structures in order to protect the functions they perform: Transmission of values, education, arrangement of labor, protection of domestic tasks, etc. The problem, aside from the obvious objections that foundationalists ignore the potential role of social conflict and different classes of people as well as the fact that organizations evolve and change so that it is absurd to say that they evolve to serve a function when the functions and institutions both change, is that the modern society is getting so complex. “The functionalist era has now been displaced by the complex era. It will become apparent that there is no single set of ideas or explanations lying behind the trends characteristic of the complex era, although there may be some loose connections between them. Instead, the patterns are diverse, fragmented, and sometimes contradictory. The shift from functionalism to complexity can be seen in...modern family law. First, marriage has been displaced as the central concept linking law to families. Instead, legislation increasingly recognizes other relationships, such as unmarried cohabitation, or attaches greater significance to existing ones, such as parenthood. Some jurisdictions have gone further and have created new forms of marriage or legal partnership.. [C]oncerns about the instability of marriage have led to calls for a return to fault-based divorce laws, or for offering couples the option of entering marriages that are harder to exit than normal ones...Ironically, perhaps, these seem to offer a return to an older—prefunctionalist—mode of family governance” (Jrank, 2011). Similarly, discretionary legislation giving more autonomy to individual lawyers, negotiators, and so on have been replaced by mandatory legislations such as fixed entitlements for alimony or divorce payments rather than situational ones (Jrank, 2011). And postdivorce parenting is becoming entirely normative (Jrank, 2011). Many families are experiencing various ways of arranging the post-divorce experience, with all sorts of shared approaches to divvying up time, caretaking duties, schooling, approaches to education and value transmission, etc. Thus, the foundationalist theory of family law needs at the very least to recognise the sharp changes in underlying institutions that have occurred that have led to a complex system with hybrid elements of traditional nuclear-family approaches and a modern approach whose exact shape is still taking form. The public-private divide argument is very simple: Some matters of the family and domestic sphere are public, some are private (Herring, 2001, 2). The perspective is a classic civil libertarian one. The government and other public institutions can only have so much business in the affairs of private individuals. A family is free to determine for themselves how to discipline their children; however, there is a limit before assault or sexual abuse. A family is free to determine for themselves how to arrange their domestic tasks: One partner can do as little or as much cleaning as possible. This view is vital for family law to bear in mind, but almost as an antagonistic view: It seems to deny anything but the most cursory family law. After all, a truly strict public-private divide theorist might argue that there should be no specific divorce requirements! Instead, partners should negotiate through lawyers individually: No mandated 50/50, no pre-nuptials, etc. Family law has to answer this theory at each step. This is good because it prevents overreach on the part of family law. Family law theorists and practitioners should be asking themselves, “What sort of precedent might this establish? Might this well-intentioned initiative allow corruption or abuse later? What unintended consequences, such as reduced willingness of families to cooperate or share information with authorities and social services officials, might there be? What cascading ramifications to the rest of society in terms of reduced latitude might occur?” And so on. However, the public-private divide theory is obviously flawed in many serious ways (Herring, 2001, 2-4). Feminists rightly point out that the idea of “privacy” in this vein seems to be rather favorable, conveniently, to the needs and perspectives of men: The political system is public, so they can leverage power within it, but the family is private, allowing them to use superior social power to arrange family matters how they see fit. Privacy defenses can be used to shield batterers and abusers. In any respect, the family is a key social institution. It is recognised by society. Social infrastructure such as education is provided for it. In European societies like Britain, extensive social welfare services such as the dole provide subsidy and support for families. Tax laws change it. Society is one of the primary institutions that produces and reproduces society over generational cycles. Declaring that it is somehow “private” and simply barred off from the rest of society seems arbitrary and a simple matter of convenience. Instead, family law should embrace the idea of rights and responsibilities: A good maxim might be the right to influence decisions insofar as one is impacted. A privacy right that prevents people in the family from seeking help and aid clearly violates that maxim, for example. Further, since in many ways the status quo is institutionally directed to oppress women, I is absurd to take as religious writ the idea of a public-private divide. If the rest of social signals such as employment direct against women, and if the household is an economic institution that serves to arrange economic matters, how meaningful is it to say its separated off from the rest of society? Such a cordoning factor is absurd and is a defense of existing inequality. Feminist theory is the most interesting because it speaks to the real conflicts. Foundationalism, while interesting philosophically, is useless for family law practitioners because it only describes how the system works, not where it doesnt. Family law practitioners like judges, social services experts and lawyers are overwhelmingly in the trenches for failures in both family structure and family law: The breakdown of a marriage, abuse of a child, alimony issues, etc. Most family law elements that are functionalist are largely automatic: Getting a marriage is simply a matter of paperwork; dissolving it transparently is not. Similarly, public-private divides only describe what the law shouldnt be. Feminist theory points to an actual normative goal for family law: It should tend to produce social equality. Feminist theorists take a broad view of family law (Diduck and ODonovan, 2008). “Examining specific areas of family law from a feminist perspective, this book assesses the impact that feminism has had upon family law. It is deliberately broad in scope, as it takes the view that family law cannot be defined in a traditional way. In addition to issues of long-standing concern for feminists, it explores issues of current legal and political preoccupation such as civil partnerships, home-sharing, reproductive technologies and new initiatives in regulating family practices through criminal law, including domestic violence and youth justice” (Diduck and ODonovan, 2008). Perhaps this approach is slightly broad, but it is obvious to see how many of these impinge directly upon the resolution of family law disputes. Civil partnerships and home-sharing impact ultimate arrangements. Reproductive technologies clearly involve family issues and their use has impacts on families. Having access to these technologies can be important for protecting the rights of women and families. Similarly, disproportionate legal impacts on women have deleterious effects on the family. Perhaps one of the most interesting elements of feminist theory from the perspective of family law is the “second shift” problem (Hochschild, 1991). Essentially, women work an additional forty-hour week on average while still being full-time workers. The interesting thing about this shift is that it is an intersection of three factors. 1. The success of the feminist movement in allowing women into the workforce 2. The failure of the feminist movement in securing broad, sociocultural and institutional changes to family dynamics such that domestic work is equally split 3. The failure of the economy to provide for families and working people in terms of a living wage and meaningful social support While Hochschild focuses on the US, these factors are quite real in Britain as well (1991). Essentially, women could enter the workforce, but they didnt want to have to. Now they do, because both breadwinners have to work to survive in many families. Ironically, feminist success in one arena actually harmed women: Then again, if women hadnt been able to enter the workforce, families would have been even poorer. From an economic perspective, women would be protected by raising wages: This would lead to them being able to work less. But even in a situation where both partners have to work forty hour weeks, there is no reason that one partner must shoulder all of the domestic tasks. This has obvious implications for family law practice in the realm of mediation and divorce. Hochschild (1991) makes clear that most men want to take more work: They do not like their wives or girlfriends to be stressed and overworked. But structurally, there are many factors that make them incapable of doing so. Providing family law resources to do so could staunch many vicious divorces. In a situation where both breadwinners work hard to provide for their family, then one breadwinner has to do more domestic work, its not surprising to see conflict and divorce emerge, but there is nothing “private” about that: It is entirely a function of public institutions. Thus, it is clear that the study of family law gains from an understanding of theoretical approaches towards the relationship between law and families in several ways. Understanding how people actually live their lives and tend to view their families helps for lawmakers, mediators, social workers and others to resolve issues and craft policy so as to avoid alienating families. Having a perspective to understand the climactic shifts to gender and family relations is vital to being able to navigate future issues. Making policy without reference to the real, lived experiences of women, men, children, and other stakeholders is clearly utterly quixotic and doomed to failure. The most important thing for policymakers to realize from theoretical understandings is that family law is going to have to change drastically in the near future. As women gain more relative power in economic and domestic settings and the shape of the family shifts, so too will the law. Works Cited Alexandrine Guyard-Nedelec, “Discrimination against Women Lawyers in England and Wales”, (2007) Gender Forum 17. Alison Diduck and Katherine ODonovan, Feminist Perspectives on Family Law (2008, Cengage) Anthony Giddens, Central Problems in Social Theory (1979, UC Press). Arlie Hochschild, Second Shift (1990, Avon Books). BBC (2007), “Mothers face job discrimination”, 27 February. Jrank “Family Law – The Era of Complexity” (2011), accessed 14 February 2011 Jonathan Herring, Family law: issues, debates, policy (2001, Taylor and Francis). Hanna Rosin, “The End of Men” [July/August 2010, The Atlantic]. Katherine Bartlett, “Feminism and Family Law” [1999] Family Law Quarterly 33, 3. Patricia Morgan, “Cohabitation” (Civitas, 2001) accessed 14 February 2011. Richard Collier Masculinity, law and the family (1995, Psychology Press). Robert Verkaik (2008), “UN says sexual discrimination is rife in Britain” (The Independent, 2 September). Read More