Tracing the Roots of Inequalities: Why Scholars Need to Widen their Nets

In Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism, authors Janet Halley (Harvard) and Kerry Rittich (Toronto) offer a compelling way to think about the doctrinal areas which for so many of us are handy ways of  defining our area of scholarship.  The problem is that these “areas” are often less than helpful when trying to define the legal context of equality problems, and they are a positive danger when we move on to consider law reform options. Halley and Rittich take on these problems as they relate to “family law”.

Let me start by saying that even on its own terms, this article is fundamentally about equality questions. Halley and Rittich are clear that family law is about “distributional outcomes” (P. 755) and that the legally constituted family is closely linked to market distributions, even if those links are often masked. They argue that the family should be recognized as an “economic unit” and not only as an “affective unit”.  The authors encapsulate this idea in their use of the term, “economic family,” signaling that they would put “the family and the market, family law and contract, back into contiguity” (P. 758), resisting the claim that the “economic character of the family” has disappeared in modern and postmodern times. Key to this resistance is accepting that the household is (still) a critical economic unit.

As the authors develop this idea, they ask how what is commonly referred to as “family law” governs the ongoing negotiations which characterize a household–“marriage or divorce; deciding how much to invest in the education of children; tolerating domestic violence or deciding to escape it….who will take out the garbage.” (P. 761.)  At this point, they turn to delineating the “background rules”–not “family law” as defined in law school courses, but the other rules, those “artificially segregated” from family law and defined by different headings. (P. 761.)  These legal backgrounds are labeled, in a user-friendly taxonomy, Family Law (FL)1, FL2, FL3 and FL4.

These categories describe the relationship of various kinds of law or rules to the “economic family” or “household”. FL1 is the law school course in Family Law. But, “if you wanted to understand how law contributes to the ways in which the actual family and household life is lead by actual people, you would never stop there.” (P. 761.) The authors take us next to FL2, comprising the explicitly “family” targeted provisions of various other forms of law (including immigration and bankruptcy law). FL3 moves further into the background, “the myriad legal regimes that contribute structurally but silently to the ways in which family life is lived” (P. 762.) These contributions might be intentional, unintentional, helpful or harmful. Rittich and Halley cite “occupancy limits in landlord/tenant law that give more or less protection to incumbents; employment rules that permit dismissal on the part of the employer  “at will” as part of this zone. Finally, FL4 consists of informal norms, since recognizing the impact of these ideas means recognizing that they often trump formal laws in terms of impact on the organization of a household.

Here are the four things I get from this. Firstly, the critique advanced here of family law as a “liberal” idea is one which explodes a variety of accepted ways of doing things (or, as the authors write, “give the lie to the apparent naturalness of what we are doing now”). Secondly, we can all think about how our particular area of study (assuming it isn’t family law proper) might be affecting households. For instance, co-author Kerry Rittich, in another article in the same volume, does this in relation to development policy and legal reform, tracing the path from market reform to the transformation of families and reallocations of “resources and power” within households. (P. 765.) These effects will be, according to this article, profoundly distributional and therefore are easily part of the equation for equality scholars. Thirdly, at the same time, we can imagine developing similar genealogies for other areas of law (Equality Law 1, 2, 3 and 4?), genealogies which push us to be more critical (small c or big C) about the multiple layers of distributional effects that equality law has, and more generally about the scope of our fields. Finally, the model is extremely helpful, if daunting, when attempting to engage in law reform efforts. It means that we can look outside the obvious points of intervention–but it also means that we have to consider a very complicated set of interactions and results from any proposed change. Anything that makes “unintended consequences” a bit more predictable is helpful, and many law reform campaigns could do with a more critical eye. This model offers us a way to see that things are more complicated or maybe even simpler than we might at first think.

These four things are all outside the “urgent” need which drove this article, the need for a better model for comparative family law analysis. There is so much in this short (24 pages) article. Each time I read it I find something new.