“When family pride ceases to act, individual selfishness comes into play.”
“Happy families are all alike; every unhappy family is unhappy in its own way.” I’ve always thought that Tolstoy underestimated the variety of happy families, but his dictum definitely holds true from at least one point of view, that of family law. While happy families present smooth, blank faces to the civil law (all decisions might as well reflect harmonious bliss as far as the law is concerned), an unhappy family easily becomes a strikingly particularized thicket of rights, grievances, stipulations, restrictions, economic calculations, and retribution. Suddenly things get very colorful indeed.
In The Transformation of Family Law Mary Ann Glendon, a professor at Harvard Law School, seeks to discern, with special attention to recent plot developments in the convoluted narrative, the sort of “stories” told about families and human relationships by our laws. Since being hired by Harvard and winning the 1988 Series Book Award for Abortion and Divorce in Western Law, Glendon seems to have become something of a hot commodity on the family law publishing circuit. The general thesis of this new book, a revision of an earlier book entitled Law and Family, published in 1977, is that marriage is losing its privileged status in Western society. As the current joke goes, “The only people who still want to get married are Catholic priests and homosexuals.”
Legally, marriage is becoming less distinguishable from cohabitation and the single life. Paradoxically, this leveling-down has coincided with great rhetorical flourishes about the supreme value of marriage. For example, in 1967, in the case of Loving v. Virginia, the Supreme Court discovered a hitherto unknown constitutional “right to marry.” But this is not necessarily an elevation of marriage as such, for as Glendon approvingly quotes Laurence Tribe, “Such ‘exercises of familial rights and responsibilities’ as remain [in our civil law] prove to be individual powers to resist governmental determination of who shall be born, with whom one shall live and what values shall be transmitted.” It isn’t really marriage that’s being protected.
Among the choicer ironies here is the case of artificial contraception, which the Supreme Court legalized for married couples of the basis of the privacy demanded by the “sacred precincts of the marriage bed.” Subsequently, it turned out that the marriage bed’s sacredness was quite irrelevant to this right of privacy, for in Eisenstadt v. Baird, the Court decided that contraception was legal for anyone who cared to have sex. And in doing so, the Court specifically stated that a “marital couple is not an independent entity . . . but an association of two individuals” no different, as far as the Court was then concerned, from a couple of fornicating kids. A further irony is that the relaxation of laws restricting marriage and divorce in the 60’s was designed to make marriage more attractive and less of a burden, lest couples be tempted to cohabit in informal unions. Needless to say, things didn’t work out that way; both cohabitation and divorce skyrocketed.
Indeed, in the last twenty years, throughout the West, the birthrate and marriage rate have tumbled, while the rates of divorce and illegitimate birth have soared. Although history has seen many fluctuations in these rates, these simultaneous changes have been, as Glendon notes, unusually substantial, sudden, and widespread. By way of explanation, the French social philosopher Louis Rousel points to “the banalization of behavior previously considered illegitimate.” France, for instance, has decriminalized incest except in the case of minors who are abused by someone with authority over them. On the other hand, Germany and France are, in some ways, more traditional than the United States. France still has no provision for minors to get permission to marry from a judge when their parents forbid it. Marital fault still plays a role in divorce proceedings. The French and Germans tend to hold on to a notion of marriage as a community, a fact reflected in their laws regarding the division of property after divorce. Nevertheless, it is clear that what the French legal sociologist Carbonnier calls the “zone of horror” (from which absolute prohibitions and taboos against crimes like incest emerge) can become a rather comfortable dwelling, as in the case of sodomy in this country.
One of the striking differences between American law and the continental legal codes of, say, Germany or France, is the continental tendency to prescribe ideals of family life, to be openly ideological. The French Civil Code of 1804 provided, at Napoleon’s personal insistence, that “the husband owes protection to the wife, the wife obedience to her husband.” (In defense of this proposition, the emperor is supposed to have exclaimed: “Women ought to obey us. Nature has made women our slaves. A husband ought to be able to say to his wife: ‘Madam, you will not go to the theater; Madam, you will not see such or such a person. Madam, you belong to me body and soul.’) The French Civil Code still reminds citizens that a “child of any age owes honor and respect to its father and mother.” Similarly, the Swedes have decreed that parents may not subject children to “humiliating treatment.” Glendon makes the important observation that most of these prescriptions are without legal sanctions. They reflect ah understanding that the law is meant to instruct and educate.
Besides the “inexorable advance of ideas of equality and individual liberty” and the spread of “individualistic, egalitarian, and secularizing” trends, Glendon detects other nonideological causes for the blurring of distinctions between marriage and cohabitation. One is that, as the law struggles to deal with the claims of unmarried cohabitants, and to address the real injustices that are perpetrated within such relationships, it is easier to handle such matters with rules that are already in place, to wit, marriage laws, with the unfortunate but predictable result that cohabitation and marriage are treated as more or less the same thing. Similarly, the rise of no-fault divorce was in large part due to the practical nuisance of going through the legal motions of “investigating” grievances as the volume of divorce cases became unmanageable. The law is not able to make up for the absence of morality—at least not for long.
Glendon makes it clear that a radical individualism has been the chief culprit in the decline of marriage as an institution. Marriage is no longer a social fact; it is a private, personal matter. Likewise, sex is not a matter of interest to the community. This is the lesson of Griswold: “if the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” But, of course, the decision to raise a child affects the whole society. Society has a legitimate interest in the circumstances under which its members beget children—especially when society accepts a certain responsibility for those children.
It is no surprise that Glendon’s chief gripe about the American system of family law is its treatment of divorced women and their children, for it is here that the principles of radical individualism and egalitarianism become obviously inadequate. We allow easy divorce and aspire to post-divorce self-sufficiency in the name of individualism, but we—unlike our Nordic friends—do not have the massive welfare state to provide for the inevitable losers in what is, after all, a very brutal game. Consequently, the focus of most activity in American family law is on providing for children stranded by divorce, who cannot be supported by mothers who are without the financial, professional, or psychological resources to start new careers. Children are now the crucial factor in family law, because family law is, more often than not, divorce law. As mentioned above, it is the unhappy family that attracts the attention of the law. It has even been suggested that “the legally relevant distinction in the future will be between childless unions and those where children are being or have been raised.”
A paradox that Glendon observes in modern society is the rise of individualism in families and the concomitant decline of individualism in economic matters. The paradox is at least partially illusory, since the anonymity of a socialistic economy is its own sort of individualism—indeed the worst sort. Blind to the legitimate social consequences of “private” relationships, or at least unable to express them in our law, we have derived utilitarian mechanisms to provide for each other, as it were, by committee. Thus philanthropy, kindness to strangers, takes the place of the charity (love of relatives and neighbors) we no longer understand. But any true society is derived from the family and other “intermediary groups.” Glendon agrees with Edmund Burke: “to be attached to the subdivision, to love the little platoon we belong to in society, is the first principle (the germ as it were) of public affections. It is the first link in the series by which we proceed towards a love for our country and to mankind.” Charity begins at home.
Of course, we are not simply blind to the public significance of intimate relationships. There are those who positively deny their validity. One Swedish Minister of Justice, Herman Kling, spoke of the need for the government to “create a society where every adult person assumes responsibility for himself and does not allow himself to be economically dependent on relatives,” implying, it seems, that it is better or more noble to rely on strangers (via the welfare state) than on relatives. The law in our own country is not simply blind to the importance of personal relationships; it works against them. Glendon writes: “the law holds self-sufficiency up as an ideal, suggesting that dependency is somehow degrading, and implicitly denying the importance of human intersubjectivity.”
To a large extent, modern marriage law has reflected the decline of religion’s role in the formation and dissolution of marriages. In pre-Reformation Europe the state had little to say about most marriages and families. Such matters were handled either by the Church or by customs, which though informal were often quite strict. The charivari in France and the “rough music” in England, forms of public humiliation for those who failed to live by community standards in the conduct of married life, could be both intrusive and harsh. As religion’s control of society diminished, an alternate source of social control became necessary. As Glendon puts it: “marriage law, cut loose from its religious moorings in the established medieval order, increasingly began to be affected by the trends of the times, by humanism and individualism, as well as by the practical concerns and interests of the secular state and the influential groups within it.”
One of the greatest ironies of our day is that, with the death of secular marriage, the institution may once again become primarily religious. As marriage loses its social significance and becomes indistinguishable from cohabitation and the single life, only religious people, for whom marriage has a transcendental meaning, will bother to get married. This possibility has already had some interesting effects. In an apparent change-of-heart, one of France’s foremost legal reformers, the scholar Jean Carbonnier, has recently demanded that a sharp distinction be maintained between legal marriage and cohabitation. Glendon, however, suggests a peculiar explanation for this “switch.” In France, marriage is a civil, secular ceremony. Church weddings have no legal significance; to cohabit and raise children after a merely religious ceremony is to live in civil sin. But if the state were to recognize the legal validity of religious unions, then modern French marriage law, which is premised on the exclusion of the church, would be back to square one. It would present the bizarre spectacle of religion snaking back into civil law through the back door of fornication.
For the most part, Glendon’s argument is dry, judicious and academic, abounding in the somewhat stilted language of sociology and law; thus, after a divorce, the reader encounters that unisex duo, the “custodial parent” and the “former provider” once known as Mom and Dad. Although the subject matter lends itself to sensationalism, Glendon provides few and rather desiccated anecdotes to illustrate her points, and, because she handles her four (and sometimes, with Sweden, five) countries serially, it takes elephantine feats of memory to grasp relatively simple points of comparison.
Here and there Glendon betrays a perspective refreshingly at odds with the one suggested by her tone of judicious neutrality: “the ideology of tolerance, the belief system of an influential elite, has become the leitmotif of American family law”; or, commenting on the way the law has been influenced by fashionable moral ideas, “Such ideas include the problematic notions that courts and legislatures should not attempt to impose values (except for equality, individual liberty, and tolerance); and that values (except for equality, individual liberty, and tolerance) are a matter of subjective taste or preference”—radical notions that call into question almost all of modern marriage law in the West.
It is not, however, until the last chapter that it becomes clear that Glendon has indeed been holding back. Suddenly, she drops the professorial tone and begins to speak in what I assume is her own very engagé voice, revealing passion, humor, and a more lively philosophical mind than the previous three hundred pages suggested. The burden of the argument in this section is in favor of “intermediary groups” (the family is the principle, though by no means the only, example to mediate between the individual and the government). Getting married may add little to the intimacy of modern couples, but “in crossing the threshold, however, they may encounter an unexpected intimacy with the state.” These intimacies often take the shape of “pragmatic” responses to social problems. Supposedly utilitarian and ideologically neutral, they convey crucial messages about family life. For instance, several states (Georgia, Hawaii, Maryland, Kentucky, South Carolina, New Hampshire) already require birth control and genetic disease information (with an implicit suggestion of eugenic abortion) to be provided to all applicants for a marriage license.
Glendon obliquely (via remarks by Claude Levi-Strauss) entertains the notion that these “intermediary groups,” which may well produce the best democrats, need not be democratic themselves; that the family home, for instance, is not and ought not to be a democratic institution. She worries that the day is approaching when the citizen will stand in direct relation to the state, without intermediaries, and a slogan of the French revolution will have become a reality: “no rights except those of individuals and the state.” We are replacing traditional intermediaries like neighbors, parishes, local schools, and professional guilds with “distant bureaucratic entities,” like gigantic school systems, social welfare agencies, pension plans, workman’s compensation, etc. The anonymous state is becoming the family.
Praising Christopher Lasch’s critique of individualism, Glendon feels that a healthy social “ecology” must nurture intermediary groups. In the interests of privacy it would behoove the state to foster strong families, for they require less care from the state. The intrusion of the state into the family has often been a result rather than the cause of the breakdown of the family; the collapse of a family in modern society is always an invitation for the state to step in.
Glendon closes with a boldly mystical evocation of the “love that invites a response from all men and women of good will” as the chief source of hope for society’s future. One naturally suspects that this last section was the most recently written, the product of a more assured mind than the one responsible for the cautious recital of data in the preceding chapters. If only the rest of the book were written like the last chapter.
[The Transformation of Family Law, State Law, and Family in the United States and Western Europe, by Mary Ann Glendon (Chicago: University of Chicago Press) 320 pp., $37.50]