Private Lives: Families, Individuals, and the Law

“Laws about family are increasingly laws about individuals and their right to make their own, sometimes contentious, choices. That is the underlying theme of Lawrence Friedman’s most recent book, Private Lives: Families, Individuals, and the Law, Harvard University Press, 2004. This essay is based on the book’s introduction, “Family Law in Context.”

Modern life, like life in all human societies and at all periods of time, is family life. But the family today is far different from the family of yesterday. It is essentially a coming together of individuals; it is an arrangement of individuals, for individuals; it is much more brittle, malleable, friable than in the past. And the family, as such, no longer has much legal status or meaning. Family law is still a vital, significant field of law, but it has become a law about individuals—individuals, to be sure, as they exist in relationship to other people, that is, to their “families.” And because family law is a law about individuals, it is also a law that stresses the primacy of choice, of free and voluntary actions.

In traditional societies, the legal and social situation was radically different. Traditional societies differed in many ways from each other, and it is easy to reduce them to cartoons. But generally speaking, in these societies, a person’s rights and duties flowed from his or her status in society or within the family. Men and women, old and young, noble or commoner, son or daughter, mother or father: these were only some of the many relevant categories. The family, clan, or extended family—rather than the individual member—was often the real locus of rights and duties. Very often, too, the father or the senior male in the family had overwhelming power over the other members; this was true in the older strata of Roman law, in which the oldest male ancestor had total control over all of his descendants: nobody under his jurisdiction, male or female, could marry without his consent. This was an extreme case, but in the law of many other peoples and societies, the father or male head of the family had awesome authority.

Modern society has traveled a long way in the other direction. What is the master trend in the history of family has also been, arguably, the master trend in the history of law in general, or even perhaps the history of society. That is, the family as a legal unit dissolves, and the individual members rise to power. In the middle of the nineteenth century, Sir Henry Maine, in his classic study Ancient Law, described the movement of law in “progressive societies” as a movement “from Status to Contract.” Rights, in other words, no longer depended on gender, birth order, rank, or caste. They were now, according to Maine, matters of individual choice, of voluntary behavior. Individuals—men, women, and children—had rights; families or groups did not. Society was made up of atoms, not molecules. Each of these atoms was, in important ways, legally equal. Family law, law in general, and indeed society as a whole rested on this foundation of equality. And voluntary agreements, or choices, rather than inborn status were at the core of social behavior.

Of course, this statement is something of an exaggeration, and was even more so when Maine wrote his book. Most of us find it hard to describe nineteenth-century England as a country made up of people with equal rights. England was a monarchy, and although the queen was not particularly powerful, she was in some ways at the apex of society. In any event, the nobility, the landed gentry, and the great merchants owned the land and the wealth; they ran the country; they dominated public and private life. Women did not vote, did not hold office, and were shut out of most occupations. Legally and socially they were subordinate to men, and this was particularly true of married women—their property was under the control of the men they were married to. Generally speaking, they had no right to enter into contracts, to buy and sell property, to make wills and testaments. Until deep into the nineteenth century, religious minorities had no vote; indeed, the vote belonged chiefly to men of property. Property was king. In the United States, women were perhaps a bit better off than they were in England, but married women in most states had the same disabilities as those in England until the latter part of the century.

Private Lives: Families, Individuals, and the Law

The Rise of Plural Equality

The situation today is dramatically different in England, in the United States, and indeed in all of the developed countries. One of the most striking trends of the late twentieth century, in the United States and elsewhere, has been the rise of what I have called plural equality. By this I mean the collapse of the notion of a single dominant ethos, a single dominant race, culture, code of morality. During most of the history of most nations, a fairly clear structure of social dominance was in place. This was true even of the United States, even though America was extremely democratic in nineteenth-century terms, as De Tocqueville and other observers recognized. In the United States, too, there was freedom of religion, and there was no established church. Minority religions were tolerated; people could build churches, mosques, and synagogues as they liked. The Constitution, and public opinion, allowed people to exercise their religions freely. But toleration is not the same thing as partnership. The public, official culture was drenched with the spirit and the substance of Protestant Christianity. The schools were so partisan, so Protestant, that Catholics felt obliged to set up their own school system. Most Americans took it for granted that public life did and should reflect the values of the majority. Other people were, so to speak, guests in a house they did not own.

By the late twentieth century, the situation had changed considerably. True legitimacy was now defined much less narrowly. Symbolic power was extended to other races, religions, and ways of life. Officially, at least, the United States has become multicultural. The president sends greetings to his Moslem, Jewish, and Buddhist countrymen on their sacred days. Public life includes many symbolic gestures of this kind; Jewish, black, Chinese, and gay citizens hold office, even high public office. Remarkable changes have also taken place in the relationship between women and men. The old doctrines of subordination are gone. Women vote and sit on juries; women serve in the state legislatures, in Congress, and occasionally even in the governor’s mansion. Women flock to the medical profession and are beginning to penetrate the upper echelons of finance and big business. A quarter of all lawyers are women. There are two women justices on the United States Supreme Court. Civil rights laws insist on equality of the sexes in the workplace, in education, in the law. According to law, men and women are totally equal.

Only somebody very stubborn or naïve, however, would argue that there is gender equality in society at large. And women have perhaps made the least progress toward equality inside their families. They still have to shoulder the main burden of housework and child care. Most women work, and millions of women have to drag themselves home to their second job: the family. For middle-class people, the husband’s job or career usually takes priority over the wife’s, though this is somewhat less so than it was in the past. Women still suffer from domestic violence, from sexual harassment and abuse. But if we look to the past, we have to admit that the changes in gender relations are tremendous, far-reaching, and important. And they are changes, in the main, that go in the direction of plural equality. It is a huge job—maybe im possible—to try to explain why these changes occurred. A few factors are obvious. A free market system; technological and scientific developments; the huge, well-off middle class in Western countries; leisure time; urbanization; the mass media; the rule of law—all of these have been important elements of change, and they are linked in complex chains of causation. These factors have produced the kind of society that prevails in the developed countries of Europe and North America, and in such countries as Japan and Australia. Of course, no two of these countries are the same. Finland is not France, and France is not Japan. But there are similarities, and the similarities are probably more striking than the differences. These countries all share a common legal culture, the culture of modernity. One social and legal trait that they hold in common is the one I have described: the rise of the individual as the locus of duties and rights.

The Primacy of the Individual

Everything in modern society conspires to buttress the primacy of the individual, and his or her wants, desires, aspirations, and habits. Nothing, for example, is more characteristic of modern society than advertising. Our days and nights are drenched with it. Advertising surrounds us every day, in our homes, on the streets, in our newspapers, and on television. It pops up on the Internet. It screams at us in public places. It even appears at times as writing in the sky. Advertising is a core feature of capitalism, of a market system. And advertising, whatever the product, whether cars, breakfast cereal, the services of lawyers, or a new kind of shoe polish, conveys a double message. One is a message about the product; the other is unspoken, but crucial and essential. It is the ideology of consumption, of private wants and desires. The message is aimed at an audience of individuals, each watching in his or her own private space. It tells you what to buy and what to use; which products will make you stronger, more beautiful, sexier; which soap will make your clothes whiter, which toothpaste will brighten your teeth; and so on, endlessly.

Modern law, including family law, evolves along with society, and in the Western countries, the developed countries, it evolves along with that peculiarly modern brand of individualism I have mentioned. This statement, naturally, papers over a great deal of complexity and a great deal of variation, from generation to generation and from country to country.

The paths of change are nonetheless clear. Family law has indeed moved from status to contract—in the sense, as Milton Regan has put it in Family Law and the Pursuit of Intimacy, first, that the “law is more willing to enforce agreements that tailor family life to individual preference”; and second, that “the law is more solicitous in general of individual choices in family matters.” The modern laws of marriage—and divorce—are worlds apart from traditional marriage and traditional ways to end a marriage. Marriage was once a matter for the kinfolk to decide, not the woman and the man. In many traditional societies, the family arranged the marriage, fixed the price, made all the preparations. Often the bride and groom never laid eyes on each other until their wedding day. Families were often involved in ending marriages as well as in beginning them. In some societies, marriages cannot be dissolved at all. In others—for example, in traditional Islamic societies—men, but not women, can end a marriage easily. In still other societies, any decision to end a marriage has to involve the families of husband and wife. (Matters of dowry or bride price, for example, have to be worked out.)

Most young people in the developed world would find a system of arranged marriages both incredible and intolerable. Nothing could be more individual, more personal, than choosing a life partner. Young people usually hope parents will approve of their chosen partner, but if not, the marriage takes place anyway. After all, it is not the parents who are getting married. This seems completely self-evident to us, but the situation is different in societies where marriage joins two families, not two individuals.

Nowadays marriage is supposed to be, above all, a matter of partnership and love. Of course romantic love, and love marriages, are not modern inventions. They have always been staples of literature. Novels, plays, poems, and songs all depend on love and love stories, perhaps more than any other theme. What could be a purer romance than Shakespeare’s sixteenth-century tragedy Romeo and Juliet? The two “star-crossed” lovers meet, fall hopelessly in love, marry secretly, and are united in the end in death. Yet it is a feud between the lovers’ two families that sets the tragedy in motion; Juliet’s father had chosen a husband for her, never dreaming that she had already pledged herself to a man, and an enemy of the family at that. The story pivots on the tension between the customary way of arranging marriages and the reality of a passionate, overwhelming love.

Law follows custom and reflects social understandings: this much is obvious. The power of parents to choose mates for their children has vanished from modern Western society and, indeed, from legal norms. Parents do not have to approve of the mates their children choose, unless the children are underage. In the United States, in general, the power of parents even over young people has been shrinking. In some states, if the bride and groom are minors, the parents must consent. For grown children, there is not a hint of parental control remaining in the law of the United States and, indeed, of Western countries generally.

The Primacy of Choice

This right to choose a life partner is only a piece of a larger right—the right to choose a basic style of life and to make major life choices freely, without society, or the state, interfering. In family law, this leads to what Milton Regan has called the “optional family”—that is, a menu of choices: staying single, cohabiting, or marrying; and, whether married or not, deciding whether or not to have children. He also speaks of the “negotiated family”—that is, the fact that “family relationships are less likely to be organized around common expectations of behavior”; each family, each couple, each person works out the principles, desires, and behaviors that will constitute their own family life. What is “optional” is of course a matter of pure choice; what is “negotiated,” however, implies other people—a partner, spouse, children. This term reminds us that one person’s choice affects, and is affected by, others.

The primacy of choice, nonetheless, has to be emphasized. And some aspects of choice, in American law and in the law of certain other systems, are given the somewhat incongruous and misleading name of the right of privacy. This right is linked closely to choices about sex and marriage. It may seem strange to talk about the decision to use a condom or take a birth control pill, or the right to be openly gay, as a matter of privacy. What is involved, of course, is the right to make private choices—free from the interference of the government. In the law, disputes over this kind of privacy relate, above all, to issues of sex, family, and reproduction.

Privacy and family are related, too, in an even more organic way. The home is the seat of the family, and the home is the seat of private life. “A man’s home is his castle” is one of the most famous slogans of the older common law. When this axiom was first enunciated, a man’s home was a castle mostly for people who actually lived in castles (or at least in mansions). The poor had no privacy. The legal slogan actually has to do with searches and seizures, arrest warrants, and the like, but it does express an important idea: the home is the haven, the island of immunity, the place of private life. For the average person, this became so only in the nineteenth century. The nineteenth century was the century of the home, the family, the private sphere. In the bosom of the family, too, people learned (as they always had) the norms of society—how to live, how to govern their impulses; they learned what was right and wrong behavior. Private life was the foundation of public life.

The Right to Privacy

In the twentieth century this situation changed radically. The family lost its monopoly on the power to train, mold, and socialize children. It lost this power not only to schools, but also to radio, movies, and television, and to the peer group. The outside world came bursting into the home. A man’s home was no longer a castle; it was open, porous—it was, above all, an entertainment center. The media blurred the boundaries between the public world and the private world. The family was transformed; so, too, was the very concept and meaning of privacy. The right of privacy means the right to be left alone, the right to a private life, the right to some kinds of secrecy and seclusion. But it also means the right to make personal choices—about marriage, sex, babies— choices that may be, and often are, anything but private.

The privacy issue is tied to the family in yet another way. The traditional family once had a kind of state monopoly. Men and women could have sex legitimately only if they were married— that is, if they formed a family. Only “families” in the traditional sense could have babies. If you wanted sex, and if you wanted babies, you were supposed to get married.

Of course, not everybody played by the rules. There was sex outside of marriage, and there were babies born outside of traditional families. But official society sharply condemned illicit sex and illicit children. The modern concept of the right of privacy (including choice of lifestyle, sex partners, and whether to have children) has helped to burst open the notion of family, remolding the family and destroying its monopoly on babies, sex, and intimate life. Sex and reproduction, after all, are at the very heart of marriage and divorce, and family law in general. But modern society and modern law have gone a long way to uncouple sex and reproduction from traditional marriage. In a way, the “privacy” cases of the Supreme Court— cases on contraception, abortion, gay rights—are a new branch of family law, and an essential one at that.

But at every step of the way there has been opposition and conflict, and this too is part of the story. Moreover, choices do not take place in a vacuum. What I choose for myself has an impact on other people. A married woman, for example, in most states today has the right to end the marriage. This is her choice. But what if her husband would choose not to? Her choice trumps his choice. There are, in modern law and life, many instances of this sort of conflict. A divorcing husband and wife may both want custody of their child. An adopted child may want to find her birth mother; the birth mother may not want to be found. “Choice,” then, does not mean a lack of conflict. Conflict is everywhere, in every society. Only the terms and conditions of conflict change over time and space.

The story should not be read as an account of the decline and fall of the family. The family has not dissolved. It has changed and broadened. It has become more elastic. In some ways, it is a much weaker institution. But it still has a vast reservoir of strength. This can be seen even—or especially—in the demand for gay marriage. Many conservative people read this demand as a sign of moral decay. But it is testimony to the idea and ideal of the family. It is simply a demand for a more elastic definition of legitimate marriage. And, paradoxically, it is a demand for the right of two people to give up some of their rights of free choice: the right of two men, or two women, to put themselves under a legal and social yoke that they are now quite free of.