by Joanna L. Grossman and Lawrence M. Friedman. Princeton and Oxford: Princeton University Press, 2011. 456pp. Cloth $35.00. ISBN: 9780691149820.
Reviewed by Zvi H. Triger, The Haim Striks School of Law, College of Management Academic Studies, Rishon LeZion, Israel. Email: zvit [at] colman.ac.il
INSIDE THE CASTLE is an expansive and careful study of the intricate relationship between family law and society, and the influence of the latter on the former. It is impressive in both its scope and depth. As the authors proclaim at the outset, their “most basic assumption” is that “[f]amily law follows family life. That is, what happens to families, in this society, determines what happens to the law of the family. Law is not autonomous; it does not evolve according to some mysterious inner program; it grows and decays and shifts and fidgets in line with what is happening in the larger society. The relationship between law and society is tight, but it is not always transparent” (p.4).
The book is divided into what reads as a four-part course in the socio-legal history of American family law: “Tying the Knot: Marriage and Promises to Marry”; “Anything Goes: Love and Romance in a Permissive Age”; “When the Music Stops: Dissolving A Marriage”; and “The Old and the New Generation,” which discusses, among other topics, elder law, inheritance law, parental rights, children’s rights and adoption. Each part is divided into chapters that trace chronologically the evolution of relevant doctrines against the backdrop of the cultural changes that occurred over the 20th century.
Among those changes are, of course, the rise of the civil rights movement, the feminist movement and the LGBT rights movement. While Grossman and Friedman focus mainly on what they call “middle-class family law” (p.2), it is clear that “middle-class family law” (just like, probably, “working class family law” or “family law of the poor,” which are not part of this book) did not develop in a void, without any implications on or reaction to the family law of other classes. Law “chose” to react to some social phenomena (for example, the demand for marriage equality, first along the lines of race, and more recently sexual orientation) but not to others. This notion, in and of itself, is an interesting finding concerning the evolution of family law.
Within the discipline of “middle-class family law” the authors walk readers through the major developments of the 20th century pertaining to the legal reactions to social developments: the decline of common-law marriage and the “heart balm” cause of actionAZ; the rise of sexual freedom, cohabitation and no-fault divorce; the rise of the children’s rights movement and its influence on the socio-legal understanding of parental rights, and other important trends [*480] and issues that have characterized the dramatic changes in American family law within the past century.
While I agree with Professors Grossman’s and Friedman’s basic assumption that law reacts to social changes (and sometimes is even forced to react), I think that the discussion in the book could have benefited from acknowledgment of law’s constitutive role. Law does not only reflect social changes, it also promotes or inhibits such changes. Its lack of autonomy from society and culture is manifested in law’s constitutive function, no less, and perhaps in some respects even more, than its reactive quality.
Law constitutes human interaction and relations (Mautner 2011, pp.848-849). It plays “an important role in constituting individuals’ minds, practices, and social relations” (Id., at p.848). This approach is based on Clifford Geertz’s assertion that law is “constructive of social realities rather than merely reflective of them” (Geertz 1983, p.232). Hence, a relationship based on criminalized love and sexual expression is a very different relationship from one that is based on sexual expression that is considered legitimate by the law. Social legitimacy is a key component in shaping a relationship, but the law is also crucial in shaping the relationship, whether it allows it or prohibits it. A relationship that legally discriminates against one of the partners based on their gender is different from a relationship that is formed in a legal regime that mandates gender equality in all aspects of the relationship. Legally sanctioned discrimination (or equality) shape the ways in which the partners experience each other’s powers and capabilities. If a woman knows that upon divorce she is not entitled to alimony or any share of the family’s property, she will think differently about divorce than a wife that a more egalitarian divorce law applies to her marriage.
The Supreme Court’s recent historical ruling in UNITED STATES V. WINDSOR (2013) is a good example for the constitutive role that law plays in culture and society: this was a case in which a surviving partner fought for her right to inherit from her late partner of more than 40 years as her wife and not as a stranger. This distinction did not have mere financial implications (a surviving spouse is exempt from federal inheritance tax, while a stranger is not); it also signified that a 42 year long love between two women was not dismissed by federal law as a meaningless relationship. The Court ruled that with respect to DOMA, there is “strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States” (United States v. Windsor, pp.20-21).
It is the humiliating effect of the law that has mobilized the LGBT movement to fight for marriage equality, just like it has mobilized the civil rights movement and the feminist movements earlier in the 20th century to fight anti-miscegenation and gender discrimination. The understanding that the law shapes human relationships and constitutes them was at the basis of these movements’ projects to not only have law reflect society, but also change it and improve it. [*481]
While the book was published more than a year before the WINDSOR ruling, its framework is suitable for analyzing this ruling. WINDSOR is a clear case of socio-legal struggles that lasted for decades, increasing social legitimacy of a previously shunned relationship, and the “happy ending” of legal recognition (but not yet full-scale social acceptance). The law followed the change of social attitude towards same-sex relationships in the US, but at the same time it is still a few steps ahead of full societal acceptance (in this sense, it would be more accurate to speak about “societies,” because American society, just like many others, is not a monolithic entity, and it is comprised of significant communities who fiercely oppose the legitimation of same-sex marriage, no matter what the Supreme Court says).
However, as I suggested above, this is only a partial understanding of what led to the WINDSOR ruling. Without looking at the mutual influences between law, culture and society, one cannot fully fathom why, in the first place, people fought anti-gay legislation, just as in the 1960’s others challenged anti-miscegenation laws. Clearly, they opposed discrimination. But what underlies legal discrimination is the sense of humiliation that is embedded in branding certain forms of human choices and preferences as inferior, criminal or unworthy of recognition.
Despite the authors’ proclaimed basic assumption that “what happens to families, in this society, determines what happens to the law of the family” (p.4), then, this excellent book does more than to merely demonstrate law’s lack of autonomy and the ways in which it reflects social changes. Otherwise, the authors’ basic assumption could be construed as to mean that the law is a mere passive follower of society, which is clearly not their intention. The law not only reflects the evolution of the social institution of the family, it also constructs and constitutes the family and family relations.
INSIDE THE CASTLE is a comprehensive and highly readable account of the transformations “middle-class family law” (to use the authors’ words) has gone through in the 20th century and the first decade of the 21st. It will be of interest to anyone who is interested in American family law, its history, and its complex relationship with social developments. Its accessible language makes it a great read for both legal scholars and students, as well as the general public.
Geertz Clifford. 1983. “Local Knowledge: Fact and Law in Comparative Perspective,” in LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY, pp. 167-234 (1983).
Mautner Menachem. 2011. “Three Approaches to Law and Culture.” CORNELL LAW REVIEW 96: 839-867.
UNITED STATES V. WINDSOR, 570 U. S. ____ (2013).
Copyright 2013 by the Author, Zvi H.Triger.