Harvard SJD Candidate Lisa Kelly recently sat down with HLS Prof. Janet Hally for a conversation about Prof. Halley’s new article “What is Family Law?: A Genealogy” and her upcoming symposium “From the Household to the Family: A Genealogy” which will take place at HLS on February 23rd
Janet Halley is the Royall Professor of Law at Harvard Law School. Lisa Kelly, who has participated regularly in the IGLP Summer Workshop, including the 2011 Pro-Seminar on Gender Social Movements, Peace and Conflict, is an S.J.D. candidate at Harvard Law School.
Lisa Kelly: We are here to discuss some of the background to an upcoming event that celebrates the work of Janet Halley, in particular her recent work, “What is Family Law?: A Genealogy”, a multi-part article series. And, this event celebrating her work is entitled “From the Household to the Family.”
Janet, I’m wondering if you can explain what these terms “household” and “family” mean?
Janet Halley: Well, the English word economy comes from the word οίκοσ [sounds like oikos] in Greek. It meant the household, a space for the reproduction of the human species, for the production of material life and the necessities of material life. And, in the beginning of my genealogy Blackstone said that the private economical relations, by which he meant this “household”, were those of the husband and wife, the parent and child, the guardian and ward, and master and servant. That is to say, the relation of master and servant was intrinsic to the relations of the household, just like the husband and wife and the parent and the child.
What happened over the course of the nineteenth century is that the word for the “household” and its good management, the word “economy,” turned into the word “economy” signifying the world financial, monetary, and increasingly capitalist system and lost its reference to the living space – the place of sexual reproduction, the space of the husband and the wife and the parent and the child. And the master and servant migrated to something new: “the economy.” So the word “economy” became resignified from the household to that large abstract, imaginary phenomenon that we now take as completely real in which economic relations on a global scale are all interconnected and they are both private, in the sense that they’re supposed to be free from state regulation according to laissez-faire ideology, but also intensely public because there’s nothing that the state cares about more than the economy – “the economy, stupid.”
So, in the course of that, the household was converted into something new: “the family.” Oddly enough, at the time that οίκοσ meant the living space for sex, for human and material reproduction, and for consumption, “the family” meant the master and the servant. That’s all it meant when my story begins. By the end of the nineteenth century, the word “family” meant what it means now – the husband and the wife, and the parent and the child. Master and servant left the economy-as-household and migrated to the economy-as-market.
So οίκοσ — “economy” — and “family” went through criss-crossing changes such that now we take it for granted that “the family” is this tiny, supposedly non-economic unit and the “economy” is this gigantic abstract site of exchange and value we call the market. The transit point for those changes is the rise of laissez-faire ideology and domestic separate spheres ideology, which said that the market (the economy) is the place for the will of the parties, it’s the place for laissez-faire, it’s a place for untrammelled individualism, whereas the family is the place for status, it’s the place for obedience, duty and the will of the state. They became opposites through this transition.
All of this matters to the history of legal thought because it produced the very field of family law, a field that is constitutively segregated from contract law and later from labor law/employment law. The field was born of an ideology that it carries forward in time even today.
The transition from the household to the family was a legal change, a social change and an ideological change. It was also a global process. My article tells how this idea migrated from German legal thought to America, but it depends on others written by Lama Abu-Odeh, Philomila Tsoukala, Sylvia Kangara, Yun-Ru Chen, Teemu Ruskola, Hedayat Heikal and Judith Surkis who have told how it travelled to Egypt, Greece, Christian sub-Saharan Africa, Taiwan, China, and Algeria. We have all worked together, along with Duncan Kennedy as well as he hammers out his “Three Globalizations” thesis, to show how the family/market distinction was a key feature of world capitalism in the era of Classical Legal Thought. And how it has persisted despite repeated major efforts to dismantle it. My contribution in the Genealogy is to tell how it worked in America.
And as our poster indicates, this transition was also an architectural change; it was a change in social practices and social relations. And, the law was only one part, but was an important part of how the change was effected.
LK: As you mention, your work tells the legal part of this story, but there are other areas that are both driving these changes and then come to manifest these transformations, and one of those areas is architecture – the architecture of the pre-modern “household” and the modern “home.”
I’m wondering if you can comment on your interest in these architectural changes. In particular, you’ve selected imagery for the poster for this event from the Isaac Royall Household and Slave Quarters in Medford, Massachusetts and from the Gropius House in Lincoln, Massachusetts.
Can you describe how the Isaac Royall House and Slave Quarters, and the accompanying portrait, represent “the household,” the οίκοσ , and how the Gropius House and this intimate photographic portrait of the Gropius family, represent the modern “home” and “family”?
JH: Yes, let’s talk about this together. One of the things that I used to do when there was money was take people on tours of the Royall House and Slave Quarters and the Gropius House.
LK: And I was lucky enough to be on one of those tours.
JH: Yes, you were, I think, on the last one of those tours. So, let’s talk together about what it was like to do that. The Royall House, which is pictured here, is now called the Royall House and Slave Quarters. The Royall House Association renamed it a few years ago to recognize the importance of the slave heritage. Isaac Royall, whose family had fled from Antigua in the early eighteenth century, settled in Medford and built this gigantic house. It was one of the richest houses in the Boston area. And, because they were plantation slaveholders, they brought with them the largest group of slaves owned by anybody in Massachusetts at that time.
The reason why this is important to us at Harvard is that when Isaac Royall died in England … wait a minute, back up. Isaac Royall fled the Revolutionary War, fleeing Boston on the day of the Battle of Lexington. He went to Nova Scotia, ended up in London, and died of smallpox there. Before that, he made a will granting a large piece of his Massachusetts property to Harvard University for the establishment of a professorship in law or medicine. The University chose to use those funds to establish the first law professorship, and that, in turn, became the seed out of which grew the Law School.
I am the Royall Professor now, and I think of it as part of the responsibility of holding this Chair to make manifest how tight our relationship is with American slavery, in particular with the slaves of Isaac Royall. The wheat sheaves on the Law School’s official logo are taken directly from the Royall Family crest.
In my project, the image of the Royall House and Slave Quarters stands for “the household.” The slave quarters are just steps away from the main house. Archaeological work by Alexandra Chan has dug and found that fat was rendered, clothing was woven, animals were slaughtered, food was cooked just behind the slave quarters; that Isaac Royall, when he took over the household, would do business in a special office that people could enter from a side entrance without using the front entrance. There’s grand central entryway with an imposing balustered staircase, and a tight back staircase for the slaves.
LK: So this was a time when there was no sense of what we would call a market-family divide?
JH: Yes, there’s no concept of it.
LK: It doesn’t exist.
JH: It totally corresponds with Blackstone’s thinking that the “private oeconomical relations” consist of the husband and the wife, the parent and child, the master and servant, and the guardian and ward.
LK: And can you speak a little bit about that? Elizabeth Fox-Genovese has written of Southern slaveholders who frequently professed to speak for “my family, black and white.” To our contemporary hearing, this expression seems a perversity, even an outage. Yet, as your work shows, the notion of “family” as embracing only husband-wife and parent-child is a modern invention. So, that notion of “family, black and white” oddly made sense according to how “family” was conceptualized during slavery?
JH: Yes, the word “family” in English originally referred to the master and servant relation exclusively – it comes from the Latin word for “slave”, famulus, and kept that meaning long before it picked up a reference to the parent and child and the husband and the wife.
But it did acquire these additional inhabitants. There was an 1863 Star Chamber case in England that signaled a transition, referring to a man who was coming before the court, as being a man and his family, that is his wife, a daughter, two maids, and a man. So, the servants were part of his “family” then just as much as the husband, the wife and the child. And that corresponds with a Southern slave-owners talking about his “family, black and white.” We have “family manuals” from this era, which include how to manage servants, how to manage livestock, how to manage children. All of that was considered the management of family.
Those ideas now shock us. But I think that’s partly a symptomatic operation of the rise of capital, which increasingly industrialized the labor relation. It had to move out of the household into a “market,” which was being invented in the nineteenth century as a place of “freedom”, of “free contract”, and it had to become the opposite of the modern bourgeois family, which became, relative to that giant abstraction, a thing both intimate and small. We have John Stuart Mill by the last quarter of the nineteenth century talking about family being the husband, his wife, and their child alone.
LK: And that transitions us nicely, I think, to the Gropius House, which is the contrasting image on the poster, both the photograph – we have now moved artistic media from eighteenth century painted portraiture to mid-twentieth century photography – of the Gropius “family” as husband, wife and child and the Gropius “home”, which is constructed as the “home” in contrast to Walter Gropius’ “teaching work” at Harvard University.
JH: Yes, I picked the Gropius house because, of course, the Gropius Quad is one of the most important architectural aspects of our Law School and I thought that the contrast between Isaac Royall and Walter Gropius would really help tell the story.
LK:Yes, and let’s discuss the contrasting images of the portraits of the Royall Family and the Gropius Family.
JH: So, if we look at the Royall family portrait , the Robert Feke portrait – well, it’s so hierarchical. Isaac Royall is now the young master of the family, his father has just died. He stands next to his seated his wife and then his sister and then, I believe, his wife’s sister with Isaac Royall’s own daughter Elizabeth in the middle. Everybody is dressed in their absolute best clothes, and they’re almost hieratically ranked.
One of the things I’d love for you to comment on, Lisa, because you’re interested in the history of the child and how that fits in here, is that this daughter is a pentimento, a paint-over. The original Elizabeth painted into this picture died. Another daughter was born sometime later, given the same name, and then they scraped off the image of the first daughter and painted in a new one. Do you want to reflect on this, just so that before we move to the modern daughter of Walter and Ise Gropius, we get a fix on the child in the pre-modern household?
LK: Sure, I think there are a few really striking things about the portrait. One is that the daughter appears very much as an inchoate adult. She’s almost very much a miniature, wearing the same kind of dress, using the same hand gestures, gazing out with the same facial expressions. Even her smallness is not a focal point of the portrait, and this is very typical of eighteenth century English and American portraiture of children with their families. The facial expressions, the clothing, are very much shared with the adult, albeit in a smaller physical form.
LK: Shrunk, exactly. And that is reflective of the fact that in the eighteenth century Anglo-American context, there wasn’t yet a notion of (white) childhood as a separate sentimental, innocent period categorically dividing the child from the adult.
And it’s interesting that you refer to her sister having died. Of course, in the eighteenth century, infant mortality was still high. Historians Sylvia Hoffert and Karin Calvert have shown that when infant mortality was high, childhood was not celebrated as a unique, angelic phase; the child was very much viewed as weak, as someone who needed to be physically moved on as quickly as possible into adulthood. And there was a constant fear, for instance earlier in colonial America, that if the child died while she was still depraved, she would not gain salvation.
So, in the eighteenth century, the child was not revered as the angel of the family; the child was not yet invested with the projections of innocence and redemption that would emerge in the nineteenth century during many of the industrial transformations that you’ve discussed – the move to capital came with the move of the child away from production. In the pre-modern household like the Royall House, children were working in their households; they were producing.
JH: Yes, the Royall children doing the work of consumption and the slave children doing the work of production.
LK:Yes, and I think the fact that Elizabeth was painted in to replace her deceased sister of the same name – a social and artistic practice that would probably horrify us today – reflects the fact that sentimental constructions of (white) childhood did not yet exist at that time.
JH: So let’s take a look at the Gropius family portrait by contrast. One of the pivots that takes us from the Royall portrait to the Gropius portrait is the rise of separate spheres ideology, the rise of the idea that the family and the home, as opposed to the household, are a haven in a heartless world, that the market is the place for unbridled individualism, what Duncan Kennedy calls the “will of the parties” in the “Rise of Contract” chapter of The Rise and Fall of Classical Legal Thought, a book on which I drew quite heavily for my genealogy.
But by the time you get to the Gropius portrait, the family has been fully turned into an affective unit of individuals who are tied to each other not through duty and hierarchy, but through affection. The Gropius portrait represents this quite delightfully I think. And the idea that the Royalls would ever let themselves be portrayed in the way that this photograph … no. Also notice the modernism of the portrait, the angles are all active and they read a level of informality and even equality between the father and the wife and the child that is completely absent from the Royall portrait. These look like people who are taking a Saturday off just enjoying each other’s company, not a group of people who are hierarchically displayed to assert their aristocratic stature.
LK: And it’s striking that the physicality, as you’re noting, is completely different. In the Royall portrait, all of the figures are hierarchically organized, they’re standing and sitting upright, their faces are quite solemn, and the child isn’t any particular center of affective concern or outreach. Whereas, when we get to the Gropius portrait, the child is very much at the center. Both parents’ heads are somewhat tilted toward the child; it appears as though their arms are around her at the back; she’s very much emanating joy in her smile.
JH: Yes, her happiness is literally central to that portrait.
LK: Absolutely… And you have this white balcony railing, the overarching summertime trees. It has all the indicia of mid-twentieth century domesticity.
JH: Right, this is in a home.
LK: This is a home. When we visited the Gropius House, one of the main pieces of furniture we learned about when we entered Ati’s bedroom is the desk that her father originally designed, I believe, for himself, but which she then claimed as her own. And it’s a centerpiece of her bedroom and it’s now that image of the child who goes to school, who studies. She is very much part of this domestic, bourgeois scene where she, as a child, is separated out from the taint of the productive market. Unlike the Royall household, here, the child should be at school and, like her mother, should be contributing to the affective domain of the home. She’s being socialized for later potential market production, but her relationship to her parents is not premised on her economic or productive value. She has become what Viviana Zelizer refers to as “the priceless child.” She is now endowed with sentimental value.
JH: And priceless, out of the market completely.
So let’s take a look at the two architectural spaces as well. One of the things that I think is so interesting about the Royall House and Slave Quarters is just how bold the juxtaposition of the two structures is. You cannot be unaware for one minute when you’re looking at the Royall House and Slave Quarters from the street (that is our vantage point in this photograph), that the corresponding building is the slave quarters – absolutely shamelessly visible. If we could animate it with people, there would be white people and black people walking back and forth interacting constantly. As I say, there was a back staircase for the slaves and a front staircase for the Royalls to use, and yet there was no sense in the Royall house itself, in the floorplan, that there was any place for the Royalls to extract themselves from the presence of the slaves. They even required one slave or more to sleep in the vestibule outside of the bedroom to be ready in the middle of the night for whatever assistance might be required.
Let’s look now at the Gropius house. Here is the house, a modernist masterpiece, pictured from the front. You see two entrances. One, the main entrance is at an angle, it’s dynamic, in every way it screams modernism. It takes you into an asymmetrical front hall, the Isaac Royall front hall torqued and made surprising and intimate. But, there’s also a spiral staircase up to the daughter Ati’s bedroom so that her friends can come and go without passing through the adult space in the house. I’m going to ask you to talk about that in a minute, Lisa. And I would also notice — now let’s rotate around to the picture I put on the poster, in the left foreground — we have the back entrance to the kitchen, which is the maid’s entrance. The Gropius family did hire a live-in maid. The maid had a bedroom right off the kitchen. And here the architecture is almost the opposite of the Royall House. This master/servant relationship is being hidden; it is now almost an object of shame, The maid’s room is actually not on the house tour. It’s where the vacuum cleaner and the broom are stored.
And, oddly enough, there’s a curatorial dimension to this as well. The Royall House and Slave Quarters was only recently renamed to emphasize the slave quarters and the curatorial work that is going into the slave quarters now is really a major part of what they’re doing. It’s becoming as curated as the House. (Really, I encourage people to go out there and take this tour.) But, that has not come to the Gropius House yet, as far as I know.
So, there is still the market-family relationship, but it’s constructed so differently. And, that renders the Gropius House as private, as having nothing to do with the market, not only for the parent and the child, but for the master and the servant – not the market, priceless – and involving a kind of shuffling away and hiding of the fact there is nevertheless significant market activity going on there.
LK: Right, and can you comment on this invisibilizing of the productive work that is still going on in “the home”? So, for instance, when we toured the Gropius home, it is performed by the curators as a “home” separate from Walter Gropius’s work at Harvard. And the two spaces are imagined as separate spaces – that he came home to his wife and daughter, and then the next morning he got in the car and went off to teach students design at Harvard. Can you talk about, as a professor yourself, how that image of the two as separate is an ideological myth, maybe?
JK: Sure. The Royall House was in the middle of a farm. Royall managed it in relationship to other farms and tradespeople and magistrates. As I said, there was a special little office door to go in and talk to Isaac Royall in his function as a kind of magistrate, government figure, and general manager of a hierarchical productive society.
Whereas the Gropius house is deliberately situated in a suburb. You get in your car and you make the transition from “work” to “family.” In fact, we hilariously call this now “work-life balance,” as if at work we’re all dead, and the only place where we really live is in the home. How absurd.
JH & LK: [Laughing]
LK: Right, and as if there isn’t work going on in the home…
JH: In fact, the first room that you go into at the Gropius House on the tour, after you leave the entry hall — I highly recommend this tour to everybody — is the study of Walter Gropius and his wife Ise, which is a remarkable instantiation of the rise of equality between spouses. They do have a study in the home. They both have identical desks. They are exactly the same size, with exactly the same view, along the same wall, with one difference: Ise Gropius’s desk has a typewriter, but Walter Gropius doesn’t. Is this inequality (she’s the family secretary) or equality (he does the visuals, she does the words)?
At the same time, though, the Royall portrait emphasizes the vast wealth and consumption of the Royall family, and every member is doing consumption labor. They’re wearing the fanciest clothes they could muster. Proudly displayed on the table is a gorgeous carpet – it was called a “turkey carpet” in the estate inventory after Royall’s father’s death, signifying its origins in global trade; normally it would have been on the floor. Ostentatious display.
And we forget, because we hide it, that the modern home is a site of the labor of consumption. Anything from unwrapping the sandwich to cooking the meal to selecting carefully the fabrics that are to be used – all of these are forms of labor that occur within the home, but that are mystified through the market-family distinction as if they aren’t going on at all.
I’d love to get your comments on the spiral staircase.
LK:[Laughing]…Yes, the separate spiral staircase for Ati to have her friends visit without seeing the adults is another really interesting juxtaposition to the Royall Household where, as you noted, the circulation of people and bodies, both black and white, would have been inter-generational. There wasn’t any sense of sharp, chronological age-based separation in the eighteenth century. Children worked and learned alongside their parents and other adults. Throughout the United States, poorer children were often indentured to wealthier households to serve and to be trained in agricultural and productive labor. And, so they were working, producing, and living right alongside adults. There wasn’t a separate world of children.
By the time of the twentieth century, Ati has her separate staircase for her and her friends. A much sharper adult-child divide has emerged.
JH: Right, it’s as if there emerges this very long period of probation between infancy and adulthood, in which she is both in the household – she has not moved out yet, she hasn’t gone to college, which is another kind of half-way house – but, she has her own things that are scaled to her, that are imagined for her, that are designed to give her some independence within the home, but to keep her there.
Am I right?
LK: I think that’s absolutely right. And this notion that Ati’s friends could come up a separate staircase illustrates the ascendancy of what Hannah Arendt refers to as a “child’s world.” With the introduction of peer, grade-based schooling, children were segregated into their own society with the mandate to socialize and intermingle pretty exclusively with one another. Ati’s friends don’t want to have to mingle with her parents when they come over to her house because they have their own society. That simply didn’t exist for the Royalls.
JH: So one of the things that I would notice about that is that the spiral staircase is located right in front of the parent’s study window…
LK: The parents’ desks …
JH & LK: [Laughter]
JH: So it’s both not of, and of, the family home.
LK: Right, right. The “child’s world” always remains within the purview of the family and state.
JH: One of the things I think is so interesting is that although there is the back staircase at the Royall house, although the slave quarters is architecturally separate, the level of segregation of space for the master and the servant and the parent and the child has gone way up in the Gropius House through the deployment of the child’s bedroom as a special place – there’s no mark of that in the Royall House, there’s no trace of it – and through the idea that there’s a back entrance for the maid who lives right off the kitchen. The minute she’s done serving the meal, she pulls a pocket door to separate her kitchen-bedroom space from the family living space. So, the idea that these relationships are crammed in so close to each other, but architecturally delineated from each other, I think says a lot about both the truth and the falseness of the market-family distinction in modernity.
So, I just want to say one last thing about invisibility because it’s so poignant. Isaac Royall’s slaves didn’t have last names. They would be listed in various inventories when someone died, because then their existence as property undergoing a mass transfer became urgent. When Isaac Royall fled to Halifax, he wrote a desperate letter to his friend Simon Tufts with instructions to sell some of the slaves to raise money for his exile. But because they had no last names it’s hard slogging archaeological work to trace them forward to the Boston/Cambridge freedmans’ community after the Civil War. We may never know.
The slaves were invisible in a way that’s very different from the invisibility of the Gropius family’s maid, but related to it. It’s the invisibility characteristic of enslavement. And, one of the things that I want to do by setting these two things side by side is to acknowledge that modern middle- and upper middle-class life could not go on without the labor of nannies, of cleaning women, of pizza delivery guys, you know — of all the market activity that in fact sustains people in the family — any more than the Royall household could have constituted itself in its historical form without its slaves.
So let’s close with a question: Can we turn our gaze to these things in a sustained way, to things which the ideology of the market-family distinction, the household to the family transition, try to hide? Can we disobey the mandate to not see?
© Janet Halley and Lisa Kelly
 Lama Abu Odeh, Modernizing Muslim Family Law: The Case of Egypt, 37 Vand. J. Transnat’l L. 1043 (2004); Philomila Tsoukala, Marrying Family Law to the Nation, 58 Am. J. Comp. L.873 (2010); Sylvia Kang’ara, Western Legal Ideas in African Family Law (on file with the author). ; Yun-Ru Chen, Maneuvering Modernity: Family Law as a Battlefield in Colonial Taiwan (on file with the author); Teemu Ruskola, Conceptualizing Corporations and Kinship: Comparative Law and Development Theory in a Chinese Perspective, 52 Stan. L. Rev. 1599 (2000); Hedeyat Heikal, Family as Jurisdiction: from Dispossession to the Family in Colonial Algeria (on file with the author); Judith Surkis, Civilization and the Civil Code: The Scandal of “Child Marriage” in French Algeria, in Judith Surkis, Scandalous Subjects: Intimacy and Indecency in France and French Algeria (forthcoming).
 Duncan Kennedy, “Three Globalizations of Law and Legal Thought: 1850 – 2000, in the New Law & Economic Development: A Critical Appraisal, David Trubek and Alvaro Santos, eds. (Cambridge U.P. 2006), p. 19.
 Work sponsored by the IGLP has begun this important task. For studies of the modern economic family, see Philomila Tsoukala, Gary Becker, Legal Feminism, and the Costs of Moralizing Care, 16 Colum. J. L. & G. 357 (2007); Hila Shamir, The State of Care: Rethinking the Distributive Effects of Familial Care Policies in Liberal Welfare States, 58 Am. J. Comp. L. 953 (2010); Chantal Thomas, Migrant Domestic Workers in Egypt: A Case Study of the Economic Family in Global Context, 58 Am. J. Comp. L. 987 (2010); Kerry Rittich, Black Sites: Locating the Family and Family Law in Development, 58 Am. J. Comp. L. 1023 (2010); and the article by Philomila Tsoukala cited above.
We invite scholars to join us in this work. It and the genealogical studies cited in n. 1 above emerged from an IGLP study group calling itself Up Against Family Law Exceptoinalism. For an overview, see Janet Halley & Kerry Rittich, Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law, 58 Am. J. Comp. L. 753 (2010) [hereinafter Halley & Rittich, Critical Directions]. That article introduces a special issue of the American Journal of Comparative Law which I edited, entitled Critical Directions in Comparative Family Law, 58 Am. J. Comp. L. (2010); write to Janet Halley for free copies as long as they last. For an overview of what we sought as “Critical Directions in Comparative Family Law,” see Fernanda G. Nicola, Family Law Exceptionalism in Comparative Law, 58 Am. J. Comp. L. 753 (2010); and for a critical assessment of FLE as a linchpin for core/periphery dynamics in law, see Maria Rosaria Marella, 19 Am. U. J. of Gender, Soc. Pol. & the L. 721 (2011).