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The Fall 2010 volume of The American Journal of Comparative Law is devoted to the work of nine scholars from the IGLP network who argue that the legal treatment of the family and the household are – and have long been – crucial elements in both national and international legal orders.   They ask “can we re-understand the place of sex, sexuality, gender, reproduction, and the family not as peripheral but as central to the making of the modern global legal order and, indeed, of the global political economy itself?”  The nine authors – Lama Abu Odeh, Janet Halley, Isabella Jaramillo, Duncan Kennedy, Fernanda Nicola, Kerry RittichHila Shamir, Chantal Thomas and Philomila Tsoukala – developed their work in part at a series of workshops sponsored by IGLP.

IGLP spoke with Professor Janet Halley at Harvard about the volume:

The articles collected here confront a conventional idea common to both family law and international law that the family is a domain that is separate and quite different from anything else.   Where do you see the link?

We are interested in the ways in which the family and its law are seen as exceptional. Our object is what we term “Family Law Exceptionalism” or the conventional idea that family law and family life are outside the market and inside the nation.  The interesting thing is that this distinctiveness of the family and its law was produced, all around the world, as part of the rise of capital and of the modern international legal order.  What we had before was the, the household, which was economic as well as domestic.  The rise of capitalism brought with it a market/family distinction which invented the modern family.  There was no family law before this happened: the very existence of this distinct legal domain represents the withdrawal of a domestic sphere from the market: the former became intimate, affective, dutiful and feminine so that the latter could become impersonal, rational, individualistic and masculine.   Meanwhile, global capital of the colonial era was making the market global in part by making the family local.   The idea, for instance, that colonization required codification of vast bodies of law integrating the colony into the world economy rested on an opposite idea, that the family and its law were traditional, local, a matter to be left to the spirit of the people.  The specialness of the family and its law is built into the very evacuation of family law from international law.  Undoing a distinction as structural as this one is both exhilarating and demanding work.

You present the results of what you call a “genealogical project” tracing the emergence of common ideas about the relationships between the family and the market, and between family law and contract law, in widely dispersed and self-consciously quite different legal systems.   What do you make of these parallel developments?

We are living today with the consequences of family law’s invention, so the genealogical project is closely connected to our effort to disclose things hidden in plain sight in our contemporary legal landscape.   The genealogical project is the work of many hands.  The story is remarkably parallel in German legal thought of the early nineteenth century (Duncan Kennedy), in Algeria (Judith Surkis, Hedayat Heikal), in the Magreb generally (Mounira Charrad), in Egypt (Lama Abu-Odeh), in Greece (Philomila Tsoukala), in Christian Africa (Sylvia Kang’ara), in India (Partha Chatterjee), and, with surprising reversals, in Latin America (Isabel Jaramillo) and Taiwan (Yun-ru Chen).  In all of these sites, we see the rise of a global market alongside the emergence of the local family; of harmonized contract law alongside particularized family law.   Consistently, the family and its law became traditional.  But acute differences emerge as well: for instance, in Algeria Islamic inheritance law had to be displaced by French property law because Algeria was a settler colony which required a system of valid alienable title in land, whereas in Egypt inheritance law could stay Islamic because it didn’t interfere with land transfers.  We think that comparison is the only way to make the distributive and ideological consequences of these large shifts visible (Nicola).  We are in the early years of the genealogical project and invite collaborators working on local stories around the world, aiming for a comparative conversation which we hope will tell us a lot about why and how sex, sexuality, gender and the family matter.

The volume argues vigorously that the idea that the family and family law are in some way “exceptional” and disconnected from the private law of the economic order or the public law of governance is oikos fundamentally mistaken.   What are the stakes – what would it mean to bring the family and family law into our thinking about the global legal order?

We think that treating the family as distinct and exceptional hides the distributive consequences of family life in both the local and the global economy .  We seek to understand the crucial role of the family and family law in production, consumption and social-security provision for every human being on the planet.  Take social security.  In modern liberal orders, there are three places you can go to get the resources you need to survive: the market (employment for most of us), the state (welfare), and the family (famously, “the place where, when you go there, they have to take you in”).  As neoliberal economic policy swept the globe, shrinking the role of the state in providing social security, all eyes were on the market as its substitute.  But that blindspotted the vastly increased role of the family in taking care of people. Undoing that requires that we reconnect the family with the oikos: we call this part of our project the Economic Family.

Following both neo-Marxist world systems theory (Wallerstein and Smith) and the World Bank (Rittich), we propose that a fresh object of study would be the household: the actual dependency network in which any given individual lives.  We think that the nanny is a perfect symbol of why this shift is so important (Shamir, Thomas).  She is a member of at least two households – her household of origin, to which she may be sending remittances, and her employment household, where she works and may also live.  She does family work for pay, and pays for family work.  She is both highly local (an effect intensified by immigration law, especially if she is or becomes undocumented) and international (representing as she does the importance of migratory labor for economic distribution in sending and receiving countries).

Taken together, this work argues for a dramatically expanded conception of “family law” to embrace national and global legal arrangements affecting what you term the “economic family.”  What would this look like — could you give me an example of what you have in mind?

We think it’s useful to distinguish the family law that is now housed in family codes and family law casebooks from other bodies of law, supposedly quite irrelevant to the household, that condition family life and depend on the existence of families as sources of production, consumption and social-security provision.  Almost everywhere, this is an official body of rules about the family: the law of entering and exiting marriage, along with the law of creating parent/child relations.  This body of law is highly privatized in design.  We call this “Family Law 1.”  But there are vast bodies of explicitly family-regulating rules in other bodies of law.  Employment/labor law and welfare law, for instance, are intently devoted to structuring the family and distributing social goods to, from, and through it.  But so do immigration law (Abrams, Shamir, Thomas), tax law (Philips), housing and landlord/tenant law (Kotiswaran), criminal law (Abu-Odeh, Suk)… and the list could go on.  We call all of that “Family Law 2.”  It tends to be ignored or treated as peripheral in its current location in our legal topography, and of course it is very rarely invoked in examinations of marriage and parenthood.  Putting FL 1 and FL2 back into conversation is an immensely productive research paradigm: the distributive consequences of policy choices in almost every element of national and global law and policy can be better revealed, debated and, where necessary, resisted and reformed, when family law is reconnected with the obviously distributive domains of law.

Thank you Janet!   And congratulations to you and your colleagues!  We hope that future work developing these themes will be part of our Working Paper Series (LINK)


Cover of the Journal with table of contents

Janet Halley is the Royall Professor of Law and Director of the Program on Law and Social Thought at Harvard Law School where she teaches family law, discrimination, and legal theory.  She is the author of numerous articles and books including Split Decisions: How and Why to Take a Break from Feminism, (Princeton University Press, 2008) and Left Legalism/Left Critique, co-edited with Wendy Brown (Duke University Press, 2002).     Professor Halley is a member of the IGLP Advisory Council.