Family Law and Family Values

Family Law and Family Values. Mavis Maclean, ed. Oxford, United Kingdom, and Portland, OR: Hart Publishing, 2005. Pp. xi+342. $80.00 cloth; $44.00 paper.

Family law has become a "hot" item in most Western countries and is likely to hit the headlines in controversial legal decisions, policy debates, and legislative initiatives. In the United States, the support of same-sex marriage has virtually replaced abortion as the litmus test of liberalism, while a similar "progressive conservative divide" is applied in Europe, where a diversity of ideological and cultural values and differing expectations about family relationships prevail.

It is the nature of expectations about family relationships, and the extent to which the values that are incorporated in family law coincide with these expectations, that is the subject of this rich collection of 18 essays edited by Maclean. Like the previous two volumes on family law that Maclean edited, this one is also based on meetings held at the International Institute for the Sociology of Law in Onati, Spain and, like its predecessors, the approach here is interdisciplinary and its scope is European and North American.

The book is divided into five sections. The first presents different approaches to the study of the nature of family values alongside those values put in place by legal systems; the next three chapters deal with the regulation of the relationships between adults and children, adult couples, and adult children and elderly parents, respectively; while the final chapter deals with diversity and standardization in family values and family law.

A number of articles deal with the boundaries and definitions of family ties. Fuszara and Kurchzewski from Poland suggest an increasing ambiguity between ties of friendship and ties of kin, which are no longer dependent on "blood" or formal marriage ties, are not exclusively related to procreation values, and are often temporary. Smart also discusses the fluid nature of kinship ties. She finds that other than among ethnic minority groups in Britain, the legal termination of the marital relationship does not necessarily mean the end of the wider-kin connection. In a different vein, Shapiro finds that genetic links are declining in importance in legal definitions of parenthood, although the legal recognition has lagged behind social recognition of non-genetically linked parents and children.

The value dimension of legal obligations stemming from marriage, divorce, and cohabitation is taken up by a number of studies. Despite the different legal arrangements in the various countries, so that even a seemingly basic right such as the dissolution of marriage is not available in Malta (Antokolskaia), many of the societies reported in this book have adopted the discourse, if not the policies, that reflect values of individualism, autonomy and freedom of choice to enter and exit relationships, equality between the partners, cooperation between parents, and an emphasis on the protection of weaker members as the defining element of family obligations. Although usually some distinctions are made between marriage and other cohabitation relationships, and marriage as an institution is often privileged by a country's constitution (e.g., in Portugal, Germany, Italy, Spain, and Switzerland), the protection and maintenance of children are not affected by the marital status of their parents, and provisions are often made for the economic rights and protection of de facto and registered couples. Special attention is paid to same-sex unions in seven chapters, and these discussions raise interesting questions. For example, despite the symbolic importance of the legal recognition of same-sex marriage (Cottier), feminists have claimed that marriage is a "patriarchal institution which legitimizes the economic and sexual subordination of women" (Glennon: p. 178). Moreover, while variations of the "registered partnership" solution to both heterosexual and homosexual couples have been suggested or implemented in a number of European countries (e.g., Italy, Spain, and Switzerland), some authors challenge the wisdom of adding another status to family law and increasing the circle of relationships that are coming under legal regulation (Cottier, Vaz Tome).

Another challenge to a commonly held value in European legal policy is Voneche and Bastard's critique of the coparenting solution that has become the "absolute goal" of French law, to such an extent that the terms visiting rights and residence rights have been removed from the French civil code and replaced by the notion of a permanent "parental couple." They suggest that this contradicts the values of autonomy of the parents to choose their own solutions as well as the pluralism of French law by imposing a conservative model of never-ending ties between parents. In fact, despite the law, both couples and judges often choose more traditional custody arrangements that reflect gender inequality in caring for dependent children.