This post was contributed by Frederik Swennen, honorary research fellow at the Birkbeck Institute for Social Research (Birkbeck Gender & Sexuality). The contributor wishes to thank Daniel Monk of the Birkbeck School of Law, and Madisson Brown, BISR’s manager. A podcast with the presentation leading to this blog will be available soon.
What legal consciousness, behaviours and expectations exist amongst adults living in relationships outside the paradigm of the Sexual Family? How – if at all – should they be accommodated in family law?
I set out to answer those questions in a 2017 socio-legal research (sabbatical leave) project supported by the University of Antwerp, its Faculty of Law and the Netherlands Institute of Advanced Study, and for which I developed the research design while visiting the Birkbeck Institute for Social Research (Birkbeck Gender & Sexuality) in February-May 2017 as an honorary research fellow, under the kind sponsorship of Daniel Monk. This blog reports on the process of drawing the research design, and hence is methodological in nature.
Table 1. The four quadrants of the family
The family, and hence family law, is subject to increasing fragmentation in each of its four composing quadrants. Whereas partnering, sex, procreation and parenting were erstwhile ordered altogether in the single institution of marriage, there has been subsequently, first a bifurcation between partnering/sex on the one hand and procreation/partnering on the other, second within each dyad – partnership and sex, and procreation and parenting – and, currently, a further fragmentation is going on within each single quadrant. With ‘fragmentation’, I refer to the attribution of specific aspects of family behaviour to different persons within each quadrant, rather than attributing all behaviour within one quadrant to one person. One example within the quadrant of parenting, for example, is multiple parenthood, whereby aspects of parenthood are distributed amongst more than two adults at the same time, which adults not necessarily need to be or have been in a sexual-affective relationship with each other (‘platonic parenting’). The focus of the project reported on in this blog is on fragmentation of partnering relationships.
“Theoretically informed, yet empirically grounded” (Sarah Lamble)
Continental legal research generally consists of doctrinal ‘black letter’ desk research into regulation, case law and doctrine, even though there is increasing interest in ‘law and …’ movements and in the study ‘of law’ from other social sciences’ perspectives (sociology of law, psychology of law, philosophy of law and economy of law are the foremost approaches). Interest in (quantitative) empirical legal studies is also emerging. Besides, legal scholars collaborate with colleagues in other fields, or with stakeholders, in multi-, inter- or transdisciplinary projects. Legal scholars nonetheless rarely engage in socio-legal research themselves, even though some Dutch scholars have coined the label “civilology” to raise awareness on multi- and interdisciplinary research and socio-legal approaches.
The first step in my project hence was to get acquainted with the socio-, the legal, and even the hyphen (!) of socio-legal studies.
In order to avoid the project becoming a sterile or naïve normative exercise, I chose to add both an empirical and a regulatory (social-)theoretical layer to my doctrinal research. Adding both layers seems important. As Alison Diduck pointed out, “law’s families” find themselves in constant negotiation with
- the family they live with – referring to their practices, their ‘doing family, i.e. a subjective, individual agency perspective forwarded by David Morgan, and
- the family they live by, i.e. the objective-normative, collective and structural perspective, of which legal norms are merely one – yet symbolically significant – discourse.
Hence, legal research into “law’s families” should be both empirically grounded, and theoretically informed, so as to have insight in the circular interaction between those three worlds. Before starting this project, I had already set out to include social theoretical approaches in my research through fruitful collaborations with social philosopher Mariano Croce. As to the empirical approach, I had only supervised empirical research but not conducted it myself.
The second step in my project hence was to read on both additional strands and to enrol in an NVivo course.
For the social theoretical layer, I deliberately chose feminist theory, and its ‘derivatives’ gender and queer theory, as starting points. The main reason for this choice is the continuing heteronormativity (and, if one would accept its existence: homonormativity) in family law. Also, I could draw on the extensive, and explicitly emancipatory, expertise of former Birkbeck Institute for Social Research director Sasha Roseneil in this area. It is however important to also take into account the potential serious drawbacks of an emancipatory approach.
I agree with Alison Diduck and Sasha Roseneil that, in order to correctly understand current family institutions and propose grounded regulatory modifications, one should render visible the heteronormative (ideological, economic, …) substrate on which the family, and family law, rest and that is at play in society, even if not in formal law any more. That is not to say that scholars should necessarily take an activist approach, as Sasha Roseneil seems to do in her intimate citizenship project, whose Manifesto can be found online. But we should be aware of, and explicitly question, heteronormative assumptions at the least.
From one emancipatory perspective, formal recognition, in state law, of adult relationships outside the Sexual Family paradigm is called for. This would firstly be of symbolic significance, rendering denizens into full citizens, promoting them from a private, invisible, sphere in the shadow of the law (in this context: outside the realm of law), to the public, visible, arena as (a) real(ity).
Secondly, such recognition would also come with a bundle of substantive rights and obligations, through which these new families would gain access to private and public benefits, such as tax exemptions and social security allowances, and that would support them “doing family”. In sum, the law should bridge the gap between the “Families We Choose” (Kath Weston) on the one hand and the Law’s Families on the other, by officially endorsing the individual’s autonomy, in a pluralist legal system – understood as: one which recognises a great variety of relationships.
However: just as is and was the case for same-sex relationships, legal recognition comes with drawbacks that may outweigh its benefits. Firstly, insofar symbolic recognition is concerned, new families could become the objects of both the centripetal and centrifugal effects of law. The centripetal effect of family law consists in rendering mainstream family configurations that currently exist at the edges of, or even outside, the law. Those configurations would have to conform to either status-based criteria, or be functional equivalents thereof. Either way, the creativity and fluidity that characterises many family formations today, both within and outside of the law, would be reduced rather than enlarged by legally recognising them. Moreover, the inclusion as “same” of certain family formations would reinforce, and enlarge, the exclusion as “other” of family formations that do not fall within the newly defined boundaries; that is the centrifugal effect of law. Secondly, recognising certain family formations as real legal subjects would also subject (sub-iacere, throw under) them to official, “regal”, law, and reduce rather than enlarge the autonomy aimed for: the ones wanting to belong, have then become belonged. Thirdly, formally recognising autonomy would deny the constant negotiation between the families we live with and those we live by, and would render invisible, and far but do away with, heteronormativity. Fourthly, from a state perspective, enlarging the empire of family law could also be a strategy to (further) privatise care towards a larger group of citizens. Finally, lowering the threshold for state recognition as “family” has also been used in a conservative move to avoid having to explicitly recognise non-heteronormative families – for example the so-called “wrecking argument” against civil partnership in the UK, to which dissenting judges in the ECtHR Burden-case also referred.
Different ways of trying to overcome that catch-22 situation of (non)recognition have been proposed. They could be categorised in three different strands:
- one that proposes adapting the law in a way that tries reconciling benefits and drawbacks of legal recognition. Mariano Croce and myself are developing such framework of Family (Law) Assemblages;
- one that proposes to resist to the law from within, by both complying with, and resisting, performativity, as the Judith Butler-ian double gesture;
- one that entails resistance from without, whereby state “nomopolies” are opposed and plural, nodal, governance is proposed instead, for example by the late Roderick Macdonald.
Those theoretical considerations will be present throughout this research project and its assumptions will be addressed during the interviews.
For my empirical layer, I opted for qualitative research, based on semi-structured in-depth interviews. This method is advised for small-scale exploratory research in areas on which little empirical research is available, as is the case for this project. The sample (n=40) will be purposively composed, from a broader sample composed through a snowball approach in the network of informants recruited via civil society and social media. Authorisation will also be sought for Belgian civil servants to provide a leaflet to persons registering their cohabitation in the Flemish-speaking parts of Belgium (Flanders and Brussels) between 16 May and 15 June 2017. The interviews will be conducted on the basis of a topic list, will last approximately an hour and a half, will be recorded, transcribed verbatim and analysed in NVivo. I will apply a mix of Grounded Theory and social theory; the objectives of the empirical research, indeed, being both to theorise on actual practices, and to put to the test theoretical assumptions.
Population, sample and topic list
The definition of a population could be the sole objective of exploratory research; yet even exploratory research would have to be based on sufficiently saturated categories, or even one category, of interviewees if its objectives go beyond mere definition. The definition of the categories for my research – as its population – is proving to be difficult an exercise.
Martha Fineman has appropriately coined the law’s heteronormative family as the “Sexual Family”, based on partnerships between adults characterised by their sexual, dyadic and domestic nature. Adult partnerships also are based on voluntariness in Western societies. The boundaries of – potentially legally relevant – families outside those paradigms however have not been clearly defined yet. In doctrine, they are mostly negatively described as atypical, beyond the couple, counter-normative, de-centred, non-conventional, non-hegemonic, non-standard, conventional, non-hegemonic, non-normative, non-standard, non-traditional and the like, which isn’t very helpful in defining a population. The same applies to attempts to positively describe the population, as relationships which are close, closest, committed, intimate, personal, private or queer. I therefore decided to draw a matrix, based on the markers of the Sexual Family, according to which the research could entail the following relationships:
Table 2. Matrix of relevant relationships
Adding voluntariness as a marker for the Sexual Family allowed me to exclude monastic communities and elderly homes from the population. Yet my population would still be quite broad, so qs to include, for example, the (erstwhile) utopian communes such as the Familistère (compound of family and monastery)!
Table 3. Front page of a special issue of Le Devoir, Revue des Questions Sociales
I therefore also proposed to further narrow down the population on the basis of the markers the US Supreme Court found relevant in its Roberts v United States Jaycees decision to define relationships protected by (family) privacy, i.e. “distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship”. This still leaves open many other issues, such as whether or not to include “mere” households (hereto the House of Lords’ Fitzpatrick case) and caring relationships where the need of care pre-existed to the relationship, which for Jonathan Herring are just a species of the genus of caring relationships. I therefore suggested to further narrow down my population on the basis of cohabitation (as distinguished from sharing a household) and to then distinguish between sexual resp. platonic relationships. My literature review had indeed brought to light the significance of shared domesticity and sex as markers if ‘families’. My suggestion was radically opposed to by the audience during the oral presentation of this project. Admittedly, by narrowing down as I proposed, I would very much remain within the Sexual Family paradigm of domesticity and would uphold sexuality as important marker – if at all I would succeed in defining what a sexual relationship actually is, for example given the fluidity between friends and lovers that Sasha Roseneil found in her research. The families I would research, would hence be very “inside families”. Finding the right balance in further narrowing down (or not) is all the more difficult since my population has no recognisable formal or informal characteristics and does not share civil society movements in which I could easily recruit. I have thus decided, for now, to recruit interviewees from all different categories and narrow down to sufficiently saturated populations in function of the received reactions. Beside recruitment via civil society organisations and social media, I will also seek assistance of civil servants upon registrations of legal cohabitation. Indeed, Belgian legal cohabitation can be concluded between two persons who are not each other’s sexual-affective partners.
A second concern was the drafting of a topic list. What is legally relevant “relationship behaviour” of which I should research consciousness, practices and expectations? Many different formal and informal markers can be found in regulation, case law and doctrine, epitomised by Elizabeth Scott and Robert Scott as “several key attributes: a demonstrated commitment to a long-term emotionally intimate affiliation in which the parties usually live together in a relationship of relative equality; the assumption of responsibility for mutual care (…); financial interdependence; and the understanding that members’ welfare is prioritized above that of others”. I drew a matrix on the basis of legally relevant markers of relationship behaviour within the Sexual Family and distilled sensitising concepts from there. It goes without saying that interviewees will explicitly be asked whether they would consider certain elements in the matrix as legally irrelevant, or other behaviour that is outside the matrix as legally relevant, when describing what they expect from the law.
Table 4. Matrix of legally relevant behaviour
Table 5. Draft topic list
On the basis of the foregoing, I will now start the empirical research in Flanders (May-August 2017) and The Netherlands (September-December 2017, and conduct comparative-legal research, which data I will also analyse in NVivo. Results are due for Spring 2018. Interim evolutions will be reported on ResearchGate and my personal website. I also look forward to receiving feedback on the issues of socio-legal research methods reported in this blog.
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