Intimacy Outside of the Natural Family: The Limits of Privacy
Martha Albertson Fineman
Emory University School of Law
Connecticut Law Review, Vol. 23, 1991
Emory Public Law Research Paper, Forthcoming
This paper undertakes a pragmatic and focused consideration of whether it is possible to rework existing legal concepts of privacy in a way that would be ideologically compatible with dominant social norms in order to shield single mothers from excessive state regulation and supervision. Modern families differ in important respects from their historic antecedents and well-defined, legally enforced gender roles are no longer widely considered to be appropriate. 'The family' has undergone serious structural revision in actual and ideological terms. A contemporary family privacy doctrine should take this revision into account.
However, the privacy concept developed in constitutional doctrine is too focused on the rights of individuals to accomplish this end – focusing on sexual and reproductive choices in a classless paradigm that assumes an individual’s freedom to act outside of state enmeshment. Additionally, the traditional concept of the nuclear family that underlies the common law idea of 'family privacy' seems so embedded in our collective culture that doctrine will not be easily adapted to accommodate and protect contemporary family situations.
The development of privacy doctrine has been limited by societal assumptions about intimacy, families, and individuality, and by ideas concerning fairness and just deserts. Ultimately, protecting the decision-making autonomy and the dignity of the poor and/or single mothers cannot be satisfied by resort to this area of law.
Number of Pages in PDF File: 18
Keywords: autonomy, privacy, single motherhood, nuclear family, natural family, divorce, social control, public families, intimacy, feminismAccepted Paper Series
Date posted: August 21, 2012
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