What Place for Family Privacy?
Martha Albertson Fineman
Emory University School of Law
June 1, 1999
George Washington Law Review, Vol. 67, 1999
Emory Public Law Research Paper Forthcoming
The nuclear family is the quintessential private institution. Privacy is essential to the formation of family, allowing for autonomy in family units while protecting families from state intervention and regulation of intimacy. State intervention into the nuclear family is the exception.
Family privacy conceals power imbalances within the familial structure. Family privacy allows and, in some instances, provides incentives for abuse and subjugation. Additionally, this model of family-state relationship takes for granted that the family is not a natural entity with a constant form, but a societal creation.
This paper attempts to reconcile the necessity of familial privacy with the reality of its abuse by reevaluating the legal affiliations that define the family unit. The law has traditionally defined the family based on the heterosexual affiliation of husband and wife in the form of a reproductive unit. Defining familial privacy, instead, on the basis of care-taker relationships and drawing the line of privacy around them provides a more equitable scheme that more evenly distributes the burdens of inevitable dependency. It also allows for the re-evaluation of the state’s relationship with the family, as well as the relationships within the familial unit itself.
When defined around caretaker-dependent units, familial privacy serves to shield and protect functioning relationships that would dissolve only if an entity grossly fails in the performance of its responsibilities. However, be reconfiguring where that privacy is implemented, it also sheds greater light on relationships ripe for abuse, giving greater agency to both women and children, while still preserving the autonomy of the family.
Number of Pages in PDF File: 18
Keywords: privacy, family law, dependency, caretaker, abuse, family, traditional family, nuclear family dependency, dependent, inevitable dependency, private family, nuclear family, mothering, feminist theory, power imbalance, regulation of intimacy, family-state relationship, reproduction, marital privacy
Date posted: July 10, 2012