Intimacy Outside of the Natural Family: The Limits of Privacy

18 Pages Posted: 21 Aug 2012

Date Written: 1991

Abstract

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.

Keywords: autonomy, privacy, single motherhood, nuclear family, natural family, divorce, social control, public families, intimacy, feminism

Suggested Citation

Fineman, Martha Albertson, Intimacy Outside of the Natural Family: The Limits of Privacy (1991). Connecticut Law Review, Vol. 23, 1991, Emory Public Law Research Paper, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2132312

Martha Albertson Fineman (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-712-2421 (Phone)

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