(Re)Placing the State: Family, Law and Oppression

Abstract

In this article I argue that an analysis of “the State” is necessary in order to understand legal developments related to “family” that are relevant to efforts to combat the oppression of heterosexual women, as well as of lesbians and gay men. Drawing on recent debates concerning postmodernism and feminist theory, I review efforts to reconceptualize the nature of the state not as a monolithic institution, but rather as a set of arenas, or the site of various discursive formations. Because laws are generated from within, but are only part of, concentrated forms of state power, feminists and progressive groups that are engaging with law must retain an explicit analysis of the state. This analysis must be more nuanced and displaced than it has been in instrumentalist and structuralist accounts, in order to explore the ways in which feminists have influenced legal change and whether this influence is positive or negative for different groups. The limits on law's ability to fundamentally transform the social relations of oppression must however be recognized. In particular, the relationship between overall state trends—for example privatization—and trends specific to certain state arenas such as courts and legislatures—for example enhanced women's rights to men's property and increased legal recognition of same sex couples—must be traced in order to determine the political impact of seemingly progressive movements in areas related to “the family”.

Is There an Ideology of Motherhood in (Post)Modern Child Custody Law?

“…This trend is consistent with evidence that state policy premises itself on the notion that costs related to reproduction should be borne as much as possible within the private sphere (Ursel, 1992;Boyd, 1994).If fathers are happy, then maybe they'll pay.…”

Marx and MacKinnon: The Promise and Perils of Marxism for Feminist Legal Theory

“…Feminist demands have thereby been recast in terms that run counter to complex and situated conceptualizations of subjectivity, equality, law, and the state. Certainly this form of engagement has produced legal victories, but such victories are dubious in that they most often occur when feminist demands comport with state agendas, for example, remedies for sexual violence are granted when they fall in line with state agendas promoting sexual regulation more broadly (Fudge, 1989;Boyd, 1994).…”

“…An alternative strategy for exploring the complex and contradictory operation of the state and law is through the lens of the Marxist concept of ideology (Boyd, 1994;Gavigan, 1992). Susan Boyd argues that this is one means of accounting for the privileged place that the state and law hold, despite the complex nature of power and the simultaneous operation of a multiplicity of discourses: "Dominant ideological frameworks are connected to state dynamics and influence the according of legitimacy by branches of the state such as courts and legislatures to some discourses more than others as well as limiting the vision of both dominant and subordinate social groups" (1994,25).…”

A Theoretically Critical Gaze on the Canadian Equal Marriage Debate: Breaking the Binaries

“…Intersectionality explores how gender, race, class, ethnicity, age, sexual orientation, and nation mutually construct one another to create a social identity (Fraser & Nicholson, 1990). Family values are constructed as central to national well-being, with family narrowly and clearly defined as a white, heterosexual couple with biological children and a gendered division of labor (Boyd, 1994;Lehr, 1999). "Non-conforming" couples are thus "othered" and ascribed social status according to their degree of difference.…”

“…The liberal notion of the nuclear family, concomitant family law, and the allocation of social resources through public policy contribute to the privatization and commodification of social and economic responsibilities. Individuals are expected to rely on families and the market for financial and personal support, rather than generating a more collective sense of responsibility through socializing and decommodifying such supports (Boyd, 1994(Boyd, , 1999a(Boyd, ,b, 2004Cossman, 2002;Esping-Anderson, 1990;Lehr, 1999;Lessard, 2006;Robson, 1994;Young & Boyd, 2006). Family law provides an important legal mechanism for reinforcing these obligations, relieving the welfare state of some responsibility to care for those who experience economic and social deprivation by ensuring the obligations of family members.…”