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Overview
Concentrating on legal reform, Brinig examines a range of subjects, including cohabitation, custody, grandparent visitation, and domestic violence. She concludes that conventional legal reforms and the social programs they engender ignore social capital: the trust and support given to families by a community. Traditional families generate much more social capital than nontraditional ones, Brinig concludes, which leads to clear rewards for the children. Firmly grounded in empirical research, Family, Law, and Community argues that family policy can only be effective if it is guided by an understanding of the importance of social capital and the advantages held by families that accrue it.
Product Details
| ISBN-13: | 9780226074993 |
|---|---|
| Publisher: | University of Chicago Press |
| Publication date: | 05/15/2010 |
| Pages: | 288 |
| Product dimensions: | 6.20(w) x 9.10(h) x 1.00(d) |
About the Author
Read an Excerpt
Family, Law, and Community
Supporting the CovenantBy MARGARET F. BRINIG
THE UNIVERSITY OF CHICAGO PRESS
Copyright © 2010 The University of ChicagoAll right reserved.
ISBN: 978-0-226-07499-3
Chapter One
The Relationship between Trust and Community Recognition
This chapter begins the search for the links between family and community and will then move to the roles of trust and norms in human motivation in chapter 2. In particular, I will make the case here for why particular institutions, marriage and legal parenthood, have been accorded special status, and why others that seem factually close—cohabitation, step-parenting, and kinship care—have not. In economic terms, marriage and adoption (or legal parenthood) send strong signals both to the participants in them and to those on the outside looking at them. I will also provide theoretical evidence for maintaining the distinction, except perhaps for special subgroups in the community, and will further describe how the strong societal consensus surrounding these institutions may change and what role laws may play as opposed to social developments.
Legal communities recognize certain family relationships, accord them status, and privilege them above others. Recognizing someone as married or a legal parent, especially a custodial parent, serves as shorthand for automatic ascription of bundles of legal rights and duties as well as access to numerous financial rewards. Understandably, people who are unable to fit into a legal status but who undertake its obligations or pay its costs desire these rights and rewards. Increasingly, people who seem to functionally match marriage or parenthood claim the benefits, if not the obligations and costs as well.
From both a legal and a public policy standpoint, the question is whether maintaining the distinctions and reserving benefits only for those who are married or who are legal parents makes sense. Some Western societies have recently abolished many of the distinctions between marriage and cohabitation (same sex or different sex). Some communities, even within the United States, have advocated much more fluid and less legal roles for parenting (inside and outside marriage). Lawyers ask whether there is a "rational basis" for classifications when such important rights and benefits are at stake. Similarly, policymakers ask whether the laws are punitive, mean spirited, or simply archaic. The initial question is whether there really is something unique about marriage or being a legal parent. Admittedly the inquiry is somewhat circular (and therefore difficult to prove empirically), since in the United States there are currently strong distinctions between married and unmarried, legal parent and not. In the terminology I will use here, our society trusts that spouses and parents will generally fulfill their functions well and much more reliably than the alternative. In other words, we assume that there is a difference between formal and informal relationships and base our norms upon it.
From the Perspective of the Adults Involved, Cohabitation Does Not Equal Marriage
Earlier public reports on cohabitation have focused on the question of whether cohabitation before marriage increases or decreases the divorce rate. Increasingly, however, cohabitation is being proposed not as a testing ground for marriage but as a functional substitute for it. The trend in family law as well as in scholarship in Europe and Canada is to treat married and cohabiting couples similarly, or even identically. In Britain, the Social Attitudes Survey released in January 2008 found that two-thirds of the British felt there was no real difference socially between cohabitation and marriage. In France, the National Institute for Statistics and Economic Studies (INSEE) reported that in 2007, more than 50% of French births occurred outside marriage. In the United States, the American Law Institute (ALI) recently proposed that, at least when it comes to the law of dissolution, couples who have been living together for a substantial period of time should be treated the same as married couples. The ALI recommendations particularly carry intellectual weight, given they are the product of ten years of study by one of the most influential, and mainstream, voices on legal reform.
These legal and intellectual trends no doubt reflect in part the increasing prevalence of cohabiting couples, including those with children. The best evidence (from the 2000 Census) indicates that 41.3% of opposite-sex cohabiting couples have a biological or unrelated child under 18 living with them, not much lower than the 45.6% of married couples who do. Births to cohabiting women in the United States now account for 40% of all births to unmarried women.
Law and public policy could actively support any movement toward cohabitation by removing barriers to it. These might include laws against fornication, sodomy, or cohabitation and proscribing remaining legal differences in children's treatment based on their parent's marital state.
Courts and legislatures in some jurisdictions have taken more affirmative actions to institutionalize and support cohabitation, including establishing legal principles of "nondiscrimination" between married and cohabiting couples and equalizing government benefits for formal and informal unions. Government could remove barriers to cohabitation for single mothers such as "man-in-the-house" welfare rules.
As mentioned in the introduction, the most radical view, espoused by some academics, would abolish marriage as a legal institution (although it could, of course, remain a religious practice). In this view, the law should treat all family forms the same. The move toward recognizing same-sex marriage in Massachusetts has created surprising support for this view from some advocates of the traditional legal definition of marriage. Thus, law professors Douglas Kmiec and Mark Scarberry of Pepperdine University recently urged that Massachusetts "temporarily get out of the new marriage business entirely," rather than offer same-sex couples marriage licenses.
The above is rhetoric, or rhetoric translated into policy. We are left with several questions: What does the weight of social science evidence have to say about whether cohabitation is the functional equivalent of marriage? From a law and economics perspective, are there mechanisms through which formal recognition of a relationship as a marriage may boost well-being? What are the likely consequences of blurring the legal distinction between formal and informal unions, as the ALI proposes?
As a preview of what is to come, there seem to be too many problems with cohabitation defined as an alternative to marriage to believe that law and social policy should actively support this emerging family form, though persuasive arguments can be made for regularizing same-sex relationships. However, the weight of social science evidence on marriage and cohabitation suggests that law and public policy might well distinguish between cohabitation as a prelude to marriage (or a courtship strategy) and cohabitation as an alternative to marriage. The evidence points to many fewer problems with the former than the latter.
The fuzzy signal of cohabitation
Modern couples carry many hopes for the informal relationship. When they move in together, they may be holding a number of different expectations (and may differ even between themselves about the meaning of this step). Part of the reason I argue for restraint in supporting cohabiting relationships when marriage is possible stems simply from this lack of individual and social meaning. In economic terms, the signal is a fuzzy one for both the couple and those outside. Because we as a society mean different things by cohabiting, there can be no community support through ritual. Moving itself has no ritual. We may buy pizzas for the friends who help us move, and we are undoubtedly stressed and anxious, but moving residences happens too frequently, particularly for young adults, to be an occasion for ritual. Nor does moving in with a sexual partner constitute a ritual-producing event, because it, too, has many meanings. Thus, as sociologist Steven Nock puts it, "Cohabitation is an incomplete institution. No matter how widespread the practice, nonmarital unions are not yet governed by strong consensual norms or formal laws." Couples may not even see the importance of the step they take in moving in together. One or both members of a cohabiting couple may even cohabit (rather than marry) in order to side step difficult disagreements about the meaning and future of their relationship.
One of the results of all this uncertainty is what economists call dilution of the marriage signal. British economist Robert Rowthorn argues that "marriage is like a professional qualification, whose value as a signal depends crucially on its reputation.... Committed couples and society at large have a common interest in discouraging modifications to the marriage contract or forms of behavior that undermine the reputation of marriage." By this, he means that marriage now serves as an important signal that a person is committed. Without knowing more about a person, marriage gives outsiders and particularly government agencies a basis for choosing between two otherwise like couples. This signal or shorthand would disappear, with its associated efficiencies, were marriage to lose its unique screening quality.
The lack of common definition of the term, either culturally or empirically, also makes study of cohabitation difficult. How does one phrase a survey question that would get at the complexity of informal intimate unions (especially since perceptions may change with time even for an individual couple)? Some individuals who live together undoubtedly see cohabitation as an alternative to marriage (perhaps because they cannot marry or do not see the need for marrying or see an overwhelming dark side to the institution of marriage itself). In some couples, one or both partners may see cohabitation as a prelude to marriage. One or both may wish to cohabit simply because it is a convenient way to live until the wedding or because, like the transition from dating to going steady to engagement, living together seems another stage in a deepening relationship. Finally, a person may cohabit to test the relationship: Can I live with this partner without squabbling about cleanliness or sharing household chores? Will we still find each other sexually attractive lounging in threadbare gym clothes? Can we really spend all our leisure time together without being bored with one another?
Revisiting signaling, esteem, and trust
Earlier in this chapter, I indicated that some of the distinctions between marriage and cohabitation or adoption, stepparenting, and foster care might be analyzed in terms of signaling. In fact, substantial law and economics work on the family has used these terms. Eric Posner, in particular, uses a general theory of signaling to explain the powerful influence of social norms. Posner postulates that people dealing with others—whether in terms of purely social relationships or more intimate ones—are looking, in a world of imperfect information, for "good types," people who will cooperate over the long term and who have, as economists put it, low discount rates. When people are willing to marry, they signal that they are excluding others and are willing to make significant investments in the other. Posner also indicates that while society will heavily regulate marriage at its beginning and at its end, social norms will largely govern conduct during the interim, which, in his opinion, will consist of a series of exchanges. If one spouse fails to perform satisfactorily, the other will retaliate or at least note dissatisfaction.
Posner's signaling model has been taken up in the context of antenuptial (or premarital) agreements by Heather Mahar. Mahar surveyed numerous adults in various cities and asked them whether they had asked, or would ask in the future, a spouse to sign an antenuptial agreement, which she defined, leaving out distribution at death, as governing assets upon dissolution. Very few of her subjects (but more law students) indicated they would. When queried about their reasons for not using the strategy, most indicated a mistaken certainty that their marriage would last (which Mahar says leads to an underestimation of the value of the agreement) or worried that it would signal they feared their relationship was likely to end. While Mahar may be right in important ways, an antenuptial agreement may do more than signal uncertainty about marriage. My position is that the contracting regime itself establishes an exchange framework, or series of trades, that is likely to work against a successful marriage.
Robert Ellickson addresses this problem with exchange relationships in his article "Unpacking the Household." Ellickson claims people live with intimates in order to facilitate informal coordination and reduce transaction costs (the costs of making and enforcing contracts). They are apt to rely on consensus, "which signals that participants are intimate and trustworthy" and on their own rules as opposed to those set by the outside. The norms they create are those that arise out of patterns of gift exchange, not contract. Ellickson notes that an intimate relationship cannot succeed if it is based upon a tit-for-tat exchange, and "temporary imbalances of trade are likely to arise," while each keeps a rough mental account of where things stand. The parties will need to engage in an informal give-and-take for the relationship to prosper over time and therefore, if they trust each other, will be more likely to keep things informal (to reduce costs). "[R]eciprocated acts of cooperation" will themselves "generate pleasure." Unlike contracts, gift exchange can be kept money free, signaling mutual feelings of intimacy and trust and thus enhancing prospects for future cooperative interactions. As Ellickson notes in a footnote, there may be a biological basis for trust and for trusting behavior. In the footnote, Ellickson makes the point that oxytocin, a pleasurable hormone, is released when experimental subjects played in a way that demonstrated trust in the other human player. These findings suggest not only that we are "hardwired" to want to trust but also that trusting behavior is individual based, that is, it fits the rational choice model that characterizes law and economics that will concern us in the next chapter.
This theme of norms fitting models of individual choice is taken up by Richard McAdams, in his paper on the origins and development of norms. McAdams proposes that norms develop because of the desire people "have for respect or prestige, that is, for the relative esteem of others." Law, he claims, can influence norms, because it "expresses normative principles and symbolizes societal values." In other words, it provides what he calls a "focal point" for norm development.
The individual signal one gives can go further than to the other marriage partner, as McAdams's emphasis on the need for publicity of the new norm suggests. For example, entering into a covenant marriage may act as a potent signal of the spouses' belief in God and marriage and intent to serve as a public example of the sanctity of marriage. This might be simply because the couple brings public figures—typically religious leaders—into their marriage. But further, according to a survey, the couples in covenant marriages thought carefully about the signals they were sending, not only to their partners, but also to the wider society. The researchers note, "These couples see their covenant marriage as a public signal that sets them apart from couples who lack a sanctified understanding of commitment to marriage and God." In McAdams's terminology, they can gain elevated esteem (become "heroes") by incurring greater-than-average costs. Thus, norms can come from people in the community one does not even know.
Is Cohabitation the Functional Equivalent of Marriage? Evidence from the Social Sciences
Although I mentioned that collecting evidence on cohabitation is difficult because of its many meanings, we do know some empirical facts about cohabiting couples as a result of research conducted since the mid-1980s. First, there are growing proportions of cohabiting couples, particularly among African Americans and Hispanics. Second, the relationships themselves last a shorter time than marriage, even if there are children. Third, cohabitation followed by marriage (particularly when the couple cohabits without being engaged) leads to less-stable marriages than marriages not preceded by living together. Fourth, cohabiting couples experience a larger incidence of domestic violence than do married couples. The U.S. Justice Department reports that "those who never married became violent crime victims at more than four times the rate of married persons." Compared to married couples of the same duration (i.e., couples who have been together for the same length of time), those in informal (cohabiting) unions are less committed to their partnership (they see fewer costs should the relationship end) and report poorer-quality relationships with one another and with parents.
(Continues...)
Excerpted from Family, Law, and Community by MARGARET F. BRINIG Copyright © 2010 by The University of Chicago. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
AcknowledgmentsIntroduction
I. Norms, Families, and Community
Chapter 1. The Relationship between Trust and Community Recognition
Chapter 2. Norms within Families, or the Family Community
II. The Boundaries of Family Communities
Chapter 3. The Limits of Community and the Role of Autonomy
Chapter 4. Reaching the Limit: Granting Insiders and Outsiders Rights
III. Families, Mimetics, and Community
Chapter 5. The Family as “Little Commonwealth”: The Role of Mimetics
Chapter 6. What Happens When Trust Fails? Mimetics in Families Gone Wrong
Conclusion
Notes
Index