Professional Issues in Family Life Education

“The Pursuit of Whose Happiness?”

Thurman Arnold

“… We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness….”  

The Declaration of Independence is one of the great patriarchal manifestos of western civilization and the beliefs and attitudes it expressed continue to dominate laws and social policies affecting families.   It exhorts that “all men are created equal … [and] endowed … with certain unalienable Rights, [and] that among these are Life, Liberty and the pursuit of Happiness.”   Outside the intended meaning of the words “all men” evidently lay “Indians not taxed” and slaves who were assessed at three-fifths of their number; hence the latter two groups were read out of the Constitution almost entirely and so did not comprise a part of the “the people.” While “[f]ree women and children” were counted for purposes of determining the numbers of representative government, no one seriously believed that they were created equal to the founding fathers or to free men in general. (Cott, 1998).

Hence, the focus the Declaration of Independence and shortly thereafter the United States Constitution was on individuals, all of them free men.   This guaranteed the continuing hegemony of the prevailing social structure of the time, patriarchy.

Marriage likewise was not mentioned in the founding principles of this country, although marriage was undoubtedly implicit to the “pursuit of Happiness.”   To be historically fair this treatment of women, and their secondary status apart from men within marriage, is not surprising given the weight of western tradition. For most of Western history marriage was the business of bringing a man and woman together for the benefit of their two families. The wife had much fewer rights than her husband and was expected to be subservient to him.   Marriage was an economic arrangement. Procreation and cooperation were the main marital duties. The ancient Israelites of the Bible had a patriarchal family structure.   Women were regarded as the property of their fathers or husbands and could do nothing without their consent. It was usually the patriarch who selected a bride for his son and who paid a "bride price" to her father. The acceptance of this bride price constituted a legally binding betrothal, which was followed by some wedding celebration when the bride took up residence with her new family.

Later the newly Christianized countries of Northern Europe treated women little better than domestic slaves. In Germanic law, for example, marriage was essentially a business deal between the bridegroom and the bride's father ("sale marriage"). The symbol of a successful "bride sale" was the ring (a form of down payment) which was given to the bride herself. Acceptance of the ring constituted betrothal. The full payment of the "bride price" was made on delivery, i.e., when the actual wedding took place.

The church refined these primitive customs. According to Roman law and Christian belief, marriage could be built only on the free consent of both partners, and this doctrine was bound to raise the status of women to some extent.   Yet, other limitations were introduced that significantly restricted the grounds for divorce.

The Protestant Reformation and Martin Luther declared marriage to be "a worldly thing

. . . that belongs to the realm of government", and a similar opinion was expressed by Calvin. The English Puritans in the 17th century passed an Act of Parliament asserting "marriage to be no sacrament" and soon thereafter made marriage purely secular. It was no longer to be performed by a minister, but by a justice of the peace. The Restoration abolished this law and reverted to the old system, but the Puritans brought their concept of marriage to America where it survived. Hence, marriage became a civil union when the American nation was founded.

Hence, there has always been a tension in western civilization between the notion that marriage is a social good on the one hand and the idea that it is just a matter of contract on the other.   There has never been uncertainty over the inferior status of women and children, and the ideas of “family” had more to do with lineage and communities than the interrelationship of married persons and their children and immediate kin.

As a consequence there remains in America a huge ambivalence over what laws and social policies should govern the familial and marital relationships, and a deep distrust of any interference with the patriarchal system, individualistic rights (particularly of the privileged class) or capitalistic assumptions. This has been so deeply embedded in our culture that even those who suffer under such a system unconsciously perpetuate it.   Ironically, this suffering pretty much includes everybody – even the privileged white males – since all are victims of system that is not functioning well. According to Bogenschneider (2006) “family law has been shifting in the last two decades from treating marriage and families as social institutions that serve the common good to dealing with them more like private contractual arrangements” (p. 19).    Actually in the western history of marriage this is not new.   Similarly, she observes “family policy did not emerge as a distinct field of intellectual interest and inquiry until the 1970s.”   (Id. 2006).   This is new, and a reason to believe that the pendulum may gain a new direction: the future evolution of laws affecting families depends upon nascent family policies for guidance and empirical justification.

None of the founding documents of the American nation mention families.   Even today there is no legal definition of family in the federal statutes or regulations, or in many state statutes. (Bogenschneider, 2006, p. 16).   The United States Supreme Court concluded in Stanley v. Illinois (1972) that the Court should not be constrained by a rigid or formal definition of the family unit, but should make a determination based upon the facts of each case.   (Henderson, 2004). The first usage of the word “family” in a subcommittee of the U.S. Congress was in 1981.   (Bogenschneider, 2006, p. 16).

We have long had family laws in the United States, but they were laws affecting families only in the sense that they established rules for licensing and dissolving marriages, dividing property, awarding support, and determining custody of children much as if they were property and not people themselves.   They are based for the most part on an English common law system, or in the case of certain states like California are composed of a mixture of English law and the Spanish Siete Partidas which were far more liberal towards the property rights of women and therefore something of an exception (Lothrop 1999).   Only recently have we begun to develop family policies that transcend formulas for dividing property or children in solely marital contexts in a meaningful way – family laws almost always only affect the parties to litigation themselves.

American jurisprudence evolved for, and is best suited to, regulating economic relationships between people.   When applied to families and marriage, it has similarly been most comfortable with their property disputes. To date it has been a dominated by an adversarial model of determining truth, which is an extension of a patriarchal system.

Why does the concept of family matter so much?   As Bogenschneider observes in quoting U. Bronfenbrenna, “’The family is the most powerful, the most humane, and by far the most economical system known for building competence and character in children and adults alike.”   (Bogenschneider 2006, p. 6).   Families themselves do a better job of promoting competence and character in their members when supported by contexts beyond the home – including responsive government.   Indeed, given the rapid transformation of society and its terrific mobility, the traditional means for supporting families outside of government are failing.   This in turn requires “heroic” parenting in order to compensate in keeping families on track, which is an unrealistic expectation.

According to Bogenschneider (2006, p, 31) a “broad definition of policy [is] a plan or course of action carried through a law, rule, code, or other mechanism in the public or private sectors.”   Hence, family policy involves how legislation affecting families is developed and adopted as contrasted with family law, which focuses on how statutes are interpreted and applied through caselaw. (Bogenschneider (2007).

Bogenschneider advocates that instead in speaking in terms of “family policies” we speak to “a family perspective in policymaking.”   In this way we overcome the American patriarchal resistance to interference with individual “rights” by shifting the focus to “the consequences of any policy or program, regardless of whether it is explicitly aimed at families, for its impact on family well being.” Historically, family policies have been myopic in part because there has been no working definition of “family”, but also because of the American penchant to view inter-relational systems from the patriarchical perspective.   That launching point has ignored what Bogenschneider terms the “critical element” which moves beyond the individual to a relationship of two or more individuals, who are equals, and whom are tied together by blood, legal bonds, or the performance of family functions.  

When discussing families and family values, Americans tend to act as though these matters are indeed “self-evident”, particularly in regards to the structuring of relationship and its place within the larger social contexts.  We act as though there is agreement of how families are constituted, but in truth we know more about what the family is not than what it is.   In reality the term “family” is relative.   Its attributes differ with race, culture, gender, convention, choice and point of view.   Yet, our nation’s laws and policies have been applied as though there was an absolute definition that is consistent with all human experience which was in reality shared by very few.   

For instance in terms of its myths our society continues to think of “family” as meaning a heterosexual, legally married couple, with children – until recently it was further assumed that the wife probably did not work beyond part-time.   (Carter and McGoldrick, 2005).   This paradigm reflects and is designed to sustain class stratifications in a society that supports and perpetuates American capitalism.   Questioning or challenging the hegemony of the “nuclear family” of the 1950’s as the be-all end-all for social structure is considered as an equivalent to heretical national disloyalty.   The reaction and repercussions to such questioning is a form of xenophobia. The American model of the nuclear family is derived from a professional-managerial class view of family structuring, even though only a very small percentage of Americans comprise that class.

Two areas that have received much less attention, although this is beginning to change, involve custodial rights to children of diverse social and economic backgrounds, and spousal and child support, particularly as support impacts women.  

The subject of children is clearly intertwined with definitions of family. It is an area into which government more cautiously intrudes into the lives of parents.   It is also an area where increasingly the rights of the individual must give way to the needs of the state, by the so-called exercise of police power.   The question of diversity of cultures – particularly as it relates to issues involving children – is an area fraught with xenophobia, racism, bias and ignorance.    After all, most cultures treat grandparents as being important and necessary parts of the care and education of children in terms of their social roles (Carter and McGoldrick, 2005), yet the United States Supreme Court in Troxel v. Granville (2000) basically held that state government does not have such a compelling reason to intrude on “parental rights” to children as an exercise of state power that it may entitle grandparents to visitation rights over the objection of parents.   This holding is based upon an erroneous assumption of what the “traditional” family consists of   (Henderson, T. 2004), but perpetuates the assumptions implicit in the anglicized patriarchal family structure.

While child support has obvious ideological and economic foundations in terms of costs to society and the poverty of children, government laws and policies are only now becoming sensitized to the historic slavery of women as the domestic workers of our society.   This lack of clarity concerning the roles of women is more evident as it relates to spousal support, since many state statutes and judicial decisions have difficulty articulating why alimony is fair, important, and necessary.

Conclusion

The laws and policies that govern marriage and family relations in the United States are a patchwork outgrowth of a homocentric laissez faire attitude towards an individualism of a privileged few.    The current conflicts and growth spurts of the social sciences and family law reflects the slow death knell of patriarchy within western civilization. This imperfect transition is very much incomplete.  

The patriarchal model today determines the balance of power between the genders; it has assigned children to women and so treated them as members of the same undervalued class.   The history of marriage in western society, as in most civilizations, has been nothing less than an invisible economic war waged by a privileged group over a weaker population, with the ensuing enslavement of that weaker population; capitalism as we know it can exist without an exploited class.   Incredibly, this war has been almost entirely covert.   This is because, surprisingly, the aggressors have vastly been themselves unaware of their unconscious agendas.   Instead, they have created social myths and definitions to bind even themselves into an illusion.   Women are unwitting co-conspirators.   Because the paradigm is inherently flawed, and structured to perpetuate the illusion in service of its underlying rapacious need to own and absorb everything human beings hold valuable, laws and governmental response to it – even those designed to rebalance power and redistribute wealth – must fall of their own flawed weight.   Because all of the old definitions that framed the debate miss that mark and adorn phrases such as “family” with attributes and characteristics that do not exist, the debate must fail and so perpetuates the underlying regime.   It is only by creating a new language and a wholly new way of viewing the interrelationships of people that improvement in the lives of people will become possible.

            The Declaration of Independence continues:

“…That whenever any Form of Government becomes destructive of these ends [the ‘inalienable rights’], it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security….”  

In some senses the founders were correct.   All human beings are entitled to equal dignity.   Yet the enshrinement of the individual as the measure of happiness is an archaic step in the evolution of our kind:   The individual must be redefined relative to the interrelationships of people, and the constricting definitions of family must be expanded to make room for this new definition.   Family law and social policy must allow for this new awakening. Family life educators are one group of leaders who can share perspective and so allow for a rational transition to a new way of understanding how to nourish and care for the next movement in human social evolution

References

Bogenschneider, K. (2006).   Family policy matters:   How policymaking affects families and            

            what professionals can do about it.   (2 ^nd ed).  

Bogenschenider, K. (2007).   Family Law and Public Policy.   Family life education:   Integrating

theory and practice .   NCFR (2 ^nd ed) 181-190.

Carter, B. and McGoldrick, M. (Eds.) (2005).   The expanded family life cycle.   Individual,

family, and social perspectives.   Boston: Pearson Education Company.

Cott, N.F. (1998).   Marriage and women’s citizenry in the United States, 1830-1934.   American

Historical Review   (1440-1472).

Henderson, T.L., (2004) Grandparent visitation rights:   Successful acquisition of court-ordered

visitation.   Journal of Family Issues, 20(3), 1-31.

Herschfield, M.   Archive for Sexology, History of Marriage in Western Civilization.    

http://www2.huberlin.de/sexology/ATLAS_EN/html/history_of_marriage_in_western.html

Lothrop, G.R. (1999).   Rancheras and the land:   Women and property rights in Hispanic

California.    The American West:   The Reader.   Nugent, W and Ridge (Eds.), 59-69.   Indiana University Press

Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208 (1972)