What Place for Family Privacy? (1999) research Note

By Kristopher A. Nelson
in March 2018

1000 words / 5 min.
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A look at points relevant to my dissertation from a Martha Albertson Fineman law-review article on privacy and the family.

Please note that this post is from 2018. Evaluate with care and in light of later events.

In a 1999 article, “What Place for Family Privacy,” Martha Albertson Fineman examines the unique nature of American legal rules applicable to the family—and its designation as “the quintessential ‘private’ institution.”

[Family law] assumes and reflects a certain type of relationship between family and state. During the nineteenth century this relationship was typically cast as one of “separate spheres.” Family (the private sphere) and State (the public sphere) were perceived as largely independent of one another. The metaphor of separation captured an ethic or ideology of family privacy in which state intervention was the exception.

The characterization of the family as distinct and separate from the state still resonates in our rhetoric about families. The family is designated the quintessential “private” institution. Family is distinguished from both the market (a chameleon institution, public vis-h-vis the family but “private” vis-à-vis the state) and the state (the quintessential public institution) by its privateness. For the modem private family, protection from public interference remains the publicly stated norm—state intervention continues to be cast as exceptional, requiring some justification.

In seeking to rethink the (mutually interactive) relationship between family (as a dynamic and not a natural concept) and the state, she touches on a key American aspiration: >Our current (and historic) stated national ideology glorifies self-sufficiency and independence, both for the individual and for the family.

After considering how this ideology hides “dependency” within the family—and how revealing it can lead society and law to seek greater control over anything related to it once it is no longer hidden within families–she moves to consider the concept of privacy and its relationship to current conceptions of family:

We perceive a line of privacy drawn around certain intimate units, that distinguishes them as “family.” The privacy line defines the relationship of individuals within the family entity and mediates their relationship to the state.

In reconsidering privacy in light of her conception that “family” should be defined more along functional lines than traditional forms, leading also to an autonomy-focused (rather than secrecy-focused) view of privacy:

Thus conceived, privacy would not be a right to separation, secrecy, or seclusion, but the right to autonomy or self-determination for the family even though it is firmly located within a supportive and reciprocal state.

She distinguishes her version of privacy as being distinct from more recent moves to conceptualize privacy as an individual constitutional right (after Griswold, but especially after Eisenstadt). This is in line with more “traditional” formulations of privacy (“privacy in its common law sense”) as protecting an entity (the family):

The idea of the entity of the family as something “private” predates, and is analytically separate from, the constitutional idea of individual privacy, although this “new” arena of privacy seems rooted in older notions about family relations.

In this more “classic” formulation of familial or marital privacy, the “relevant unit for protection” is an entity and not an individual. Furthermore, she writes,

family privacy operated as a generalized protection. Not only were specific, weighty intimate decisions, such as the decision to beget or bear a child, shielded from state intervention and control, but mundane day-to-day family interactions were shielded as well.

(I should note that this did not mean that all of these “intimate” decisions were completely shielded from outside control or intervention. See, e.g., Privacy, autonomy, and birth control in America, 1860-1900 and Haverty v. Bass: protecting the public health in 1876.)

A problem with (overprotecting) family privacy is that privacy can keep histories of abuse hidden from public view, as Fineman notes:

the idea of family privacy has been severely criticized by feminists, children’s rights proponents, and others concerned with the potential for physical, emotional, or psychological abuse of some family members by others. Family privacy has been charged with obscuring and fostering inequality and exploitation.

Of concern for her, too, is that family privacy has historically “applie[d] primarily to family units that conform to ideological conventions about appropriate form and function—intact nuclear families.” Single mothers and other so-called “non-traditional” family units have been excluded from its protections.

To resolve these issues—to gain the proctions privacy offers while reducing its dangers—Fineman suggests “that we can and should rethink privacy in such a way as to confer autonomy on caretaking or dependency units” rather than on the form of the “traditional” nuclear family. It would also, she argues, need to be “anchored firmly within society, subsidized, and supported by market and state, but retaining authority within its parameters.”

She goes on to discuss how to deal with problems feminist scholars have had with familial privacy and hiding or encouraging the exploitation and abuse of women and children, but argues that a reconfiguration of privacy along functional lines—and integration with society in certain aspects—would help overcome this.

A concept of individual privacy, particularly in regard to the formation of intimate connections can complement family pri- vacy, but some protection that transcends the interests of individual members of the entity is essential. When a caretaking-dependent unit has formed, family privacy would serve to shield and protect the functioning relationships within it. The protection would dissolve only if the entity grossly fails in the performance of its responsibilities or if the underlying relationship is itself dissolved.

In concluding her reimagined version of privacy, she argues:

Properly conceived, privacy as a principle of self government allows the caretaker-dependent unit to flourish, supported and subsidized by the larger society without the imposition of conformity.

She also notes that this is an ongoing process, not a static one, and that it requires thinking about resources society ought to provide to families as well as “how porous the family will be and how much autonomy it should be ceded.”