Regulation Of Family And Gender Research Paper

Feminists have been one of the most vocal groups criticizing government policies on the family, but the relationship between parents, children, and the state has been one of the most hotly debated issues of the twentieth century, as important as the more common touchstone of individualism vs. collectivism. Gender, understood as a fundamental organizing principle in society (Scott 1988), is crucial to the analysis of the relationship between the state and the family. The concept of ‘gendered divisions,’ particularly in respect of resources, labor, and investments, is key to understanding the development and impact of the public policies and family law that regulate the family.

1. Ideas About The Nature Of State Regulation And The Family

The debate about state regulation, the family, and gender in the last quarter of the twentieth century has revolved around the extent to which states have propped up a particular family form, but the positions taken are complicated and do not follow a simple political division between Left and Right.

Feminists have argued that for governments, family policy all too often meant ways of bolstering the traditional two-parent family, with a male breadwinner and an economically dependent female carer, and that policies rarely impacted on different family members in the same way. For example, in the 1970s, Scandinavian feminist writers proposed that the modern welfare state amounted to a new form of ‘public patriarchy,’ the argument being that the dramatic increase in women’s employment, which began in Sweden and Denmark in the 1970s, involved for the most part women leaving their homes to engage in similar caring work, often for children, in the service of the state. In the UK, Wilson (1977) suggested that the postwar welfare state amounted to nothing less than the state organization of domestic life, by which she meant that state policies, for example in respect of cash benefit entitlements, sought to reinforce the male breadwinner family model. A few years later, a similar kind of criticism was made from an entirely different quarter.

Arguing from a 1980s New Right position, Mount (1982) suggested that the family had been in ‘permanent revolution’ against the unwarranted intrusions of the state. In his view, even apparently helpful public visitors, such as home nurses, were essentially seeking to impose standardized modes of care on families and were able to invoke a wide range of powers if they deemed the family to have ‘failed’ in some respect. Mount’s view keyed into the long-standing suspicions of working people, especially in the English-speaking countries, of officialdom. However, this does not mean that nonintrusive, nonstigmatizing state intervention has not been welcomed. The panoply of Swedish collective social provision has been referred to by the citizens of that country as ‘the people’s home.’

The idea that state officials practice some kind of surveillance over the family also found favor with followers of Foucault, although Donzelot (1979) stressed the extent to which the professionals in emerging welfare states formed alliances with women in order to do so. In her history of domestic violence, Gordon (1990) also stressed the extent to which social workers had sided with the weaker family members against the more powerful, thus questioning the extent to which state regulation worked to reinforce traditional power relationships within the family. Indeed, most feminists, while criticizing the kinds of assumptions about the family inherent in social policies, have also looked to the state to work for gender justice (Okin 1989). Few have followed Elshtain (1981) in defending the family as a separate, private sphere, outside the reach of the state.

In recent years the very different idea that the state has played a part in deregulating family life has gained in strength. The argument is that rather than working to uphold traditional family patterns, the state has effectively underpinned a trend towards individualistic behavior that is essentially selfish. This view has been formulated in the context of the dramatic postwar statistics on family change. Marriage rates have fallen in most Western countries; people are marrying later; fertility rates (especially in some Western European countries) have fallen well below replacement rates; divorce rates have increased since the 1970s and remain high and stable in Northern Europe and the US; rates of extramarital childbearing have increased; and behind these changes lies the huge increase in cohabitation. In addition, all Western states have seen an increase in women’s employment, albeit predominantly part-time in many countries. These changes in behavior appear to signal greater sexual and economic autonomy on the part of women and, in the view of some, more irresponsible behavior on the part of men. Together with a shift in attitudes towards individualism, which has been documented for a large number of Western countries (Ingle hart 1997), the changes in behavior have been widely interpreted as signaling that men and women are less prepared to commit to, and to invest in, family life.

The optimism of academics in the 1960s and early 1970s about the fundamental stability of the traditional two-parent family has given way to profound pessimism at the end of the twentieth century. Bellah et al.’s (1985, p.85) influential study of middle America concluded that ‘if love and marriage are seen primarily in terms of psychological gratification, they may fail to fulfil their older social function of providing people with stable, committed relationships that tie them into the larger society.’ The causes of behavioral and attitudinal change are extremely complex, but the fear of many commentators is that both public policy and family law have encouraged rather than countered them.

In respect of public policy, Murray (1984) proved particularly influential in the English-speaking world in arguing that the provision of welfare benefits, far from sustaining the male breadwinner model family, allowed women a measure of financial autonomy and thus promoted family breakdown. In respect of family law, Glendon (1981) argued strongly that legal ties among family members in the postwar period were loosened. In particular, the move that took place in most Western countries towards the implementation of no-fault divorce in the 1960s and 1970s has been interpreted in terms of the withdrawal of government from the attempt to impose an external moral code in favor of allowing the parties to a marriage to work out their own destiny. A similar view has been taken by leading commentators in non-English speaking countries with very different legal traditions. Thus Thery (1994) has suggested that marriage has become a private choice and that marriage as an institution has become disengaged from wider social structures, the law included.

In whatever way the role of the state in regulating the family is interpreted, the solutions are far from easy to determine. Those who are suspicious of the state, whether because they feel that it has perpetuated traditional family forms and gender roles, or because they feel that these have been effectively undermined by the state, have difficulty in trusting government to do better, and in any case will demand radically different kinds of action. However, the picture of a homogenous state acting either to support or to undermine traditional family patterns is in all probability too simple. In the first place, the relationship between law and behavior is very difficult to determine. For example, Phillips’ (1988) comparative study of divorce has shown that levels of marital breakdown are not dependent on legal change, and may be high in the absence of a liberal divorce law. Nor should people’s resistance in the face of legal change be underestimated. Mount’s account of the family resisting state interference is supported by findings from comparative studies that show legal change to have less effect on family behavior than on other areas of human activity. Second, the various departments of Western liberal governments rarely act coherently. Different departments may pursue very different agendas in respect of an issue such as childcare, for example.

Indeed, it may be more helpful to think of government regulation in the area of the family as layered. In all probability, Western governments in the twentieth century have tended to be Janus-faced in regard to family policy and law. While most have had a clear idea of the (traditional, two-parent) family form they wish to promote, policies have often pulled in a different direction. Thus, for example, while most income maintenance systems have a cohabitation rule, which prohibits the payment of welfare benefits to lone mothers who have a ‘man in the house’ (in accordance with the assumptions of the male breadwinner model family), they have also served to facilitate and legitimate, if not actually cause, the formation of lone mother families (Kiernan et al. 1998). The means of regulating the family have been many and various and certainly include the huge and vexed area of birth control, abortion, and reproduction. Historically, public policy and family law have sought to impose two powerful prescriptive frameworks on the family: that of the male breadwinner model, which has had a considerable impact on the gendered division of labor, and a strict moral code, which resulted in the stigmatizing of divorce and extramarital births. These frameworks were embodied in legislation but were also internalized by ordinary men and women. Their erosion in the late twentieth century has meant that increasingly people must negotiate their own solutions.

2. Public Policy

Given that in modern societies independence derives primarily from wage-earning, the assumption that women are located mainly in the private sphere as wives and mothers, supported by breadwinning husbands, has also meant that women have only been partially individualized for the purposes of public policy making (Pateman 1989). The liberal dilemma first described by Okin (1979), whereby for the purposes of determining political citizenship ‘individual’ effectively meant ‘male head of household,’ persisted. Thus most Western states have subscribed to some degree to the idea of a male breadwinner model family and have therefore treated women as dependants of men, although this set of assumptions has been modified to very different degrees in different countries (Lewis 1993). In its pure form, the male breadwinner model assumes that married women will not engage in paid work but will rather undertake the work of caring for children and other dependants at home without the support of collectively provided services, and that they will be subservient to their husbands for the purposes of social security entitlements and tax. In reality, such a model never existed; working class women have always gone out to work as and when the family economy demanded it. However, the model matched the social reality of middle class women fairly closely at the turn of the century. For the late nineteenth century social theorist Herbert Spencer, society was ‘progressing’ towards a position whereby all women would be able to stay at home in their ‘natural sphere.’

It is no coincidence that the foundations of most Western European and Australasian welfare states were also laid down at the turn of the century, when the ideology of ‘separate spheres’ for men and women was at its height. Skocpol (1992) has argued that the core program of modern welfare states—social insurance against sickness and unemployment—is fundamentally ‘paternalist.’ The program sought to protect the full-time, respectable male worker. Women were rarely covered as workers in their own right and were usually eligible for benefits only as the wives of male employees, the justification being a division of labor that was perceived to follow ‘naturally’ from their capacity for motherhood. Women have thus tended to make (smaller) contributions and draw (smaller) benefits via their husbands. Furthermore, in welfare regimes such as that of the US and early and mid-twentieth century Britain, where the social security systems developed dual social insurance and social assistance benefits, this provision was gendered, with first class (insurance) benefits going mainly to men as workers, and second class (assistance) benefits, such as aid to families with dependent children in the US, to women, usually in their capacity as mothers.

Nevertheless the male breadwinner logic that informed most early twentieth century social protection was broadly accepted, not just by men and by policy makers who regarded the responsibility for dependants as a guarantor of male work incentives, but by women themselves. In the context of hard household labor and frequent pregnancy the male breadwinner model was a shared ideal. This changed in the postwar period as fertility rates fell and housework became less onerous. Assumptions regarding the existence of a male breadwinner model were eroded to different degrees in different countries, but the assumptions informing public policy usually lagged behind behavioral change. In France, because of the very different occupational structure (of family farms and firms), women tended to gain entitlements both as wives and mothers on the one hand, and as paid workers on the other.

Given the additional importance of pronatalism in France, the former tended to be more generous, but abundant public child care provision made possible a long tradition of full-time work for women. The Scandinavian countries moved furthest away from the male breadwinner logic in terms of public policy provision, deliberately pulling women into paid employment from the 1970s by the introduction of separate taxation and parental leaves and by increasing child care provision, to the point where the dual-breadwinner family became the norm. The contrast with Britain and Germany is striking. The latter has no independent taxation, which works against female employment when there are high marginal rates of tax, and a strong social insurance welfare system, in which women’s eligibility remains tied to that of their husbands. Until very recently neither country made a significant commitment to collectively provided care services. In Germany female labor market participation rates have been low in the postwar period, while British women have tended to work short, part-time hours. In the US, where collective provision for able bodied adults did not develop beyond assistance benefits for lone mothers, state policy has played little part in determining how male and female members of the household decide the division of paid and unpaid work. However, the absence of explicit policies does not mean the absence of a regulatory framework. The policy logic operates to constrain choices: adult women who are also mothers must depend on either men or on their own efforts in the labor market.

Policies towards lone mothers provide a particularly striking illustration of the extent to which public policy frameworks do have an impact on behavior. In the context of assumptions regarding the traditional two-parent family, the problem of lone motherhood becomes that of women with children and without men. In the absence of a male breadwinner, the state has to decide to what extent and under what conditions it will step in to fill the place of the missing husband; how far it will exert pressure on an able-bodied absent father to support his child and possibly its mother; and how far it will expect the lone mother to support the child by herself becoming a breadwinner. Policies in respect of each of these have varied enormously between countries and over time. But broadly speaking there has been a pendulum effect.

In the nineteenth century, lone mothers were treated as workers and were expected to support as many children as they could; by the mid-twentieth century they were more likely to be treated as mothers and permitted to draw benefits for as long as they had children under a particular age, and by the end of the century policy in most Western countries has veered again towards treating them as workers, although only in the US has the right to draw benefit been removed.

3. Family Law

The family has been seen both as bedrock and yet as fragile. Historically, the stability of marriage and the family has been seen as fundamental to the stability of the polis. Sociologists have suggested that marriage has moved from institution to relationship. In fact it remains both, but the regulation of the institution in accordance with an externally prescribed moral code has been substantially eroded. In the last quarter of the twentieth century Western states have largely ceased to regulate the role of men and women as husbands and wives. In respect of family law, the attention of the state has turned to regulating their roles as fathers and mothers.

Whereas the erosion of the male breadwinner model lagged behind social change, many would argue that changes in family law have run ahead of the social reality, certainly in terms of mentalities if not behavior. The reasons for abandoning the attempt to impose a strict moral code have been attributed to changing moral beliefs with an increased tolerance for pluralism, the rise of a psychological view of personal affairs, and the increased emphasis on individual rights. Nevertheless, most of those campaigning for reform of the divorce laws in the 1960s were convinced that they were proposing a higher form of morality that would be based on love and that would come from within, rather than being imposed from outside. The removal of fault from divorce law made it impossible to allocate blame and then, as a matter of course, to award long-term financial support to ‘innocent’ female spouses. Reform of family law meant that the state ceased to regulate the dissolution of marriage and concentrated on adjustment between the parties. Under a no-fault regime, a marriage without children is effectively terminable at will. The import of the process of liberalization has been to let men and women as husbands and wives order their own affairs, in other words to assume the existence of a degree of individualization, while also putting in place measures that seek to regulate them as fathers and mothers. The problem is that it has been difficult to make a neat separation between these two sets of roles, not least because of the need of children for caretakers and the tendency for women to perform more of this unpaid work.

The idea that divorcing couples should be treated in exactly the same way, thereby ignoring the different nature of their contributions to the marriage and the inequalities resulting from women’s greater investment in childbearing and childrearing, followed the introduction of no-fault divorce. By the 1980s, in the English-speaking countries, the presumption of female dependence had been replaced in family law by the equally problematic assumption that husbands and wives were equal members of a partnership. This ignored the substantive inequalities which meant both that the view of the more powerful party as to the desirability of continuing the relationship might prevail, and that the outcomes for the economically weaker partner were likely to be poor. As academic research sounded the alarm about the latter (Weitzman 1985), and about the effects of divorce on children (Wallerstein and Kelly 1980), so the state made greater efforts to regulate the roles of men and women as fathers and mothers, focusing particularly on fathers.

In the face of rapid family change, the growing numbers of lone mother families and the resulting rise in the burden on public expenditure, governments sought to enforce the responsibility of men for their biological children. In the US, Australia, and the UK in the 1980s and 1990s new child support legislation was passed to this effect. Continental European countries had a much longer history of efforts to secure maintenance from absent fathers. A government-appointed commission in the UK examined these in the early 1970s, but rejected them as too intrusive, which indicates how far opinion moved in the last quarter of the century. If husbands and wives were to be left alone, parents were not. Fathers were also increasingly expected to have contact with their children, in part because the psychological evidence showed this was important for children, in part because policy analysis showed that fathers who maintained contact were also more likely to pay for their children, and in part as a response to fathers’ rights campaigners.

However, it has not been easy to deal with children separately from their carers. No-fault divorce removed the link between the grounds for divorce and maintenance without substituting any alternative principle to justify the latter. The relaxation of the divorce law took place in Western liberal democracies which felt that it was neither possible nor desirable to regulate the marriage system such that men’s right to remarry and further reproduce was curtailed. This made it difficult to enforce the responsibilities of men in relation to their biological children, and by extension, those children’s carers.

4. Future Prospects

The assumptions lying behind traditional marriage constructed husbands and wives as equal-but-different partners, something public policy accepted when it assumed the existence of the male breadwinner model family. In so doing, it constructed women as dependants and ran the risk of failing to recognize either the nature of their contribution as both paid and unpaid workers or the entitlements that were their due. Family law, on the other hand, moved towards a construction of marriage as a partnership of formal equals after the 1960s, which ran the risk of ignoring the substantive inequalities between men and women. Thus the problems of the relationship between the state and the family in regard to gender hinge on the larger problem of equality and difference.

Faced with family change that has been both dramatic and rapid in the last quarter of the twentieth century, Western governments have two basic options: to recognize the social reality and work with it or to seek to put the clock back. Just as it is possible to see the state acting both to bolster the traditional family and to transform it, so it is possible to identify ways in which the state is recognizing and resisting change. To move towards an emphasis on the responsibilities of men and women as parents is to recognize the changes that have taken place in the marriage system, but as Smart and Neale (1999) have argued, at the same time public policy and family law have attempted to perpetuate the traditional responsibilities of men for maintenance and women for care beyond the life of their intimate relationships.

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