This book argues that insufficient recognition of new families is a legal problem that needs fixing in light of recent evolutions in family patterns and normative conceptions of 'family'. People increasingly invest in relationships falling outside the model of the marital family, such as non-conjugal unions of friends or relatives, polyamorous relationships and various religious-based families. Despite this, Western jurisdictions retain the marital family as the relevant basis for allocating family law benefits, rights and obligations.
Part I of the book illustrates recent evolutions in family patterns and norms, and explores how law can accommodate multiple family grids without legal recognition involving normalisation. Part II focuses on courtroom litigation on the basis that courts nowadays are central avenues of social change. It takes non-conjugal families as a case study and provides an analysis of the most compelling argumentative strategies that non-conjugal families can mobilise to pursue legal recognition in Canada and the United States, and within the systems of the European Convention of Human Rights and the European Union.
Through its comparative, interdisciplinary and critical legal method, the book provides scholars, activists and policymakers with conceptual tools to tackle the current invisibility of new families. Further, by advancing legal arguments to enhance the protection of non-conjugal families in courtrooms, the book illuminates the different approaches jurisdictions are likely to take and the hindrances thereof to overcome and debunk stereotypes associated with proper familyhood.
Nausica Palazzo is a teaching assistant at the Faculty of Law of the University of Trento.
From Chapter 1: New Families (pagg. 5-6)
All family unions outside of the dominant model expose the cracks of a seemingly coherent system of ordering. They are subversive to a pre-arranged and state-approved way of being family. Put in simpler terms, they are too queer to be accepted, let alone promoted. Queer knowledge is disruptive knowledge as it exposes the fissures and biases of a given system – be it political, social, economic or moral – through individual experience that deviates from ‘traditional’ steps. The state’s insistence on ‘proper’ familyhood is in the end a means of ordering society and a form of subjugation of deviant experiences that need fixing.
Family law is central to this governmental project, which Foucault popularly labelled ‘biopolitics’. The term stands for the authoritative appropriation of lives and bodies by modern states and a concomitant covering them through technologies of regulation. I will advance an argument that modern states’ biopolitical aims are at the core of the so-called non-verbalised functions of family law. Such functions cannot be verbalized to the extent that they are reminiscent of an ancient attribute of sovereignty, ius vitae ac necis, whereby the state took control over life and death. While the juridical power associated with ancient sovereignty was tantamount to taking life or letting live, contemporary biopower consists of ‘foster[ing] life or disallow[ing] it to the point of death’ by ostracising deviant experiences.
A second perspective that I will adopt is a critical legal pluralist one. Integrating critical legal pluralism within queer theory offers the conceptual framework for the ambitious project of rethinking the approach to new families’ recognition in the West. Legal pluralism reflects the view that in any given space, there is more than one legal system. Critical legal pluralists have especially contributed to debunking various false ideas attendant to law, amongst which is the law’s centralism, monism and prescriptivism. These terms respectively refer to a belief that law can only be state law, that normative processes are unitary, and that law has nothing to do with human agency and with the aspirations of the addressees of legal norms. The chief merit of this approach is to promote the view that law is the byproduct of the desires, aspirations and motives of law users themselves. Law users, by means of such motives, desires and aspirations, are able to determine the direction law is to take.
Hence, on the one hand, the utility of queer theory is to reveal the cracks of this false success story of family and to expose the biases of a narrative that only seeks to promote a singular conception of family. On the other hand, the utility of a critical legal pluralist approach is its cogent deconstruction of the various mythologies associated with law, amongst which is the apparent expulsion of legal actors from normative processes. This integrated framework should enable us to reconceive current approaches to family regulation by radically rethinking both terms: family, which should no longer be seen as an essence but as a sum of familiar functions; and regulation, which should be synonymous with facilitating legal actors’ own jurisgenerative processes through state-made law.