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\\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 123-SEP-109:47 JANET HALLEY & KERRY RITTICH*NTRODUCTIONTOTHESSUEON by Friedrich Carl von Savigny and carried around the world as *Janet Halley, Royall Professor of Law, Harvard Law School. Kerry Rittich,†DOI 10.5131/ajcl.2010.0001. \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 223-SEP-109:47 THEAMERICANJOURNALOFCOMPARATIVELAW[Vol.58main—as exceptional—and for a wide variety of reasons: they are be different because of the unique, special, cru- possible. to bring back together the \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 323-SEP-109:47 CRITICALDIRECTIONSINCOMPARATIVEFAMILYLAWteach it differently if we embedded it in legal domains—such as socialsecurity systems and contracts—from which it is typically divided or Such work also risks un- Rather thanstructure, character, and preoccupations. We think we have one—notthe only, but a good—method for avoiding these pitfalls. Part II turnsFLE—indeed, the emergence of —in colonial settings andI.FROMTHEAMILYTOTHEAWAND This 1.We thus continue the critique set forth in Duncan Kennedy, OMPANIONTO (forthcoming 2010).2.Wolfram M¨ and \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 423-SEP-109:47 THEAMERICANJOURNALOFCOMPARATIVELAW[Vol.58 This predicateLife at home was once lived in a household—an explicitly eco- there; thread was spun andvant—formerly adjunct to the law of husband and wife and the law ofparent and child—gradually dissolved. Slavery and indentured servi- 31, 32 (2003). M¨ W. F & T A.J. MASEBOOKONtion from the law of property and contract—the law of obligations in civilian terms— Janet Hal- J. & H Max Rheinstein, CLOPEDIAOFERSONSAND 3 (1973) (“The family isNCYCLOPEDIAOFERSONSAND \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 523-SEP-109:47 CRITICALDIRECTIONSINCOMPARATIVEFAMILYLAW were transmuted and reframed within the law of contract.term for the legal relationships founding and governing the family——took hold. Savigny was expressly Family LawContract Law Family Law as the Domain of StatusContract Law as the Domain of Will Family Law as Universal in the SenseContract Law as Particular in the Sensethat it is Fundamental Everywherethat Every Contract is Unique Family Law as Particular in the SenseContract Law as Universal in the Sensethat Each Nation’s Family Law Expressesthat it is the Same Everywhere in a new sense of the term. It 4.AISTORYANDRIGINSOFTHE & FAWOFTHE (2005).5.For a brief discussion, see Rheinstein, note 3, at 2.6.Duncan Kennedy, ARLVONYSTEMOFTHE \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 623-SEP-109:47 THEAMERICANJOURNALOFCOMPARATIVELAW[Vol.58aptation of the Savignian pattern—the law of family versus the lawof contract—to a world in which the former housed a nuclear affective By the early twentieth century, moreover, theideology of the “social”—exemplified in this collection by Isabel Sierra—bestowed its cul- of The family would do for members of society everything that the economic family in Attic Greek—theetymological root of our word “economy”—referred to the household, When we designate our economic family we are attempting to undo this fissure—to 7.A classic theoretical resource for the study of the family/market distinction as8.Isabel Jaramillo, 9.MECTURESATTHELEGEDE Halley, supra \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 723-SEP-109:47 CRITICALDIRECTIONSINCOMPARATIVEFAMILYLAW But we think that the story of supercession—the ideasition to its nuclear, bourgeois, affective form—is an ideological effect—one that is almost uncannily similar to the definition report—we consider a “household” to be a human as- Wallerstein and Smith helpfully add Their claim that every member contributes income makes 11.Rheinstein, note 3, at 1-2.12.Immanuel Wallerstein & Joan Smith, REATINGANDONSTRAINTSOF13.WQUALITYIN15.Wallerstein & Smith, \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 823-SEP-109:47 THEAMERICANJOURNALOFCOMPARATIVELAW[Vol.58ultimately arbitrary—does it include the grandfather who occasion-continuous with the market economy—including the informal econ-—in which it is inextricably embedded and with which it Here, we are particu- divorce influence divorce. The answerforseeability of litigation outcomes, and the like—all of these sub in 16.Chantal Thomas, 17.Bina Agarwal, 1(1997); Amartya K. Sen, OMENAND 123 (Irene18.Olsen, note 7; Mary Joe Frug, A Postmodern Feminist Legal ManifestoENDERANDTIONIN & L. 357 (2007).19.Lewis Kornhauser & Robert Mnookin, L. J. 954 (1979). \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 923-SEP-109:47 CRITICALDIRECTIONSINCOMPARATIVEFAMILYLAWas well) affect large outcomes—marriage or divorce; deciding howlence or deciding to escape it —and small ones, like who will take outThe move we just made—from the law of divorce proper to the that give divorce negotiations much of their mean-ing—is borrowed from another classic, Robert Hale’s “Coercion and Very early in our economists to fully explain the laborer’s wage, but HaleFamily Law 1—FL1—is what you will find in a modern familycommitment to maintaining the distinctiveness of the family—re- 20.Robert Hale, \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 1023-SEP-109:47 THEAMERICANJOURNALOFCOMPARATIVELAW[Vol.58ground would then be Family Law 3—FL3—the myriad legal regimes is a live question forus—as it has been for comparatists and legal anthropologists at vari-—we have no doubt that these norms belong somewhere family law (it’s not FL1); neverthe-turn in welfare law—a development widely endorsed, indeed pro- with the much more(TANF), and even visible in the increasingly popular “conditional” Rheinstein, note 3, at 6.22.Organisation for Economic Cooperation and Development, – Evidence and Explanations. Part I: Labour Market Trends and Underlying Forces of (1994).23.Social Security Act of 1935, tit. IV, ch. 531, §§401–406, 49 Stat. 620, 627 (re-§§601–617 (2006)).24.Temporary Aid to Needy Families (TANF) is part of the Personal Responsibil-§§101–116, 110 Stat. 2105, 2110–13 (1996) (codified at 42 U.S.C. §§601–617 (2006)).A key element of TANF is a lifetime limit of five years or sixty months on the amount§§601-617 (2006). \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 1123-SEP-109:47 CRITICALDIRECTIONSINCOMPARATIVEFAMILYLAW—creates perva- through social trans-There is a lot of FL2—and FL3 and FL4 are theoretically limit- Contract LawSpousal duty to pay third-party suppliers of Alienability (or not) of personal or joint propertyto non-family membersProperty LawInalienability of real property via tenancy by theentirety Right/no-right to paid or unpaid dependent-careEmployment/Labor Lawleave Pension LawSurvivors’ entitlements Welfare lawdepend on total household income versus Joint filing and all its related rulesTax lawInheritance tax Citizenship and Immigration LawFamily reunification rights/no-rights of citizens 25.Maxine Molyneux, 26.Wesley Newcomb Hohfeld, L.J. 28 (1913). \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 1223-SEP-109:47 THEAMERICANJOURNALOFCOMPARATIVELAW[Vol.58 goes a considerable way toward goes counsels, they are unenforceable in FL1 until there is a di-vorce, and then an entirely separate body of law—property divisionand alimony at the time of divorce—applies! (It is only in —Trusts and Estates—that separate/joint property rules stillgether”—undoing the establishment of family law exceptionalism— 27.McGuire v. McGuire, 59 N.W.2d 336 (1953). McGuire is the classic casebook or an outright dissolution. \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 1323-SEP-109:47 CRITICALDIRECTIONSINCOMPARATIVEFAMILYLAW idea. We see itfamilies and households—and point us in the direction of FL2 and Growing interest in the effectsand regulatory initiatives—property rights reforms that aim to in-norms of “good governance,” for example—are transforming the fam- Noticing these 28.Kerry Rittich, 29.Kerry Rittich, 88 N.C. L. R \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 1423-SEP-109:47 THEAMERICANJOURNALOFCOMPARATIVELAW[Vol.58 the market. are made constantly in households and can be understood as 4. Is the provi-endured, or are there options—think assisted reproduction or trans-national adoption, for example—that subject decisions about familyfers it requires non-state entities to make—all of these elements ofhouseholds and between them and their worlds—the more so if they households depend on varioustional analysis of family law—encompassing FL1, FL2, and FL3——isolating FL1 rules and comparing themfrom two or several states—merely replicates inside an artificially 30.Ronald Coase, 4 E 386 (1937).31.We could also ask how intimacy, altruism, moral life, affect, and duty organize G¨ L.J. 457 (1985). \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 1523-SEP-109:47 CRITICALDIRECTIONSINCOMPARATIVEFAMILYLAW Nor were—for that is what The confluence and conflicts of interestsamong men and women are myriad, evolving, and—inasmuch as thevery life of sexy unmarried virgin women is at stake—highly anxious. 33.Fernanda Nicola, 34.Lama Abu Odeh, 35.Hila Shamir, \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 1623-SEP-109:47 THEAMERICANJOURNALOFCOMPARATIVELAW[Vol.58 His or her situation cannot be Unlike Shamir’s comparative legal study, Thomas’s work fo- legal regimes as those regimes are implemented domes-A project of critical-realist comparison emerges here—a method for as the relevant institution, and note 37.Thomas, 38.B (2005); D. M H. WAWINTHEROBLEMSINOMPARATIVEAND (2003); I \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 1723-SEP-109:47 CRITICALDIRECTIONSINCOMPARATIVEFAMILYLAWthink of the nanny—whether she lives in or out; whether her respon-sibilities extend beyond child care or not—to be the paradigmatictransaction. She is a member, then, of two households—one rela-tively rich, one relatively poor—at the same time as she is, in fact and These two households and their law exis-tence. Hire or become a nanny—join up with a family law systemthorough account of distributive consequences—if such were possi-ble—would thus require comparisons between formal labor and its 39.NNEOFTHE (Abigail B. Bakan & Daiva Stasiulus eds., 1997). \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 1823-SEP-109:47 THEAMERICANJOURNALOFCOMPARATIVELAW[Vol.58 Debates about family law harmonization within thedistinction. And so, as Tsoukala reveals—devastatingly, in ourview—it omits from consideration the consequences of harmonizationdivorce and attenuated alimony obligations are the better law—andequally—and if they are adopted for Europe as a whole, they willmarital property rules. Big FL2 and 3 systems—at the very least,employment and government welfare provision—must be taken into in our ability to articulate the role that And even on the descriptive register, we do notreference to family—these are all important analytic projects, ones 40.Philomila Tsoukala, 41.W note 13. \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 1923-SEP-109:47 CRITICALDIRECTIONSINCOMPARATIVEFAMILYLAWII.GENEALOGIESOFTHEAMILYINIf family law did not always exist—if, as we believe, it was in-vented—what role did its invention play in the process ofprocess—as intrinsic to the rise of capitalism and the formation ofTaiwan—always differently, at different times, with different legaland political inputs—marks the reception—implicit or explicit,wholesale or in fragments, sometimes the wholesale rejection—ofFamily Law (a German legal idea), it was transformed—modern-ized—by being thus segregated and integrated as a new, distinct 42.For a short statement consistent with this idea, see Rheinstein, \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 2023-SEP-109:47 THEAMERICANJOURNALOFCOMPARATIVELAW[Vol.58The standard narrative—in which local powers entered into theLaw as their most sacred ground—seems again and again to be a lit- This story and others which complement it, showingactivity—all the while leaving a residual body of Islamic rules of mar- “family law.”together—and to do so wherever possible by paying equal attention toremnant of the traditional religious life of the people—whether theing, regulating, and/or prohibiting them—FLE became a pivot upon 43.Tsoukala, note 40.44.For this term, see TNVENTIONOF (Eric Hobsbawm & Terence45.Works in progress that complement Tsoukala’s account include Sylvia (on file with the authors) and46.Lama Abu Odeh, L. 1043 (2004). \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 2123-SEP-109:47 CRITICALDIRECTIONSINCOMPARATIVEFAMILYLAW was onemodernizing—would lay them open to charges that they were West- And Abu Odeh’s contribution to this volume lucidly dem- (Note that both of these articles show-paradoxes produced by the basic fact that FLE in East Asia—specifi-nineteenth and early twentieth centuries—sometimes pivoted not on but the Shift- 47.Halley, note 2.48.Kang’ara, supra 49.Abu-Odeh, 50.Chen, \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 2223-SEP-109:47 THEAMERICANJOURNALOFCOMPARATIVELAW[Vol.58ing from the politics of recognition—the typical vocabulary forevaluating the conflict between indigenous and imported law—to dis-bates over EU accession of Turkey—turning as they do on thealien family law—suggest that Turkey’s failure may be performed in Her Latin was not the same everywhere. When, as Judith 51.For a specific argument that the politics of recognition are not the only rele-ARRIAGEINOSTIN (2010).52.Tsoukala, note 40; Jaramillo, note 8. \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 2323-SEP-109:47 CRITICALDIRECTIONSINCOMPARATIVEFAMILYLAW—buttle to make global commerce governable and profitable—it just kept 53.Judith Surkis, NTIMACYANDNDECENCYINRANCEANDde modifier et de completer la loi du 26 juillet 1873, sur l’´tion de la propri´et´e en Alg´erie: Rapport `commission par M. Bourlier,” in Estoublon and Lef´ebure, Code de l’Alg´ \\server05\productn\C\COM\58-4\COM402.txtunknownSeq: 2423-SEP-109:47 THEAMERICANJOURNALOFCOMPARATIVELAW[Vol.58