Vol. 5 No. 4 (April, 1995) pp. 153-155

THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES by Martha Albertson Fineman. New York and London: Routledge, 1995. 239 pp. Cloth $59.95. Paper $16.95.

Reviewed by Leslie Friedman Goldstein (University of Delaware

Martha Fineman (currently a law professor at Columbia University) is troubled that because our society's "definition of a core, primal family unit is also a definition of deviancy," it therefore follows that, "Those configurations that cannot be analogized [to the core unit]...will not be considered `normal' families entitled to privacy and respect. They will be cast as deficient and therefore will be at risk of more direct and intrusive state regulation and control...." She offers this book as an "attempt to grapple with these issues." She suggests that we live in a time where social practice and dominant legal/political ideology are in tension with one another. "Massive structural changes" have over taken the way many people "live [their] family lives." But "our [American? Western? world- wide?--use of the unqualified "we" pervades this book] ideological understanding of the functioning and societal role of the family" has not undergone the commensurate adaptations that would help make sense of and fruitfully accommodate these changes in family life (all the above quotes come from p.6). Her concern is widespread, and, thus, commentators from Martha Fineman to Dan Quayle are exploring these issues.

After setting forth this agenda in the introductory Chapter One, Fineman proceeds in Chapter Two to defend a number of fairly non-controversial propositions about women, law, and ideology: Law as pronounced by judges (who must apply already accepted statutes or previously adopted precedents) is inherently conservative; dominant ideology is inherently conservative, in that it rationalizes the power of those interests in society that are already dominant; and women lead gendered lives and, to that extent, despite their differences have some common interests in legal and political reform.

Chapter Three then dances around the question of biological essentialism (Fineman purports to oppose essentialism at pp. 43- 44, but at 34-35 does not rule out a role for biology in shaping male/female attitudinal differences). She claims (plausibly) that, whatever the origin of gendered differences, feminist legal scholars must think of policy that will address and ameliorate the inequities women face in currently gendered society. Debating the origin of women's attitudinal differences from men does not interest Fineman; she condemns it as something that "will siphon energy needed for tasks of more immediate and practical concern for law" (p.35). This chapter also contains a brief account of the shift from "sameness" feminist legal reform in the 1970s to "difference" feminism in the 1980s. It will be no surprise to readers of other work by Fineman that she aligns with the later, calling it "post-egalitarian" feminism. She maintains, "Positions are too unequal for equality to be of use" (p.41). Her attitude toward those who aim for equal treatment of men and women in law is aptly captured by her dismissive reference to "the gender-neutral fetish of liberal legalism" (p.70).

Chapter Three in particular and the

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book as a whole ignore a pressing question for those feminist reformers (like Fineman) who insist on the need for law to adapt to women's currently gendered behavioral tendencies--namely, to what extent will adapting the law in this way further entrench gender stereotypes, thus making women more suppressed than ever? To a surprising degree, this book exhibits an obliviousness to the problem, a problem that has been much debated in the feminist jurisprudential literature.

Chapter Four chronologues briefly the history of child custody law as to divorced women and single women in the U.S.

Chapter Five, after noting the absence of scholarly evidence about the impact upon children of being raised by single mothers, produces numerous quotes to show that single motherhood is being blamed for a host of societal ills. Within this discourse, the "cure" for the problems, rather than economic and societal supports, is perceived to be getting a father into the home. This material will not be new to anyone who has paid even a little attention to the news media in the past decade. Fineman then examines depictions of divorced mothers, noting a judicial trend toward encouraging either joint custody, or under single custody attempting to maximize two-parent contact for the child. Fineman's view of this trend is that it amounts to an effort to put women back under the patriarchal control of their husbands, for reasons that she explains more fully in Chapter Six. Chapter Five then moves on to depict mainstream discourse about divorced mothers. This section is far from convincing. Fineman asserts, "There is a widely held perception that a large number of unwarranted maternal allegations of child abuse (particularly sexual abuse) by fathers have been made in the context of divorce"(p.119). For this she cites exactly one "authority" who makes such claims. Finally the chapter notes a frequent tendency among journalists to assume that single (divorced or never married) mothers are more likely to commit child abuse than married mothers, although there is no evidence to support the assumption.

Chapters Six and Nine strike me as the core of this book, and I return to them below.

Chapter Seven describes ways that the concepts of public and private are deployed in legal discourse about families. The chapter focuses particularly on the various subsidies (e.g. health and pension insurance privileges and mortgage help) offered to the supposedly self-sufficient private family and the falseness of the dichotomy between such families and those receiving AFDC benefits. Chapter Eight attacks fathers' rights discourse, the new reproductive technologies, and strict enforcement of child abuse and neglect laws against mothers -- all on the purported grounds that they exemplify "further separation of mother from child" (p.217).

Chapter Six presents Fineman's detailed argument why societal efforts to maintain approximations of two parent families by fostering contact (not only economic but also emotional) between children and the fathers who are not attached to the child's mother amount to a re-entrenchment of patriarchy. Her basic claim is that such efforts end up constraining women in their child rearing autonomy and in

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geographic and occupational mobility, but she does not acknowledge that ex-husbands or economically derelict unmarried fathers are similarly constrained -- evidently she assumes they are less constrained than women are because they care less about their children. This assumption that men care less for their children pervades the book (see, e.g., p. 155), as does another, that "the contemporary hostility between the sexes" (p.154) is, if not permanently inevitable, at least intractable for the foreseeable long run. These two assumptions underlie most of the conclusions of the book. Hence, her response to the feminist goal of co-equal parenting and non-hierarchical marital relations, is a long paraphrase of, "Don't hold your breath." These two assumptions explain her belief that, as long as the two genders stay "constructed" the way they are now (which will be a long time), policies that aim to enhance the child-parent relationship between the child and BOTH parents (when the biological father is not living with the mother) are policies that will end up putting the mother under patriarchal domination.

Instead she proposes (in Chapter Nine) a set of what she calls utopian reforms of family life. She would abolish the legal tie of marriage, make all intimate relations between consenting adults a matter of ordinary contract, tort and criminal law. She imagines that this reform would eliminate such problems as marital rape. (She suffers from a limited imagination; I can imagine that individual women might well contract their way into sado-masochistic relationships, or at least into the permanent "consent" to sexual intercourse that Anglo-American common law imagined for wives.) She would have law protect as a family only the "mother-child dyad," which phrase she wants understood as a metaphor for the caregiver-careneeder dyad. She urges adoption of this phrase as common usage, shortsightedly insisting that such usage would be nonetheless compatible with a societal aspiration that "motherhood should not be confined to women but be a societal aspiration for all members of the community" (p.235). In this "utopian re-visioning" of society, fathers would have no necessary legal tie to their children or the mother of their children. They would be free under law to live out the old "love 'em and leave 'em" playboy philosophy without the slightest legal sanction. Children (unless their mothers had successfully contracted to the contrary) would grow up without nurturing fathers, instead raised by mothers who would receive adequate social and economic support through tax dollars. The nurturing of the elderly, disabled, and pre-adult members of the community would be done by women and by those occasional men who cared to do work that went by the name "mothering." Despite the labeling of such nurturing as "mothering," people would still tell each other that all people, not just females, should do it.

If this strikes you as a desirable utopia, you might enjoy the book. If it does not, but you are curious about Martha Fineman's work, I recommend that you read instead her 1991 book, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM (Chicago: University of Chicago Press, 1991).