Abstract
Lawrence Friedman is formally a legal scholar. However, this work offers insight into the sociological significance of family law and family life and the intricate relationship of the two. Friedman's work offers a guide to family law and family life similar to that of Mary Ann Glendon (1989, The Transformation of Family Law) in addition to adding significantly to her notion of “dejuridification.” Both Friedman and Glendon note that state control over private life has drastically diminished in the twentieth century. This is particularly important when a child can have five legitimate parents with the aid of technological advances. Legislation concerning privacy and choice becomes issues for parents, adoptive parents, surrogate mothers and fathers, children, and others for sociological inquiry. The goal of this book is to trace the evolution of the legal supremacy of the individual over the claims of his or her family.
The privileging of the individual is a relatively new phenomenon that has been adapted and adopted by law after law in industrialized nations around the world in a comparatively short amount of time. Friedman summarizes the changes as ‘the voyage of the family from status to contract, from rigidity to flexibility, from compulsion to choice’ (179) with respect to the transforming character of family law.
While concerned with the written law, Friedman is also concerned with the interpretations as well as law's effects on society at large. The book analyzes two centuries of court decisions in addition to providing excellent reviews of the laws for the uninitiated, as well as documentation of the ‘living law’ practiced by individuals. One of the more interesting notions in the book is that legislation tends to follow the ‘living law.’ As people find ways of practicing their lives, the law tends to find ways of negotiating those practices within the boundaries of the law as long as they do no significant harm to anyone.
The book is divided into four parts: the first is an analysis of marriage and divorce law and life in the nineteenth century; the second describes marriage and divorce in the modern world and how it has changed; the third discusses children's changing relationship with the law (adoption, custody, etc.); and finally, the fourth section argues that the changes in law and family life are due to changes in the notions of privacy and the acceptance of issues of privacy and individual choice. In this section, Friedman explores the expansion of legal individualism and individual choice, noting how new this orientation in family law is, and how fervently the courts have been employing it in recent history.
Friedman is critical to this development with regard to family life, because individual choices collide with one another. If one person chooses to remain in a marriage, but the other chooses to divorce, someone's choice has to be honored. ‘Modern divorce law resolves this conflict by giving higher priority to the spouse who wants to go’ (78). In the modern age when choices collide and conflict with one another someone has to distinguish whose choice is to be honored and whose is to be forgone. Friedman says that in modern law, one group of individuals determines this issue: judges.
The beneficiaries of these changes in choice and privacy have not changed much in centuries. However, the extent to which they benefit has changed. White middle-upper class men still benefit the most, however, Friedman remarks on the drastic changes that have taken place in private lives that ensure the protection of many more groups of people. Friedman remarks that women have likely made the least progress toward equality in the family. Although changes have been made that move in the direction of equality, this ideal is still far from realization in American family law and family life.
The end of the book takes a theoretical look at the issue of privacy and the complexities it produces for legislation and its interpretation. This approach is simultaneously based in sociological, psychological, and legal theory. He weaves the three throughout the section and offers a very innovative assessment of our contemporary moment. He attributes much of the change to technological advances and the media. While many loathe invasions into their own privacy, they worship their right to invade the privacy of others. Courts have to define rights between the public's right to know and the individual's right to privacy. Thus, judiciary decisions are made to lessen the effects of clashing individual choices.
I think that although Friedman attempts to link privacy to the family at the end of the book, his examples are predominantly outside of family law and discuss issues of libel, slander, and the freedom of the press for the individual, having nothing necessarily to do with the family. While he states that the family is a private world in which the state cannot intrude in addition to being one primary locus for sexual activity and reproduction, he makes little attempt in the final chapter to adequately discuss this with respect to the changing character of privacy in this country and others. He seems to give this final section less family case examples than previous ones. While families are still individual units, they are now also units of individuals, each with his or her own rights with respect to the other members.
This book would be of value to those who study the family from an historical perspective, those who are interested in the relationship between the family and public policy, and those who are interested in family law. It would be appropriate for graduate and undergraduate courses such as Sociology of Law, Sociology of the Family, Law and Public Policy, and possibly some Media Studies courses as well.