Households in and out of the Law
As we have seen, household commerce presents the law with even greater challenges than do the complex issues raised by coupling and relations of care. Why is that? Household economic relations involve an intricate mix of intimacy and economic activity. They interweave long-term commitment, continuous demands of coordination and reciprocity, relations to kin, friends, and others outside the household. They impose shared vulnerability to the failures, mistakes, and malfeasance of other household members. These multiple concerns surface in the routine management of household finances, in both major and ordinary domestic purchases, and in negotiations over household work. When households get into financial trouble or break up, economic interactions of family members add yet another layer of complexity: kin help the unemployed, and financial roles often reverse, with children, for instance, now supporting their parents. Intimacy and economic activity continue to intersect, but they take on new configurations.
The law faces two difficulties in dealing with this formidable set of household transactions. First, it lacks sufficiently subtle templates to represent the multiple relations and transactions that occur in households. Second, legal templates operate on different principles, relying on a distinct set of procedures and distinctions when household members bring their economic disputes to court. Transactions among household members, for example, vary enormously in meaning and consequences, from the coins a mother gives her child to buy an ice cream bar to the money parents later commit to the same child’s college education. But for most purposes the law compresses monetary transfers among household members into just three categories: gifts, bargained exchanges, and thefts (Baron 1988-89; Rose 1992). Furthermore, while household members and their kin put great energy into distinguishing different relations from each other, legal proceedings commonly lump relations together by setting: an arena of legally enforceable contracts, and another arena in which commitments, although operating on moral principles, have no claims to legal enforcement.
From a nonlegal viewpoint, some of these distinctions look strange. The law regularly treats transactions that would qualify as contracts outside of households—for example, performance of housework—as gifts. The gift-bargain distinction also cuts the other way, however; in high-stakes divorce settlements and compensation for wrongful death, as we have seen, courts frequently start counting up unpaid contributions to household welfare as if they resembled wage work. The law continues to distinguish between a “gratuitous” and a “commercial” sphere, but it draws the line differently from that prevailing in everyday practice.
The imposition of such a distinction tilts the angle of reflection as household practices appear in their legal mirrors. Most obviously, children play prominent, influential parts in household life, but child-child and child-adult relations rarely figure in legal contests. To be sure, people go to court over claims concerning child custody, child abuse, paternity, and occasionally even a child’s education. But for the most part, courts place children on the gratuitous side of the legal boundary, declining to intervene in what they define as family matters. The distinctions make a difference. Recall that courts generally refuse to enforce a child’s claim on financial support for a college education, yet a few states make a dramatic exception in the case of divorce. Then the obligation of one or both parents to pay for college can become an enforceable contract. More generally, in the legal world divorce moves many a relation from the gratuitous to the commercial sphere. Similar adjustments of the boundary often occur in the legal treatment of inheritance. Contestation over the legal rights of same-sex households pivots on just such distinctions: on which side of the line between gratuity and commerce do relations within those households belong? When same-sex couples with children break up, does one of the adults have a right to alimony? To child support? To recovery of household assets?
In these ways and more, contests and decisions in the legal arena shape household life. Influence obviously runs in the other direction as well: lawyers, judges, and juries deploy their own knowledge of changing household structure and practices as they make binding decisions. Cohabitation, divorce, and separation become more common, and present new problems to the law. More women go into wage work, and courts have no choice but to notice the changing division of household labor that results from women’s employment. Shifts in caring, coupling, and household practices all eventually affect the law, its interpretation, and its application to concrete cases.
In the law or outside, households absorb some of the most intense relational work that people ever carry on. That work intertwines intimacy and economic activity so closely that one often becomes indistinguishable from the other. Household members feed each other, contribute their labor to the household’s collective enterprises, and transfer goods, services, and assets as a matter of course. While conducting the household as an intimate economic enterprise, adults and children pursue two activities we have observed repeatedly in our exploration of coupling, caring, and household life: marking boundaries among different relations that transect the household, and within each boundary matching media and transactions to each relation’s distinctive meaning. In their own versions of household intervention, courts do the same. Doctrines of hostile worlds, separate spheres, and nothing-but, we see once more, fall lamentably short of catching the intimate complexity of household interactions.