HEEDING CASSANDRA: THE
NEUTERED MOTHER, THE SEXUAL
FAMILY, AND OTHER TWENTIETH
CENTURY TRAGEDIES

John Vagelatos *

Cassandra, the daughter of King Priam and Queen Hecuba of Troy,
was so beautiful that in an attempt to woo her, the God Apollo granted her
the gift of vision to foresee the future. However, when she spurned his
sexual advances, he cursed her in turn, so that no one would ever believe
in her visions or heed her warnings. Consequently, although she foresaw
the fall of Troy, she was powerless to prevent it. The character of
Cassandra resounds powerfully for feminist visionaries. Cassandra was the
product of a patriarchal culture which privileged the voices of her brothers
and fathers. She benefitted from her class, but was separated by her
gender. She was granted a powerful alternative vision, but could not
convince the male power structure to acknowledge it. The royal
patriarchy's disbelief of and failure to listen to Cassandra's prophecies led
to its own destruction.

In her latest work The Neutered Mother, the Sexual Family and other
Twentieth Century Tragedies ("The Neutered Mother"), Martha Albertson
Fineman' confronts Cassandra's dilemma. She conceptualizes an
alternative vision of the family, while acknowledging the difficulty in
making people hear, understand, and heed her message. In The Neutered
Mother, Professor Fineman proposes the legal abolition of marriage and a
reconceptualization of our basic understanding of the family. Linked with
images of neutered mothers and sexual families, her theories are sure to jar
traditional sensibilities, but Fineman settles for nothing short of the
extreme. She brings to us a fresh perspective, attempting to break away
from even "core" feminist perspectives. Fineman sees the family as the key
construct by which patriarchy has continually reproduced itself. However,
she does not accept current limited conceptions of the family as an
ideological institution. She argues that our basic understanding of the
family limits both what change can be accomplished within that unit, and

* The author is currently studying for the New York State Bar and the
Massachusetts State Bar. B.A. 1992, Columbia College; J.D. 1995, Columbia
University School of Law.

Martha Albertson Fineman is the Maurice T. Moore Professor of Law at
Columbia University School of Law. She is the co-editor of At the Boundaries of Law:
Feminism and Legal Theory, and The Public Nature of Private Violence. She is also
the author of The Illusion of Equality: The Rhetoric and Reality of Divorce Reform.



Columbia Journal of Gender and Law

what feminist goals can be achieved in society. Rather than seeking to
redefine gendered relations within the construct of the family (a historical
goal of feminist legalists), and therefore be coopted by the limits of the
model, Martha Fineman unravels the institution and weaves an alternative
norm. She exposes the basic unit of the traditional model: the horizontal
sexual relationship between husband and wife. By stepping outside of the
traditional model, she is able to reveal the various threads which tightly tie
together to keep the model intact: governmental attacks on single
motherhood, the rise of father's rights discourse, and the failure of the
egalitarian family. She is also able to locate the Gordian knot: the inherent
inability of current family conceptions to adequately address dependency or
gender equality. Ultimately, however, Fineman is aware of the limits of
her power to reweave the family unit into a new fabric, and we are forced
to examine the utility of her formulations.

An examination of Fineman's work must start with her conscious
choice to target the family as an area of feminist legal study. Part I of this
Article will examine this choice, and the concept of "gendered lives" as a
theoretical framework for uniting women politically. In Part II, I will
review Fineman's conception of the traditional 'sexual family,' the nature
of dependency, the failure of current conceptions of the family, and her
proposed alternative model. In Part III, I will detail how the current attacks
on single welfare mothers are rooted in the dominant patriarchal ideology,
and how these attacks allow the government to avoid responsibility for
modern social problems. In Part IV, I will highlight Fineman's responses
to two of the most obvious critiques of her work: the absence of men in
her reformulation of the family and the viability of her reforms.

I. FEMINISTS AND THE FAMILY

As a feminist, Fineman situates her scholarship in an underexamined
aspect of the law: the family. She does acknowledge that the family has
sometimes been the focus of feminist revision, but notes that the great
majority of modern feminist legalists have located their study in other
areas. 2  She sees the dearth in this area of study as significant, and

2 "Liberal legal feminists, the most obvious potential source for an articulation of
the alternative, non-patriarchal legal discourse about Mother, seem disinterested in the
undertaking, perhaps even in the subject. Legal feminists have for the most part
centered their attention on non-family circumstances and have expressed ambivalence
about challenging concepts of family relationships except insofar as they are viewed as
hindering or assisting market and economic equality for women." Martha Albertson
Fineman, The Neutered Mother, 46 U. Miami L. Rev. 653, 660 (1992). See also

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Heeding Cassandra

detrimental because motherhood and the family are particularly powerful
focal points for women to unite and make positive changes.

Feminism as a theoretical movement, and particularly legal feminism,
has often concentrated on the issue of difference. In social and legal
systems, the debate over difference has served as a proxy for whether
differential treatment of women and men is justifiable. 3 Feminists have
also focused on whether the source of difference arises from biology or
social construction. Fineman criticizes these debates as a luxury legal
feminists do not have. Whether innately biological, or culturally
constructed, powerful differences do exist. To debate the origins of
difference "will only siphon energy needed for tasks of more immediate or
practical concern for law and legal theory."4 As a self-identified 'post-
egalitarian feminist,' Fineman seeks to:

move well beyond biological differences. We urge a theoretical
focus on the role of law in maintaining the existing unequal
allocations of societal and economic power between women and
men. The argument is that legal theory must recognize the
reality of existing systemic and persistent inequality and move
beyond the simplistic equality paradigm, establishing an
affirmative feminist theory of difference.5

Despite the systemic gendered division of labor within the home, little
feminist legal theory has examined how the family, perpetuates patriarchy
and inequality. "Rather, the focus has been on prematernal or
extramaternal concerns such as employment discrimination or gathering
political power. ",6 Fineman finds the scarcity of feminist legal theory about
the family and motherhood problematic on several levels.' Current

Martha Albertson Fineman, The Neutered Mother, The Sexual Family, and Other
Twentieth Century Tragedies 25-28 (1995) [hereinafter Fineman].

' Fineman, supra note 2, at 37.
4 Id. at 35.
5 Id. at 41. This is not to say that difference is not important. Fineman recognizes

that differences exist, that they affect women's lives, and that they matter. However,
she is not willing to waste time and resources in the search for their origins. Rather,
she seeks to move forward by concentrating upon the ramifications of difference in
social policies. As differences "are manifest and harmful to women," they are also
rationalized by legal rhetoric which casts public policy as neutral and rational. The
agenda for legal feminists should be unpacking the underlying "neutral" assumptions,
exposing the subjective links between difference and policy, and seeking "legal redress
and remedy." Id. at 35.

6 Id. at 26.
7 Id. at 27. Rather than criticizing the scholarship choices of other feminist

scholars, Fineman simply highlights the absence of works in these areas. In recent
attempts to construct "a canon of so-called basic feminist jurisprudential works," she

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Columbia Journal of Gender and Law

conceptions of the family undercut feminist legal reforms in other areas.
For example, while we may have egalitarian family models, they operate
within a gendered social context. The allocation of burdens within the
home reflects gendered conceptions of traditional family structures.
Fineman argues that feminist legal theory should respond first, by critically
revealing the underlying societal conceptions of the family 9 and second, by
abandoning traditional family conceptions and re-imagining the core family
unit,° both central themes of The Neutered Mother.

One of the strengths of Fineman's choice of motherhood as a vehicle
for feminist coalition is its pervasiveness throughout society. Both
motherhood and the family are uniquely situated to overcome some of the
divisions which have hindered a truly comprehensive feminist agenda. For
example, in attempts to avoid essentialism, feminists have been increasingly
hampered by questions of representation. The debate has separated women,
eviscerated similarities, and minimized the ability of any individual theorist
to speak with authority." While many other areas for feminist reform
may suffer from division by multiple perspectives among women, Fineman
appropriately designates the family and motherhood as unifying principles
in women's lives.

As critiques of essentialism and representation divide women,
Professor Fineman is quick to point out that society, with its myriad
institutions, reproduces "universalized, totalizing cultural representations of
women and women's experiences."' 2 Whether real or not, these media
images are put forth as representative of an essential 'woman.' To
overcome divisions of class, race, sexual orientation, and religion, Fineman
introduces the concept of a "gendered life" in response to the societal
imposition of essentialized constructions of women. Whether divided by
color or class, all "women's existences are constituted by a variety of
experiences-material, psychological, physical, social, and cultural."'"

notes the absence of scholarship regarding the family. In defining core concepts,
boundaries are created, areas are minimized and silenced, and assumptions are made.
By neglecting the family, feminist legal scholarship privileges current legal
constructions which are both patriarchal and harmful to women and children. Id. at 27.

8 Id. at 26-27.
9 Id. at 35.
1O Id. at 27.
" Fineman is "concerned that recent developments seem to have paralyzed

many-silencing or restricting voices as women determine that they cannot speak for
anyone other than those women with whom they share major nongender characteristics
such as class, sexual preference, or race." Id. at 44.

Id. at 44.
'3 Id. at 48.

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Heeding Cassandra

[R]egardless of the differences among us, all women must care
about social and legal constructions of motherhood. Although we
may make individual choices not to become mothers, social
construction and its legal ramifications operate independent of
individual choice. As is demonstrated in everyday existence, as
well as in legal doctrines and political language, women will be
treated as mothers (or potential mothers) because "Woman" as a
cultural and legal category inevitably encompasses and
incorporates socially constructed notions of motherhood in its
definition. . . . Motherhood is a totalizing, culturally defined
institution that applies across race and class lines. The mother is
objectified-heterosexual, married, chaste, self-sacrificing-a
rather statistically improbable and oppressive construct. 4

The notion of 'gendered lives' is rooted in the real life-experiences of
women, circumventing the debate over difference. "It is an affirmative
position, poised for the demand for remedies, for differentiated treatment
to rectify existing pervasive and legal inequity."' 5

II. THE SEXUAL FAMILY

Feminists and feminist legal theorists continue to struggle to reform
marriage and marital roles. They have contested issues of equality within
marital roles, economic valuations of domestic labor, and antenuptial
custody claims. All of these critiques, however, accept a traditional image
of the family constructed around marriage. Fineman critically reveals the
ideological construct of a horizontal, heterosexual relationship around which
society defines the family. This construct is implicitly and explicitly sexual.
It is privileged by various social institutions as ideal. Families are based,
Fineman argues, upon the concept of providing a social space for sexual
relations. Because this sexual relationship is central to traditional concepts
of the family, Fineman has coined the term: Sexual Family.

In addition to the social approval it garners, marriage confers upon
individuals a legal bundle of rights, privileges, and subsidies.' 6 The
concept of marriage is strictly defined in our society as a union between a
man and a woman. 7 This strict, conservative definition of marriage is

14 Id. at 51.
15 Id. at 48-49.
6 "The institution of marriage represents a substantial package of rights to its

participants. Upon marriage, couples accede to government protections including tax
benefits, employment benefits, probate designations, property rights, dissolution
guidelines, and most significantly, special treatment under the United States
Constitution." Family, Marriage, and the Same-Sex Couple, 12 Cardozo L. Rev. 681,
681 (1990).

7 Baker v. Nelson, 191 N.W.2d 185, 185-86 (Minn. 1971); "Washington statutes,

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Columbia Journal of Gender and Law

rational if we apply Fineman's analysis. If sexual relations are traditionally
conceived of as monogamous and heterosexual, and if the family exists to
provide a social space for condoned sexual relations, then the family exists
to provide a social space for a monogamous, heterosexual pair: one man
and one woman. Therefore, by privileging the horizontal, heterosexual
relationship, society and its institutions ensure certain outcomes and
reproduce embedded societal values and images: "[M]en are perceived as
central to the family."18 Likewise, by relegating societally approved
sexual relations to the Sexual Family, the natural outcome of those
relations, reproduction and motherhood, are also societally embedded.
Motherhood is therefore linked to traditional conceptions of the family and
gender roles.' 9

Professor Fineman points out how traditional images of the family,
with their embedded conception of motherhood, have impeded any
transformation of women's roles.' As long as society accepts the nuclear
family as the preferred configuration of the family, notions of motherhood
(and of women) are constrained. "The dominance of the idealized sexual
family in social and legal thought has restricted real reform and doomed us
to recreate patriarchy."' Feminists have struggled to reform the
relationship between men and women within marriage and the family and
to establish an egalitarian structure which addresses the valuations of labor
within the home. However, regardless of these struggles, modem reports
on the family continue to display gendered splits in the division of labor,
post-marital division of assets and child custody, and societal approval of
women's choices between motherhood and the workplace.

Understanding the failure of feminist reforms, and Fineman's
criticisms of the traditional family, requires a critical examination of the
societal role of the family and the nature of dependency. Fineman argues

specifically those relating to marriage . . . and marital (community) property ... are
clearly founded upon the presumption that marriage, as a legal relationship, may exist
only between one man and one woman who are otherwise qualified to enter that
relationship. (In this regard, we are aided by the rule of statutory construction that
words of a statute must be understood in their usual and ordinary sense in the absence
of a statutory definition to the contrary. . . . We need not resort to the quotation of
dictionary definitions to establish that 'marriage' in the usual and ordinary sense refers
to the legal union of one man and one woman." Singer v. Hara, 522 P.2d 1187, 1191
(Wash. App. 1974).

js Fineman, supra note 2, at 146.

'9 Specifically, the concept of motherhood becomes embedded, in that society
comes to view the traditional family as the only proper location for motherhood and
reproduction.

20 Fineman, supra note 2, at 143.
21 Id. at 147.

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that gendered divisions and inequities throughout society are inevitable,
because even the proposals for reform have been unable to move beyond
traditional concepts of family.

While the egalitarian family [that feminist reformers] envisioned
may have radical potential, the societal context in which it was
launched ensured it would offer little hope for more than
symbolic, rhetorical changes. We must go further and consider
the structural position of the family-the role it plays within the
larger society-which influences us even today in our reform
efforts. (emphasis in text).22

The family is structured within society to serve a number of purposes.
Fineman argues that the family functions as a private repository for
inevitable dependency. Inevitable dependency is the natural biological
dependency of the young, the elderly, and the ill. In all of these stages of
need, individuals are unable to fully care for themselves. Any civilized
society must create means to care for these dependents. Having accepted
that dependency is inevitable and must be subsidized, our society has placed
responsibility for its dependents with the natural family.' Beyond
allocating this burden to the private sphere, society also constructs images
of how the family should function. The idealized version of the family
construct is "a self-contained and self-sufficient unit in accomplishing those
tasks-located within the larger society, complementing the state that
protects it, but not demanding public resources to do so."24

Fineman critically examines the allocation of dependency to the family
and uncovers three flaws. First, "the construct of the 'independent' family
masks the universal and inevitable nature of dependency." 25  By
ideologically defining a proper family as one which is private and self-
sufficient without public aid, society masks the inevitable nature of
dependency and public subsidy. It conceals the large amount of aid
provided to certain families, such as mortgage subsidies and college loans.
However, the same limited understanding of dependency and public subsidy
stigmatizes those families which must rely on outside institutions for more
visible forms of support, such as Aid to Families with Dependent Children
("AFDC") and food stamps. This shallow conception of dependency also

22 Id. at 160.
23 "[Tjhe family operates as a complementary institution to the state on an

ideological and a functional level. In our individualistic society, the state relies on the
family-allocating to it the care and protection of society's weaker members and the
production and education of its future citizens." Id. at 226.

24 Id. at 161.
25 Id. at 227.

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limits society's ability to directly address the problem and properly allocate
resources. 2

Second, inevitable dependency and caretaking creates derivative
dependency. The individual caretaker is dependent on others to subsidize
her care; "she needs some social structure to provide the means to care for
others. "I Current allocations of direct dependency-supervision, time,
physical handling-render the caretaker unable to obtain secondary
resources such as food, shelter, and financial resources. The caretaker who
stays home to care for others is unable to work outside the home and earn
money to pay for food and shelter. She is derivatively dependent on
another source-spouse, partner, family, welfare-to provide her with
secondary resources. In cases where the caretaker is caring for a child, she
will probably need an outside source of support. To avoid social stigma,
she must marry. Alternatively, if she is willing to risk societal censure and
prejudice, she may rely on an extended family, a community, or
governmental subsidy (such as AFDC).

Third, "[w]ithin the family, this dependency is further directed by
continued gendered role division. "I Where one family member must be
the primary caretaker, and another the financial provider, these allocations
of burden occur within a gendered society. "Equality rhetoric and family
law reforms aside, the burdens associated with intimacy and its maintenance
have always been and continue to be disproportionately allocated to
women. "29 The working wage differential between men and women was
constructed on the idea that men had to work to support a family. Jobs thus
have gendered constructions in their expectations and rewards.' ° The
burden allocated "to a family as the private repository of inevitable
dependence necessitates a two-parent family unit with role differentiation
and division of labor.""' Considering the greater societal premium paid
for a man's labor, economically rational choices alone would inevitably
result in a traditional division of roles.32 Further, factoring in the societal

26 See infra pp. 135-38.
217 Fineman, supra note 2, at 163.
28 Id. at 228.
29 Id. at 162.
10 "Most jobs in fact require that the person, gender neutral, who is qualified for

them will be someone who is not the primary caretaker of a preschool child [or an
elderly parent, or a sick partner]. Pointing out that this raises a concern of sex in a
society in which women are expected to care for the children [and others] is taken as
day one of taking gender into account in the structuring of jobs." Catherine
MacKinnon, Feminism Unmodified (1987).

31 Fineman, supra note 2, at 165.
32 Id.

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devaluing of domestic labor, the traditional family structure leads to a
perpetual devaluing of women and their work.3"

Therefore, examining "this institution from a functional perspective,
as a complement to the state designed to care for dependencies .. .the
natural family [is] a failure."' The 'natural' family is insufficient to
"handle both the demands for equality and the contemporary manifestations
of inevitable and derivative dependency." '35  For all these reasons,
Fineman finds current conceptions of the family and marriage inadequate.

In response to the failings of marriage and the husband-wife horizontal
sexual dyad, Professor Fineman reconceptualizes the basic unit of the
family. She proposes the legal abolition of marriage and submits the
Mother/Child dyad as a vertical, non-sexual alternative core unit. The
Mother/Child dyad is actually a metaphor for the Caretaker/Dependent
relationship. By reconceptualizing the basic unit of the family, Fineman
proposes that we can expose and address the societal inevitability of both
direct and derivative dependency. Society and the government could then
directly subsidize these dependencies without stigma to the caretaker. 36

Caretaking responsibilities and domestic labor could be reconceived as
having costs and value. Reconceptualizing the core family unit would also
alter our understanding of what is natural and what is aberrant, and would
extend protection and support to family structures that have consistently
been labeled as deviant and targeted for social control and persecution.

III. DEVIANT FAMILIES

Currently, the Sexual Family possesses exclusive legitimacy as
society's foundational institution. All families which do not contain this
core unit are therefore defined as deviant. Furthermore, institutional
allocations of dependency sanction family structures which are self-

a Fineman also discusses some of the other negative repercussions for equality
resulting from this gendered division of caretaking. For example, when women forego
having children, hiring outside caretakers shifts the burden to minority women and/or
women of a lower class. Additionally, she points out mothers are blamed when any
family failure does occur, especially if they were not present because of employment
outside the home.

11 Fineman, supra note 2, at 228.
35 Id.
36 Such reconceptualization would also shift the veil of family privacy and

autonomy to cover subsidized alternative families. Instead of premising aid upon state
review and supervision, a reconceptualization of the core dyad would extend family
privacy to these families, and alter the nature of their subsidy from reviewable to
presumptive. See infra pp. 137-38.

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contained and self-supporting.37 These ideological valuations doubly
stigmatize those families which do not replicate the traditional family. As
reproducers of ideology, the law and the government target these 'deviant'
families for stigmatization and eradication.

Fineman's latest work comes into the academic discourse at a time
when the political debate is rife with contention over welfare reform and the
Personal Responsibility Act. The battle over welfare highlights the issue
of single motherhood, as policy makers like Newt Gingrich seek to prove
their political virility by sacrificing welfare recipients upon the altar of a
New America. The manuscript for The Neutered Mother was actually
prepared before the November 1994 elections and the Personal
Responsibility Act,3" which makes Professor Fineman's writing even more
apocalyptical. In The Neutered Mother, Professor Fineman deconstructs
governmental policies towards single-mothers and their families. Her
analysis of the historical role and social positioning of these welfare
dependent, single-parents, prepared before Newt Gingrich's proposals,
clearly predicted the targeting of these most vulnerable of Americans for
social censure and political attacks.

The Sexual Family privileges one conception of the family. By
creating this baseline, however, society also defines what is deviant.
Families that do not resemble the two-parent nuclear family are labeled as
aberrant. "Single motherhood ... is deviant simply because it represents
the rejection of the primacy of the sexual connection as the core organizing
familial concept."39  Within a patriarchal framework, "the existence of
unstigmatized mothers successfully mothering outside of the traditional
heterosexual family calls into question some of the basic components of
patriarchal ideology."I4  Instead, the government stigmatizes single-
mothers to discourage that choice. Fineman claims that "while many single
mothers in both the divorced and never-married categories are also poor
and this contributes to the societal designation of them as 'deviant,' their
real offense-the true' indicia of their pathology-is their singleness." 4'
Their singleness is not only correlated with social ills, but is also blamed
as the cause.

7 See infra pp. 133.
38 Tape of Presentation on The Neutered Mother and the Sexual Family, held by

the Institute for Research on Women and Gender Feminist Legal Theory Series (Apr.
27, 1995) (on file with author).

39 Fineman, supra note 2, at 147-48.
40 Id. at 101.
41 Id. However, Fineman concedes that issues of stigma stem not only from

marital status and class, but also race.

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Single-motherhood is labeled in poverty and welfare discourses as the
source of other public afflictions, such as poverty, drug use, crime,
illiteracy, and homelessness. 42 As single-motherhood is demonized as the
source of all societal evils, the goal of public policy becomes the restoration
of the traditional family, rather than providing aid for the poor. 43 Rather
than examining the true social sources of the problems of our society, or
attempting to create solutions that actually target the needs of single welfare
mothers (such as childcare), the government villainizes these mothers as
'welfare queens,' blames their behavior for their poverty, and calls for
personal responsibility."

As a critical legal theorist, Fineman has explained that in the Personal
Responsibility Act and other welfare reforms, "[w]e're sacrificing certain
realities to symbol and myth. "45 Those social groups which least duplicate
current ideological ideals, and which are thus most stigmatized, are also the
most politically powerless. It is therefore easy to place political blame on
these groups, shifting public attention away from larger issues, and
immolating them to popular unrest about welfare and the poor.' The
Personal Responsibility Act and other current welfare reforms divert
attention away from real social problems and their sources, and scapegoat
those without a voice in our society. Newt Gingrich and other welfare
reformers, including Bill Clinton, have approached reform as if welfare is
a major drain on our society's economy. They have blamed poverty on
learned helplessness and laziness, caused by welfare and AFDC, and called
for personal responsibility for individual's economic situation. Fineman
neatly skewers this rhetorical shell game:

Individual responsibility rhetoric neatly sidesteps the devastating
impact of forces beyond individual control such as the global
recession, the withdrawal of many businesses from the urban
communities, and the restructuring or 'downsizing' resulting in
lost employment and downward mobility that is occurring in our
contemporary economy.47

Professor Fineman has a final criticism of both current and proposed
welfare reform: the government's intrusion into welfare families. Current

42 Id. at 114.
43 Id. at 104.

44 Id. at 110-18.
45 Tape of Presentation, supra note 38.
4 "Quite often the weaker, underrepresented members of society-women,

children, and the poor-are those whose interests are sacrificed to the symbolic."
Fineman, supra note 2, at 219.

47 Id. at 215.

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single-mother families which are derivatively dependent on the government
for financial support become 'public families.' Fineman explains how
government aid becomes conditioned on the government's supervision of,
and intervention into, the family. While the natural, traditional family is
shielded in law behind veils of privacy and autonomy, families receiving
government aid are fully exposed to the scrutiny and manipulation of the
state. This intervention is justified by the fact that these families are not
financially independent, are not headed by two parents, but by mothers who
have chosen (wrong) not to marry the fathers of their children. This
deviancy subjects them to continuous "state supervision in making decisions
about their families. "I Fineman argues that this intervention is invasive
and unjustified, serving only to allow the dominant ideology to further
control these non traditional families. Under Fineman's reconceptualization
of the family around the Mother/Child dyad, the constitutional veils of
privacy and autonomy that now protect the Sexual Family would
presumptively also protect single-mother families.49 Once we shift our
understanding of the family and the inevitability of derivative dependency,
the state could stop demonizing single-mothers based on their need.
Government would then be in a position to actually start providing some
support for the families that need it.'

IV. PREEMPTING THE CRITICS: MAN AS MOTHER,
THEORY AS VISION

Any radical rethinking of the status quo is sure to draw fire from those
who support it. Fineman's critical examination of motherhood,
dependency, and families is truly radical, both in its vision and its call for
reform. It is not surprising, therefore, that there are critics. In this
section, I set out to address two of the more simplistic critiques of The
Neutered Mother, in hopes that later debate can shift to more complex
issues.

Radically altering our conception of the base unit of the family from
Husband/Wife to Mother/Child necessitates the shift of many presumptions.
Privileging the Mother/Child dyad as the ideal, natural, or normal familial

4 Id. at 189, 190.
9 Fineman preempts her critics by allowing for laws outlawing incest or child

abuse to exist. The burden of presumption (which already exists for two-parent
households) would simply be shifted to include any Caretaker/Dependent relationship
in a family setting.

50 Fineman, supra note 2, at 216.

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form forces a re-examination of the role of fathers and of men.51 Fineman
has stated that every time she proposes the Mother/Child dyad, she is
immediately beset "at least 30 times each presentation" by critics who wish
to know where men fit in this new utopia.52

Fineman speaks to this concern early in her work. She explains that
the Mother/Child dyad is used metaphorically for any Caretaker/Dependent
relationship. The "Mother" is a metaphor for any direct caretaker, male or
female. Fineman purposefully leaves it as a gendered term, rather than
using a neutered term such as 'Parent,' because mothering has historically
and culturally been a gendered concept, and is thus heir to powerful
rhetoric and symbolism. Critics who misunderstand Fineman's equality
analysis may find this move confusing. She is not seeking to
reconceptualize the family in order to free women from motherhood or to
banish men from the family unit. Rather, she is trying to free motherhood
and caretaking from traditional conceptions and family structures which
devalue the work of caretaking. If society deconstructs the family,
reconfigures it around the Mother/Child, and recognizes inevitable
dependency, then 'women's work' as caretakers can be valued, and women
can be free to choose between roles as caretakers or financial providers.

Along the same lines, the Child is a metaphor for "all forms of
inevitable dependency . . . of the ill, the elderly, the disabled, as well as
actual children. The child is an embodied concept, exemplifying the need
for physical caretaking."53  Therefore, an adult caring for an elderly
parent is the "Mother" to the parent's "Child." Likewise, a man could be
"Mother" to his actual, biological child. Fineman addresses this point
directly at the end of her work, and briefly calls for a rethinking of
fatherhood and masculinity.' She stresses that real fathers should and
must be Mothers to their children, in that they should be actively
participating in caretaking.55 Fineman's theory neither excludes men nor
forces them to change. Instead, it envisions a broader conceptualization of
family relationships which would allow more latitude to all members,
moving beyond confining views of traditional masculinity and fatherhood.

A second, perhaps more fundamental critique of The Neutered Mother
questions the likelihood of Fineman's shift actually being implemented on
any level. Fineman acknowledges that "[w]e can be sure that change will

5' Id. at 191.

52 Tape of Presentation, supra note 38.
53 Fineman, supra note 2, at 235.
14 Id. at 204-208.
" Id. at 234-35.

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Columbia Journal of Gender and Law

not occur any time soon (if at all)."56 If such a radical shift in the way
society and government envisions families is not likely to occur, what is the
utility of Professor Fineman's work, short of an interesting mental exercise?
It is the metaphoric power of Cassandra's vision. Exploring an alternative
vision, employing a critical eye, is a powerful tool for forcing society to
unpack its deepest presumptions and expose them to light. Reformulating
the family forces a reexamination of the allocation of dependency within
government and the family, and the difficulties which women must face in
striving for egalitarian family relationships. Furthermore, while change
may not come in the form which Fineman advocates, its radical nature
makes it difficult to be coopted by the dominant ideology, forcing discourse
outside of traditional boundaries. It compels a reexamination of the goals
and effects of welfare reforms and governmental policies. Finally, the very
character of her analysis and critical vision allows future feminists and
critics to chart their courses with greater knowledge.

I invoke the metaphor of Cassandra because of the limits feminist and
critical legal theorists face in their scholarship. Articles and books by
feminist critical theorists are criticized by traditional legalists as
inconsequential and impractical. Feminist theorists are repeatedly criticized
for the absence of a solution step in their articles. Outside of academia,
feminists struggle repeatedly to garner the slightest victory for women, and
then find they must refight battles they thought they had won. It is difficult
to effect actual change in a society where the dominant ideology coopts
change and uses it to reinforce its own power. Like Cassandra, feminist
legal theorists have powerful visions, but have difficulty in having their
theories acknowledged by the dominant class. Radical, alternative visions
which are criticized as revolutionary are unlikely to be realized. However,
there is power in vision. Feminist and critical legal theorists now have
forums and audiences for their ideas that did not exist in the past. Each
generation views demands for equality as less radical and more just.

The Neutered Mother presents a fresh feminist legal viewpoint which
explores an underexamined area of culture and develops innovative
perspectives on the failure, of family-based reform for women. Fineman's
vision has powerful ramifications in the modem debate over welfare and
single mothers. The Neutered Mother will undoubtedly draw hostile
criticism for being "too radical" or "too theoretical." However, it is the
power of Cassandra's visions that time proves true. It is likely that many
of Fineman's visions will gain recognition as later feminist legal theorists
use them as a springboard for their own theories and scholarship.

56 Id. at 232.

[Vol. 5:1



THE UNREALIZED POWER OF
MOTHER

Dorothy E. Roberts*

In The Neutered Mother, The Sexual Family and Other Twentieth
Century Tragedies, Martha Fineman dares to assert that motherhood has an
"unrealized power.' "It is essential," she declares, for feminists to
"reclaim the term."2  Her admonition could not be more timely. As
Fineman powerfully demonstrates throughout the book, contemporary
political discourses about single mothers, especially in the contexts of
welfare and divorce, increasingly cast women's independent mothering as
pathological.3 At the same time, policies that reinforce the norm of the
private nuclear family leave women with the burdens of caretaking while
denying them both needed public support and privacy from government
intrusion.4 Fineman's analysis helps to explain the key elements of current
welfare reform proposals-the vilification of single mothers as the cause of
poverty and social degeneracy; stepped-up government regulation of their
intimate lives; and imposition of private measures such as paternal child
support and marriage as the solution to children's poverty. The Neutered
Mother shifts attention from the marital couple to mothers and their children
as the family unit that merits social assistance and legal protection, and as
the center of feminist inquiry and activism. It is a long-overdue demand for
society to value concretely the roles that women undertake and to
compensate them for the hard work that they perform.

This essay takes Fineman's notion of motherhood's unrealized power
as a starting point. First, I discuss how Fineman uses this concept to
challenge both welfare reformers and feminists who devalue the role that
mothers serve. Then I explore Fineman's further indication that
motherhood holds more positive potential for addressing women's social
inequality. I problematize the notion of motherhood's unrealized power by
examining some of the complexities inherent in viewing Mother as a
transformative metaphor or as a role that unifies women.

* Fellow, Harvard University Program in Ethics & The Professions; Professor of
Law, Rutgers University School of Law-Newark. B.A. 1977, Yale College; J.D. 1980,
Harvard Law School.

' Martha Albertson Fineman, The Neutered Mother, the Sexual Family, and Other
Twentieth Century Tragedies 234 (1995).

2 Id.

See id. at 101-25.
4 See id. at 161-66, 177-93.



Columbia Journal of Gender and Law

I. FINEMAN'S CHALLENGE TO WELFARE REFORMERS
AND FEMINISTS

The conservative assault on single mothers has escalated since the
book's publication. Declaring marriage "the foundation of a successful
society" and "an essential social institution which promotes the interests of
children and society at large," the House Republicans' Personal
Responsibility Act5 contains numerous measures designed to penalize
unwed mothers and their children. Most onerous is its denial of benefits
to teenage mothers for children born out of wedlock, regardless of when aid
is sought.6 This provision not only attempts to deter out-of-wedlock births,
but punishes children by barring them from receiving public assistance
because of the status of their birth. The Act also denies benefits to children
whose paternity has not been established.7

Fineman brilliantly challenges the very foundations of these punitive
welfare policies in two critical ways. First, she reveals the patriarchal
premises of their assumption of the norm of the sexually-affiliated couple
as the center of the family. Fineman situates welfare reform discourse in
the context of the historic control of fathers over children, buttressed by a
rhetoric that portrays single motherhood as deviant. Second, she
demonstrates how these policies obscure the inevitable dependency of
children by assigning its management to the traditional private family. Of
course, it is mothers-the typical caretakers-who have always paid the
price. Returning the missing male to the nuclear family is a way of
privatizing dependency and avoiding society's collective obligation to
support children.

The Neutered Mother is also a challenge to feminists. As Fineman
recognizes, the assertion that motherhood has unrealized power is
controversial among feminists. Fineman notes that in the past some
feminists, including Simone de Beauvoir, either totally disavowed the
gendered role of mother or cast it as a threat to women's sense of
individuality.8 Liberal legal feminists, Fineman argues, have borrowed
some of these themes in their advocacy of policies, such as shared
parenting, designed to leave women unencumbered.

Fineman is correct that the feminist project of understanding and
addressing women's inequality must incorporate the material and social

H.R. 4, 104th Cong.,l1st Sess. (1994).
6 Id. § 405(a)(4).
7 Id. §§ 405(a)(7), (9).
8 Fineman, supra note 1, at 72-74.

[Vol. 5:1



Unrealized Power of Mother

implications of mothering. But the feminist task of analyzing motherhood
is complicated by a dilemma: it is difficult to explain motherhood, as an
institution and an experience, in a way that grasps both its affirming and
oppressive aspects. Celebrating mothers sometimes lapses into defining
women according to our biological nature.9 Condemning the subordinating
features of motherhood sometimes turns into the total rejection of
motherhood as an "annihilation" of women.' ° Or it may result in the
reformist "neutering" of mothers that attempts to achieve a gender-neutral
notion of parents. I have struggled in my own writing to express
motherhood's "fascinating paradox: although it is devalued, exhausting,
confining, and a principal way in which women are shackled to an inferior
status, for many women motherhood is life's greatest joy. '']

Motherhood is neither a natural source of women's power nor an
inherently or entirely oppressive occupation. How then should we describe
it? Fineman resolves this tension between glorifying mothers and neutering
them with two constructive concepts. First, she avoids an essentialist view
of motherhood by proposing the concept of a "gendered life." This concept
is based on the premise that women's varied experiences "provide the
occasion for women to develop an identifiable perspective that is rooted in
their appreciation of, and reaction to, the gendered nature of our social
world."' 2  It recognizes the gendered implications of women's lives
without assuming that all women's experiences and responses are the same.
Although Fineman uses this concept primarily in response to concerns about
women's differences, I think it also provides a useful way of recognizing
that women's diverse experiences as mothers are indeed gendered while
rejecting a naturalistic understanding of motherhood.

Second, Fineman avoids the renunciation of a gendered role of mother
by distinguishing between the burdens that mothers undertake when they
care for children and the oppression of women. Fineman defines burdens
as "the costs associated with what women typically do as caretakers in
society.' 3 This enables her to acknowledge that women's domestic labor
may provide joy while at the same time entailing material costs and
consequences. Demanding that mothers' caretaking be acknowledged and

9 See Robin West, Jurisprudence and Gender, 55 U. Chi. L. Rev. 1, 28-42 (1988)
(comparing cultural and radical feminist views of motherhood).

10 See Jeffner Allen, Motherhood: The Annihilation of Women, in Mothering:
Essays in Feminist Theory 315, 316 (Joyce Trebilcot ed., 1984) ("I am endangered by
motherhood. In evacuation from motherhood, I claim my life, body, world, as an end
in itself.").

Dorothy E. Roberts, Motherhood and Crime, 42 Soc. Text 99, 100 (1995).
12 See Fineman, supra note 1, at 48.
'3 Id. at 162.

19951



Columbia Journal of Gender and Law

compensated need not mean denouncing this work as oppressive. I would
argue, however, that women's attachment to and care for their children are
related to women's oppression: they are often used by a patriarchal state
and fathers as a means of securing mothers' compliance with their
demands.' 4

II. DEFINING MOTHERHOOD'S UNREALIZED POWER

Fineman very successfully refutes both the stigma attached by
policymakers to single mothers, as well as the criticism by some feminists
of the focus on motherhood. By calling motherhood an "unrealized
power," however, Fineman seems to imply more than a defensive move.
Throughout the book there is the suggestion that motherhood is a positive
force, perhaps even a liberating occupation, for women. Although
Fineman astutely observes that physical dependency is inevitable, "in that
it flows from the status and situation of being a child and often accompanies
aging, illness, or disability,"'5 she barely questions whether or not it is
inevitable that women be caretakers. Fineman does not critique women's
role as mother as she does women's role as wife. In her chapter on the
sexual family, for example, Fineman notes that most of the girls
interviewed for a survey were far less committed than boys to the idea of
getting married. More than half of the girls stated that they would consider
becoming a single parent. Fineman quotes one sixteen-year old's response:
"If I weren't married, I could imagine being a single mother. I know it's
hard, but it's worth it. I just know I want children."' 6  Fineman
emphasizes the gender differences in the teenagers' expectations for
marriage, but does not question the girls' assumption that they will become
mothers. Moreover, Fineman is firm in her selection of the Mother/Child
dyad as the central intimate connection, although she explains that men may
fulfill the role of Mother in this metaphorical unit.' 7 Indeed, as I noted
above 8 (and as the book's title highlights), Fineman is quite critical of
feminists who have deleted gender from the role of mother.' 9

Fineman's sense of the affirmative "power" that motherhood holds
remains somewhat mysterious. Fineman suggests that one aspect of

14 See Roberts, supra note 11, at 110-13 (explaining how patriarchy takes-children
hostage, both literally and symbolically, to secure women's obedience).

'" Fineman, supra note 1, at 162.
16 Id. at 150.
'7 See id. at 234-35.
IS See supra note 10 and accompanying text.
19 See Fineman, supra note 1, at 73-75.

[Vol. 5:1



Unrealized Power of Mother

motherhood's power is its metaphorical capacity to redefine the meaning of
family in a way that shatters the traditional fixation on sexual affiliation. 2

Another possibility might be the power of unifying women around their role
as mother. I want to explore the complexities of harnessing this potential
power of motherhood.

1i1. MOTHER AS METAPHOR

Fineman explains that she deliberately chose the device of the
Mother/Child metaphor because of its power as a cultural symbol.2' She
argues that the Mother/Child metaphor has the potential of displacing the
hegemony of the sexual-natural family as the basic family unit. 2 It is in
her defense of the Mother/Child dyad that Fineman comes closest to
revealing the "unrealized power" of motherhood. As she elaborates:

The most vivid and shared image of connection is the
Mother/Child dyad. This is the prototypical nurturing unit, a
fitting substitute for the Husband/Wife dyad that forms the basic
unit of the sexual family....

The need for a positive societal vision is the reason the
Mother/Child metaphor is appropriate. In excavating the image,
I want to pull in the powerful resonances it has across a variety
of discourses. . . . Mother is an embodied concept with
biological, anthropological, theological, and social implications
that give it strength in the public sphere. ...

Motherhood has unrealized power-the power to
challenge the hold of sexuality on our thinking about intimacy;
the power to redefine our concept of the family, which may be
why men have tried so long to control its meaning. The
Mother/Child metaphor represents a specific practice of social
and emotional responsibility.23

Thus, despite the popular discourses condemning single mothers as
deviant and pathological, Fineman concludes that the image of mother and
child retains tremendous positive symbolic value. When I try to conjure
up this cultural symbol of Mother/Child, however, it is hard for me to
divorce it from negative racial imagery. The positive, as well as the
negative, aspects of Mother as metaphor are steeped in America's racist
history.

20 See id. at 234.

11 See id.
22 See id. at 233-34.
23 Id.

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Columbia Journal of Gender and Law

American culture has cultivated very powerful images of unfit and
dangerous Black mothers.' These images are particular to Black women
and are perpetuated at every level of American popular culture. The ideal
Black mother figure, Mammy, selflessly nurtured white children, while
under her white mistress's supervision. At the same time, whites portrayed
slave women as careless mothers of their own children. Later, the
emasculating Black matriarch was held responsible for the disintegration of
the Black family. Today, the dominant popular image of Black mothers is
the teenage girl who recklessly bears more children in order to collect
another welfare check.

The cherished icon of the mother nurturing her child is also imbued
with racial imagery. Black mothers' bonds with their children have been
marked by brutal disruption, beginning with the slave auction where family
members were sold to different masters and continuing in the
disproportionate state removal of Black children to foster care. White
Americans have long demanded that Black mothers leave their children at
home in order to work at menial, low-wage jobs. As I recently noted
elsewhere, "Americans expected Black mothers to look like Aunt Jemima,
working in somebody else's kitchen. . . . American culture reveres no
Black madonna; it upholds no popular image of a Black mother nurturing
her child. "I

It makes a profound difference that Black children are not valued as
much as white children, no matter what kind of family structure produces
them. This devaluation of Black-childbearing contrasts sharply with the
historic promotion of white motherhood that serves the national good by
producing white children. Both policies are patriarchal, but they are just
as fundamentally racist. And they produce radically distinct cultural
symbols of Mother. The most extreme welfare reform proposals aimed at
discouraging women receiving Aid to Families with Dependent Children
(AFDC) from having children-some even conditioning benefits on
Norplant insertion-rely on this racist devaluation of Black motherhood as
much as on the patriarchal castigation of maternal independence.

The difficulties that racism poses for employing the symbol of Mother
do not negate the importance of investigating the unrealized power in
motherhood. I have suggested, for example, that the very experience of
Black mothers may aid feminists in developing a complex political

24 See generally Patricia Hill Collins, Black Feminist Thought: Knowledge,
Consciousness, and the Politics of Empowerment 67-90 (1990); Dorothy E. Roberts,
Punishing Drug Addicts Who Have Babies: Women of Color, Equality and The Right
of Privacy, 104 Harv. L. Rev. 1419, 1436-44 (1991).

23 Dorothy E. Roberts, The Value of Black Mothers' Work, 26 Conn. L. Rev.
871, 875 (1994).

[Vol. 5:1



Unrealized Power of Mother

interpretation of motherhood that includes the view of mothering as a
radical vocation.26 Black women historically have experienced
motherhood as an empowering denial of the racist denigration of their
humanity. They have often practiced mothering for political ends and in a
communal fashion that suggests the potential for collective transformative
action by mothers.27 My point is that I do not think there exists a usable
cultural symbol of Mother we can excavate. Rather, we must create her
from our diverse and common experiences of mothering and from our
political vision of what a just institution of motherhood would be.

IV. THE LIMITS OF PATRIARCHY IN THE SOCIAL
CONSTRUCTION OF MOTHER

Although Fineman acknowledges differences among single mothers
based on race and class, her primary interest is in identifying the ideology
and rhetoric that links single mothers from diverse backgrounds. Fineman
shows how patriarchal ideology that defines single mothers as pathological
cuts across race and class boundaries. She observes similarities in the
discourses that stigmatize both middle-class divorced mothers and never-
married poor mothers. Fineman notes that, "despite these differences, the
core and common problem facing mothers within each group is identified
as the missing male."''  Fineman calls this phenomenon "cross-over
discourses," which she defines as "the propensity for rhetorical images
associated with being female in our culture, which are generated and
perpetuated in one context, to spill over and define our understanding of
women in other contexts." 29

In what sense does "'Mother,' as a socially defined and symbolic
institution, [have] trans-substantive implications," as Fineman claims?"
True, the concept of Mother defined in the context of poverty discourses
shares features with the concept of Mother defined in the context of
divorce, both of which, in turn, help to define a broader social
understanding of Mother. But this is very different from saying that these
mothers are defined or treated in the same way. Motherhood has very
different meanings in different contexts of race, class, sexual orientation,
and so on. Indeed, it is in their role as mothers that women are most
differentiated by race, class, and sexual orientation.

26 Roberts, supra note 11, at 115-16.
27 Id. at 116-17.
28 Fineman, supra note 1, at 102.
29 Id. at 102-03.
30 Id. at 103.

1995]



Columbia Journal of Gender and Law

Interrogating more specifically the role that race plays in these
patriarchal ideologies helps to clarify Fineman's notion of Mother's trans-
substantive quality. Ironically, it is the distinctive image of Black mothers
in poverty discourses that helps to define all mothers. The condemnation of
Black mothers works as a warning to the rest of society-a way of
disciplining all deviant women. Black mothers serve as what Patricia Hill
Collins calls the "point from which other groups define their normality. ""3
Black single mothers are a powerful cultural symbol not only of all that ails
Black people, but also all that ails the family. Castigating Black single
mothers sends a message to other defiant mothers who dare to raise their
children independently of men. Fineman asks, "Why has this casting of
single motherhood as pathological, as a social disease, and as one of the
core explanations of poverty, been so readily accepted?"32  Part of the
answer is the popular association of single motherhood with Black women.
Welfare policy penalizes Black single mothers not only because they depart
from the norm of the father-headed family, but also because they represent
rebellious Black culture. To some extent, then, welfare policy punishes
white single mothers because they act too much like Black women.

Class differences also shape the meaning of motherhood. Although
contemporary politicians may condemn single motherhood across the board,
they can impose the requirement of marriage on mothers who rely on
welfare to survive. Reliance on government assistance subjects poor
mothers to a far greater degree of government regulation than that
experienced by wealthier women. Poor families are "public" families
because they depend on government aid. Courts view their dependency as
a waiver of privacy which subjects them to numerous indignities that would
be illegal to impose on affluent women. (I am not sure that the
private/public family dichotomy applies at all to Black families; they are
viewed as always in need of supervision.) Moreover, poor women's
reproduction is stigmatized not only when it occurs out of wedlock, but also
because it is considered morally irresponsible to have children at the
public's expense.33

In the end, I consider Fineman's work and mine to have a symbiotic
relationship. While she sees the ideology of patriarchy as the primary force
in the creation and acceptance of these discourses about mothers, I tend to

31 Collins, supra note 24, at 68.
32 Fineman, supra note 1, at 102.
33 As Fineman shows, part of the reason that childbearing at the public's expense

is considered immoral is because the costs of dependency have been allocated to the
private nuclear family. Id. at 161-66. But affluent single mothers can avoid the stigma
associated with dependence on public aid, if not that associated with unwed
motherhood.

[Vol. 5:1



Unrealized Power of Mother

see the ideology of white supremacy as the primary force in their creation
and acceptance. It is probably not helpful to try to determine the
predominant influence in the condemnation of single mothers, whether
racism or patriarchy. Rather, these observations make it clear that both
racist and patriarchal ideology work together to construct the meaning of
motherhood. I credit Fineman's analysis with helping me to understand
more clearly the relationship between racism and patriarchy in the social
construction of motherhood.

V. THE UNIFYING POWER OF MOTHER

The Neutered Mother suggests that the shared interests of mothers offer
a common ground for women's political solidarity.' Some feminists have
faulted women's organizations for their silence in the welfare reform debate
and have called on women to form alliances based on their common
interests as mothers, especially regarding the needs of working mothers.35

During the Progressive Era, a network of activist women exploited
maternalist rhetoric to mobilize disenfranchised women and convince
American legislatures to implement America's first public assistance
programs for single mothers.36 Contemporary women, Lucie White
suggests, could replace the progressives' focus on "pensions to protect poor
women from the workforce" with "reforms for all parents in the workplace
itself."37 Johanna Brenner similarly argues that the time is especially ripe
for organizing around working women's needs:

The entry of women into the labor force and the increasing
influence of women trade unionists, the impact of feminism on
the perception of women's family roles, and the increasing
organization of professionals and grass-roots constituencies
around family/work issues, make it possible for the first time
since the emergence of industrial capitalism to challenge
women's assignment to unpaid caring work.3"

14 Id. at 52.
" See, e.g., Johanna Brenner, Towards a Feminist Perspective on Welfare Reform,

2 Yale J.L. & Feminism 99, 127-29 (1989); Lucie E. White, On the "Consensus" to
End Welfare: Where Are the Women's Voices?, 26 Conn. L. Rev. 843, 851, 855
(1994).

3' See Linda Gordon, Pitied But Not Entitled: Single Mothers and the History of
Welfare 1890-1935, at 37-108 (1994); Theda Skocpol, Protecting Soldiers and
Mothers: The Political Origins of Social Policy in the United States 427-28, 439-65
(1992).

37 White, supra note 35, at 853.
3' Brenner, supra note 35, at 129.

19951



Columbia Journal of Gender and Law

Mothers from all backgrounds share an interest in transforming the
gendered division of labor which assigns unpaid caretaking tasks to women
without public support and structures the workplace around men's needs.

Fineman's thesis might suggest instead the unifying theme of valuing
mothers' work in the home. Fineman argues compellingly that women have
shouldered the inevitable costs of dependency and should be compensated
for it.39 Her focus on the mother/child dyad appears to be different from
some feminists' focus on the workplace. Brenner, for example, argues that
"[iun a period where the vast majority of women with young children work
for wages, a welfare policy that pays women to stay home is
anachronistic. "' Brenner contends that it is women's increasing access
to paid work that has freed women from depending on men for economic
support, thereby enabling the feminist challenge to traditional gender
ideology.4 She therefore advocates "a strategy centered on providing
working mothers with support rather than demanding payments for women
to stay home with their children."42 In using motherhood's power for
political ends, feminists will have to explore further the value of mothers'
work in the home and its relationship to women's wage labor.

Despite the unifying experience of motherhood, working mothers are
divided by divergent-and even conflicting-interests. Elite and middle-
class reformers have tended, because of their social position and education,
to see themselves on a moral mission to save their less fortunate sisters.
They have a vested interest in explaining poverty in terms of cultural and
personal weakness rather than focusing on the structure of economic
opportunity and racial privilege.43  The Progressive Era reformers'
exclusion of poor single mothers and women of color from their white,
privileged network dramatically limited their vision of welfare." Their
fear that welfare was an incentive to "pauperism" and family breakdown
limited the generosity of the programs they created. Moreover, a defining
aspect of their programs was the social control of poor immigrant families
and the total neglect of Black single mothers. The nineteenth-century
women lost an important opportunity to form coalitions with Black women
activists who at the same time were advocating universal programs,

9 Fineman, supra note 1, at 230-33.
o Brenner, supra note 35, at 118.
41 Id. at 119.
42 Id. at 126.
4' See id. at 120.
" Gordon, supra note 36, at 67-108.

[Vol. 5:1



Unrealized Power of Mother

assistance for working mothers, and the linking of welfare to racial
justice.45

Affluent white mothers have in other ways sacrificed the interests of
poor white and Black women in their pursuit of gender equality. For
example, many gained entry to the male-dominated workplace by assigning
female domestic tasks to Black women, rather than by demanding a
fundamental change in the sexual division of labor.' Fineman faults the
"egalitarian family" for requiring this "solution" to inherent flaws in the
concept of the sexual-natural family.47 She notes that "[tihe tasks assigned
to this family as the private repository of inevitable dependency necessitates
a two-parent family unit with role differentiation and division of labor. "4

Hence, women in the egalitarian couple family who join the work force
either forgo having children or hire someone to care for them.

In this time of mounting state repression against poor single mothers,
we urgently need to identify and wield motherhood's unrealized power.
The Neutered Mother begins this exploration of ways in which Mother can
serve both as a transformative metaphor and as a basis for progressive
coalition building among women. Unleashing the power of motherhood
will require resisting white supremacy and economic injustice as much as
abolishing patriarchal family norms. Otherwise, the unrealized power of
Mother will just as easily be exploited for repressive ends.

45 Id. at 111-43.
I Kimberl Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black

Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist
Politics, 1989 U. Chi. Legal F. 139, 154 n.35.

41 See Fineman, supra note 1, at 165.
48 Id.

19951



INEVITABLE DEPENDENCIES: A
COMMENT ON MARTHA A. FINEMAN,
THE NEUTERED MOTHER, THE
SEXUAL FAMILY, AND OTHER
TWENTIETH CENTURY TRAGEDIES

Jonathan Simon*

I. THE INEVITABLE DEPENDENCIES OF POLITICS

We already know what the sound byte version of this book' will be.
"Martha Fineman wants to outlaw the nuclear family." "Martha Fineman
would define fatherhood out of legal existence." "Martha Fineman would
create a legal obligation for taxpayers to subsidize mothers and their
illegitimate children." Indeed, the arguments in this book stand in rather
stark contradiction to what we are constantly assured is the consensus of our
time. That Dan Quayle was right.2 That the patriarchal family must be
strengthened. That illegitimacy is a major causal force in the social and
economic decline of the United States. What the sound bytes will miss,
unfortunately, is perhaps the most radical element of Fineman's analysis,
her discussion of dependency. 3

A. The Politics of Dependency

It is clear that dependency is a particularly bad term these days. A
broad swath of mainstream opinion insists that America's malaise stems in
no small part from its dependence on drugs, on welfare, on borrowed
capital, on big government solutions to social problems. This, of course,
is hardly a new invention of the present age. You do not have to look very
deeply to discover that "independent" is an important thing to be in this

* Associate Professor of Law, University of Miami, School of Law. A.B. 1982,
University of California at Berkeley; J.D. 1987, University of California at Berkeley;
Ph.D. 1990, Jurisprudence and Social Policy, University of California at Berkeley.

' Martha Albertson Fineman, The Neutered Mother, the Sexual Family, and Other
Twentieth Century Tragedies (1995).

2 Barbara Dafoe Whitehead, Dan Quayle was Right, The Atlantic, Apr. 1993, at
47.

1 Radical not because it speaks from far away on the edges of some political
spectrum, but radical because it speaks from so close to where Americans all over that
spectrum imagine themselves to dwell.



Inevitable Dependencies

culture and has been for a long time. At the same time, advanced industrial
societies (including this one) have been experiencing a deepening crisis in
the legitimacy of most forms of dependence for at least the last thirty years.
Attacked by forces on the left, as well as on the right, it has become harder
and harder to exercise power over people in the name of caring for them
and others, institutionalized in families, schools, prisons, and welfare
systems.4 The struggles within each institutional setting have been driven
by their own highly specific motives (many of them ones with which this
author sympathizes).

Fineman challenges the cultural associations of "dependency" from the
outset by preceding it with the word "inevitable." "Inevitable dependency"
describes the way in which periods of intense and (in the short term)
unreciprocal need are embedded in human existence, i.e., "the status of the
need for caretaking embodied in the young, many of the elderly and
disabled, as well as the ill."' Few in our culture could deny the
appropriateness, indeed the nobility, of all of these forms of dependency
and the caretaking they require. Likewise, the role of government in
facilitating the meeting of these needs, which Fineman calls "derivative
dependency," 6 has been grudgingly conceded by most conservatives since
the Eisenhower era. Making sure that the young get raised and educated,
that disabled and elderly adults are not left to fend for themselves, were
recognized as challenges meriting government intervention well before the
triumph of welfarism, or even liberalism itself.7 It is possible that urban
societies can survive prolonged periods in which these functions are in
crisis, but at least in the modem industrialized West, decreasing tolerances
for disorder have led to policies aimed at making sure that the vast bulk of
the population is able to manage its dependencies.'

" At its broadest this has been deemed a crisis of the legitimacy of government, see
Jurgen Habermas, Legitimation Crisis (Thomas McCarthy trans., 1975).

' Fineman, supra note 1, at 8. One might also add forms of dependency that are
made inevitable by the modernization process, which has rendered people far less
capable of assuring the reproduction of society through local processes. Such
dependencies include physical disabilities brought on by accidents with technology
(either while producing or consuming it), pollution, as well as functional disability
through unemployment, crime, and other "social pathologies."

6 Id.
' Michel Foucault, Governmentality, in The Foucault Effect: Studies in

Governmentality: With Two Lectures By and An Interview with Michel Foucault 87
(Graham Burchell et al. eds., 1991).

" For discussions of the growing taste for order in American cities, see Roger
Lane, Violent Death in the City: Suicide, Accident, and Murder in Nineteenth-Century
Philadelphia (1979); Eric H. Monkkonen, America Becomes Urban: The Development
of U.S. Cities and Towns, 1780-1980 (1988). In American political culture the
preferred mode of assuring the management of dependencies has been through

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But to a degree unique among modernized societies the United States
has also experienced a cultural loathing for dependency, born long before
the birth of the republic and still surviving. It is the Declaration of
"Independence," after all. During and after the Revolution, the stigma
associated with "dependence" on King George, and on Great Britain, could
hardly be kept from influencing social practices. This stigma raised the
level of criticism of the family, slavery, and the estate of women.9

Succeeding generations have renewed this line of attack, including the
Radical Republicans in the 1860s, the conservative business elite in the
Gilded Age, and more recently the civil rights struggle, the counter-culture,
feminism, etc. These moments have in common not the internal coherence
of an ideological code, but instead a rhetoric rich in the language and
images of anti-dependency. Rather than a sign system that determines what
Americans can believe or desire, anti-dependency ideology in this sense is
an enabling resource that makes it possible to do certain kinds of political
work much more easily than others, one of which has been dismantling
policies that address inevitable dependency.

Caretaking as a primary social function might take different forms in
imaginable cultures. In the predominant cultures within the United States
(primarily European) and in most of the less dominant ones, caretaking is
gendered. The dominant cultural picture of caretaker is of Mother.
Acknowledging the risk that some will read her as an essentialist, Fineman
chooses to use that very term to describe the general role of caretaking.
That risk is worth taking because the opposite risk, of ignoring the historic
gendering of caretaking relationships, is greater still. It may be liberating
to be reminded that social roles are not determined by biology or natural
law, but it does not mean we can simply wish or "word" the gendering of
our culture away.

It would be possible to describe caretaking in the language of
functionalist social science, but by referring to all caretakers as Mother,
Fineman makes sure that we cannot avoid appreciating the ways in which
the larger subordination of women in our culture has added to the
vulnerability of Mother. Even for elite caretakers, the cultural stigma of
dependency and its gendering means that receiving facilitation from
institutions becomes problematic. At the same time, Mother reminds us
that the powerful cultural associations linked to the caretaking of inevitable
dependency provide opportunities to empower women that should not be

quasi-private networks of insurance, mortgage loans, and consumer credit, bolstered by
a quasi-public system of tax deductions, legal immunities (like insurance from anti-trust
law), and sometimes monetary policy. Where those fail, we much less generously
address dependencies through various forms of income transfer from tax revenues.

' Gordon S. Wood, The Radicalism of the American Revolution (1992).

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Inevitable Dependencies

suppressed in the name of a gender-blind society that does not exist. Nor
should a gender-blind term be used to affirm an argument for the social
construction of gender identities which does not need its support.- This
ambiguous status of Mother is embedded in laws which amplify and
reproduce it. Mother is a location highly marked out and charged by laws
which accord it significant recognition, but only under conditions set by the
requirements of patriarchal ideology, primarily Mother's linkage to the male
dominated sexual family.

This means Mother is a very dangerous formation to bring into play:

In its various configurations, Mother is a pivotal factor in
defining our understanding of our own familial, sexual, and
social circumstances. In this way, Mother is also significant in
our construction of universal meanings, defining the general
qualities of life for us. Mother is an ambiguous symbol--one
about which there is social and cultural contest. For that reason,
focusing on Mother may be considered too dangerous: Mother
is neither fixed nor containable. °

The political complexity of raising Mother is well illustrated by the
on-going attack on welfare mothers. "Welfare" in this context refers to the
social programs that support caretaking among the poor, primarily poor
women and their children, who receive cash assistance and a variety of
services and goods from federal and state programs like AFDC and Food
Stamps. Welfare combines multiple layers of dependency. First, it
recognizes the dependency of children on parents (mostly mothers).
Second, welfare acknowledges the dependency of some mothers on the
government (and here racist ideology has been particularly key in picturing
the African-American mother as the welfare mother). Ultimately, welfare
also admits the dependency of state governments on the federal government.
Opposition to welfare as a political issue benefits from the ease with which
anti-dependency ideology can attach at any and all of these levels.

To justify dismantling the legal and financial support for this
caretaking, Mother must be discredited by her association with the word
"welfare." Mother as the caretaker of inevitable dependency is dangerous
to attack straight on. No doubt part of the explanation for how welfare has
been delegitimized is attributable to race ideology in the United States.1 '
Fineman's analysis of the rhetoric of the welfare debate shows that the
recent popularity of "reforms" aimed at encouraging work and establishing
paternity are operating against an image of deviant motherhood. This

'0 Fineman, supra note 1, at 72.
I Id. at 107.

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deviance is defined by patriarchal ideology in contrast to caretaking in the
context of a father-dominated household. 2

Fear of what mothers would do to their children and to society if they
were allowed to support themselves and their children outside of such
discipline has been a central theme in the political imagination for decades
now. Exemplary among these ideas is the misogynist work of Philip Wylie,
whose book Generation of Vipers was first published in 1942 and went
through multiple printings throughout the late 1960s.13 Wylie attributed
many of the nation's problems to the increased political power of mothers,
a condition he termed "momism."

Meanwhile, megaloid momworship has got completely out of
hand. Our land, subjectively mapped, would have more silver
cords and apron strings crisscrossing it than railroads and
telephone wires. Mom is everywhere and everything and damned
near everybody, and from her depends all the rest of the U.S.
Disguised as good old mom, dear old mom, sweet old mom, your
loving mom, and so on, she is the bride at every funeral and the
corpse at every wedding. 4

The current mainstream consensus on welfare reform stresses
connecting children to fathers, and mothers to the labor market.'5

Increased enforcement of child support payments promises to decrease the
state's fiscal burden (speculative) and presumably to create incentives for
fathers to reassert themselves in the caretaking of their children (even more
speculative). Another reform strategy is to force welfare recipients into the
workforce where, it is widely assumed, they will be subject to the
disciplines and normative influence of mainstream society. This replaces
the direct reinsertion of the father with the more abstracted force of the
"name of the father" as embodied in the world of business and
responsibility.

The new Republican majority in the House has now pushed the reform
debate in an even more extreme direction than the programs and proposals
that Fineman analyzes in her book, but they further confirm her cultural
and ideological insights.' 6 Maternal deviancy is intensified in the mother
who not only goes about caretaking within abnormal contexts, but actually
manipulates the inevitable dependency of childhood to advance her own less

12 Id. at 112.
,3 Philip Wylie, Generation of Vipers (1942).
14 Id. at 185.
"S For a summary of the basic positions, see Mickey Kaus, They Blew It!:

Welfare Reform, Clinton and the Future, The New Republic, Dec. 5, 1994, at 14.
16 Fineman, supra note 1, at 110-18.

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than inevitable dependency on the government. Republican proposals have
a decidedly more coercive quality, aimed at eliminating the fact of single
motherhood by directly discouraging pregnancy and threatening to take
children away from the youngest single mothers. 7

What is left of a liberal stand on welfare generally argues that the
social problems of the poor are mainly to blamed on the conditions of the
economy. The view propounded by most academic experts attributes
existence of a long-term, welfare-receiving population to
de-industrialization, which has stripped many unskilled jobs from the inner
cities, and to a spatial mismatch between the location of entry level jobs and
concentrations of the urban poor.' 8 Fineman's re-visioning of family law
would leap over this analysis. By arguing that the law should provide
direct legal recognition of Mother independent of the sexual bond between
adults (which should be protected from state interference but not accorded
state institutional support, at least not at the expense of caretaking
inevitable dependencies), Fineman provides a basis on which to reconfigure
the entire debate over issues like welfare. The current institutions would
almost certainly be under attack, but primarily for their failure to create
adequate support for Mother.

B. Welfare Sons

Mother as functional social practice and Mother as gendered archetype
come together in Fineman's analysis so that we can recognize that the
effects of social and legal change on Mother are not limited to poor and
minority women. Because inevitable dependencies are so crucial to the
maintenance of the social order, the vicissitudes of Mother are of
tremendous consequence for most other relationships. Thus the failure to
institutionally support Mother has potentially disastrous effects for those that
depend on Mother and others who form partnerships with her. Men, as
partners and sons of Mothers (as well as potentially Mothers themselves)
have much at stake.

The current cultural weakness of Mother is reflected in another social
problem which has been frequently identified as the flip side of the welfare-
Mother problem, the crisis of young males growing up in America's zones
of hardened urban poverty (what we used to call Ghettos). The

"7 See Kaus, supra note 15 (describing the infamous orphanage solution bandied
about by triumphant House Republicans in December of 1994).

IS William Julius Wilson, The Truly Disadvantaged: The Inner City, The
Underclass, and Public Policy (1987); John D. Kasarda, Jobs, Migration, and Emerging
Urban Mismatches, in Urban Change and Poverty 148 (Michael G.H. McGeary &
Laurence E. Lynn, Jr., eds., 1988).

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criminalization and criminal victimization of these youth over the last half-
century together represent one of the most dramatic examples of the
deterioration of the civil status of a citizen population in U.S. history
(words like genocide are not as inappropriate here as one might hope).
Crime, especially violent crime among African-American youth, has
reached a truly horrific level in recent years. 9 The odds of dying
violently if you are a young African-American male are more than ten times
the rate for young White males.' Approximately one out of every
thousand young African-American males in the United States (between the
ages of 14-17) was convicted of a criminal homicide or its juvenile
equivalent in 1991.21 Most of this violence is being perpetrated by people
who are demographically the same as their victims.Y

The toll this cycle of escalating violence has taken on young African-
American males and their communities has been matched in a very real
sense by the grasp of an expansive "justice juggernaut " ' which has
committed itself to punitive responses. It is not an exaggeration to say that
the criminal justice system has become the main institutional space to which
a large percentage of underclass youth are now condemned. An analysis
conducted in the late 1980s showed that one in four young African-
American men were in the custody of the criminal justice system.' When
large cities are singled out the figure is closer to one in two.'

It is controversial to talk about the meaning of the massive relationship
between crime, punishment, and minority youth in America. One way to
finesse this difficulty is to focus on discrimination. The evidence of a
historic pattern of dual justice systems for Blacks and Whites in most parts
of the country is overwhelming. 6  Despite intensive efforts to limit

19 In many respects our current obsession with crime in the United States is almost
a purely ideological reaction with little to support it in the statistics. While crime rates
in the United States remain high as compared with the experience of other industrialized
societies and with our own experience before 1960, they are no higher now than they
were twenty years ago and in many crime categories, the numbers are considerably
better than they were a decade ago. U.S. Dep't of Justice, Criminal Victimization in
the United States, 1973-92 Trends 1-4 (1993).

20 Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 385
(Kathleen Majurre et al. eds., 1992).

21 Id. at 392.
22 Id.
23 Diana Gordon, Justice Juggernaut: Fighting Street Crime, Controlling Citizens

(1991).
24 Marc Mauer, Young Black Men and the Criminal Justice System: A Growing

National Problem (1990).
2 See William Raspberry, The Making of Certified Criminals, Wash. Post, Dec.

20, 1992, at A19.
26 Daniel E. Georges-Abeyie, Race, Ethnicity, and the Spatial Dynamic: Toward

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Inevitable Dependencies

discretion in the assignment of punishments, and despite a wealth of high
quality research on sentencing over the last ten years, few criminologists
are prepared to find that the roots and branches of the dual system have
been eradicated.27

In some way evidence of discrimination would be oddly comforting.
We know a little something at this point, about how to use government to
police discrimination.28 It is more disturbing to think about the
accumulation of young minority men in the criminal justice system even
without discrimination. Imagine that discrimination accounts for half of the
African-American men in the custody of the criminal justice system (which
is likely to be an overstatement). We would still be condemning a quarter
of the men in a community to a lifetime of membership in a separate
political society with different living standards and different rules of
government. Most people in prison or on parole or probation are not
protected by the Fourth and Fifth Amendments as ordinary citizens. For
too many, periods of criminal justice custody run into each other, creating
a semi-permanent deprivation of legal rights. Even when custody has
ended, those convicted of a felony may find themselves deprived of
suffrage.

The crisis of youth violence has frequently been blamed on the
demoralizing influence of welfare and the "culture of poverty." From this
perspective, institutionalized dependency is the problem. The rising
prominence of this view contrasts sharply with the received wisdom of
social policy for much of the 20th century, which linked the problems of
juvenile crime to the pathologies of industrial society. The juvenile court
was invented to institutionally address the new forms of dependency that
urban life was creating for youth. The juvenile court spread from one state
in 1899 to all but three by 1917, making it one of the most rapidly
developed legal institutions in American history. 9  The court, with its

a Realistic Study of "Black Crime," Crime Victimization, and Criminal Justice
Processing of Blacks, 16:4 Social Justice 35 (1989); Coramae Richey Mann, Unequal
Justice: A Question of Color (1993); Marjoire S. Zatz, The Changing Forms of
Racial/Ethnic Biases in Sentencing, 24 J. of Res. in Crime and Delinq. 69 (1987);
Patrick Horan et al., Prior Record and Court Processes: The Role of Latent Theory
in Criminology Research, 67 Sociology and Soc. Res. 40 (1982); Marjorie S. Zatz,
Race, Ethnicity, and Determinate Sentencing, 22 Criminology 147 (1984); Marjorie S.
Zatz & John Hagan, Crime, Time and Punishment: An Exploration of Selection Bias
in Sentencing Research, 1 J. of Quantitative Criminology 103 (1985).

27 For the most sophisticated study to suggest that there has been improvement but
that discrimination probably remains, see Stephen Klein et al., Race and Imprisonment
Decisions in California, 247 Sci. 812 (1990).

28 Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social
Change? (1991).

29 Anthony M. Platt, The Child Savers: The Invention of Delinquency 10 (2d ed.

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Columbia Journal of Gender and Law

legal justification of parens patriae (or "parent of the nation"), recognized
the government's obligation to address the growing gap between youth
needs and the capacity of private caretaking in modem societies.' Its
major supporters were leading feminists among the Progressive era
reformers, including Jane Addams and Julia Lathrop. Indeed, one of the
leading historians of the juvenile court describes its origins as "maternal
justice. "I' For all its naive optimism, this vision constituted a recognition
of the way modem society had expanded the space of child dependency by
removing children from the labor force and ghettoizing them in youth
environments like schools, where their interactions could be defined as
problems for new professions like social work, educational psychology, and
juvenile justice.32

The hubris of the juvenile court often led to petty and not so petty
tyrannies." Scientific expertise about child development was often used
as a cover for class and ethnic prejudices.' In response, the liberal
Warren Court led the charge in delegitimizing the juvenile court in the
1960s in the name of individual rights for juvenile defendants. Federal
policy in the 1970s followed this lead by encouraging states to reduce the
jurisdiction of the courts. In more recent years that jurisdiction has been
further reduced by placing juveniles accused of violent crimes directly into
adult courts."

For more than thirty years now, an unintended coalition of left and
right political movements has stripped much of the legitimacy from the
overtly paternalistic and maternalistic foundations of juvenile justice.'
Instead, with little disagreement among the political parties and virtually no

1977); David J. Rothman, Conscience and Convenience: The Asylum and its
Alternatives in Progressive America 207 (1980).

31 The legal theory of the juvenile court is discussed at greater length in Jonathan
Simon, Power Without Parents: Juvenile Justice in a Postmodern Society, 16 Cardozo
L. Rev. 2501 (1995).

31 Platt, supra note 29, at 75-100.
32 The youth social control problems of the urban poor are also found in their more

privileged brethren but are masked by the quality of the detention centers we have set
up for them and called colleges. For a description of the delinquent aspects of
undergraduate life, see Helen L. Horowitz, Campus Life: Undergraduate Cultures from
the End of the Eighteenth Century to the Present (1987).

33 The facts of In re Gault, 387 U.S. 1 (1967), are exemplary.
3" Platt, supra note 29, at xx-xxii.
3- See Cynthia R. Noon, "Waiving" Good-bye to Juvenile Defendants: Getting

Tough vs. Getting Smart, __ U. Miami. L. Rev. _ (1995) (forthcoming).
36 See Martin L. Forst & Martha-Elin Blomquist, Cracking Down on Juveniles:

The Changing Ideology of Youth Corrections, 5 Notre Dame J.L. Ethics & Pub. Pol'y
323 (1991).

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Inevitable Dependencies

public debate, we have engaged in a massive strategy of incarcerating poor
youth, an urban policy that has cost America more tax dollars than Lyndon
Johnson could have dreamed of spending on the poor. The protection of
juvenile status for many young offenders has been severely cut back in
many states as fourteen and fifteen-year olds are moved directly to adult
court, where they face terms as severe as life without parole.37

Ironically, the juvenile court is being marginalized at the very moment
that the young generation is experiencing just the sort of social
disorganization that the Court's promoters bewailed. This young generation
is being abandoned to lives of criminalization and criminal victimization due
to a lack of real institutional links to the mainstream of economic and social
opportunities.

The condemnation of minority youth to lives of incarceration and
criminalization is a product, in large part, of anti-dependency ideology and
the cultural struggle against Mother." The explosive growth of
incarceration has been accompanied by an explicitly patriarchal ideology
that decries the supposed permissiveness and leniency of social policy
toward the young urban poor in the 1960s and 1970s.39 The popularity
of recent penal programs like curfews and boot-camps for young offenders
seem to promise that the state will forcibly reassert the power of the father
to control and discipline the sons of the urban poor.

We are facing a broad-based crisis of parenting in which some children
lose parents to an economy that increasingly demands high-skilled labor,
and in which others lose parents to the illicit, underground economy of
drugs and violence. Moral panics about sexually perverse day-care workers
and video games mask a profound quiescence in the face of major
reductions in the quality of childhood for individuals in all classes.' Poor
mothers and their children are simply the preferred targets (for reasons of
class and race) for a much more general cultural repudiation of caretaking
responsibilities.

17 Barry C. Feld, The Juvenile Court Meets the Principle of Offense: Punishment,
Treatment, and the Difference It Makes, 68 B.U. L. Rev. 821, 842-47 (1988).

38 The decline of the juvenile court, or really its restructuring into a more punitive
instrument, has been driven by a number of factors including the increasing minority
make-up of the system, the politicization of crime policy and the shifting cultural image
of adolescence. Ideology plays a role that is rarely determinative but always can be
discerned after the fact, in the moves of the victors. See generally Simon, supra note
30, for a discussion of the evidence.

'9 See e.g., James Q. Wilson, Thinking About Crime (2d ed. 1986).
o Laura Shapiro et al., Rush to Judgment, Newsweek, Apr. 19, 1993, at 54.

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C. Strengthening Mother

According to Fineman's legal genealogy of Mother, the development
of modem domestic law has entrapped Mother within the structure of a
formally egalitarian heterosexual dyad between a man and a woman to
which children are attached in the problematic ways that preoccupy a good
deal of family law.4' The current political struggle is oriented around the
issue of how far to broaden the boundaries of this sexual family.42 Should
it include gay men and lesbian women? How should we work the
relationship of children into the complex set of broken sexual families that
serial monogamy often means? Fineman's proposal would reorient the
whole structure of law around the axis of the Mother-Caretaker and the
Child-inevitable dependent. The legal protection of the state would
advantage whomever undertook with appropriate commitment to be Mother
and accept responsibility for a broad range of inevitable dependencies.43

Fineman's analysis of the vicissitudes of Mother in our culture is
timely not only because its predictions about the politics involving single
mothers are so rapidly proving true, but also because of its robust practical
applicability. Her legalgenealogy of Mother and her "re-visioning" of the
family are not tied to any particular reform strategy. They do not address
any one branch or level of government. Nor are their essential appeals tied
strongly to any particular political ideology. Because Mother and the
Sexual Couple are such deeply embedded formations in our culture, the call
to strengthen Mother has implications which move the discussion beyond
any type of political, religious, or gender-related dividing line.

This is especially attractive now when even questions of where policy
will be made, let alone what policy will be made, is in spin. If the center
of law and government shifts back to the states, or into "private" law
altogether, new kinds of arguments and alliances are going to have to be
made. Although Fineman focuses on law as a central field in which Mother
is constructed and reconstructed, her analysis does not assume a specific
path for legal change or even insist that a transformation in the position of
Mother must come from law. Her scholarship has no set interlocutor. If
her proposed legal changes are utopian because they are not likely to be
adopted by legislatures or courts (any time soon) this does not mean that
they will not shape arguments that can be taken seriously in both arenas.
On the contrary, by illuminating Mother in American law and politics,

4, Fineman, supra note 1, at 74.

42 Id. at 4.
43 Id. at 234.

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Inevitable Dependencies

Fineman opens up the possibility of many different engagements within the
political field.

Democratic societies have always struggled with a paradox. The key
to establishing a population capable of self-government, i.e., one which
rules itself through democratic forms, is to establish and maintain practices
which subject individuals to a government of the self, i.e., to the exercise
of power over the self. This problem was already evident to monarchical
critics of Parliament during the British Civil War. How can a society be
said to have consented to anything when its very being is constantly
shifting, and when examples abound of those incapable of governing
themselves in the affairs of life?" Liberals like John Locke ducked the
question and responded with their own withering critique of Monarchical
social theory.45 They could do so because of the existence of many
seemingly settled power relationships which promised to bridge the paradox
of self-government and government of the self-the power of fathers, and
of father analogs like Masters and Magistrates-and because they
contemplated nothing like universal suffrage.'

That space has narrowed considerably in the last three centuries.
There is virtually no relationship of power that is not subject to some aspect
of anti-dependency critique. This has been the product of a great increase
in democratization, but it has heightened the contradiction that liberalisms
have always embedded, the inevitable dependency of our own freedom on
the maintenance of crucial modes of unfreedom.47

Democratic politics is inevitably dependent on effective means of
caretaking that ensure the reproduction of social order without irreparably
damaging the capacity of self government. The stigma associated with
dependence and the caretaking of dependency has now reached terminal
levels with respect to the leading institutions undertaking the social support
of caretaking. In raising the question of inevitable dependency at this time,
Fineman's book may offer a concrete cultural path out of the increasingly
self-destructive logic of anti-dependency ideology.

" Gordon J. Schochet, Patriarchalism in Political Thought: The Authoritarian
Family and Political Speculation and Attitudes Especially in Seventeenth-Century
England (1975).

' Most famously in John Locke, The Second Treatise of Government (Thomas P.
Peardon ed., 1952, n.p. 1690).

' Notwithstanding the relatively unproblematic nature of these power relationships
for 17th century liberals, Locke worried tremendously about the actual forms that such
power might take, so much so that he wrote a lengthy treatise on child-rearing for
gentlemen.

47 See Roberto M. Unger, Knowledge and Politics (1984).

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II. THE INEVITABLE DEPENDENCIES OF KNOWLEDGE

What does law do? That was the question propounded by Roscoe
Pound and the first generation of legal realists in American law schools in
the first decade of the 20th century.' Studying the law-in-action has
remained a worthy goal of legal scholarship since that time. Yet, with
important exceptions, including Wisconsin, UCLA, Berkeley, SUNY
Buffalo, and the University of Miami, most sociological jurisprudence, in
Pound's sense, has gone on outside American law schools, among the
anthropologists, historians, political scientists, and sociologists who make
up the Law & Society movement. The popularity of economics, analytic
philosophy, and semiotics in law schools makes them appear intellectually
diverse, but all tend to share common academic methodologies with classic
doctrinal scholarship, especially the thoughtful reading of texts and the
spelling out of conceptual intuitions. The law-in-action may be deemed
worthy of study, but all too often, it is studied just like law-in-the-books.
Studying the law as a social practice remains rare.

Because the voices asking what law does as a social practice have only
intermittently been accorded much of a hearing in law, the considerable
following that Martha Fineman's scholarship has developed both in and out
of law schools would be noteworthy to those of us interested in the
sociology of legal knowledge. This is so particularly because Fineman's
scholarship brings important innovations to the empirical tradition. Too
often the goal of studying the law-in-action has meant a narrow commitment
to quantifiable data which has often limited the reach of its best
practitioners49 and led its lesser lights into a sterile numerology. The Law
& Society movement that developed in the 1960s grew out of the rapid
growth in the prestige of the social (or, as they were then called,
"behavioral") sciences and for a long time has remained largely wedded to
the paradigm of "middle range" research established by the leaders of that
era. Perhaps the most important of these is Robert K. Merton whose
powerful methodological writings have influenced two or three generations
of social scientists.

For Merton, commitment to the middle range meant steering a course
between:

The minor working hypotheses evolved in abundance during the
day-by-day routines of research, and the all-inclusive speculations
comprising a master conceptual scheme from which it is hoped

4 Roscoe Pound, Liberty of Contract, 18 Yale L.J. 454 (1909).
'9 See Jonathan Simon, "The Long Walk Home" to Politics: Review of Gerald

Rosenberg, The Hollow Hope, 26 Law & Soc'y Rev. 923 (1993).

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Inevitable Dependencies

to derive a very large number of empirically observed
uniformities of social behavior."0

Merton believed that sociology was in an early stage of scientific
development where only the slow accumulation of observations combined
with provisional conceptualization, closely tied to specific ranges of data,
would support significant progress. However, Merton in no way abandoned
the positivist goal of a comprehensive and integrated theory of social life.

In her earlier study of divorce reform, 5' Fineman identified with
Merton's approach:

In my opinion, one significant distinction between my feminist
approach to legal theory and the more traditional varieties is my
belief in the desirability of basing law on what is concrete rather
than on what is abstract. Such an emphasis on context also has
had rather honorable nonfeminist adherents. For example, Robert
Merton coined the term theory of the middle range to describe
work that mediated between "stories" and "grand" theory.52

Elsewhere I have argued that it is time to renew the tradition of middle
range theory by developing a variety of postmodern (and thus inevitably
post-Merton) middle range research practices. 53 These research practices
might be called postmodern in several senses. First, they confront the
implications of constructivist epistemology, i.e., the recognition that the
interpretive and the ideological run through in even the "hardest" features
of social life. The modem sociological tradition has generally taken terms
like "society," "nation," and "class" as essentially unproblematic
parameters for analysis.

Merton turns to the French sociologist Emile Durkheim, whose studies
of suicide and law have been among the most influential models of
sociological method, as an example of well crafted middle-range theory.
But almost all of Durkheim's work presupposed as its underlying subject,
France, as a coherent and singular society defined by common language,
racial composition, and autonomous economy. It is difficult to imagine
how Durkheim would even locate "France" today, with its economy
determined by German bankers, and its increasingly multicultural and
multilinguistic population. A postmodem middle range then, takes
seriously the concrete features of lived experience, but without the previous

"0 Robert K. Merton, Social Theory and Social Structure 5-6 (1968).

5' Martha A. Fineman, The Illusion of Equality: The Rhetoric and Reality of
Divorce Reform (1991).

52 Id. at 7.

13 Jonathan Simon, Between Power and Knowledge: Foucault, Habermas, and the
Future of Legal Studies, 28 Law & Soc'y Rev. 947 (1995).

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Columbia Journal of Gender and Law

assumption of a fixed frame of analysis that will be progressively filled in
by an advancing normal science of the concrete. Second, postmodern
middle range research would internalize the insights of modernist schools
like critical theory and the study of the social construction of reality so as
to see research itself as contiguous with other forms of self-interpreting
activity. The work produced is itself inevitably ideological, in the sense
that it becomes part of the available material for the interpretive strategies
of other people.'

The Neutered Mother moves beyond the modernist understanding of
middle range in both of these senses. The formations Fineman analyzes are
concrete and immediately recognizable to anyone with minimal competence
in the culture as distinct figures (albeit ones constantly intertwined with
others like constellations in the night sky). The deviant mothers discussed
in chapter five are all figures of popular as well as expert discourses. What
Fineman succeeds in doing is making visible the elements of a cultural
system that we already recognize and use. They are products of ideology,
but not in the sense that they are derived from some generative grammar
reproducing the structures of domination from on high.

We speak of the "broken" family, the "disintegration" of the
family .. .and, perhaps inevitably from some perspectives, the
"death" of the family. Underlying such labels is the specter of
single motherhood-statistically on the upswing-pathological
and disease-like, contaminating society, contributing to its
destruction and degeneration."

Fineman can talk about Mother and her fate without resolving
fundamental issues of social ontology (difference vs. domination) or
committing herself to particular ways of producing or testing the truth of
social realities. "Patriarchal ideology" is described sometimes as a
determinative force but rarely one which dictates terms. Motherhood is a
"colonized" concept,56 but in the sense that its content is given by the
power of patriarchy to describe, give meaning, and attach consequences.
There is room in this account for agency and politics. 7 The term

5' We recognize the "unintended consequences" of thought rather more easily
today, but even that expression codifies a questionable distinction between intended and
unintended.

" Fineman, supra note 1, at 124.
56 Id. at 124-25.
11 Patriarchy, after all, has often been the target of anti-dependency ideology. In

this sense it would be a mistake to take away from a reading of The Neutered Mother
the assumption that the current attack on welfare is simply a product of patriarchy. At
that level of abstraction it would be equally easy to argue that patriarchy requires
welfare.

[Vol. 5:1



Inevitable Dependencies

"utopian," with which Fineman self-identifies her vision of a whole new
basis for family law, is in this sense not an alternative to pragmatism but
a consequence of it. Because Mother encompasses so much social history
and meaning, only a brand of scholarship fluently conversant with existing
social institutions holds any promise of illuminating her fate. But that is to
acknowledge the inevitable dependency of knowledge on the very ideologies
it attacks. In doing so, The Neutered Mother points to a new model of
scholarship.

CONCLUSION

The Mother-child dyad, which Fineman offers as the key
representation of inevitable dependencies and the central social institution
for addressing it, exemplifies the seriousness about practices and the
self-consciously political nature of her work. Fineman acknowledges the
risks of helping to essentialize the gender role of mothering but she chooses
to accept that risk.5" Social construction, after all, is no guarantee of
liberty (and, of course, no endorsement of anarchy). Rationally informed
strategic action is possible, but always under the constraints of a world
where the embeddedness of power and knowledge make it extraordinarily
difficult to fathom how particular strategies of resistance will "feedback"
into the popular perceptions of reality. These may not be the ideal
conditions for scholarship or politics, but they are conditions on which we
are inevitably dependent. Providing a model of how to respond to those
dependencies may be Fineman's most significant contribution.

58 Perhaps this book marks the beginning of the end of the social construction
debate which seems to have so preoccupied academicians in the social sciences and
humanities of late. It is late in such an exhausting century to be treated to a whole new
round of debates about relativism, nihilism, and the politicization of knowledge most
which were hashed out more eloquently fifty or seventy-five years ago.

1995]