Political and Social Construction of Families through Pedagogy in Family Law Classrooms

Most family law materials available today fail to reflect the diversity\u27 of family arrangements in modem society. Traditionally, family law is taught as a rules-based area of law. Students learn the requirements of marriage and the grounds for and consequences of divorce. Currently, there are efforts to expand the codification of family law through such things as support guidelines, uniform acts, and legislation listing specific factors to be considered in custody and property distribution cases. Many of these efforts stem from the underlying assumption that there is a uniform methodology describing and defining doctrine appropriate for resolution of family related matters. This uniform methodology stems from the perception that there is a preferred model for family structure. Because the substance of family law is personal and emotional and because we live in a period of intense sensitivities about race, gender, and diversity, consideration of these issues is a delicate matter for both professor and student. Students as well as society have a variety of family lifestyle experiences. Our pedagogical style for family law can have a silencing, as well as normalizing effect if our focus is on the married unit as the norm. Family law courses generally launch this silencing or normalizing effect by beginning the course in one of two ways-either with a consideration of the institution of marriage or with an examination of the rules governing its dissolution.\u27 Given the changes in behavior in the past several decades, one wonders why marriage is still the universally-accepted starting point. Is it presumed that marriage continues to be the exclusive foundation of the family? If so, this article suggests it is a flawed beginning. Discussing family law from the starting point of marriage defines a family structure which may not characterize all cultures in our society and may suggest a preference for one family structure over another. Our society hinges upon dichotomies Teaching family law through marriage discussions gives the appearance that marriage is the accepted way of starting a family, thereby devaluing other units-even though marriage is prohibited in some units. The married family unit may be deemed the good and all other units, the bad. Relationships and arrangements that do not resemble nuclear families are labeled dysfunctional. This negative label is not always a result of some problem in the family, but attaches simply because the unit does not conform to the marriage nuclear norm. Former Vice President Dan Quayle and his allies believe that many of the problems we face today result from the breakdown of family values, that is, the breakdown of the traditional nuclear family structure. However, the real problem is the judgmental attitude which favors certain family units while denigrating others. When a particular unit is favored as the norm, individuals who do not fit that standard often struggle futilely to conform. Frequently, this results in utter hopelessness and a lack of self-esteem. Disengagement, lack of productivity, and antisocial behavior are frequent by-products. Such a melancholy view can lead to a lack of value in one\u27s self and in life in general. This reduction in the value of life may result in acts of violence to oneself or to others. Triggering this sense of lack of value in one\u27s self simply because of the make-up of an individual\u27s family unit is, to this author, preposterous. Some individuals fall outside of the norm because of factors beyond their control, such as death and divorce;9 others do so by choice. Clearly, we live in a pluralist society where a variety of personal lifestyle choices abounds. Therefore, the laws and legal doctrine affecting those personal choices should address the diverse nature of our society in a positive way. Family law materials should reflect diversity of family arrangements in present day society without valuing some structures over others. The personal relationships which develop when a family is formed should be celebrated and valued regardless of whether the family mirrors the traditionally accepted model. Discussing family structures only from the point of marriage may be offensive to certain ethnic groups and various individuals who prefer to organize their families in less traditional ways. The thesis of this article posits that a discussion of family, regardless of the unit\u27s form, is a more appropriate starting point for a family law class. \u27 Focusing on what constitutes a family would foster discussions of laws and legal doctrines which affect our personal choices and address the diverse nature of our society. A value-free discussion of family would include consideration of various cultural backgrounds, perspectives, and norms that are extant in our pluralistic society. Part I of this paper discusses perspectives on modem day family units. Part II discusses the selection of an effective pedagogical style for teaching family law that will include various perspectives on family. Finally, the article concludes that family law professors should select a pedagogical style and textbooks that incorporate diverse family structures without implying that marriage is the only acceptable family unit