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Debating Democracy's DiscontentEssays on American Politics, Law, and Public Philosophy$
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Anita L. Allen and Milton C. Regan

Print publication date: 1998

Print ISBN-13: 9780198294962

Published to Oxford Scholarship Online: November 2003

DOI: 10.1093/0198294964.001.0001

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Unencumbered Individuals and Embedded Selves: Reasons to Resist Dichotomous Thinking in Family Law

Unencumbered Individuals and Embedded Selves: Reasons to Resist Dichotomous Thinking in Family Law

(p.229) 18 Unencumbered Individuals and Embedded Selves: Reasons to Resist Dichotomous Thinking in Family Law
Debating Democracy's Discontent

Mary Lyndon Shanley

Oxford University Press

US law concerning families has not tipped as unequivocally in the direction of unbridled individualism as Sandel believes, and, in any event, individualism and moral values are not diametrically opposed to one another. Because law shapes the way we conceptualize human relationships, we should make sure that “the tale told by law” reflects an understanding of the importance of communal interdependence to both individuals and society, rather than simply reflecting justice understood as the protection of individual rights. In promising wives long-term support in the event of divorce, the old marriage law provided some compensation to wives for their economic vulnerability, but it promoted an inequality in both the family and the larger society; the challenge for family law and family policy is to design measures that will allow deep affection ties to flourish while not locking some people–primarily women–into dependency. In Sandel’s eyes, the dissenters in Bowers v. Hardwick missed an opportunity to articulate the possible goods to be realized by homosexual intimacy, and in doing so impoverished political discourse, but throughout his opinion, Blackmun attempts to relate the importance to an individual of being a member of a family or an intimate association and the ability to choose to establish or enter such a relationship. The Indian Child Welfare Act of 1978 regards neither Indian infants nor their biological parents as unencumbered individuals, but rather suggests that they are embedded in a web of relationships they have not chosen, yet which in part constitute who they are and which justify particular legal stipulations regarding jurisdiction and placement in foster care and adoption cases; it also recognizes individual rights through provisions that allow for consideration of the wishes of the biological parents and of the best interests of a particular child.

Keywords:   adoption, Bowers v. Hardwick, communal, divorce, homosexual, Indian Child Welfare Act of 1978, interdependence, intimate, marriage, vulnerability

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