The American Family and the State, edited by Joseph R. Peden and Fred R. Glahe, San Francisco: Pacific Research Institute, 453 pages, $34.95/$14.95
Between the individual and naked state power stand various groups and associations—religions, corporations, unions, families, for example—all of which are formed by individuals but many of which have acquired state power. And many groups have been assailed by champions of the individual because the power they wield seems like state power: the religious group whose members isolate a disobedient member, the corporation in a company town whose workers can find no other employer, and the strict parent who makes teenage children miserable with archaic curfews. Should these groups be cherished for their individualist roots—or attacked for the group power with which they may subdue the individual subject to their influence?
The most persuasive answer to such a question is that we need associations by our nature. Moreover, a multiplicity of associations between ourselves and the state serves to protect our liberty. At the same time, mindful of the individual, we should question association ties to state power. Labor unions can serve informational, fraternal, and bargaining purposes, but the state should neither limit their organization nor put its power behind their demands. Charitable associations serve a multitude of laudable and necessary purposes, but the state should not be the source or the arbiter of charitable donations. Corporations can pay outrageous salaries to their executives and take financial risks, but no state funds should save them if these policies cause them to fail in the marketplace.
But what about the family? In some civilizations, families still have quasi-state power over their members, particularly female members. A controversial public-TV "docudrama" of several years ago, Death of a Princess, dramatized the fact that some Moslem fathers have the power to take the lives of disobedient daughters.
Family power has never gone to this extreme in the United States, although advocates of children's rights have for several generations now assailed the moral, social, and physical power that families have over their young members. Anglo-Saxon common law gave men control over the actions, liberty, and property of their wives and children. Laws securing the rights of wives, establishing mandatory education, and forbidding child labor have changed this situation drastically, with sometimes ambiguous results. Changing state policy toward the family can change and even discourage marriage and can change the relation of parents and children.
Many social observers believe that it is because of policy changes that family power in the United States has recently been on the wane. It is certainly true that the American family is becoming fragmented. Divorce rates increased 115 percent between 1965 and 1979 and are still increasing; young people are having babies without marriage; single women in their 30s who devoted themselves to a career are now being told that demographics dictate that they may never be married at all.
This disintegration has led many individualists to realize that, in criticizing the power of the family, they never wanted the institution to be altogether destroyed. This realization has led them to reexamine the ways in which the family actually protects and enhances the individual.
In light of this realization, what should family policy be? The American Family and the State addresses that basic question. As its title suggests, the book discusses—in 14 articles by 17 libertarian, conservative, and neoconservative authors—the interrelationship of government policy and the family. It explores philosophical, economic, and societal views of the family; the historical rise of public schooling; changing legal theories; the impact of economic and social policy on family life; and private-sector alternatives to federal programs.
This is a scholarly book; many of the authors are economists or economic historians, and they are predictably cautious in their extrapolations. In the introduction, the editors are careful to say that no "coherent theoretical framework" has been agreed on by the contributors. But they suggest that the collection hints "at the locus of a possible solution.…What we may be looking for in this volume is a social theory that will treat the family as a kind of spontaneous order in which individuals and groups make rational decisions based on their own estimation of their self-interest, decisions which in the larger arena of society work to the welfare of the whole."
What sort of political structure could allow such a spontaneous order to develop? One possibility, explored by several of the contributors to this book, lies in reconsidering the role that contracts play with respect to the family.
In his chapter "Marriage, Divorce, and Property Rights: A Natural Rights Framework," Roger A. Arnold discusses the present restricted status in American law of the marriage contract and of prenuptial agreements. Arnold suggests that a natural-rights framework, if adopted by the courts, would allow unlimited freedom of contract between individuals contemplating marriage.
In another chapter, "Freedom of Contract and the Family: A Skeptical Appraisal," Paul Horton and Lawrence Alexander question several assumptions, particularly the common equation of contracts with legal enforceability, in order to suggest a wider conception of contract as the basis of family relations. After all, they point out, other give-and-take relationships, such as partnerships and employer-employee relations, are contractual, but the parties rarely bring them into court. They suggest that more attention should be paid to the moral, philosophical, and psychological characteristics of contract.
"Contract," they write, "is one important method of exchange between individuals. The employment of contract methodology for exchange permits a measure of planning, negotiation, and structuring to the participants that enhances their individuality, recognizes their dignity within the transaction, and increases the likelihood of fairness and clarity in the exchange. No reasons come immediately to mind that would invalidate these advantages of Contract so far as family relationships are concerned."
All groups have power, by virtue of the fact that they magnify the power of the individual; that's why we are able to accomplish things through group action that we could not do alone. Individuals need to be protected by criminal law (such as the laws against theft, fraud, assault and battery, and peonage) from having group power improperly used against them. But there is more that a legal system can do to enhance the positive formation of group relationships—it can encourage the formation of contracts and their enforcement by the courts.
Contracts are exchanges—they embody the ideas of fairness and bettering oneself through exchange. Such ideas are the moral basis of family relationships and could indeed encourage the spontaneous order of the family to thrive. The American Family and the State offers thought-provoking reading to anyone concerned about the plight of the family in America today.
Joan Kennedy Taylor is a free-lance writer and a commentator on the syndicated radio program Byline.