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Kinship, Marriage, and Divorce in Comparative Family Law

Published online by Cambridge University Press:  01 July 2024

Aaron V. Cicourel
Aaron V. Cicourel*
Affiliation:
University of California, Santa Barbara
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Sociological studies of the family, ethnographic studies of kinship and marriage, and legal accounts of family law have been neither clear nor comparable in explaining how members perceive and interpret arrangements such as “marriage” or “divorce.” These comparative studies invariably include case materials, and accounts which presuppose various linguistic and para-linguistic phenomena, meanings, and unexplicated usages. The precise character of comparable behavior remains obscure. Truncated categories translated from one language to another become verbal signals disengaged from the actual perception of social behavior and its interpretation in subsequent descriptions. The categories of different scholars are presented as equivalence classes in which the adequacy of the descriptions is never an issue because the author assumes that the reader “knows” what the author “means.” Although the categories employed describe general routine practice of members, there is little concern with the language, gestures, voice intonation, and body posturing accompanying the action scenes to which general categories refer.

Type
Research Article
Information
Law & Society Review , Volume 1 , Issue 2 , June 1967 , pp. 103 - 129
Copyright
Copyright © 1967 by the Law and Society Association

Footnotes

Author's Note: This paper was written while the author held a research appointment at the Center for the Study of Law and Society, University of California, Berkeley. I am grateful to the Law & Society Association and the Latin American Research Program at the University of California, Riverside, for small grants that enabled me to obtain assistance in examining comparative materials from Spanish speaking countries on marriage and divorce. I wish to acknowledge the excellent assistance of Mrs. Regina Arriaga and Mrs. Nancy Lopez Nisnovich.

References

1. Cf. N. Bell & E. Vogel, eds., A Modern Introduction to the Family (1960) ; W. Goode, World Revolution and Family Patterns (1963) ; M. Gluckman, Order and Rebellion in Tribal Africa (1963).

2. Para-linguistic phenomena, such as voice intonation and gestures, depict social structure through the use of language categories and body movements by members. The problem of what the observer means when he states that the crowd was “unruly,” the adolescent was “hostile,” or the group's mood was “serious” emerges sharply in animal studies where the problems of adequate description have been addressed for some time. Cf. H. Elliot, Animals and Man: Notes on Animal Behavior Studies as a Model for Scientific Sociology, unpublished master's thesis, California (Berkeley), Dept. of Sociology, 1966; C. Schiller, Instinctive Behavior (1957); I. Devore, Primate Behavior: Field Studies of Monkeys and Apes (1965). Studies of animal social structure invariably presuppose that certain body movements and gestures mean something similar to the common sense understandings employed by humans in describing their own social interaction. Animal studies, therefore, like small group studies of humans, presuppose an unexplicated body of common meanings for making sense of what happened; these common meanings remain “what everybody knows” rather than empirically investigated phenomena.

3. I am suggesting that the ways in which members of different cultures or societies decide to “close” the unfolding or emergent and routine features of everyday practical activities become the central properties sociologists must investigate if we are then to compare general practices or rules across cultural, societal, or national boundaries. The problem of “closing” unfolding or routine features of practical activities can be linked directly to the measurement of social events by reference to the ways in which members, singly, in social exchanges, and bureaucratic arrangements, decide that some event or sequence of events occurred or happened and “bounds” events such that a judgment is made that something is an account with a “beginning” and “ending.”

Practical reasoning or decision-making provides members of a group with the grounds to “close” an act or sequence of events so that it assumes a bounded character and thereby permits counting. Thus, the “cases” of law that are invoked as bounded instances of some set of activities take on the character of homogenous entities which can be counted in support of a particular or general position.

Each event or sequence of events can be broken down into various parts. The theoretical and empirical problems of infinite regress into further divisions lead researchers to decide that the event or sequence of events can be closed and hence viewed as “terminated” and a codable unit. See H. Garfinkel, Remarks on Ethnomethodology, forthcoming.

4. A. Radcliffe-Brown, Introduction in African Systems of Kinship and Marriage 43 (1950).

5. Members of social groupings pay attention to an environment of objects with some stock of knowledge or presuppositions. Researchers often obtain reactions to some ambiguous phenomena rather than mapping the reaction into the elements of an “objectifiable” social scene. The term “objectifiable” assumes the existence of a theory that will explain an ideal sound film or video-tape of “what happened,” or at least a tape recording, verbatim notes by the observer or court recorder, or fragments of verbatim notes by the observer of routine daily interaction. But, in fact, “objectifiability” may take at least three forms for researchers differentially removed from actual scenes. It may simply be a verbatim interview of “what happened” according to the interviewer's attempt to describe the respondent's environment of objects via a series of questions and answers. A second and less objective account would be a fixed-choice questionnaire where the observer's categories are forced upon the respondent without the subject's feedback of his own categories. Finally, there might be an informal or official report submitted by participants as part of a bureaucratically organized procedure. The researcher's task in each of these data generating settings is to estimate how some description of “what happened” is influenced by the respondent's practical reasoning and stock of knowledge at hand, that is, his presuppositions about what is known in common and taken for granted by him in making sense (i.e., arriving at practical decisions) of the social scene. Each of the three strategies, or any combination of them, is cross-cut by three general problems that are part of the attempt to objectify the materials we label data: (i) The linguistic, semantic and meta- or usage semantics of conversational material that provide the researcher with categories that members of the society employ to depict themselves, others, and different events or objects; (ii) the para-linguistic properties of communication such as voice intonation and gestures for communicating meaning; and (iii), closely related to (ii), what we might loosely call “postural” properties that include body motion and position. These dimensions pose the more basic problem of how conversational materials, and their properties, are transformed into the more “managed” forms—interviews, questionnaires, and written reports or documents. Interviews and questionnaires usually are removed from the actual conditions of social interaction in which conversations occur (where the conversation involved in conducting the interview includes similar problems but divorced from the substantive context of routine conversations), and therefore in doubtful correspondence (seldom established empirically) with the actual activities to which the interview and questionnaire items refer. Reports and documents, because they can be drafted and re-drafted, acquire the largest number of “managed” appearances because contingencies of actual social interaction can be eliminated, altered, or distorted. The sociolinguistic problems here are only now being addressed by sociologists. The para-linguistic properties of conversations are seldom describable such that any reader can readily understand what the observer intends; the reader must assume that he “knows” what the observer “means.”

6. Because we cannot objectify the daily activities of members (in any culture or society) adequately at this time, we are often forced to equate abstract categories rather than the linguistic and para-linguistic properties of actual behavior and how members accomplish daily tasks. For examples, see Radcliffe-Brown, African Systems of Kinship and Marriage (1950).

7. The concept of “background expectancies” or what Schutz describes as what everyone knows and takes for granted, is derived from H. Garfinkel, Studies of the Routine Grounds of Everyday Actions, 11 Social Prob. 225 (1964). See also A. Schutz, Collected Papers (1962).

8. This statement illustrates “the documentary method of interpretation.” Cf. H. Garfinkel, Common Sense Knowledge of Social Structures: The Documentary Method of Interpretation, in Theories of Mind 689 (Scher ed. 1962).

9. So far I have tried to show the importance of the distinction between the justification of a practice and the justification of a particular action falling under it by indicating how this distinction might be used to defend utilitarianism against long standing objections.

John Rawls, Two Concepts of Rules, 65 Philosophical Rev. 3.18 (1955) ; H.L.A. Hart, The Concept of Law 86 (1961) seems to hint at a similar distinction. For a general discussion of rules see D. Shwayder, The Stratification of Behavior 233–80 (1965).

10. Two further points: first, the descriptions contained in conversations or documents used to “see” or “understand” or “know” an object or event, provide methodical arrangements for revealing the social structures or elements of social organization intended by the reader, speaker, and hearer. Second, if the term “comparative” is to have any consistency, the comparison of language categories and descriptions must be articulated with procedures for comparison of the daily activities to which the categories and descriptions are sign functions in different societies or cultures. Comparability is not merely making abstract truncated references to different practices in different countries by quoting statutes or even descriptive studies, but demonstrating the comparability of observed activities and language categories from which inferences are to be made. Statements by persons labeled lawyers, jurists, clients, witnesses, are not automatically “data,” unless we address how persons in everyday life “see” events and objects via the descriptions they produce, the kinds of background expectancies or tacit knowledge that are employed in producing utterances and interpreting them, and the relation between events as objectifiable activities and their selective interpretation via lay or scientific theories.

11. Ward H. Goodenough, Componential Analysis and the Study of Meaning, 32 Language 195 (1956). A general reference on componential analysis or ethnographic semantics is collected at 67 Am. Anthropologist No. 5, pt. 2, 259 (1965) and in B.N. Colby, Ethnographic Semantics: A Preliminary Survey with Comment, 7 Current Anthropology 3 (1965).

12. Denotata are minimal classes or categories of real or imagined objects, events and relationships. Following Morris' (1946) usage, the set of possible denotata for a word is its designatum, a more general class of which any particular denotatum is a member. The criteria for being in the class are what the word signifies, its significatum. . . . Componential analysis systematically contrasts the sets of denotata of the labels in a terminological system in order to arrive at hypotheses regarding the variables and their values that will most elegantly predict all of their respective denotata. The result is an inductively developed and validated “model” of the conceptual organization of an ideational domain, regardless of how accurately it represents the actual conceptual organization in other than the analyst's “head.”

See generally, Goodenough, Yankee Kinship Terminology: A Problem in Componential Analysis, 67 Am. Anthropologist, No. 5, pt. 2, 286 (1965).

13. Supra note 12.

14. See the recent Iowa Supreme Court case of Painter v. Bannister where the issue was one of custody over a boy who went to live with his maternal grandparents (Bannister) after the boy's mother died. The father, remarried, sought to return the boy to California. A few remarks from this case may illustrate my point:

The trial court does not say which of Dr. Hawks' statements he felt were exaggerated. We were most surprised at the inconsequential position to which he relegated the “biological father.” He concedes “child psychologists are less concerned about natural parents than probably other professional groups are.” We are not inclined to so lightly value the role of the natural father, but find much reason for his evaluation of this particular case.

Mark has established a father-son relationship with Mr. Bannister, which he apparently had never had with his natural father. He is happy, well adjusted and progressing nicely in his development. We do not believe it is for Mark's best interest to take him out of this stable atmosphere in the face of warnings of dire consequences from an eminent child psychologist and send him to an uncertain future in his father's home. Regardless of our appreciation of the father's love for his child and his desire to have him with him, we do not believe we have the moral right to gamble with this child's future. He should be encouraged in every way possible to know his father. We are sure that there are many ways in which Mr. Painter can enrich Mark's life.

Notice that the “best interest” of the child is best served by the grandparent rather than the “natural” father. The “fact” of Mark's “well adjusted” life with his grandparents is given more weight than the “rights” of the “natural” father that the court labeled a “bohemian.” The court makes reference to differences in “philosophies of life” and “value systems” between the Bannisters and the Painters, but notes that “We are not confronted with a situation where one of the contesting parties is not a fit or proper person,” yet makes clear that the father's “bohemian” way of life is “romantic, impractical and unstable.”

15. Goodenough, supra note 12, at 262–63.

16. Schneider, American Kin Terms and Terms for Kinsmen: A Critique of Goodenough's Componential Analysis of Yankee Kinship Terminology, 67 Am. Anthropologist, No. 5, pt. 2, 288, 290–99 (1965).

17. Id. at 293.

18. Ibid.

19. Schneider makes the point that “relative” can be used either for a blood relative alone or for a “relative by blood or marriage.” Id. at 301.

20. There is a resemblance between fixed-choice questionnaires (and open-ended ones as well) and the eliciting procedures described by students of ethnographic semantics. In both cases there is either a presumption that categories are already known to the researcher and respondent that are identical in their structural meaning as in the questionnaire items of surveys, or the use of a contact language, for example, or ethnographic observation that presumes some similarity between the ethnographer's knowledge of his own culture and the one he is studying to enable him to identify “houses,” “places of religious worship or ceremonies,” “hunting,” and the like, so that attempts to ask questions “correctly” in the native language about specific categories and constructions is possible. When students of ethnographic semantics speak of “frames,” they are using a sort of survey designed for cultures where no dictionary exists for formally (structurally) mapping the two languages. See for example Mary Black & Duane Metzger, Ethnography of Law, 67 Am. Anthropologist, No. 6, pt. 2, 141, 146 (1965).

21. See Ch. 1 in A. Cicourel, Method and Measurement in Sociology (1964).

22. H. Kay, The Family and Kinship System of Illegitimate Children in California Law, 67 Am. Anthropologist, No. 6, pt. 2, 57 (1965).

23. P. Aries, Centuries of Childhood (1962).

24. P. Bohannan, Social Anthropology (1963).

25. Kay, supra note 22.

26. The California courts, in dealing with cases involving the claims of a child born illegitimate to be treated as legitimate, have worked out a family system based upon the common residence pattern of father, mother, and child and upon the factual performance of the roles of parent and child within this setting between persons not biologically related. Yet even this statement cannot be taken as the law's final word on the family. The law defines terms for a limited purpose only; and in a common law system, each definition must be understood in the light of the cases that give it substance. In the case of the family of the illegitimate child, the courts themselves are working up another “trouble” case that will test the definition arrived at for the moment: the problem of the household of the unmarried father and his child.

Kay, id., at 75.

27. For example Goode, Family Disorganization, in Contemporary Social Problems 528–29 (Merton and Nisbet ed. 1966).

28. Kay, supra note 22 at 75.

29. Schneider, supra note 16.

30. See M. Rheinstein, Trends in Marriage and Divorce Laws of Western Countries, 18 Law and Contemp. Prob. 3 (1953); Rheinstein, The Law of Divorce and the Problem of Marriage Stability, 9 Vand. L. Rev. 633 (1956).

31. While annulments are possible in Chile, there are considerable costs involved that effectively preclude many from seeking this procedure for terminating marriage. Further, impressionistic accounts obtained from Chilians suggest that considerable collusion and fraud often accompany the granting of an annulment. Except in aristocratic religious circles, the variety of living arrangements that result from annulments, legal separations (“divorces”), and the like, leads to notions of everyday family life not to be equated with structural meanings attributed to legal statutes. How members (religious versus non-religious in particular) located in positions of authority interpret and “close” cases is to be understood by reference to how clients present the practical circumstances of their cases. Having “friends” at each step in the process of securing an annulment and “knowing” that the judge involved has “favorable views” toward annulments, all become part of the game. “Divorce” in Chile seems also to mean “legal separation” in American terms. But we have no objectifiable information as to the daily consequences of such legal action in either country and their contrasts with structural meanings.

Cf. M. Somarriva Undurraga, Derecho de Familia (1963).

32. The same Spanish equivalents for “adultery,” “abandonment,” and the like appear, but there is no way of comparing the use of terms in statutes with application to everyday activities. The Argentine law states that marriages in Mexico and Uruguay do not constitute bigamous offenses. The term “divorce” in Argentine means “legal separation,” with neither party eligible for remarriage in Argentina. Impressionistic material obtained from field work in Argentina by the present writer suggests that many “young intellectuals” will frequently re-marry in Mexico or Uruguay. Many middle and upper income families will avoid legal proceedings, separate and become married in Uruguay or Mexico. Many lower income families never enter into legal procedures because of presumed high costs of a legal separation. Members' views of their living arrangements seem to contradict structural meanings of “the family” and notions like “father” and “mother.” But even legislative interpretations of extra-legal or illegal action seem to engage in the fictions found in the United States in that laws have been passed that tacitly recognize the violations of the basic canonical roots of Argentine family law.

Cf. 1 G. Borda, Tratedo de Derecho Civil Argentino (1961) ; A. Morello, Separacion de Hecho entre Conyuces (1955) ; and A. Spota, La Ley de Matrimonio Civil, 1881–1883 in Anales de Legislacion Argentina (1955).

33. The problem of separations in Argentina may become quite involved when both spouses re-marry in Uruguay and both have children from their earlier marriage, and further, when their new spouses are also separated in Argentina with children from former marriages. The problem of inheritance is minor in comparison with kinship terminological confusions and the kinship and personal social relationships that are altered. The problem is also acute when separated couples who marry outside their country enter into contracts within Argentina or seek visas to travel as married couples from consulates in Argentina.