University of North Carolina law professor Maxine Eichner hopes she has articulated a comprehensive theoretical basis for family policies that is realistic enough to implement. She calls it the “supportive state.” In her scheme, described in The Supportive State: Families, Government, and America's Political Ideals, families bear the responsibility of caring for their children, but the state is responsible for “structuring institutions in ways that help families meet their caretaking needs, and that support human development” (61). She explicitly eschews proposals that call for reconstructing society from the ground up. Political theory that seeks to do this, Eichner writes, “risks irrelevancy” (11). The American political tradition is liberalism, and she anticipates that policies will actually be realized if they derive from a liberal framework.
Eichner differentiates her strand of liberalism from that of John Rawls, whose principles of state neutrality and individual justice fail to take dependency into account. By reworking Rawls to attend to the inevitability of dependency, Eichner develops the theoretical underpinnings for a state that must play a role in fostering human dignity and autonomy. This includes a state that will specifically address the threat to family autonomy that comes from an unregulated market. For example, Eichner argues that families will be able to make decisions and care for dependent members only if the state fosters such measures as paid time off, flexible work hours, a cap on mandatory work hours, and a prohibition on firing parents who refuse to work overtime while their children are young.
As just this one illustration shows, however, Eichner's longing for a theory that can lead to practical solutions butts up against a stark reality: the policies she proposes are far from practical in the political climate of today or the foreseeable future. Eichner may believe that if she can couch the need for certain reforms in the language of liberalism they are more likely to be implemented than if they are cast as the product of more revolutionary thinking. I doubt she is right about this. It's the policies themselves that market leaders and the right wing resist. I can't disagree that “a just society should seek to deliver basic goods, such as health care, to everyone in society, regardless of family membership” (106). But Eichner's justification for such a policy, grounded in “the state's responsibility to ensure that all its citizens have the means and opportunity to pursue dignified lives” (106), ignores both the distrust of government evident in the opposition to health care reform and the absence of dignity as a value in both constitutional and political discourse.
Practical or not, Eichner's proposals, as well as the theoretical thread that binds them, are worth study, and The Supportive State is a valuable contribution to family policy debates. The book's scope is notable; few family law or policy texts tackle such a wide range of issues within a single analytical framework. Among Eichner's topics are employment law, Social Security, alimony and property division rules, same-sex marriage, access to abortion for teenagers, and standards regarding when the state should be allowed to separate children from their parents. I was especially impressed with her inclusion of this last topic. Eichner argues that a supportive state should not treat children's welfare as a residual responsibility once parents have failed but should funnel resources to ensure that existing families have what they need to provide for their children. This includes decent housing; transformed neighborhoods; medical, mental health, and substance abuse treatment; child care; and quality early education.
These good proposals, however, are also politically unlikely, which leads me to my biggest criticism of the book: its lack of a conclusion. A book whose introduction sets it up to be practical should pull its recommendations together into a concluding chapter that tackles implementation issues. Instead, the book contains three chapters that explain how the supportive state should address horizontal (i.e., adult/adult) relationships, vertical (i.e., adult/child) relationships, and family privacy concerns. And then it just ends.
Eichner acknowledges many contributions of scholars before her, including Emory law professor Martha Fineman, the most influential family law scholar in the country, whose theorizing about dependency seismically shifted feminist legal theory in the 1990s. Eichner refers only to Fineman's The Autonomy Myth, however, and overlooks her earlier book, The Neutered Mother, the Sexual Family, and other Twentieth-Century Tragedies.
The Neutered Mother is where Fineman proposes that the caretaker-dependent dyad, not the adult sexual unit epitomized by marriage, be recognized as the cornerstone of society. She criticizes dependency-blind gender equality norms in family law along with all law reform designed with the assumption that men should do more of the work of caring for children. Eichner's book contains the raw material for a sophisticated and nuanced rejoinder to Fineman, but she fails to do this explicitly. It's a shame, because a direct debate would be a most fascinating feminist conversation about family policy.
Eichner is a prolific legal scholar whose work has appeared in the journals of prestigious law schools. Such articles are the currency of legal scholarship, but they reach a narrow group of readers. The Supportive State guarantees a larger audience for her ideas, something she richly deserves.
