Emory Law Journal
social norms, family law, emotion
Social norms exert a powerful influence on families. They shape major life decisions, such as whether to marry and how many children to have, as well as everyday decisions, such as how to discipline children and divide household labor. Emotion is a defining feature of these familial social norms, giving force and content to norms in contexts as varied as reproductive choice, parenting, and same-sex relationships. These emotion-laden norms do not stand apart from the law. Falling along a continuum of involvement that ranges from direct regulation to choice architecture, state sway over social norms through their emotional valence is an under-recognized aspect of the family-state relationship. Although scholars have explored aspects of familial social norms, current accounts offer an incomplete picture of both families and family law because they insufficiently account for the elemental relationship between social norms, emotion, and the state. By exploring the confluence of these forces, this Article makes two contributions to the literature. Descriptively, this Article identifies the centrality of emotion in creating and defining familial social norms. First, emotion is often the content of a familial social norm; therefore it is impossible to understand the norm without understanding emotion. Second, emotions can trigger social norms, with particular emotions leading to changes in behavior. Third, familial social norms carry tremendous emotional weight, which explains why the cost of noncompliance can be particularly high in the family context. Finally, the emotion-laden nature of familial social norms complicates any predictive enterprise for law and policy. Normatively, a more complete understanding of the operation of familial social norms allows for more effective regulation of families. The state should recognize that emotion is a powerful point of entry when it seeks to influence norms and shape behavior. There are risks to this influence, but exposing the uncomfortable reality that the law often tries to manipulate our affective lives creates an opportunity to use this dynamic for more appealing ends, such as cultivating greater tolerance for parental conduct that falls outside dominant norms.
Familial Norms and Normality Colloquium Celebrating 25th Anniversary of Feminism and Legal Theory Project, 59 Emory L.J. 1103
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/176