Is the family at odds with equality? The legal implications of the egalitarian family


The family seems to pose an insoluble dilemma for liberal society, because it pits liberal values of freedom and equality against each another. When family life privileges adult freedom, children's life chances become unequal, due to their parents' different choices and unequal circumstances. But any effort to enact equality of opportunity for children, it seems, would demand such heavy-handed state regulation of the family that it would end family life as we know it. This is an old problem, and theorists who have grappled with it have found themselves caught between two unappealing alternatives: rampant inequality for children, on the one hand, and Brave New World-style institutionalized child-rearing, on the other.This essay revisits the opposition between the family and equality and suggests that there is a way out of the liberal dilemma, at least in principle. The family is compatible with equality of opportunity in theory, although the legal changes necessary to achieve equality would face practical and political difficulties. Politics and administration pose one set of challenges: an egalitarian regime would require new redistributive programs and tax increases to fund them. The law itself poses another challenge: a commitment to children's equality would require revision of constitutional and state-law doctrines that prize parental authority and family economic self-sufficiency and disclaim positive obligations of the state toward children. The aims of this essay are primarily theoretical rather than practical. The analysis here draws on liberal political theory to outline a conception of the "egalitarian family" that can reconcile the liberal values of freedom and equality of opportunity. Outside the United States, legal principles and initiatives such as those developed here might seem relatively familiar. In the U.S. context, however, these reforms would require a thorough revision in legal institutions and in legal principles.



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