INTRODUCTION

In the previous chapter, I considered the application of the institutional approach to the sphere of production, ie the labour market. In this chapter, I will consider its application to the sphere of (social) reproduction, ie a set of activities that are not formally part of the labour market but the existence of which presupposes the latter.^[619] In scholarship, social reproduction is understood to include the following:

[B]iological reproduction; unpaid production in the home (both goods and services); social provisioning (...

I will discuss one specific site of the sphere of social reproduction: the family. In many human societies, the family has been, and continues to be, a central social institution, ‘an important sphere of distribution of many social goods, from the material to the intangible’.^[621] Families are constituted by a number of different relationships. In nuclear families, these include relationships between spouses and between parents and children (if there are children). Extended fami­lies encompass a wider range of relationships, depending upon the dominant form that the family takes in a particular society. These relationships involve institutional power and hierarchy, visible most starkly between parents and chil­dren, but equally present in the relationships between spouses, between ‘heads’ of households and members of the households, and so on.

Historically, these relationships have been shielded from constitutional scrutiny and from the concerns of justice.^[622] For reasons that I shall explore more fully in section II of this chapter, the family has often been treated as a zone of human interactions that ought to remain free from state (ie public) interfer­ence.

As a social institution whose place in many modern societies is as pervasive as (if not more so than) the labour market, the family is an important site for testing the viability of the institutional approach in its application. Specifically: does the institutional approach give us good reason to apply horizontal rights within the family, and subject institutionally powerful actors to horizontal obligations?

As in the previous chapter, for analytical clarity, the institutional approach requires us to identify a specific set of relationships where its application can be illustrated. Consequently, in this chapter, I shall limit my focus to one specific relationship within the family: the cis-heterosexual domestic relationship. By ‘domestic relationship’, I mean marital relationships, as well as other legally recognised forms such as civil unions, civil partnerships or domestic partner­ships. In many jurisdictions, these relationships now accommodate a range of sexual identities. For the purposes of analysis in this chapter, however, I set as a boundary condition ‘cis-heterosexual domestic relationships’, ie domestic rela­tionships involving a cis-man and a cis-woman as the two parties, as defined under the laws of a particular jurisdiction.

The reason for this, as I shall argue later in the chapter, is that in many societies, the institutional imbalance of power in such relationships flows from cis-heteropatriarchy (hereinafter ‘patriarchy’), which is defined as a male, conforming-to-assigned-sex system of power, or ‘a system of relations, both material and cultural, of domination and exploitation of women by men’^[623] (and, in such societies, is often at the root of the ‘traditional’ family structure as well).^[624] Furthermore, historically, in modern societies, the cis-heterosexual domestic relationship has been accorded normative primacy in patriarchal structures and within the family.

remain possible to extend the insights that the institutional approach brings to bear on cis-heterosexual domestic relationships to other forms of domestic rela­tionships as well, and to other kinds of relationships within the family. That, however, will be a future task.

Consequently, for sake of brevity, the phrase ‘domestic relationship’, as used in the rest of this chapter, should be taken to refer to cis-heterosexual domes­tic relationships unless otherwise specified. It is also important to clarify that, as many of the sources referred to in this chapter build their arguments in the context of marriage, the terms ‘marriage’ and ‘domestic relationship’ should also be read interchangeably unless the context otherwise requires.

For the purposes of this chapter, I also introduce a second boundary condi­tion. Hierarchies and differences of power within domestic relationships can take many forms, not all of which might be resolvable by a framework of enforceable rights and obligations. For example, certain feminist scholars have argued against the legal mandating of shared domestic responsibilities during the course of a domestic relationship,^[625] as opposed to modifying ‘external coun- terweights’,^[626] such as equal entitlement to spousal earnings or more flexible work. Claims to the freedom of intimate association and arguments for limitations upon state intervention place further obstacles against the direct transplanta­tion of the rights regime into the domain of the domestic relationship, without at least some modifications.^[627]

I therefore limit myself to one set of claims: remuneration for unpaid domes­tic labour, performed during the course of the domestic relationship, which takes the form of enforceable property rights against the male spouse at the time of separation (and which, therefore, raises no concerns about the right to intimate association and the inadequacy of a rights framework to address inequalities within intimate associations^[628]).

In section II of this chapter (‘Contextualising the Issue’), I will argue that historically, within the context of the domestic relationship, housework has first, not been considered ‘work’ (that merits consideration or remuneration); secondly, has been considered to be freely and voluntarily performed, primarily by female spouses; or thirdly, has been treated as an obligation inherent in familial life. Recently, however, each of these assumptions has been challenged. Not only do housework and care work enable the existence of capitalist work cycles by ‘freeing up’ men to participate in market-mediated work, but they also constitute an independent contribution to the economy. Furthermore, statis­tics demonstrate that a disproportionate burden of housework and care work falls upon the shoulders of women, including women who participate in the ‘formal’ workforce - thus suggesting that it is a combination of social norms and cultural expectations that effectively compel women to perform housework and domestic work.^[629]

In section III, I will argue that these responses suggest a role for the institu­tional approach. So far, I have been referring to the family as a social institution. However, for the purposes of my analysis, I will demonstrate that the domes­tic relationship (whether formally defined as a ‘marriage’ or not) itself bears the hallmarks of an institution as defined here. The domestic relationship is, of course, embedded within the institution of the patriarchal family, so the distinction may not matter very much.

More specifically, this institutional difference in power is exacerbated by the background legal framework - in particular, marital property rules. Under most legal regimes, domestic work, housework and care work do not vest in the spouse an enforceable right to marital or domestic property (such as the shared marital home). This leads to a predominance of situations where such property is formally under the legal control of the male spouse (often enabled by the fact that the male spouse is the primary earning member of the family). This, in turn, makes exit from the institution more difficult (for economic reasons), and entrenches the institutional differences in power (although this is by no means a universal situation, especially in the twenty-first century).

Moreover, the final precondition of the institutional approach - that the insti­tutionally mediated differences in power between parties enable one to violate the rights of the other - is also present in the case of the domestic relationship. The extraction of unpaid labour constitutes a violation of multiple constitu­tional rights. The most obvious violation, of course, is of the right to equality and against non-discrimination. Equally important are the rights to property, and to life and livelihood.

In section IV, I shall consider the remedies that the institutional approach can be invoked to provide. Historically, the most common response, framed in the language of rights, has been a demand for wages for housework. This has taken different forms in different countries. What is common to the different models, however, is that the ‘wage’ is paid by the state, on the premise that housework and care work constitute contributions to the national economy, which must be recompensed by the state.^[630] This makes the issue of wages for housework a somewhat poor example of the institutional approach, as either the right is against the state (which makes it a vertical right) or, at the very least, it is claimed from the state (thus bringing it into the domain of positive obligations).

However, there is another set of remedies that fits better within the scheme of the institutional approach. These remedies revolve around division of income and property at the time of divorce or separation. In many jurisdictions, ‘indirect contributions’ to marital income and property - which take the specific forms of housework and care work - are considered in the division of assets. These indirect contributions, then, take the form of claims against the (predominantly) male spouse, and are therefore horizontal in character. They also specifically take the form of remedies for the rights violations (in the form of unpaid or forced labour) that are the result of the institutional differences in power between the spouses in a marital relationship. And finally, the nature of the remedy also speaks to the institutional approach’s logic: the success of such claims guarantees a partial ability to exit from specific marital relationships at any time, an ability that is often stymied because of a lack of resources due to unequal earning power within the relationship. The institutional approach, therefore, provides a plausible case for such property claims to take the form of a directly enforceable constitutional right, where it does not already exist in legislation; and, as we shall see, it informs legislation where it does exist.

To substantiate how this might work in practice, this section will consider judgments from various jurisdictions that have considered this issue, within the frameworks of the differing constitutional contexts that I discussed in the introduction to this part and in the previous chapter: that is, where enforceable horizontal rights exist in constitutions, and where they do not.

As with the previous chapters, the purpose of examining doctrine is not to provide a comparative overview of case law or to sum up the existing jurispru­dence on family law in these jurisdictions. Rather, it is to provide archetypes of judicial and legal reasoning, which demonstrate the possible practical applica­tions of the institutional approach, within existing parameters of constitutional adjudication.

Also as with the previous chapter, it is important to clarify that the concrete adjustment of rights is a task for legislation (indeed, in some juris­dictions, such as New Zealand and Kenya, legislation requires judges to take into account domestic labour and care work at the time of division of assets upon separation^[631]). As noted above, the task of the institutional approach is to provide recourse in cases where there is a legislative vacuum or insufficient law. Further, this chapter does not make the argument that such property claims constitute the only legal structure that can mitigate the institutional imbalance of power - and the consequent rights violations - that occur in the context of the domestic relationship. More modestly, it argues that such claims constitute one plausible existing structure that can do so. Jurisdictions may settle upon different legal solutions to the problem identified by the institutional approach. The discussion of property claims is to outline one such solution that is consist­ent with the institutional approach.

There are three caveats that must be set out before I commence with my argument. First, it is important to acknowledge that across the world, domes­tic relationships - and, indeed, the family - exist in diverse and plural forms. Cis-hetereopatriarchy is not a necessary condition for society to exist, nor is it my claim that the following account of power differences and rights violations within the context of domestic relationships is universally applicable. However, as in the previous chapter, I believe that there exist enough commonalities across jurisdictions for the institutional approach to be useful in addressing and miti­gating a range of power differences and rights violations within the institution of domestic relationships. Indeed, as statistics compiled by organisations such as UN Women (referred to above) show, the issues identified in this chapter are common to many countries.

Secondly, it is important to note that the arguments advanced in this chapter are not meant to exhaust the domain of constitutional law as applied to the family. In particular, they are not meant to operate to the exclusion of state obligations towards the family form. In other words, this is not an argument for ‘privatising’ rights inhering within the family, ie shifting obligations from the state to individuals (in our case, the male spouse). As scholars have pointed out, one of the consequences of treating the family as a ‘private’ domain has been to minimise the state’s positive (welfare) obligations to ensure that families can lead a flourishing existence (for example, family rights to welfare, to child support, to ensure an adequate standard of education for children).^[632] However, horizontality by definition involves state intervention into the domain of the family (through the vehicle of constitutional rights) and therefore rejects the idea of the family as a ‘private’ domain. Furthermore, horizontal constitu­tional obligations (concretised through statute or judge-made law) with respect to property distribution at the time of separation, as explained above, do not detract from or alter the state’s positive obligations of material support towards domestic relationships and family units while they continue to be in existence.^[633]

This, in fact, also explains that while the rationale for the application of the institutional approach is grounded in a challenge to the historical treatment of family relations as ‘private’ and outside the realm of justice, the scope of the institutional approach (as developed in this chapter) is limited to one very specific area of family law: the property rules in a domestic relationship at the time of separation. The reason for this (as indicated above) is that many of the injustices that arise from the ‘privatisation’ of the family involve the abdication of the state from discharging its positive obligations, and therefore require articulating and enforcing claims against the state. By definition, the institutional approach applies to situations involving relative differences in power between private individuals (because of their institutional location), the violation of rights as a result and the application of a remedy against the private rights violator. In these specific terms, the institutional approach identifies men and women in a domes­tic relationship within the family as holding different degrees of institutional

180 Application II: Domestic Relationships and Unpaid Labour power, the violation of rights due to uncompensated labour performed by the latter within the domestic relationship, and a remedy that takes the form of vested property rights in case of separation. To reiterate, although the remedy applies at the time of separation, its existence makes the possibility of exit more feasible at all times during the continuation of the domestic relationship, thus mitigating (to a degree) the inequality of power.

It is also not the claim of this chapter that the institutional approach can solve all problems even at the time of separation. As scholars have pointed out, equita­ble divorce rules still assume that there exist resources to divide up. For families that are already in debt or in poverty, counting the female spouse’s care work and other labour as granting her a vested right in property is unlikely to benefit her in any significant way^[634] (although there may be marginal benefits^[635]). While this is undoubtedly true, it only goes to show that the institutional approach cannot resolve all injustices that exist within family relations and the domestic rela­tionship, whether functioning or broken. The institutional approach is meant to mitigate only the rights-violating consequences that flow from the male spouse’s relatively greater institutional power, and is ultimately complementary to a range of family and domestic relationship-centred rights that are primarily enforceable against the state.

Finally, it is important to clarify that the choice of the family - and within that, the marital relationship - as the subject of analysis is not intended to ‘normalise... in effect the institution of heterosexual marriage to the exclusion of other organisational forms of for the provision of social reproduction’.^[636] Nor is it intended to endorse ‘a sliding scale of value’ that privileges marital rela­tionships over other forms of cohabitation when it comes to considering care work and reproductive labour.^[637] Rather, the family and the marital relationship are the focus of this chapter because, as shall be shown in section IV, it helps illustrate the workings of the institutional approach in all the contexts that I have discussed in this book: direct application in the absence of law, supple­menting existing private law regimes where there are gaps and providing a background interpretive framework. The insights from this chapter, however, will apply beyond the family and the marital relationship as well, contributing to what Prabha Kotiswaran calls the ‘expansion of the reproduction boundary’ beyond the family to other domains.^[638]

II.