Cont(r)actualisation: A Politics of Transformative Legal Recognition of Adult Unions
| Date | 01 April 2021 |
| DOI | 10.1177/0964663920914064 |
| Author | Mariano Croce,Frederik Swennen |
| Published date | 01 April 2021 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2021, Vol. 30(2) 230–250
Cont(r)actualisation:
ª The Author(s) 2020
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DOI: 10.1177/0964663920914064
Legal Recognition
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of Adult Unions
Mariano Croce
Sapienza Universit `a di Roma, Italy
Frederik Swennen
University of Antwerp, Belgium
Abstract
This article champions a new legal recognition model that emphasises the transformative
potential of people’s use of family law. After discussing the flaws of prevailing recognition
models, it insists on family formations being unique assemblages that cannot be captured
by generalised technical categories. It makes the claim that, rather than one-size-fits-all
model for relationship recognition that relies upon dyadic, sexual and domestic rela-
tionships, people ought to be able to identify different modules of relationship upon
which to base legal recognition or particular legal consequences. It terms this model
‘cont(r)actualisation’, as the law should adopt a new orientation to how people form
their normative networks. In the context of relationship recognition, this means that
fixed bundles of pregiven labels should not drive recognition; rather, different modules
or nodes law users themselves define when performing family ought to define family for
law, at least for different legal purposes.
Keywords
Bourdieu, Deleuze, family assemblages, kinship, law, non-monogamies
Corresponding author:
Mariano Croce, Department of Philosophy, Sapienza Universit`a di Roma, Via Carlo Fea 2, Rome 00161, Italy.
Email: mariano.croce@uniroma1.it
Croce and Swennen
231
Introduction
In their work devoted to the transformations of family and the regulation of new family
formations, critical scholars have often emphasised what gets lost in the negotiation with
the law when non-heterosexual or otherwise non-conventional family formations seek
legal recognition. Left and radical queer theorists have brought into question the promise
of equality through rights claims (see, e.g. Auchmuty, 2004; Franke, 2012; Joshi, 2014;
Ruskola, 2005). They have identified the limits of such a powerful social technique as
legal recognition. For it not only grants rights and benefits, but also seriously impinges
on the transformative potential of non-conventional sexualities and relationship forms.
In brief, while the law recognises, it inevitably assimilates.
With, but beyond, this literature, the present article makes a constructive, hopeful
point about the transformative potential of people’s uses of law. We will first argue that
the effects of legal recognition on ‘law-users’ are always inevitably ambivalent – an
oscillation between assimilation and transformation. Although we acknowledge this
fundamental ambivalence, we will contend that people’s access to law can exert signif-
icant transformative effects on condition that a new model of legal recognition is devised
and implemented – one that draws on ‘the science of the particular’. We will claim that
the ‘complicity’ between the extant matrix of admissible family relationships and social
agents’ spontaneous adaptation to it can be circumvented and even unsettled by placing
more emphasis on the creative contribution that social agents can make to producing new
bodies of law. Put otherwise, while most often legal recognition affects people’s identity
as they seek to reach out to state institutions, a mode of recognition that is more attuned
to people’s self-produced normativity is likely to innovate remarkably the way the law
operates. In this frame, we will elaborate on a legal recognition model that we believe is
able to make room for the creativity of law-users. This model, we will claim, could
provide guidelines for law-users to consolidate the relational networks they themselves
establish.
Our argument will be premised on a critical reconstruction of family law categories as
affixed to an objectivised conception of kinship. The main problem with existing rela-
tionship recognition models is that Western kinship, and the nuclear family as its main-
stay, incorporates a grid of intelligibility that only allows a limited amount of kinship
formations to qualify as proper kinship phenomena. The core principle of Western
family laws is dyadic monogamy, as legal systems have modelled committed personal
and economic interdependence between adults after the so-called Sexual Family
(Fineman, 1995). As we will illustrate in some detail, this is a family model that exclu-
sively caters for adult unions that are cumulatively domestic, dyadic and sexual in nature.
If we leave aside a few, thin provisions for de facto unions1 that mostly mimic the Sexual
Family, the status offered by family law is binary, indivisible and exclusive. Upon
registration, the status comes as a predefined bundle of rights and obligations and is
incompatible with a same or comparable status with any other party. Such a status has
fixed and constant boundaries as to membership and content. Its existence is recognised,
and made recognisable, through labels. The investment with rights and obligations as a
status fulfils the symbolic and protective functions of family law. Besides its private
family law content, it also serves as a connecting factor for broader access to, and
232
Social & Legal Studies 30(2)
visibility in, legal and policy frameworks (Moran, 2005; Williams, 2004). Based on a
voluminous critical literature on this subject matter, we will contend that the recent
accommodation of unions involving same-sex or transgender adults through marriage
or registered partnership has done nothing but enhance the Sexual Family model (Brown,
2019; Diduck and O’Donovan, 2006).
After describing the effects of such a model of legal recognition operating though
labelling, we will expand on the alternative model that we dubbed ‘cont(r)actualisation’.
This is a radically transformative type of recognition and protection for all family
formations and particularly for adult unions. While making this point concerning legal
recognition, we will argue the broader socio-theoretical case that cont(r)actualisation
calls for a reorientation to social life that implies a new understanding of how people
form, develop and govern their networks. Based on this socio-theoretical notion, we will
illustrate why, as post-familial or post-kin scholarship suggests, the time is ripe to
abandon, or at least decentre, the conventional family as the ‘gravitational pull’ of family
law (Brown, 2019: 187; Butler, 2002; Roseneil and Budgeon, 2004; Scott and Scott,
2015). Our elaboration will hopefully be conducive to a conception of the family as a
malleable, open-ended formation.
How Kinship Categories Become Natural Objects
Our previous work on family law and legal labelling (Swennen and Croce, 2016) drew
from Pierre Bourdieu’s conception of social life as built around the production of social
taxonomies and the way these ensure the production of social groups and the narrated
scotomisation of alternative ones. Bourdieu (1985: 726, 1991: 224, 1998: 52-54) argues
that the organisation of social life pivots on a symbolic grid – a grid of intelligibility –
that defines people’s ‘principle of vision and division’. This principle – which ‘we all
have in our heads because it has been inculcated in us through a process of socialization’
(Bourdieu, 1998: 66) – comprises a set of cultural units that filter and shape social
agents’ experience in such a way that the social world may appear to them as ordered
and organised. The political, on Bourdieu’s account, is the field where this grid of
intelligibility is produced. It is a field where a permanent struggle takes place to make
sure that people apprehend the world in such a such a way. Bourdieu goes so far as to say
that whole trajectory of the modern state could be portrayed as the attempt
to impose and inculcate in a universal manner, within a given territorial expanse, a nomos, a
shared principle of vision and division, identical or similar cognitive and evaluative struc-
tures. And that the state is therefore the foundation of a ‘logical conformism’ and of a ‘moral
conformism’ (these are Durkheim’s expressions), of a tacit, pre-reflexive agreement over
the meaning of the world which itself lies at the basis of the experience of the world as
‘commonsense world’ (Bourdieu, 1998: 53).
The politics of the family is a special sub-field of this political construction of a pre-
reflexive understanding of social life (see in particular Bourdieu, 1993), for it is the
laboratory of cultural units that organise the symbolic universe of kinship phenomena.
Croce and Swennen
233
One of the grounding principles of the current binary, indivisible, exclusive model of the
family – and of family law – is the link between kinship and reproduction.
In her contribution to the conceptualisation of new kinship formations, Butler (2012: 11)
comments on the resilience of this link. Despite the numerous changes due to legal
reform and technological advances, it is still reproductive sexuality within a conjugal
couple that establishes appropriate kinship terms, to the extent that all those who are
outside the (reproductive) dyad are hardly allowed (parental) dignity. Those who are
outside the dyad ‘run the risk of being designated “unreal” or deviating from the law’. All
that fails to conform to the basic matrix of the Sexual Family lies outside the grid of
intelligibility that makes family a relevant unit of sense in the context of Western kin-
ship....
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