Of course, the biological family is ubiquitous in human society. But what confers upon kinship its socio-cultural character is not what it retains from nature, but, rather, the essential way in which it diverges from nature. A kinship system does not consist in the objective ties of descent or consanguinity between individuals. It exists only in human consciousness; it is an arbitrary system of representations, not the spontaneous development of a real situation.1
Claude Lévi-Strauss (1967: 48-49)
In recent years, there has been a certain trend of reassessing and reappraising the work of Claude Lévi-Strauss, the ‘father’ of structuralist anthropology (see Doran 2013) whose work has been appropriated by a range of scholars from anthropology to cultural studies and literary theory. Apart from this trend, the theoretical work and central concepts of Lévi-Strauss’s work from the mid-1900s were cited widely in political debates concerning civil unions, same-sex marriage and family formation by same-sex couples in France in the 1990s to
1 Original text in French: “Sans doute, la famille biologique est présente et se prolonge dans la société humaine. Mais ce qui confère à la parenté son charactère de fait social n’est pas ce qu’elle doit conserver de la nature: c’est la demarche essentielle par laquelle elle s’en sépare. Un système de parenté ne consiste pas dans les liens objectifs de filiation ou de consanguinité donnés entre les individus; il n’existe que dans la conscience des homes, il est un système arbitraire de representations, non le développement spontané de situation de fait” (Lévi-Strauss 1958: 61).
the 2010s. In these debates, a widely surfacing but rather opaque concept was the notion of a “symbolic order” of kinship, a system of signification in which men and women may only inhabit spousal, reproductive and parental roles that are open to them on the basis of their approved physical sex. (Confusion between generations has not really been an issue in these debates.) In other Western polities the same fervent debates on homosexuality and the concepts of couple, marriage and family have mainly been argued with the help of arguments from Christian dogma, statistical and other empirical findings from psychological and social scientific studies (Robcis 2013: 263-4) or purely subjective and conscience-related arguments.
France provides an interesting exception to this with a political context where arguments from anthropological theory as well as psychoanalysis have occupied centre-stage positions in influential arenas such as parliamentary debates, national daily newspapers as well as academic debate relating to a wide range of issue relating to gender, sexuality and reproduction (Robcis 2004, 2013). In my analysis of the tension between traditional and pluralist views of family relations I take this historically and politically specific deployment of structuralist anthropological theory as an inspiration to analyse what it is that connects law and anthropology within the traditional view of what family is and stands for. The tensions appear on a variety of axes:
historical versus ahistorical, descriptive versus prescriptive, natural law versus positivist law. As debates on the significance of the ‘symbolic order’ and its applicability to recent and current legislative projects demonstrate, structuralist anthropology is not completely outdated or absent from contemporary debates anthropological research on families and family law.
But is there anything there that might be useful for analysing modern-day developments?
Robcis has termed the set of theoretical thought appropriated from the anthropologist Claude Lévi-Strauss and the psychoanalytical theorist Jacques Lacan, often identifiable by references made to the ‘symbolic order’, as “the structuralist social contract”. Robcis argues that both Lévi-Strauss and Lacan were more concerned with developing their theoretical thinking than applying their theories to practical political debates (2004: 120, 2009: 5). She maintains that it was through the popularisation of their thought through some key “bridge figures” (2013: 6) that some of their most difficult and highly theoretical concepts were appropriated into political and legislative debates in contemporary France. In debates concerning gender, homosexuality and family in France, the focus has curiously been a great deal on theoretical debate and on the potential effects of allowing e.g. same-sex marriage to the
‘taint’ the fabric of the nation (universalist Republicanism), the public order or public policy (ordre public) or the psychic construction and well-being of the children and adults concerned instead. (Robcis 2013.)
Lévi-Strauss has been criticised for this theory for presenting women as inferior objects of exchange, for example, by Gayle Rubin in her famous essay The Traffic in Women: Notes on the Political Economy of ‘Sex’ (1975, see also
Kinship, Gender and Relational Thinking
Favret-Saada 2000). Rubin built her essay on criticising both the theory of Lévi-Strauss but also the psychoanalytic tenets of Jacques Lacan and the importance of the Oedipal complex in the foundation of what is named here as the symbolic order of kinship. Later, in her influential bookGender Trouble, Judith Butler (1990) built on Lévi-Strauss and Lacan in mapping out her theory of the heterosexual matrix, a “grid of cultural intelligibility” (1990: 6), which somewhat resembles the notion of the symbolic order of kinship as a cultural ideal. However, Lévi-Strauss has noted in his earlier work as well as in recent years that his theory is a model where the position of women and men as actors and objects is not the crux of the matter. However, according to him, in practice, ethnographic evidence shows that it is predominantly men who exchange women (1958: 56). Especially in the context of thePacs debates, he stressed that the model would (theoretically) function just as well with women exchanging men or groups exchanging men or women (2000: 717).
What is there in Lévi-Straussian thinking that might be helpful in analysing kinship as a legal and a human rights phenomenon, emphasising how kinship is manifested as rules and structures? Lévi-Strauss offers a classical characterisation of the core of human kinship in one of his main collections of essays, Anthropologie structural (1958). In an essay on applying structural analysis from Saussurean linguistics anthropology and ethnographic data2, he proposes that the simplest structure of kinship consists of relations between 1) siblings, 2) spouses and 3) parents and children. This emanates from his central thesis that the incest prohibition, the threshold in the passage from nature to culture and human society, leads to the rule of exogamy (“marrying out), according to which ‘men’ exchange their ‘sisters’ with men from other groups, leading in turn to the alliance of two groups through a union of a man and a woman who are not siblings. Within this union they have a child or children, which creates relations of filiation between parents and children.
This, according to Lévi-Strauss isthe basic “element of kinship” (Lévi-Strauss 1958: 56).
The idea of the atom of kinship has been subject to some debate within classical anthropology, spilling over to psychoanalytical theory as well (Green 1977). In this essay, Lévi-Strauss took up the work of A. R. Radcliffe-Brown, a British anthropologist, who had described the relations between a father, mother and their child(ren) as the core of kinship. To Radcliffe-Brown, relations within what he calls the “elementary family” (or close to what is often called the “nuclear family”), are relations of the first order. Relations of the second order are those that combine two elementary families, such as relations between the husband and his siblings and a wife and her siblings. If followed, this line of thinking can be applied to identify relations of the third, fourth, fifth and the umpteenth order when genealogical information is available.
(Radcliffe-Brown 1941: 2, cited in Lévi-Strauss 1958: 60-61). Lévi-Strauss stresses that this elementary family would be nothing without an alliance
2 Chapter 2 in volume 1 ofAnthropologie structurale(Lévi-Strauss 1958).
between the two groups, joining the father and the mother, or the husband and the wife together (1958).
Thus, Lévi-Strauss (1958) sets off from the viewpoint that alliance, not descent (or filiation), is the foundation of kinship, as it is a relation of exchange between kin groups. Motivated by the rule of exogamy, men from different kin groups enter into relations of reciprocity and alliance through the exchange of women for the purposes of procreation and the exchange of various material and immaterial goods. This is “symbolic” to the extent this system of exchange (or other systems of gift-giving in classical Mauss-inspired anthropology) is played outlike a language, where each person, either the one who exchanges or who is exchanged, can be described in terms which relate to his or her place and role in that system. In Lévi-Strauss’ words, “a kinship system is a language”3 (1958: 58). The idea in Lévi-Strauss’ characterisation in what differentiates humans from animals is the arbitrary nature of linguistic signs, which kinship terminology also belongs to. In addition he stressed that terminology and linguistic signs were not at the heart of his analysis, but the relations between these signs (1958: 57).
The idea that a kinship system does not consist of objective relations of filiation (or descent, depending on the terminology) or consanguinity but of arbitrary meanings, resonates with contemporary debates on what kind of relations can be subsumed within the categories of family relations or family life. Broadly, the forms of kinship that count in conceptualising close personal relations in this context are dyadic and intimate adult relations and parent-child relations. These kinds of relations also often constitute a bi-generational household in contemporary industrial societies. In Lévi-Strauss’ words:
… pour qu’une structure de parenté existe, il faut que s’y trouvent présents les trois types de relations familiales toujours donnés dans une societé humaine, c’est-à-dire: une relation deconsanguinité, une relationd’alliance, une relation defiliation; autrement dit, une relation germain à germaine, une relation d’époux à épouse, une relation de parent à enfant.4
Claude Lévi-Strauss (1958: 56)
In order for a kinship structure to exist, three types of family relations must always be present: a relation of consanguinity, a relation of affinity, and a relation ofdescent – in other words, a relation between siblings, a relation between spouses, and a relation between parent and child.5
Claude Lévi-Strauss (1967: 43)
3 ”Le système de parenté est un langage…” (Lévi-Strauss 1958: 58).
4 Emphasis added.
5 Emphasis added.
Kinship, Gender and Relational Thinking
As the quotes above in English and French demonstrate, the key terms alliance and filiation in French were translated with ‘affinity’ and ‘descent’ in English.
A closer look at these terms with the help of theOxford English Dictionary and a French lexicon shows that there is a lot of overlap in the meaning of these terms in both French and English, which makes the translation of these terms from either language rather challenging. Alliance, according to the OED, would be synonymous with everything conceivable such as marital relations, common parentage and consanguinity (Oxford English Dictionary 2012,
“alliance”), which makes it understandable that alliance in French would be translated with affinity, which refers more precisely to relations created by marriage and is the antonym of consanguinity. However, alliance is useful in emphasising the aspect of being allies, the act of allying together in contrast to
‘affinity’, which also refers also to e.g. companionship, friendliness and attraction (Oxford English Dictionary 2012, “affinity”).
Consanguinity, in English, refers essentially to “the condition of being of the same blood” (Oxford English Dictionary 2012, “consanguinity”). In French, it is defined as the relation of the children of the same father, or broadly speaking, as descent from the same ancestor (Ortolang 2012,
“consanguinité”). Filiation, in English, is a less widely used term than in French. For the purposes of this study, it will suffice to distinguish that filiation refers to “the fact of being the child of a specified parent” (Oxford English Dictionary 2012, “filiation”) and more precisely, that this is a legitimate and/or recognised relation, and that descent refers to genealogical relations that go beyond one generation. For example, in the state of Quebec in Canada, where family law has in many respects been rewritten completely in recent times when it comes to same-sex marriage and opening adoption for same-sex couples, in legal usage “filiation” is characterised in English as follows:
Filiation is the relationship which exists between a child and the child’s parents, whether the parents are of the same or the opposite sex. The relationship can be established by blood, by law in certain cases, or by a judgement of adoption. Once filiation has been established, it creates rights and obligations for both the child and the parents, regardless of the circumstances of the child’s birth.
Ministry of Justice of Quebec (2003, no pagination)
Thus, filiation is what constitutes the relationship that binds a child to her or his parents. It is often constituted upon consanguinity (shared genetic origin) and alliance (e.g. assumption of paternity within marriage). In the absence of these, legal techniques such as adoption may be resorted to.
In this study, I have takenalliance,consanguinity andfiliation as guiding thematic categories under which I organise and analyse my data. 1) Alliance is taken to refer primarily to intimate unions between two adults, be they of formal (marriage, civil unions) or informal kind. 2) Consanguinity offers the platform for analysing the significance of blood relations, and more
specifically gendered parent-child relations, maternity and paternity and to what extent they are governed by the principle of consanguinity.
Consanguinity often comes close to what are called biological relations, but in this study, with biological relations I do not refer to just genetic and gestational relations, but the ensemble of these between the woman and man from whom a child originates from (see Chapter 3.2). Even though these parent-child relations already belong under the rubric of 3) filiation, or organising intergenerational relations, filiation in the contexts of adoption and assisted reproduction, fields where relations of consanguinity often do not exist, highlights the socially constituted nature of these relations and forms a third category of analysis. These three areas of analysis correspond to the three empirical chapters in this study (Chapters 4, 5 and 6).