In the Universal Declaration of Human Rights, it is proclaimed in Article 16(3) that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State”2. Variations of this proclamation or other phrases concerning family as a concept appear in many human rights conventions on both the global level and within regional
1 See opening quote by Butler (2002).
2 Universal Declaration of Human Rights, Resolution 217 A (III) of 10 December 1948, General Assembly of the United Nations. See Treaties and Related Documents in Sources.
systems, and these provisions are quoted widely when discussing the relationship between international human rights norms and family law in national legal systems. In this chapter I offer a rather detailed exegesis of Article 16(3) of the UDHR because this particular phrase seems to offer if not a definitive key, at least an interesting historical keyhole through which to obtain a view into the building blocks of discourses on family and human rights in the era after the Second World War. The drafting process of the UDHR and the outcome, the Declaration itself, are often hailed as a multilateral success story, where representatives of various philosophical, religious and political traditions came together and managed to come up with a document that has stood the test of time as the cornerstone of international human rights legislation (Glendon 2001).However, already during the time when the UDHR was being drafted, the whole idea of a universally applicable declaration of human rights was subject to critique by the American Anthropological Association (1947). The statement focused on cautioning the drafters of positioning one culture as more valuable than another, and was driven by anti-colonialist concerns. (See also Morsink 1999: ix, and Engle 2001).
Article 16 of the UDHR articulates the ‘right to marry and to found a family’:
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Universal Declaration of Human Rights, Article 16
Firstly this provision protects the civil right to marry the person of one’s choice (of the opposite sex) free from coercion and interference by the State as to the combination of one’s and one’s partner’s ethnic or religious identity, for instance. The equality of husbands and wives, which was not a legal let alone a social reality in the late 1940s in many European States or other parts of the world, is an important claim in this provision. The Article does not explicitly leave out the possibility of other kinds of unions or say anything about the supremacy of marriage as a way of organising relations of affection and dependency, but as Rhoda Howard-Hassmann points out, it would be
“sociologically anachronistic to assume that the drafters… of the UDHR did not have in mind a heterosexual family” in the late 1940s (Howard-Hassman 2001: 74). One could add that the Declaration does not touch upon differences of legal status between children born to unmarried parents and married
Concept of Family in International Human Rights Law
parents which would have been a more temporally close concern in the mid-20th century.
The first section stresses the equality of the spouses, but even more than that it emphasises the prohibition of any interference as to who one can marry in light of the marriage partner’s ethnicity, nationality or religion. In the post-Holocaust world after the Second World War it was of utmost importance to stress that the marriage prohibitions between Jews and non-Jews that were in place in Nazi Germany (see Burleigh and Wipperman 1991) were never to be repeated. However, the absence of this kind of interference was a distant goal just like the equality of women and men in marriage: in several states in the United States so-called ‘miscegenation’ laws prohibiting marriage between persons of different skin colour were still in place. Such laws were repealed on the federal level only in 1967 with the Supreme Court decision Loving v.
Virginia3. These laws were ruled unconstitutional by the United States Supreme Court in 1967, but the last acts were repealed as late as 20004. Thus, it took almost twenty years for the promise of the Universal Declaration to be given formal power in the United States, which, after all, had been convening and leading the drafting process of the UDHR. Today, there is wide-ranging debate on whether lifting the bans on interracial marriage would be analogous to allowing same-sex marriage. (Novkov 2008.)
A parallel to the definition of family in the UDHR may be taken from a prime example of Catholic statecraft, the Constitution of the Republic of Ireland from 1937. This particular Article of the Constitution of Ireland, still in force today, reads:
The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.5
Constitution of the Republic of Ireland, Article 41
According to the Constitution of the Republic of Ireland, family is ”the natural primary and fundamental unit group of society” and according to the UDHR it is the ”natural and fundamental group unit of society”. Only two words are in different places, and the substantial content is the same.
Stéphanie Lagoutte and Ágúst Thór Árnason (1999), a legal scholar and a legal philosopher, offer a fairly balanced but somewhat simplistic analysis of the definition of family in Article 16 of the UDHR:
3 The Supreme Court of the United States judgmentsMcLaughlin v. Florida (1964) repealed a ban on cohabitation between blacks and whites, andLoving v. Virginia (1967) the ban on interracial marriage.
4 Alabama was the last State to repeal its ban on interracial marriage (Gevrek 2014: 57).
5 See Constitution of the Republic of Ireland under Sources.
In addition to declaring that the family is the fundamental group unit of society, article 16 also proclaims its "natural", essential quality; a family finds its roots in nature and biology: sexuality, procreation, birth, aging, death. Defining the family as a "natural" unit also refers to natural law: the family as an essential and natural part of a society made up by human beings. This definition of family is a direct translation of the anthropological theorization of kinship: it emphasizes the structural aspects of family, no matter when or where it is being studied. The definition synthesizes the biological and sociological dimensions of family.
Lagoutte and Árnason (1999: 338)
Lagoutte and Árnason rightly point out the rooting of Article 16 and the UDHR in general in natural law. The problem with the definition of family in Article 16(3) in today, as the UDHR is so widely circulated and disseminated in various rather secular contexts, is that the word “natural” in the context of family and human rights thinking is often taken in too simplistic a manner, reducing it to a view of biology and the scientific facts of human reproduction lifting a certain mode of social organisation, a heterosexual nuclear family, as superior to others. After all, human rights thinking is all about transcending nature and biology, also when it comes to the protection of family and seeking justice, which has nothing to do with the life of humans or any other animals from the perspective of evolutionary theory, for example. Furthermore, Lagoutte and Árnason make a rather bold assertion by saying that Article 16(3) would be “a direct translation of the anthropological theorization of kinship”
(1999: 338), as they offer no clue to what kind of anthropological research this theorisation refers to. One is only left to assume that they refer to the vast scholarship of social and cultural anthropology accumulated during the past century or so. After all, the term “anthropological” means rather different things when comparing ethnographic studies, medical anthropology or dogmatic anthropology, which comes closer to theology.
In his detailed history of the drafting of the Universal Declaration, Johannes Morsink, an American historian, devotes a short passage to the drafting process of Article 16 of the UDHR. It is noted that Charles Malik, a Lebanese Christian statesman and philosopher, was deeply involved in the drafting of this particular passage of the Declaration. (Morsink 1999: 252-257.) Malik was a scholar of Neo-Thomist philosophy (Morsink 1999: 30), a branch of philosophy inspired by the thought of Saint Thomas of Aquinas from the 13th century, which has become the ‘official philosophy’ of the Catholic Church. As is demonstrated in the following comparison and analysis of the definition of family in the Constitution of Ireland and the Universal Declaration, dating from the same period and taking their language from the same sources (Catholic social thinking, formulated in papal encyclicals), the word ’natural’ should in the context of the UDHR be understood to refer more narrowly to the vocabulary of Neo-Thomist thinking and natural law.
Concept of Family in International Human Rights Law
Natural law, as a field of juridical thought, relies on the work of a long line of philosophers from St Thomas Aquinas in the 13th century to Enlightenment thinkers in the 18th century such as John Locke, Jean-Jacques Rousseau and Baron Montesquieu, for example. It may be defined in the field of philosophy as “a system of right or justice held to be common to all humans and derived from nature rather than from the rules of society, or positive law”
(Encyclopedia Britannica 2014, no pagination). Many natural law thinkers relied on Christian doctrine and tried to articulate to what extent principles of natural law could be revealed through human reasoning in relation to divine revelation. What is at stake and what was most essential in the work of natural law thinkers over centuries was how humans may apply logic and find principles of justice with the help of thinking and reasoning. (Encyclopedia Britannica 2014.) In the context of the relation of human procreation, the raising and socialisation of offspring and social organisation, “natural” family still refers more to how humans make sense of natural facts and “human nature” and derive principles of justice from facts and their own thought.
Like virtually all human rights documents, the Universal Declaration holds an anti-discrimination clause in Article 2, spelling out that “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. The list is not exhaustive, so sexual orientation is most often argued to be covered by ‘sex’, or that failing, by ‘other status’. This is where the ‘promise of human rights’ and the dynamic and evolutive possibilities of political mobilisation with the help of human rights rhetoric and principles of international law may be located. As the principle of equality is evaluated from different viewpoints in different times and epistemic contexts, “new” groups such as sexual and gender minorities may take up the language of human rights in their struggles, be it relating to recognition of informal family relations or not. The Universal Declaration contains other Articles as well that deal with the protection of family relations, albeit not so directly. Article 25 expresses an entitlement to certain economic and social rights:
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Universal Declaration of Human Rights, Article 25
The second paragraph of Article 25 is especially important, as it sets children born out of wedlock on a level plane with children born in legally sanctioned marriage when it comes to social protection, something that still took decades to become an established fact in the majority of European legal cultures.
However, the passage does not address differences in legal status, which have had immense importance for the transmission of wealth and property. In the case law of the European Court of Human Rights, children born to unmarried mothers were set on a par with children born in wedlock in 1979 in the judgement ofMarckx v. Belgium. However, by this time most member States of the Council of Europe had remedied the status of children born out of wedlock, and a few states with a strong legacy ofCode Napoléon (Napoleon’s law collection from 1804, see Iacub 2004), such as Belgium, lagged behind (see Kirchner 1999).
At the time of its drafting, the UDHR was subject to critique due to the danger of the end product being a declaration written from an ethnocentrist Western viewpoint in a statement made by the executive board of the American Anthropological Association (1947), the largest association of anthropologists in the world. In 1999, the AAA produced a new “Declaration of Anthropology and Human Rights” (American Anthropological Association 1999), anchoring itself more firmly in contemporary human rights rhetoric.
(See Engle 2001.) The two documents have been as opposite in intent regarding the universality of human rights, but Engle argues that “both argue for the protection of culture” (2001: 537). Over the years, the AAA has shown more professional-cum-political involvement, for example when it made a statement concerning the current debate on same-sex unions in the United States, condemning the proposed constitutional amendment consecrating marriage for heterosexual couples (American Anthropological Association 2004). This demonstrates that anthropological knowledge, just like international human rights law, may also be applied to different temporal and epistemic contexts and be argued to support political projects which represent underprivileged groups. In the times when the UDHR was created, the AAA saw it fit to try and temper colonial and imperialist tones, whereas in the early 2000s when the definition of marriage gave rise to heated debates, AAA anthropologists delivered a note on the variability of human social organisation.