A different radical challenge to hostile worlds and separate spheres legal principles comes from a cluster of feminist legal scholars who claim that separation of spheres fundamentally undermines women’s interests.[17] Turning traditional women’s work exclusively into a matter of sentiment dangerously obscures its economic value. American courts, these scholars argue, have long collaborated in such disentitlement.
Carol Rose for instance, has offered a powerful critique of separate spheres reasoning in the legal arena. Pointing out that property transfers occur extensively within households and that property relations outside of households rest on elaborate social connections, Rose rejects conventional boundaries: “There is no ‘In-Here’ of family and ‘Out There’ of work.. .. These spheres interact incessantly” (Rose 1994: 2417). The traditional “rhetoric of sharing and nurturance,” she warns, builds the illusion that “property questions stop at the homestead door. They don’t” (2414). Only by addressing such questions, can gender equality be achieved both during marriage and after divorce: “When we see the unspoken property within arrangements that masquerade as ‘sharing,’ we can also see their injustice and hypocrisy. It is only when we neglect the property aspects of marriage that we dub as ‘equal’ relationships that may be profoundly hierarchical” (2415). Courts, however, Rose points out, strongly resist treating family disputes as matters of property, typically ignoring, for instance, the economic contributions of women’s household labor.
Indeed, as Reva Siegel amply documents, splitting family and market spheres took painstaking legal effort. Focusing on nineteenth-century debates over the valuation of household labor, she shows how courts carefully segregated that labor as a nonmarket exchange. As earning statutes increasingly gave wives a right to income from their “personal labor” for third parties, they consistently excluded the household labor performed for their husbands or families (see also Cott 2000; Stanley 1998). Courts, Siegel reports, “refused to enforce interspousal contracts for household labor, reasoning that such contracts would transform the marriage relationship into a market relationship” (Seigel 1994: 2139-40). Thus, courts assumed and defended both separate spheres and hostile worlds. Their strategy worked. More than a century later, Siegel notes:
We live in a world in which unwaged labor in the home stands as an anomaly lacking explanation but not requiring one either.
In this world it takes an act of critical scrutiny to discern that market relations have been systematically delimited and that labor vital to their support is, with equal systematicity, expropriated from women on an ongoing basis. (2210)
Similarly unmasking what she calls “commodification anxiety,” Joan Williams argues that “the fear of a world sullied by commodification of intimate relationships feeds opposition to granting wives’ entitlements based on household work.” More radically departing from hostile worlds views than does Margaret Jane Radin, Williams notes that, along with other legal experts in commodification, Radin ignores that “women’s key problem has been too little commodification, not too much” (Williams 2000: 118).
Williams calls attention to the arbitrary gendering of commodification that goes on in divorce settlements. As a result of what she calls the “he-who-earns-it-owns-it” rule, husbands typically are awarded a greater share of marital property. The prevailing separate spheres assumption that “family work is an expression of love” (120), she remarks, disregards that family work is also labor. Williams then turns to the crucial example of “degree cases,” in which a wife claims compensation at divorce for having financed her husband’s professional degree. She reports courts’ hostility to such requests, in ways that directly parallel the nineteenth-century decisions cited by Siegel. In one 1988 West Virginia case, the court declared that “characterizing spousal contributions as an investment in each other as human assets, demeans the concept of marriage” (quoted in Williams 2000: 117). Determined to undo such prejudicial sentimentality, Williams puts forth remedial policies to achieve just compensation for women. For instance, her joint property proposal would recognize family work as economically valuable, justifying income sharing by spouses after divorce. It would thereby undermine courts’
and legislatures’ assumption that “men’s claims give rise to entitlements while women’s claims are treated as charity” (131).
At times, Williams’ hard-nosed critique of hostile worlds, like Brinig’s, edges toward nothing-but economistic reductionism. Nevertheless, she is careful to distinguish her income-sharing proposals from others that rely on what she sees as “strained analogies to commercial partnership law” (126). In so doing, she begins to recognize differentiation of social ties among such settings as families, firms, markets, and organizations. At the same time, however, she wants a reading of the law in which such relations cast legal shadows that are financially equivalent.
Martha Ertman joins the feminist effort toward a revised, more equitable, economics of intimacy. She offers legal remedies that specifically bridge the divide between intimacy and economic transactions, without reducing one to the other. Drawing on the flexibility and acceptability of business law, Ertman intends to open wedges for the legal defense ofintimate relations as enforceable private contracts (see also J. Cohen 2002). She outlines three arguments for that strategy: first, since family law doctrine already endorses privatization, judges and legislators will be receptive to applying business models to domestic matters; second, the flexibility of business law will accommodate the increasing variations in intimate relationships; and finally, business models are well suited to deal with legal interventions in the financial aspects intimacy, such as the division of assets after divorce.
The analogies that Ertman proposes include “an understanding of marriage as akin to corporations, cohabitation as akin to partnerships, and polyamory as akin to limited liability companies” (Ertman 2001: 83). The unfamiliar term polyamory refers, in Ertman’s analysis, to
a wide variety of relationships that include more than one participant. For example, one man may affiliate with a number of women who are sexually involved with the man but not with one another. Such an arrangement, polygamy, has been associated with Mormons, and is still common in many nonindustri- alized societies. .. . The term also includes arrangements with combinations of people who organize their intimate lives together, regardless of the extent of the arrangement’s sexual elements. Thus, if a lesbian couple has a child by alternative insemination, using a gay man as a known donor to father the child, and the donor remains involved in the child’s life, the arrangement is polyamorous. (124)
Fending off possible accusations of nothing-but economistic re — ductionism, Ertman explains that the comparison between business models and intimate arrangements “is not an equation: not every intimate interaction is akin to a business transaction, nor are all business relationships solely financial in character.” Her aim is to find “new ways to think about the old problems rooted in naturalized understandings of intimacy” (98; see also Ertman 2003). For example, she has proposed “premarital security agreements” to ensure that women continue to get compensation for their household efforts after the breakup of a relationship (Ertman 1998). In short, Ertman makes explicit a widespread strategy in legal argument, drawing analogies with established law to alter existing forms of legal doctrines and practices.