The Law of Kinship

Anthropology, Psychoanalysis, and the Family in France

Camille Robcis

• Publisher: Cornell University Press
• Year: 2013
• eBook ISBN: 9780801468391
• Topic: History
• Subtopic: French History
• Index: History

In France as elsewhere in recent years, legislative debates over single-parent households, same-sex unions, new reproductive technologies, transsexuality, and other challenges to long-held assumptions about the structure of family and kinship relations have been deeply divisive. What strikes many as uniquely French, however, is the extent to which many of these discussions—whether in legislative chambers, courtrooms, or the mass media—have been conducted in the frequently abstract vocabularies of anthropology and psychoanalysis.

In this highly original book, Camille Robcis seeks to explain why and how academic discourses on kinship have intersected and overlapped with political debates on the family—and on the nature of French republicanism itself. She focuses on the theories of Claude Lévi-Strauss and Jacques Lacan, both of whom highlighted the interdependence of the sexual and the social by positing a direct correlation between kinship and socialization. Robcis traces how their ideas gained recognition not only from French social scientists but also from legislators and politicians who relied on some of the most obscure and difficult concepts of structuralism to enact a series of laws concerning the family. Lévi-Strauss and Lacan constructed the heterosexual family as a universal trope for social and psychic integration, and this understanding of the family at the root of intersubjectivity coincided with the role that the family has played in modern French law and public policy. The Law of Kinship contributes to larger conversations about the particularities of French political culture, the nature of sexual difference, and the problem of reading and interpretation in intellectual history.

PART ONE

The Rise of
Familialism

CHAPTER 1

Familialism and the Republican
Social Contract

Since 1789, politicians and intellectuals in France have worried about the question of “the social.” The problem of how to reconcile social solidarity and individual liberty—one of the central paradoxes of the Revolution—has haunted French political theory from the Left to the Right since the eighteenth century. Is the social body constituted by particular interests that merely coexist (as in liberalism), or does it have a more general and mystical quality that transcends the sum of these parts (as in Rousseau’s notion of the general will)? Throughout the nineteenth and twentieth centuries, this French “social question” was defined and redefined. It was a pressing concern for the Thermidorians and for Napoleon in the aftermath of the Terror, for the leaders of the July Monarchy who had to contend with the effects of industrialization and the new phenomenon of urban poverty, for Napoleon III who urbanized Paris from that perspective, and, of course, for the Republicans. “Thinking the social” became an imperative after 1848, as the republican ideal was confronted with democratic reality for the first time, and after the constitutional laws of 1875. The experiences of the Second Empire and of the Paris Commune had taught Republicans that winning elections was not enough. In addition, they needed to provide a model of social integration that could both reassure the more conservative parts of the population who were nostalgic for the empire and the monarchy and draw in the more radical groups increasingly seduced by the ideals of socialism.1

For the Republicans, one answer to this dilemma of the social contract was abstract universalism: the nation was the expression of the people’s will, and elected representatives needed to transcend their particularities to speak in the name of the general interest, for the nation as a whole.2 This French political model—which I am loosely calling republicanism—was, as Pierre Rosanvallon has characterized it, a “political culture of generality.” It had a social expression in the celebration of the nation, a political expression in the rejection of intermediary bodies, and a procedural dimension through the emphasis on law.3 This chapter suggests that a second answer to this specifically French version of the social question was the family. Family policy was particularly successful in France because the family had been, since the Revolution, intimately linked to the social question. Family activists presented the family as constitutive of the social, as the most universal and most abstractable mode of representation. The family, they insisted, was the secular institution that would lead to social cohesion and bring about solidarity. As such, no political party could have exclusive rights over family politics. The family was beyond politics: it was of universal interest and thus offered a particularly productive platform on which to build political consensus. Just like abstract universalism, the family became, throughout the nineteenth and twentieth centuries, one of the most the distinctive traits of French political culture.

This chapter traces a genealogy of familialism as a political culture and as an ideology. Familialism was an organized political movement with a legal infrastructure, administrative bodies, representatives, and lobbyists who maintained close relationships with decision makers and occupied key governmental posts. It should also, however, be understood as an ideology, as a system of representations in which the family operated as the enactor of the social contract, as the purest expression of the general will, as a structure essential for both the social and the individual. This vision of the family was inscribed at the heart of French political culture with two documents in particular: the 1804 Civil Code and the 1939 Family Code. While the former anchored the familial system in law, the latter made the family one of the principal vectors of social policy.

My goal here is not to provide a comprehensive account of these two legal frameworks but rather to account for their significance and their longevity. Indeed, although certain clauses pertaining to the family were modified throughout the nineteenth and twentieth centuries, the general framework of the Civil Code remained unchanged until the 1960s. The Civil Code can thus be considered, as the legal scholar Jean Carbonnier has suggested, France’s “most authentic constitution” in the sense that it “encompassed the ideas around which French society was constituted in the wake of the Revolution and around which it continues to be constituted today.”4 Similarly, the measures put forth in the Family Code, which was voted into law at the end of the Third Republic, lasted throughout the Vichy Regime, the postwar reconstruction, and the Fourth Republic. From the 1880s to the 1960s, French family policy developed and grew, supported and enhanced by governments on both the right and the left.

The family has, of course, played an important political role in other countries, but two elements have distinguished French familialism: on an ideological level, the rhetorical conflation between the family and universalism, and on a structural level, the degree of commitment to family policy. France was indeed the first country to adopt an extensive system of family allowances, followed only by three fascist states—Germany, Italy, and Spain—who modeled their own family policies on the French example.5 The historian of fascist Italy Victoria de Grazia has even suggested that fascist law never proposed to meddle in family affairs to the same degree as France’s 1939 Code de la famille.6 Furthermore, by the time other European countries had implemented family allowances after World War II, France still had the most generous set of benefits, which were by then incorporated into the Social Security Plan.7

My argument here is that the success and singularity of French family policy can be attributed to two main factors. First, this longue durée construction of the family as the solution to the social question was key in convincing elected officials across the political spectrum to endorse a strong family policy. Second, the particularly dramatic French demographic context at the end of the nineteenth century and, more importantly, the all-encompassing discourse around “depopulation” were instrumental in pushing the 1939 Family Code into existence and in explaining the continued interest in the family after World War II.

The Civil Code and the Familial System of Law

The problem of the “social bond” framed the composition of the 1804 Civil Code. Writing only a few years after the end of the Terror, Jean-Étienne-Marie Portalis, one of the four jurists appointed by Napoleon in August 1800 to establish the foundations of a new civil legislation, explained in his Preliminary Discourse to the Conseil d’État that with the Revolution “all abuses had been attacked, all institutions questioned. With the simple voice of a gifted orator, the establishments that appeared most unshakeable, had crumbled. They were no longer rooted in mores or in public opinion.” This appetite for destruction had “broken old habits, weakened all bonds . . . We no longer cared about the private relations that men held with one another. We only saw the political and general object.” The revolutionary spirit had “violently sacrificed all rights for a political goal, and admitted no other consideration but that of the mysterious and variable interest of the state.”8

Portalis, in line with Napoleon, viewed the Revolution as an overall “conquest,” as a necessary break from centuries of arbitrary and unjust absolutist rule. However, as the previous passage makes clear, by privileging democracy and abstract individualism, the Jacobins had forgotten the social, or rather they had homogenized it into the nebulous and problematic concept of the general will. The Terror in particular, Portalis believed, had highlighted the limits of a political system based on nature and on the assumption of man’s original goodness. The Revolution had granted individual human rights as natural rights, but in the course of doing so, it had torn apart an entire social body based on orders, corporations, and other intermediary bodies designed to “frame” the individual, whose emotions were ultimately unstable and volatile. It was this social that the authors of the Civil Code—and Napoleon’s regime more generally—hoped to reconstruct and strengthen, not by returning to a discredited feudal order, but by imagining new ways—new laws—to link individuals to one another. For the writers of the Civil Code, civil laws could uphold both the state and the citizen. Civil laws were, as Portalis put it, “the source of mores, the palladium of property, and the guaranty of all public and individual peace.”9

To guarantee this “collective integration” of individuals, the Civil Code was structured along two axes that were closely tied to one another: the family and private property. The family, which the writers of the Code described as the “nursery of the State [pépinière de l’État],”10 provided the best mechanism to manage and stabilize relations of sociability. Unlike other legislations such as the Prussian Code which attributed a series of abstract rights to the individual, French civil law postulated that the “civil state” (état civil) was a familial state. As Portalis famously concluded his Preliminary Discourse, “Our goal has been to tie mores to laws and to propagate the spirit of the family which is so favorable . . . to the civil spirit [esprit de cité] . . . Private virtues alone can guarantee public virtues and it is through the small homeland [patrie], the family, that we tie ourselves to the great one. Only good fathers, good husbands, and good sons make good citizens. The role of civil institutions is to sanction and protect all the honest affections of nature.”11 The new social contract envisioned by Napoleon—and France’s postrevolutionary constitution, if we follow Jean Carbonnier—was one mediated by the family, and more specifically the patriarchal family.

As Suzanne Desan has argued, throughout the 1790s, family law served as a forum to explore and evaluate the practical meaning of the fundamental...

Table of contents

• Acknowledgments
• Introduction
• Part One: The Rise of Familialism
• Part Two: The Critique of Familialism
• Part Three: The Return of Familialism
• Epilogue: Kinship, Ethics, and the Nation
• Bibliography