This collection of articles arises from a conference held in Tel Aviv in 2009 at the Concord Research Centre for the Integration of International Law in Israel, School of Law, College of Management Academic Studies. Delegates to the conference came from a variety of professions and areas of expertise and included academics and legal and welfare practitioners. What was common among us, however, was our interest in the international dimensions of both understandings of the family and of the normative systems that define and regulate it. We all believed that understandings of family are situated in and across cultural and economic manifestations of reproduction, dependency and care relations in a global context and that they are regulated in international and regional as much as in domestic law.

Families are perceived to exist in all societies and in this sense are global phenomena. Even if no one form of family can be described as global, the work that it does can be described in that way. Care and dependency relations exist in all communities and all communities must ensure safe and reliable reproduction. Traditionally and pervasively, the imperatives of care and reproduction are carried out primarily in private contexts and, inevitably, these care and reproductive relations attract measures of regulation and protection by cultures, religions and legal systems both locally and internationally.

Our participants noted, however, that the significant designation of those relations as ‘family’ is informed by, among other things, cultural and religious ideas of gender and generational relations (Raday; Büchler; this volume). These ideas range from the ‘traditionalist’, in which the functions of the family members and their rights and obligations are defined by status and are usually non-negotiable, to the ‘modernist’, in which family relations are constructed and shifted according to individual choice, and are contractually binding at most. Traditionalist families tend to be rigidly formulated into hierarchical patriarchal units, often justified or even ‘sacralised’ by religious edict (Raday, this volume) and cultural practice (Tagari; Sandberg and Hofri-Winogradow; this volume), while the modernist family is amorphous and based on a conception of autonomous choice (Büchler, this volume). Given that these two ‘types’ of families not only represent the opposite ends of a descriptive spectrum along which many variations and combinations of relationships can exist, but can exist simultaneously in any particular society, our participants asked how any legal system, whether cultural, religious, international or national, can provide general laws which are appropriate for its whole range of familial relations.

Other participants highlighted the relationship between family living and public living, in particular the relationships between ideas of citizenship, nation and family. Ronen, for example, notes in this volume how protection of family units may protect immigrants from deportation under international or European law. Triger, on the other hand, discusses the law of marriage and relationship recognition as a form of state-sanctioned discrimination on grounds of race, religion, gender or sexuality, which has been used to exclude ‘undesirables’ and stigmatise them as the ‘anti-citizen’.

In view of this diversity, then, not only of family relations, but of their place in law, there is, as we and many of the contributors to this collection see it, an innate problem in framing either a universal ‘family’ or a universal form of its regulation and protection. As we noted, the designation ‘family’ is a term which is itself loaded with social, cultural, religious and political meaning. In some circumstances it may be a desirable designation, in others it may not be. Yet international treaty regulation takes family as a given, not attempting to define it and remaining blind to its social constructedness. It has concomitantly insisted on protection for ‘the family’ and a guarantee of the individual human rights of individual family members. Its paradigm avoids articulating the paradox, as if both the sanctity of the traditionalist family and the freedom of individuals to choose their care and reproduction framework in an idiosyncratic way in modernist families can be reconciled.

In applying the protections of international law to family situations, international, regional and local tribunals have had to contend with the paradox, however, and we and many of our contributors are also interested in those practical implications. The criteria for selection of those care and reproduction relations that achieve the protection that comes with the designation ‘family’ are often variable. They are as often local or parochial as they are universal or at least cross-cultural (Tagari; Ronen; Sandberg and Hofri-Winogradow; this volume). If then, there is a universal function for family but no universal concept of its form and organisation, is there a potential or place at all for universal normative standards to ensure that function is performed effectively and justly?

This collection explores all these questions about the local and the international. But it doesn't do so in the abstract. It looks to political and economic realities of men's, women's and children's lives and asks whether there is any effective possibility of identifying shared normative standards by which to regulate our universal, if variable, relations of dependency, interdependency and intimacy.Footnote ¹ Some explore this question from the perspective of justice for the individual family members concerned; others from the understanding that these relations are ‘intricately connected with global matters such as nation-building, citizenship, religious fundamentalisms, reproductive rights and health, and employment’ (Balchin, Reference Balchin2009, p. 2). The collection looks to normative standards, particularly to those in international human rights law, and seeks to discover whether the tensions between the universal and the local and between the traditionalist and the modern are adequately negotiated and whether they can be resolved not only in theory but also in practice. In the end, our contributors respond to these questions in the affirmative. They confirm the axiom of family and the potential of international human rights norms to provide some form of justice for family members, while still supporting a form of family, even as they differ significantly on approach and strategy.

Two themes seem to have emerged among the contributions to this collection. The first is recognition of a persistent patriarchal hierarchy in most forms of family living. This hierarchy lies at the foundations of traditional families and in their regulation in the monotheistic religions (Raday; Sandberg and Hofri-Winogradow; this volume). But we also see evidence of it at the modernistic end of the spectrum, where gender culture and the neoliberal division of labour have resulted in relegating many women to the home and unpaid work, but have cast this economic disadvantage in the language of ‘choice’ (Diduck, Reference Diduck2011). All along the spectrum, women have been assigned a particular responsibility for the wellbeing of family and, in turn, of culture, while men have been assigned a position of power and ownership. And it is not only women who are disadvantaged by patriarchal hierarchy; both children and members of the lesbian, gay, bisexual and transgendered (LGBT) community are also subject to oppression in this framework. In writing this ‘Introduction’, we agreed that there are problems of patriarchy throughout the spectrum of family structure. However, one of us was convinced that the liberal and modernistic end of the spectrum offers considerably greater opportunities for substantive equality in the family than does the traditionalist, religious and cultural (Raday, this volume). The other was more equivocal about the potential of liberal law and liberal rights (Diduck, Reference Diduck, Wallbank, Choudhry and Herring2009).

The second theme we can draw from our contributors is acknowledgement that there is a huge gulf between the international and the local and that this gulf is complicated further by the increasing globalisation of family living (Ronen; Büchler; this volume). International law's construct of family is egalitarian, based uncompromisingly on the human rights of family members, particularly their right to equality. The local ranges from egalitarian to blatantly patriarchal family law regimes, either for all citizens or for members of minority religious communities. This clash poses a severe dilemma for the enforcement of universal norms in the context of family and for local government and courts in societies with polarised majority and minority cultures.

There are a variety of ways in which this clash can be addressed, some direct and some indirect. One approach discussed by our contributors derives from applying individual human rights norms to relationships within the family (Raday; Tagari; this volume); acknowledging family members' autonomy and agency (Büchler; Sandberg and Hofri-Winogradow; this volume); or requiring the availability of civil marriage in order to secure the right to marry and freely choose a spouse (Tagari, this volume). Another approach explored in this collection looks to forms of legal pluralism to encourage personal systems of arbitration or adjudication, which allow a great deal more room than national law for group cultural autonomy and identity, at the same time paying close attention to their potential for propagating gender discriminatory provisions and violation of children's rights (Büchler; Tagari; this volume).

Other contributions refocus the clash between the international and the local onto the mobility of families and the role of law in integrating cultural expectations and family belonging within a newly adopted environment. There is critique of the way in which European private international law fails to accommodate cultural diversity in family law, while interpretation of open concepts, such as the child's best interests, may do so more successfully on a case by case basis (Büchler, this volume). Acknowledging the potential conflict between the core convictions of inviolability of the person and equality between the sexes and the authoritarian and oppressive structures that can be reinforced by group rights, there is a suggestion that the way to proceed is through ‘a discursive, procedure-based approach’ which is more detailed and context-related (Büchler, this volume p. 208). There is also evidence of harmonisation and international co-operation which acknowledges the diversity of family forms but at the same time identifies common values and helps to smooth the moving of families across state boundaries (Ronen, this volume).

These themes, taken together, reveal a formidable ideology of family that in many ways is universal and international. Our contributors are optimistic, however, about a role for international norms and human rights standards, primarily of equality, in family regulation and protection, to deter the serious economic, physical, political and emotional hardship faced by many family members, particularly women.

Human rights norms 1: the right to equality

International human rights law encompassed families from 1948. The Universal Declaration of Human Rights (UDHR), as later reaffirmed by the International Covenant on Civil and Political Rights (ICCPR), guarantees a right of protection to the family as the natural and fundamental unit of society but it also sets out express guarantees for the entitlement of men and women to equal rights in all aspects of marriage and the free consent of intending spouses as regards entry into marriage:

The approach of the UDHR and the ICCPR is dualistic, attempting to protect both the institution of the family, rooted as it is in culture, and the individual human rights of its members. In some regional arrangements, the dualism does not exist – the Inter-American Declaration, signed shortly before the Universal Declaration of Human Rights, declared the family to be ‘the basic element of society’ (Article VI) – while in other regional arrangements the dualism is explicit. The African Charter on Human and People's Rights, for instance, articulates greater ambivalence, asserting both the state's duty to assist the family which is the custodian of morals and traditional values (Article 18(2)) and its duty to ensure ‘the elimination of every discrimination against women’ (Article 18(3)). While the reasons why these international documents are framed in these ways is understandable, and indeed in principle, the aims of protecting families and guaranteeing the human rights of family members need not be irreconcilable (Büchler, this volume), in the religious, cultural and political tapestry into which family living is woven, this language creates problems in the application of human rights to family relations pitting rights to religious and cultural autonomy against rights to equality.

Other international documents, such as the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the UN Convention on the Rights of the Child (UNCRC), unambiguously guarantee the individual rights of family members. These documents target specifically the two most vulnerable members of families: women and children.

In the Preamble to CEDAW, the need to protect women against discrimination on the basis of their family role and within the family is emphasised:

In CEDAW the bounded and protected family unit of the UDHR is not maintained and there is no specific protection for the family as an institution. CEDAW does not refer to the family unit at all, in fact; it refers to family relations throughout, and it does not refer to marriage alone but also to personal rights and choice in parenthood. Importantly, it also asserts the ‘equal rights and obligations of women and men with regard to choice of spouse, parenthood, personal rights and command over property’. Thus in CEDAW there is a clear shift from deference to cultural autonomy to a guarantee of the rights of women to equality with men in family relations. This guarantee is reinforced by Article 5, which requires states to modify cultural patterns of behaviour based on the idea of inferiority of one of the sexes or on stereotyped roles for men and women.

There are signs, however, that the guarantee of women's and children's human rights within the family is not a fait accompli and the opposition of some countries to its implementation has been expressed in the United Nations human rights machinery. The Human Rights Council resolution in October 2009, for example, seeks to re-establish the power of ‘traditional values’ and thus shift the balance in favour of religious or cultural freedoms vis-à-vis women's and children's rights to equality (Raday, this volume).

The situation of children is more complex. Children's rights and their welfare and wellbeing are protected in the UNCRC; it promotes principles of autonomy for children at the same time as it recognises their particular vulnerabilities. The Convention's underlying approach to children's rights advances a perception of children's separateness as rights-bearers, the centrality of their rights and interests at the focus of legal proceedings and their agency in participating in and influencing decisions affecting them. The UNCRC has thus had a role in shifting the construction of children and childhood more generally; it presents an alternative to the traditional idea of children as objects subject to parental ‘rule’.

LGBT rights to family are still to come at the international level.Footnote ² In the case of lesbians, gay men and transgendered persons, the question is often not of combating oppression within the family but of recognising their intimate relationships as family (Triger, this volume). Although the European Court of Human Rights has recently recognised same-sex relationships as giving rise to ‘family life’ worthy of protection by Article 8 of the European Convention on Human Rights (ECHR), it has not recognised a right under Article 12 of same-sex partners to marry.Footnote ³ Triger here reviews the debates around recognising such a right and its possible broader political implications, including those for gay and lesbian liberation and citizenship and immigration issues, and is not convinced that a simple recognition of the right to marry would offer the broadest justice for all forms of family living.

At the local level there is often resistance to enforcement or implementation of the equality rights that have been promulgated at the international level. Some countries have attempted to opt out of the treaties, either by registering reservations, which protect religious family law or ‘cultural autonomy’ from the reach of the principle of equality, or by refusing to sign the later human rights conventions, as in the case of the US's refusal to ratify CEDAW or the CRC. There has been an unprecedented number of reservations to CEDAW, to conserve religious law, made primarily against Article 16 of the convention dealing with women's rights to equality within the family. The CEDAW Committee has rejected far-reaching reservations as invalid, being contradictory to the purposes of the Convention (Tagari, this volume). Nevertheless, there are specific instances of blatant non-enforcement of the international standards by legislatures or courts at the municipal level, for example in legal systems in which religious institutions have strong political power (Raday, Reference Raday2003, p. 680, ftn. 64). Despite these difficulties, this international law standard of equality for family members was established by states as members of the international community, which means that, on a conceptual level at least, these normative standards are widely acknowledged. And it is these internationally accepted ideas of human rights which appear for many of our contributors to be one frame within which basic standards of justice in and for families may be achieved.

Human rights norms 2: the public/private dichotomy

The human rights approach has other benefits for families and family members as well. It insists on the connection between what are typically called private family matters and what are typically regarded as matters of public importance. Reproductive health, child and spousal maintenance, domestic violence and women's and children's education are all issues of considerable public consequence and yet are too often perceived as merely private or family matters, rendering them ‘almost exempt from “the need for globally shared legal frameworks based on cross-cultural foundations”’ (International Council on Human Rights Policy (ICHRP), 2009, p. 65). Both CEDAW and the CRC are good examples of a rejection of a public/private dichotomy. Cultural patterns which define the public realm as a man's world and the domestic sphere as a woman's domain are strongly targeted in all of the CEDAW provisions that affirm the equal responsibilities of both sexes in family life and their equal rights in all matters relating to marriage and family relations (Cook and Cusack, Reference Cook and Cusack2010, pp. 134–35). CEDAW requires states to prevent discrimination against women on the grounds of marriage or maternity, to ensure their effective right to work, and to provide for paid maternity leave, support for childcare and protection for women in pregnancy (Articles 4(2) and 11(2)), while also guaranteeing their equal participation and rights in political and public life (Article 7), nationality (Article 9), and economic and social life (Article 13). These rights cross the barrier between the public and the private in both directions: the family is not immune from public standards and individuals are not restricted by family status from public participation. The CRC for its part also protects children's rights outside their private relations with parents or guardians. It protects, for example, children's right to freedom of thought, conscience and religion (Article 14), to education (Article 28), to health (Article 24) and to protection from economic exploitation (Article 32).

The public/private barrier is also broken down when we look to the relationship between political citizenship and family living. Political citizenship is an element of human rights and is often negotiated through family law. Citizenship issues are raised in at least two ways in family law. The first is the transmission of citizenship and the rights that come with it through familial connections, either by birth or marriage (Triger; Ronen; this volume). The second is the role of family and women in particular in constructing or reconstructing a nation's, or culture's, identity and how this identity is tied to citizenship, or to membership of a nation.

Siobhan Mullally also observes how exclusionary narratives of ‘nation’ were mobilised in debates on birthright citizenship and women's reproductive autonomy in Ireland. She demonstrates how women's human rights generally can be portrayed as hostile to cultural and national sovereignty, state interests and the process of nation-building (Mullally, Reference Mullally2005). This idea ties in with Triger's notion in this collection of anti-citizenship.

While the public/private dichotomy can be challenged in many contexts, it persists in many regional human rights instruments. Thus we see that some regional instruments construct a barrier around the family which may accord it valuable autonomy and protection, but also marginalises the human rights of the individuals within it, by potentially removing what goes on within families outside the reach of rights assessments. The Inter-American Declaration (Article V) and the European Convention on Human Rights (Article 8), for example, protect private and family life in the same breath. This privatisation is reinforced in the Inter-American Declaration's guarantee of the inviolability of the home (Article 9), and by courts in Europe using the margin of appreciation in the ECHR to permit states a degree of autonomy in their laws regulating marriage, divorce, reproduction and the welfare of children.Footnote ⁴

This removal of families and family living exclusively to the private sphere is of concern to our contributors. Privacy, although it provides some valuable protection for intimate relations and for autonomy and agency to be expressed by all, also removes those relations and expressions from legal and political scrutiny, allowing abuses of power to remain unchecked. Designating family relations as exclusively private in this way not only removes them from rights discourse philosophically, politically and legally, it also removes the family entirely from consideration in much political theory (Okin, Reference Okin1989; Diduck, Reference Diduck2005). The separation of society into realms of public and private is fundamental to liberalism and is equally, if not more, apparent in traditional societies. Hence, in this respect, neither liberalism nor religion holds the key to the dissolution of privacy as a barrier to justice in the family. A human rights approach, however, has the potential to break down that barrier.

Human rights norms 3: autonomy and agency in family living

The autonomy of the individual is the ultimate source of legitimacy for human rights law and shapes the demand for the primacy of human rights for family members. Yet all the contributors who deal with religious and cultural family living acknowledge its importance to individuals also. Much of the recent literature on what may inadequately be called ‘multicultural’ family law attempts to reconcile respect for both of these imperatives.

Multiculturalist critiques within the human rights literature often ignore or marginalise the impact on women of the way religious texts can be interpreted. Others suggest that seeing this impact as ‘harm’ is a Western preoccupation that devalues the importance of culture to these women (see, e.g., McColgan, Reference Mccolgan2011). The claim of other multiculturalists is that the concession to traditionalist religious and cultural norms is an affirmation of women's autonomous right of choice. This claim is at its strongest in the case of migrant populations which are afraid of losing their cultural identity and regard the family rather than the individual as the centre of their religious and cultural values (Büchler, this volume). It seems clear that a genuine choice to accept certain cultural practices or religious norms should be accepted as valid even if they appear to disadvantage the acceptor. This liberty to choose is an essential part of the freedom of religion and of the right to equal autonomy of the individual. However, recognition of individual consent to patriarchy or any form of oppression must be cautiously offered, since life in a patriarchal or otherwise oppressive community inherently reduces the capacity for public dissent (Raday, Reference Raday2003, pp. 701–704).

The research reported in this volume and carried out by Sandberg and Hofri-Winogradow in Israel demonstrates the current dilemma regarding the consent paradigm. The research analyses the phenomenon of renunciation by Arab women of their already unequal portions of the family inheritance. In parallel, it analyses the renunciation, in divorce settlements, of rights in marital property by Jewish women seeking a get (divorce) under Jewish law, which is conditional on the husband's agreement. The researchers trace the social pressures on the women to renounce rights and the judicial treatment of their attempts to subsequently void their consent in the Israeli court system and conclude that the courts treat the two claims unequally; they offer more protection to Jewish women than to Arab women. We can see from this research that law's engagement with autonomy, consent and ‘culture’ is complicated and contingent, even within one jurisdiction.

Some states regulate family relations through personal law systems (Tagari, this volume), thus promoting group autonomy. Where these systems are pluralistic, they are said to be justified as a state's statement of respect for religious and cultural diversity:

The proponents of personal law systems thus justify them by claims to group rights. Because it is often difficult for the state, the international human rights system, treaty bodies or international non-governmental organisations to take a nuanced position regarding culture (Balchin, Reference Balchin2009), a human-rights-based approach to these plural family practices sits at the heart of a dilemma (see Tagari, this volume). It demands a balancing of the ‘rights of the individual vis-à-vis the collective or the right to sex equality vis-à-vis religious freedom’ (ICHRP, 2009, p. 65). A nuanced position in which (gender) equality and religious/cultural freedom does not need to be ‘balanced’, but can be obtained by all, is rarely considered (Balchin, Reference Balchin2009; see also Shachar, Reference Shachar2008; Reference Shachar2009). A nuanced position would require advocating the idea that individual freedoms and the right to equality may or may not clash with cultural or religious autonomy; and that the family, as protector of culture, can be a site for both cultural expression and for human rights thinking (Büchler; and also Tagari; this volume). One's choice must include more than simply whether or not to exit from the culture or community. As always, however, in a legally pluralist scenario, the challenge becomes how to reconcile the state as ultimate arbiter among the many and diverse religious, cultural and international voices (Büchler; this volume).

As our contributors illustrate, the freedom protected in international rights documents to manifest one's religion individually or in community with others, may provide support for the establishment of personal law systems which remove family matters to the communal sphere (Buchler; Tagari; this volume). These systems, however, must always be scrupulously assessed. Too often, they belie the ‘secular state's asserted mandate to represent and regulate the interests and rights of all its citizens in their family-law affairs, irrespective of communal affiliation’ (Shachar, Reference Shachar2008, pp. 583–84). They often have the effect not only of establishing inequalities between women of different communities (Sandberg and Hofri-Winogradow, this volume; ICHRP, 2009) but between men and women either because they contain patriarchal elements or because of their disproportionate impact upon women (Sandberg and Hofri-Winogradow, this volume; ICHRP, 2009). So also can the alternative dispute-resolution mechanisms of religious communities, often commended by state authorities for cost-effectiveness or speed, place family law disputes outside the scope of standards of equality, respect and equal citizenship, and impact adversely on women and children (Tagari, this volume). The guarantee of religious freedom is circumscribed by the right to equality for women in the family and the CEDAW Committee has suggested that personal law systems may violate this right (Tagari, this volume).

Conclusion: family on the threshold

Whether they are about the cultural, religious or legal manifestations of family living, the articles in this collection hint that, at the international level, justice for and in the family can be based on norms of human rights that protect both an idea of family and a form of equality for family members, in the context of the increasing mobility of populations. Because family law is normally thought of as personal, not only to the individuals concerned but also to a national or cultural identity, it has rarely been thought to be appropriate for scrutiny on an international normative basis. We think that this exploration of the family as an international affair has produced a vision of the family on the threshold of transformation. The international norms we have explored here reveal the beginning of, or at least the potential for, a shift from the ideologies of patriarchy and privacy to an idea of family living conducted in a state of substantive equality. This shift seems to create a framework for a form of family relations in which choices in family living can be respected, and at the same time the most vulnerable members of society and families are not disadvantaged by virtue of those choices or the ‘family’ status imposed upon them.