Comparing Citizenship and Kinship: Commentary on Mills

[Editor’s note: This is the third of four posts on Aaron Mills’s article “First Nations’ Citizenship and Kinship Compared: Belonging’s Stake in Legality”, The American Journal of Comparative Law, Volume 72, Issue 4, Winter 2024, Pages 892–932, https://doi.org/10.1093/ajcl/avae032]

Decolonization requires Indigenous peoples governing themselves on their own terms, and Mills’ article articulating an Anishinaabe political theory of kinship offers an illuminating account of what this might mean. But as he notes, there is disagreement about whether kinship-based ideas and practices can be reconciled with citizenship-based ideas and practices: can they co-exist and supplement each other, within or across different forms of political community?

Mills is pessimistic: he views kinship thinking as incompatible with citizenship thinking. Whether one shares his pessimism may depend on a prior question about the purpose of politics. Why do we need theories of political membership in the first place? Within the mainstream Western citizenship tradition, the answer goes something like this:

In short, citizenship in the Western tradition is the flip side of legitimate authority; it is the solution to the problem of needing public authority to get things done. The task of citizenship theory is to align who is governed with who can authorize government, and to design mechanisms of horizontal co-authorship (amongst citizens) and vertical accountability (between citizens and the public authority).

As Mills rightly says, conceiving of membership as citizenship pushes one in the direction of drawing clear lines around the people and territory of the demos, which he says is at odds with the Anishinaabe belief in the flux, contingency and gradations of our relationships. But a commitment to citizenship needn’t rest on a distinctly liberal individualist ontology. One can recognize the irreducible reality of the ‘social self’ and relationality while also believing in the need for legitimate public authority. Citizenship is endorsed by social democrats and conservatives, not just liberals, precisely because they share the belief that getting things done requires public authority. Indeed, one could argue that liberal individualism on its own leads not to citizenship theory but to anarchism or isonomia. It is those with a more expansive view of the role of government and collective action in the Western tradition who are most committed to citizenization as a tool for constructing legitimate authority.

This suggests that one’s view of the merits of citizenship depends in part on one’s view of the need for public authority. And I think Mills agrees with this: he emphasizes that his account of kinship does not, and cannot, generate coercive public authority, but instead relies on persuasive authority. But he says little about this crucial premise: is it really true that kinship-based political communities can get things done without public authority? There is in fact surprisingly little discussion in the article about what needs to get done, let alone how persuasive authority would operate to get those things done.

For example, the vast majority of people in Canada – including Indigenous peoples – strongly support the idea of a single-payer health care system. Indeed, in Canada as in many other Western democracies, when people are asked what citizenship means to them, public health care is often the most common answer. But this system only works if there is a public authority that can compel citizens to pay taxes and that can prohibit doctors from selling medical services on the market: it’s not clear how persuasive authority on its own could create such a system.       

And this may help explain why many people, including some members of Indigenous societies, seek to reconcile kinship and citizenship. They may have a strong attachment to ideas and ideals of kinship, and its associated ideas of relationality and reciprocity, but they may also have come to believe that binding public authority is crucial to achieve certain collective goods, both within Indigenous communities and in their relations with settler society. Perhaps a division of labour is required: perhaps kinship is needed to address certain issues and citizenship is needed to address others. If so, one might then think about how kinship and citizenship can be part of a complementary political order.

I suspect that Mills would respond that once one reaches for binding authority, one loses touch with the central ethical values of kinship. To invoke or threaten coercive authority is incompatible with the vision of trust and gift-giving that underpins kinship. But is this so? Or can plural authorities grounded in different values operate side by side without undermining one another? Indeed, is it possible that coercive authority helps to secure a context within which kinship and persuasive authority can flourish? In my own work with Sue Donaldson, I have attempted to show that kinship with the more-than-human world can be reconciled with a multi-level account of nested citizenship. More generally, citizenship theorists have long argued that coercive authority, while an essential backstop, recedes into the background, and that for most people and most contexts, social life operates through ideas of trust and reciprocity.  We needn’t presuppose a zero-sum relationship between coercive authority and relational kinship responsibilities, and I think it’s worth exploring contexts where the two might support each other, and not just the contexts where they might displace each other. Perhaps in the end, this sort of synthesis of kinship and citizenship is doomed to fail, but I think it is premature to foreclose that possibility.

More Comparison, Please!

[Editor’s note: This is the second of four posts on Aaron Mills’s article “First Nations’ Citizenship and Kinship Compared: Belonging’s Stake in Legality”, The American Journal of Comparative Law, Volume 72, Issue 4, Winter 2024, Pages 892–932, https://doi.org/10.1093/ajcl/avae032]

Aaron Mill’s engaging and creative study leaves one hungry for more, and no doubt he will have more to give us.  My queries about his article can probably all be answered by saying, “just wait for the next installment.”  But hoping that interim reactions may be helpful, I’m glad for the chance to participate in this symposium, and to pose a few questions.

Some of questions in this blog on comparative law have to do with comparison.  Professor Mills makes many observations about Anishinaabe society that make me wish for more comparative discussion.  “[When] folks introduce themselves,” he writes, “[u]sually our kin­ship positions vis-à-vis parents and children come first.”  The use of kinship terms as forms of address is a widespread in the globe, from East Asia, where it is common to address others as “eldest brother” and the like, to the Middle East, where fathers may be addressed as “abu.”  The Anishinaabe practice may well have different social meanings from these practices elsewhere, and it may be lodged in a richer culture of kinship.  But without a careful examination of the comparative evidence, it is difficult to know; and in any case in my experience comparative analysis is generally quite illuminating with regard to all the societies under consideration.  I take it that Professor Mills sees his task differently—as one of “thick description’ in Clifford Geertz’ well-known formula.  But to my mind, such thick description, at least when it gets too thick, is a bit at odds with the spirit, and the promise, of comparative law.  The same question could be asked about Anishinaabe kinship terms—kinship terms being, of course, a long-standing focus of ethnographic research.

Other examples come to mind as well.  The article quotes Nicolas Perrot to the effect that in seventeenth-century Anishinaabe marriage, “each man considers himself no longer a member of the village in which he was born.”  Is this an example of matrilocality, or is it something else?  One would rather like to know; and the risk of neglecting the comparative analysis is that one may fail even to notice that there is such a question to be posed.  Or, to speak of a more uncomfortable example, Professor Mills writes that “my elders have taught me that before I harvest anything from the Earth, I should speak to it, express my need, ask permission, offer tobacco, and if I know it, sing the appropriate song.”  Should we think of this as, to use a term in somewhat bad repute, animism?  How should we understand these practices against the broader backdrop of sacrifice and relations to the holy elsewhere in the world?  I, at least, find it difficult to feel entirely content with any approach at does not view the practices of a given society in the larger perspective that two and a half centuries of social science (and more, depending on how you count) has made possible. None of this is to say that Anishinaabe culture may not be wholly distinctive.  It is only to say that without comparison we have no measure of distinctiveness.  Nor would I by any means suggest that Professor Mills is ignorant of comparisons!  He offers an intriguing counter to Marshall Sahlins in particular.  Perhaps it is too much to ask of him, a scholar who has given us such a fascinating work of thick description, to dive deeper into comparative analysis.   But I admit that the comparatist in me yearns for more.

Indigenous Kinship as a Replacement for Tribal Citizenship Theory? Thoughts on the American Experience

[Editor’s note: This is the first of four posts on Aaron Mills’s article “First Nations’ Citizenship and Kinship Compared: Belonging’s Stake in Legality”, The American Journal of Comparative Law, Volume 72, Issue 4, Winter 2024, Pages 892–932, https://doi.org/10.1093/ajcl/avae032]

Two Ojibwe tribal nations in northern Michigan recently engaged in an audacious act of tribal sovereignty that could change federal Indian law in the United States dramatically – the tribal nations changed the blood quantum of all tribal citizens to 100 percent Ojibwe as a matter of law.

Like many tribal nations, the Bay Mills Indian Community required a minimum quantum of one-quarter Indigenous “blood” (read: ancestry) to meet the tribe’s enrollment criteria as a tribal citizen. The other tribe, the Sault Ste. Marie Tribe of Chippewa Indians, like numerous other tribal nations, required evidence of lineal descendancy from a century-old federal annuity roll. For Bay Mills, the one-quarter blood quantum limit was slowly draining the tribe of its children as intermarriage with nonmembers depleted the numbers of eligible Ojibwewaag. For Sault, which had closed its enrollment office to new applications for many years, the numbers of tribal citizens had remained high, but many tribal citizens with low blood quantum were ineligible for important federal and state entitlements rooted in higher quantums.

In the United States, tribal citizenship is the standard. For tribal nations, either one is a citizen or not. Federal Indian treats tribal nations as federal contractors. If tribal nations want federal money, they have to play by the colonizer’s rules. And the colonizer demands that American tribal nations only spend money on tribal citizens (there are exceptions to this rule that largely reconfirm the rule itself). Indigenous relatives who did not meet the tribal citizenship standard for enrollment are left out. Inequities abound.

For too many American tribal nations, citizenship law and policy has become unbelievably toxic. Some tribal nations (mostly wealthy, but some that are not) have engaged in mass disenrollments designed to make more tribal resources available to the fewer tribal citizens that remain. After mass disenrollment practices received scathing criticism from other tribal leaders, federal and tribal judges, and even Members of Congress, tribal nations seeking to limit the number of citizens began to quietly impose moratoriums on new enrollments (although usually allowing newborns to enroll).

* * *

Aaron Mills compelling new article, First Nations’ Citizenship and Kinship Compared: Belonging’s Stake in Legality, explores Canadian First Nations’ concepts of belonging by comparing citizenship and kinship as distinct models. It argues that while many First Nation individuals frame belonging debates through the lens of citizenship, often incorporating kinship, this approach is influenced by internal colonialism. The author proposes that kinship is its own model of belonging, rooted in First Nations law and defined by mutual aid and responsibility, rather than the liberty and rights emphasized by citizenship. The article aims to re-establish kinship’s legal significance, which has been conceptually and institutionally disconnected from legality due to colonialism, suggesting that embracing kinship on its own terms is crucial for Indigenous law revitalization and self-determination.

Dr. Mills’ paper reminds us that Indigenous Peoples once elevated kinship above mere citizenship, a notion rooted in western political philosophy that would have been comically unsettling to our ancestors centuries ago, after all, in the 14th century, “citizen” meant someone who was not enslaved or indentured. Now, “citizen” means a state of owing allegiance to a nation like Canada or the United States.

Kinship is reciprocal, an ordered system of social relations where “relatedness” is the organizing feature. The fundamental value driving kinship is mutual aid, which corresponds to a political community committed to the integrative flourishing of its members. Kinship positions facilitate this by structuring the exchange of needs and gifts throughout the community through dynamic sets of position-specific responsibilities.

Mills explains that kinship extends beyond blood or marital ties. Individuals who are willing to bear the responsibilities intrinsic to a kinship position can occupy it, even without a genetic link. This can include adopted individuals or community members who take on instructional roles, often referred to as “grandfathers” and “grandmothers”, or “aunties” and “cousins.” Furthermore, Anishinaabe kinship structure extends throughout creation, with the sun, moon, Earth, and animals being ascribed kinship positions, reflecting an understanding of their responsibility sets vis-à-vis humans.

* * *

I am a veteran of many American tribal citizenship battles. As a tribal attorney, I have worked for my own tribe to exclude Anishinaabe relatives from enrollment because they wished to count their Canadian Haudenosaunee ancestry in our blood quantum calculation against my own moral compass. As a tribal judge, I handled cases involving disenrollments and efforts to bar Anishinaabe relatives who had been adopted by tribal citizens.

Recently, I wrote an opinion in a dispute involving a tribal nation that constitutionally defined its citizenship criteria to exclude anyone born before 2019, but prohibiting anyone already enrolled from being disenrolled. It is getting downright surreal in the United States.

Kinship theory would dramatically change the paradigm. My initial reaction to Dr. Mills’ argument was “Woohoo!” My second reaction was “It won’t happen here.”

But then I look to the Ojibwe tribal nations up north and I think with Anishinaabe ogemaag, anything is possible. There is hope.

A Response to Professors Gianmaria Ajani and Vivian Curran 

[Editor’s note: this is the final of three posts, parts of a mini-symposium on Fernanda G. Nicola’s and Günter Frankenberg’s book Comparative Law, Introduction to a Critical Practice (Edward Elgar, 2024)]

We are indebted to the organizer of this online symposium, Professor Ioanna Tourkochoriti, whose leadership in revamping the ASCL blog has reinvigorated intellectual exchanges in comparative law. Her initiative is a timely reminder that engaging with comparative legal ideas requires not only scholarly rigor but also willingness to participate in more open, informal dialogue—particularly with two eminent scholars of the discipline, whose generous commentaries we are honored to receive.

We are grateful to Professor Gianmaria Ajani for his thoughtful reading of our book Comparative Law: Introduction to a Critical Practice. His reflections resonate deeply with the book’s core ambitions—especially our aim to move beyond the methodological constraints of traditional or mainstream comparative law teaching and to open new pedagogical spaces for critical, context-sensitive and politically engaged inquiries in a discipline that has long shaped, and been shaped by, the many trajectories and resistances of globalization.

Professor Ajani is absolutely right to foreground the pedagogical dilemmas that continue to confront those of us teaching comparative law: the balance between theory and practice, the tension between the “West and the Rest,” and the risk of overwhelming students with the sheer vastness of the field when asked to engage with “foreign law.” His recognition that our book attempts to tame these tensions—not by resolving them definitively, but by offering a usable toolkit that draws both from mainstream and critical approaches through what we call a critical practice—is especially appreciated.

We were particularly struck by his suggestion that our work serves as an “antidote from the vertigo of everything.” That sense of vertigo captures exactly the kind of paralysis that can arise when legal comparison is tasked with covering an endless list of topics and jurisdictions, often accompanied by the seemly innocent mantra—or false modesty?—that comparative law is “only a method.” We share our colleague’s conviction that what students need are intellectual tools that not only help them engage with diverse legal systems, but also enable them to move between doctrinal fields and normative commitments. Legal comparison, as we see it, is both a scholarly craft and a practical orientation toward the world—one that involves taking critical distance from familiar legal categories and using self-reflection as a means to understand the “foreign,” whether that be legal cultures, institutions, doctrines, or arguments. In doing so, students are invited to look back at their own legal traditions and appreciate the value of difference.

Professor Ajani’s attention to our treatment of legal transfers, property, contract, tort law, and constitutionalism goes to the heart of what we intended with this workbook. As he notes, our method does not rest on promoting best practices or pursuing harmonization. Rather, it invites students and practitioners to grapple with real-world problems—such as wrongful birth, the recognition of same-sex marriage, or the contested meaning of veiling in public spaces. These are not merely illustrative examples. They bring to the surface complex legal and policy arguments, distributive consequences, and the roles of diverse legal and social actors. They reveal how legal doctrines are embedded within political economies, social hierarchies, and cultural narratives—layers that a critical comparative practice must engage with to be meaningful.

Finally, we welcome his concluding observation that the book “opens classroom windows to let in some fresh air.” If our work helps dislodge the mannerisms that have too often dominated the teaching to comparative legal methods and theories—and instead encourages students to see laws as a dynamic, contested field in which they are in the driver’s seat, with tremendous agency—then we have accomplished what we set out to do.

We are equally grateful to Professor Vivian Curran for her generous and insightful commentary. Her reading brings into focus the dual ambition of the book: to offer an intellectually rigorous intervention for scholars and a practical toolkit for students, advocates and legal practitioners. We particularly value her recognition that we do not merely critique comparative law from a distance but seek to enact a different kind of comparative practice—one that engages in a dialogue with orthodox or mainstream approaches while remaining attentive to the socio-political, historical, material and linguistic contexts that shape legal meaning and law’s worldmaking.

We very much appreciate Professor Curran’s recognition that our book is “both nuanced enough to be of interest to scholars, and basic enough to be used as a teaching tool in the classroom,” as well as her emphasis on our treatment of language, legal globalization, and African land regimes. These themes reflect our commitment to expanding the scope of comparative law beyond its conventional terrain and, in particularly to including perspectives often relegated to what is referred to as law’s periphery. Her point about “Globalization IKEA-style” aptly captures the flattening tendencies we hoped to call into question by situating comparison in lived practices and uneven geographies. 

We are also grateful for her remarks on our treatment of contract law in the context of global supply chains and the erosion of contractual autonomy—a theme that, as she notes, bridges doctrinal analysis with the political economy and connects with our discussion of legal standardization in the analysis of legal transfer.

By the same token, we welcome Professor Curran’s focus on Comparing legal histories, the final chapter, where we examine how different nations accept legal sources and rules of evidence, using the concrete example of a case in which Canadian courts dealt with territorial claims of two hereditary Indigenous chiefs. The layered narrative we present there is intended to foreground a critical reading of the rule of law— one in which, after the exhaustion of the legal remedies, a song or a dance may ultimately be accepted as valid evidence.

We welcome Professor Curran’s critical observations as a vital and necessary part of the comparative conversation—one that must include the comparatist herself: her position, perspective and selectivity in choosing materials—in the symbolic comparative space. We appreciate her suggestion to engage more directly with behavioral law and economics in the discussion of contract law, her reminder of the nuanced precedent-based nature of common law regimes as well as her critique of the veiling chapter’s interpretive framing – offered to inspire a reading, both in the classroom and in the scholar’s study, that takes the workbook at its word. Her comments enrich the dialogue we hoped the book would spark: an exchange that does not end with our text but moves through it and beyond it.

If, as Professor Curran notes, our juxtaposition of the comparative mainstream canon with a critical, practice-oriented approach makes the book valuable to both students and scholars, then we are encouraged that our intervention contributes to a broader rethinking—of what comparative law is and what it can do. Ultimately, we see Comparative Law: Introduction to a Critical Practice not as a conclusion, but as an invitation: to reimagine what legal comparisons can accomplish in shaping a more equitable society—and to ask who gets to participate in that project, both within the law and beyond it.

Remarks on Fernanda Nicola & Günter Frankenberg, Comparative Law: Introduction to a Critical Practice

[Editor’s note: this is the second of three posts, parts of a mini-symposium on Fernanda G. Nicola’s and Günter Frankenberg’s book Comparative Law, Introduction to a Critical Practice (Edward Elgar, 2024)]

This welcome contribution to comparative law literature is both nuanced enough to be of interest to scholars, and basic enough to be used as a teaching tool in the classroom. The authors critique comparative law practice as they proceed to conduct it on their own, both by introducing their recommended socio-political-legal analysis and then by applying it to concrete problems which students are asked to solve. 

The political and cultural underpinnings of comparative law are never far from the authors’ analysis as they seek to situate the act of comparison in its time and place. They also emphasize the importance of historical context as well as of language, recalling the inextricable links between language, text and culture in law. The book extends concepts such as the above which have been part of the comparative canon for some decades by placing them in a contemporary setting:  e.g., “Globalization IKEA-style,” and by devoting space to often neglected areas of the world such as African systems of land registry.

After comparing contract law in the United States, France and Germany, and exploring traditional comparative law theories of convergence and divergence, the authors suggest another kind of convergence by positing that today’s standardization of contracts and global supply chains across systems call all individual contractual choice and autonomy into question. 

The book is so rich that omissions are inevitable. The authors’ critique of law and economics when discussing contract law might have mentioned the field of behavioral law and economics, which today has modified the field. One might also disagree with the authors’ take on tort law where they emphasize that civilian tort law is principle-based by being founded on the French Civil Code, while common-law tort law, being writ-based, is founded on many causes of action. One might, however, see the salient feature of common-law tort law as being the least statute-based area of the common law, and, in that sense, as the most precedent-based. The latter may seem a more important trait as one considers the civil- common-law tort law divide.

The authors’ contemporary comparative law example of constitutional law deals with Islamic veiling. Four cases are set forth, one from England, one from the U.S., one from the European Court of Human Rights, and one from Kenya, each setting forth different reasoning. Each of these cases presents very interesting room for analysis and contrast. Some of the authors’ conclusions do not appear to be substantiated by the evidence they provide, however, although many of their comments are insightful.

In the final chapter, Comparing legal histories, the authors examine what nations accept as being legal sources. They offer as a concrete problem a case in which Canada dealt with  territorial claims of two hereditary indigenous chiefs. In this case, a performance such as a song or a dance was accepted as valid evidence. 

Throughout this erudite book, the authors have juxtaposed comparative law’s canon with their own original critique. They have offered considerable theory in a work that will be of interest to comparative law scholars just as much as it will be of use to students.

A reading of Fernanda Nicola & Günter Frankenberg, Comparative Law: Introduction to a Critical Practice, Elgar, 2024

[Editor’s note: this is the first of three posts parts of a mini-symposium on Fernanda G. Nicola’s and Günter Frankenberg’s book Comparative Law, Introduction to a Critical Practice (Edward Elgar, 2024)]

“The classroom remains the most radical space of possibility in the academy”(Bell Hooks, Teaching to Trasgress, 1994, quoted by the authors, at p. 1). 

“The purpose of this book was to write a different kind of textbook on comparative law” (The authors, at p. 206).

These two statements provide the opening and the closing of an absorbing and inspiring book, authored by Fernanda Nicola and Günter Frankenberg. And there is no spoiling in saying that the declared purpose was accomplished. 

Teaching comparative law is not an easy undertaking: too wide is the series of possible options when we prepare the syllabus. What does really count for law students ? How shall we attract their attention on a matter that can be perceived as too abstract, too theoretical, possibly too apart from the practice of domestic law in courts ? How significantly can we ask our students to be familiar with historical, geographical, economic notions, that represent the thorough-bass of most comparative law courses ? An endless list of preliminary options: where to set the focus, between private and public law ? How to balance the West and the Rest? The formal and the informal?  How much time (perhaps no time at all) should be spent in exposing students to the phantasmagoria of uses and misuses, discipline or method, exoticizing or deconstructing the foreign element, and so forth ?

No doubt, all these interrogations bother the teaching of comparative law as a general discipline, and the making of a textbook. They must be tamed, to contain publishing costs, as well as teaching constraints. It would be then unfair to blame the authors for (unavoidable) omissions. What counts is whether choices made by Nicola and Frankenberg – inclusions and omissions considered- give the readers a useful, understandable, and manageable introduction to the comparative law as a (critical) discipline. Something that could provide those approaching the subject, be they  students, or newcomers, with an antidote from the “vertigo of everything” that could discourage any advancement in comparative law studies.

A dense and intense introductory Chapter (pp. 1-23) shows the gift of the authors in synthesizing complexity, and guiding readers through an immense literature on “How to compare, and What to compare”. 

Sewing together most questions listed above, Nicola and Frankenberg have elaborated an approach of their own, focused on “real-life problems taken from the application of law”, to show how interpreters can move from a mainstream to a critical approach, and from a formalist to a non-positivist understanding of law that reads legal theories in the prism of policies, while evincing the social, cultural, and economic fabrics of judicial implementation. Once the set of comparative law methods and theories has been exposed, “all are invited to work” with a toolkit that can be arranged and applied to produce a comparative practice “that helps understand the plurality of legal cultures and their laws, and therefore deserves to be called critical” (at p. 23). An invitation that could be better appreciated when reading Chapter 1 together with Chapter 9 of the book (Comparing Legal Histories, pp. 183-205).

What has been defined as “Dynamic Comparative Law”, namely the study of laws, theories, cases, institutions patterns in their traveling is the focus of Chapter 2 (Comparing Legal Transfers pp. 24-46). Here, authors have set the stage of a drama called Legal Globalization, with all his characterizations: the transformation of laws and legal patterns into commodities, the emphasis on the role of experts, the role of chance and prestige in the offer and demand of legal models, the unexpected side-effects of hectic legal reforms. Looking back to the golden years of globalization we can, today, clearly recognize that comparative law as a discipline, and comparative lawyers as experts, failed to have a role in the worldwide market of legal reforms. The practice has privileged time-efficiency over the fine-tuning of context-based comparative law methodology; governmental agenda were driven by geo-politics, rather than by cultural affiliations. In spite of a story that proved to be a mortification for the “ubris” of the discipline, Nicola and Frankenberg advance a constructive reading: “comparing legal transfers could be an antidote against a too narrow (…) focus, against epistemic narrowmindedness and provincializing comparative law” (at p. 46).

“What does private property imply ?”. The formidable tangle of economic, political, legal and cultural models that depict property laws worldwide is at the center of Chapter 3 (pp. 47-69). Here, the talent of a comparative law teacher in classroom will be severely tested, as students are required to handle a complex scenario, populated by land reforms, public and private law regulations, formal taxonomies and practices of collective use, alternatives to private property and varieties of its social function. It is not by chance, after all, that “conventional textbooks of comparative law -as the authors do note- tend to focus on contracts and torts, and they often neglect property law” (p. 49). The density of issues simply hinted at, or more broadly described, in about 20 pages could justify by itself a “Comparative property law” course, open to necessary contaminations based on socio-economic approaches to property. 

Unlike Chapter 3, the following one (pp. 70-97) deals with a topic, Comparing Contract Laws, that has received an overwhelming attention in comparative law conventional scholarship.

Keeping in the backgound a classical problem in contracts, specific performance, Nicola and Frankenberg portray the approach applied by mainstream scholarship (Zweigert and Kötz, Gordley): the common law/civil law dichotomy and its functional equivalence, projects in harmonixation, and the cultural meaning(s) of private autonomy. A sketched mention to Law and Economics theories of efficient breach and to Feminist and Critical Race theories of contract law enriches the picture. A tale that  a class of normally equipped law students should be able to understand without too much effort, while applying the provided toolkit to the specific performance cases exposed (Mary Clark, 1821, and Anna Netrebko, 2023).

The second part of the book (pp. 98-182) shows a growing relevance for the non-legal layers (mainly, politics, ethics, and culture); it could not be otherwise, as the authors choose to hinge Chapter 5 (Comparing Tort Laws) on the matter of wrongful birth and life. The law of torts, that traditional comparative law scholarship had often used as a “gym” to train students in the play of combining leading cases, diverging opinions, laws and policies, proves again to be a fertile field for the participatory exercise Nicola and Frankenberg are calling the students to be engaged into.

On a similar note, Chapter 6 (pp. 119-140) adopts as a main theme for Comparative Family Laws the recognition of same-sex marriage. All possible legal and non-legal layers are, evidently, involved, and students are invited to delve into the “varying stances taken by courts, legislatures, and advocates regarding the legalization or resistance to same-sex marriage” (p. 139).

Finally, Comparing Constitutions (Chapter 8, pp. 161-182) gives the chance to confront a “conventional” comparative constitutional law, marked by a narrative of similarity and convergence, with the constitutional jurisprudence of wearing veil in public spaces.

As said, the commitment to offer a “different kind of textbook” has been respected. 

Some comparative law teachers in Europe share the desire to get rid of a kind of mannerism in the discipline. They have a good chance now, as to open classroom windows to let in some fresh air is the worth of this book.

Intergenerational Continuity: Can Love and Care Be Mandated by Law?

[Editor’s note: This is the fourth of four blog posts from a mini-symposium on Shelly Kreiczer-Levy’s and Baoshi Wang’s article “The Family of the City, the Family of the Country“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 328–353.]

The article “The Family of the City, the family of the country” by Shelly Kreiczer-Levy and Baoshi Wang deals with intergenerational family relationships and the way the state influences and shapes them. One of the important factors underlying these relationships is the interest in continuity. This interest has been established as a significant factor in inheritance law in several important articles written by Shelly Kreiczer-Levy. This interest in continuity comprises two aspects:

The first aspect is reflected at the end of a person’s life, which is the moment when the vision of the person’s continuity is manifested and established as the individual drafts their will. The second aspect of continuity addresses the descendants, who are the other side of the connection, and their need for roots. The two aspects are intertwined, so that part of the elderly person’s interest in continuity is that their descendants will have roots, and part of the descendants’ interest in roots is that they will continue them. Through the perspective of the principle of continuity, Kreiczer-Levy provides an innovative and important lens through which she views many other principles, such as testamentary freedom and doctrines of undue influence in Anglo-American law.

Building on Kreiczer-Levy’s work and influenced by her articles, I have explored the role of continuity in additional cases. I suggested that the doctrine of undue influence, known in inheritance law, should be interpreted as focusing on protecting the deceased’s familial and intergenerational connections. Consequently, I identified cases where an individual isolates the elderly from their family and severs their connections, which I termed “elder familial alienation,” and argued that this doctrine should apply to such cases. However, contrary to inheritance law, which focuses on the period after a person’s death, I argued that the interest in continuity is realized through intergenerational relationships during a person’s life, not just after death. Accordingly, I proposed that the law should expand its view beyond inheritance law and apply the doctrines of undue influence and elderly alienation not only after a person’s death but also during their lifetime. Therefore, in cases where a person’s intergenerational connections, especially those of the elderly, are under threat, I believed the law should provide remedies during the person’s life aimed at protecting their connections, rather than merely invalidating their will after death. Subsequently, I argued that there is a need to recognize the elderly person’s right to intergenerational connections, based on their interests in welfare, autonomy, and the interest in continuity.

An analysis of the elderly person’s right to intergenerational connections through Hohfeldian analysis may establish obligations in several dimensions: both public and private. In each dimension, there are obligations derived from both the positive and negative sides of the right. In the negative dimension of public law, the right imposes a duty on the state not to interfere with or harm intergenerational connections. This became particularly relevant in many countries during the COVID-19 pandemic, when the isolation of the elderly in state institutions was a major issue. The positive side of the right imposes a duty on the state to support and facilitate these connections, which can be reflected in measures to promote and encourage such relationships. In the negative dimension of private law, the right creates an obligation on third parties not to damage the elderly person’s connections. For instance, in cases of elder familial alienation, it could be important to prohibit individuals from isolating the elderly and severing their intergenerational ties. But what about the positive dimension of private law? Is there an obligation for descendants to maintain a relationship with the elderly?

In most legal systems, it is commonly believed that relationships cannot be imposed on people, nor can emotions such as love be compelled, and thus neither can personal relationships nor care. This is true for both general and familial relationships.

However, in this article, the authors, Shelly Kreiczer-Levy and Baoshi Wang open our eyes to issues of family in general and intergenerational relationships in particular. This article spans three countries—China, Israel, and the United States—and through examples from these countries, it presents the innovative argument that geographical areas influence relationship systems, personal connections, and care practices. The authors demonstrate that there is more than one way to think about intergenerational obligations and that these obligations are a matter of geography. Geography can be reflected in differences between countries and even within countries between families living in urban and those living in rural areas.

One surprising example in the article is that in China, there is a legal obligation to visit, care for, and respect the elderly. This obligation is enforced through various means, including criminal penalties. This obligation, which was “missing” from the positive Hohfeldian analysis of the right to intergenerational connections, arose from the state’s need to address the issue of young people moving to cities while the elderly remain in rural areas without adequate care. This raises intriguing questions about whether such a legal requirement is effectively implemented or if it represents an impractical and unrealistic demand. Thus, while in Western societies the duty to maintain relationships and care for the elderly might be seen as merely moral but not legally enforceable, in China it has become a legal obligation that can be enforced. This practice challenges fundamental norms in Western society that argue care, relationships, and love cannot be imposed, and demonstrates that, at least in China, the Hohfeldian analysis of the right to intergenerational connections can be fully realized.

The State and Urban Families, The State and Rural Families.

[Editor’s note: This is the third of four blog posts from a mini-symposium on Shelly Kreiczer-Levy’s and Baoshi Wang’s article “The Family of the City, the Family of the Country“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 328–353.]

In their fascinating article “The Family of the City; The Family of the Country” Shelly Kreiczer-Levy and Baoshi Wang explore the connection between family, geographical space and the state. They argue that the family (particularly caring responsibilities and practices) is shaped differently in urban and rural areas, and that the state plays an important role in creating, maintaining, reacting to or even causing these dissimilarities between city and country families.

The article examines three case studies: Chinese urbanization process, family farms in Israel, and abortions regulations in the United States. Each of these examples addresses different geographical areas and distinct aspects of family formation; however, grouped together they provide an overview of various spatial aspects of family formation, and different state strategies shaping the intersection of geographical location and familial roles.

The Article beautifully demonstrates two categories of state involvement in the family. The first category is disparate treatment of urban and rural families; the second category is spatially blind policies. In the first category, the state distinguishes between families based on their geographical location, thereby influencing caring responsibilities and practices. In the second category, the state applies a uniform rule to all families, but this rule has a disparate impact on city and rural families. At first glance, these categories seem to be opposites (similar v. dissimilar treatment) or at least two distinct strategies yielding different outcomes (considering or ignoring the difference between families in rural areas and city). Yet, in both categories the state plays a role in differently shaping the family. Therefore, one important contribution of this article is its demonstration that the state is not neutral. Whether using either category, the state intervenes and shapes families.

The notion that the family is not entirely a private institution and that the state plays a role in its formation is not new. The state heavily regulates many aspects of family life, such as through marriage and divorce laws, and laws governing parent-child relations. Furthermore, the employment market (which is regulated by labor law) also shapes families, particularly familial roles. However, the article enriches family law scholarship by highlighting the spatial aspect of family formation through state actions. As the article shows, even when caregiving is conducted by family members within the privacy of the family home (rather than in state institutions), it is not free from state influence. Whether directly or indirectly, through equal or disparate treatment, the state influences familial relations in both cities and rural areas. Does the state amplify or perpetuate exiting differences between families in urban and country areas? Or does the state constitute these differences? How do different families respond to state regulations? The article brilliantly sets the stage for this discussion, and these questions require further research that contextually analyzes different families in cities and rural settings. The article makes another important contribution by laying the groundwork for policy considerations regarding state regulations. The discussion of COVID-19 regulations demonstrates that the state must consider how regulations will impact different families in various spatial areas. The question, therefore, is not whether the state should treat city families and rural families the same or differently, but rather how state regulations impact different families. In other words, the question is what policy will best serve the needs and interests of different families. For example, what is the best policy during the COVID-19 pandemic that would both enable care for vulnerable family members and at the same time safeguard their health? How would such regulations influence family formation? Would they support or hinder caregiving for family members? There is no single answer that applies to all families, and context – including geographic context – must be considered. Therefore, the article emphasizes the importance of a bottom-up approach to studying the impact of state regulations on family formation in different spatial contexts. State responsibility requires that the state fosters the best family care, whether in urban or country areas (and provide state care when family care is unavailable). Any future scholarship, state policy or regulation should build upon the impressive groundwork laid by the article.

Adding a Conceptual Framework to Rural Family Law

[Editor’s note: This is the second of four blog posts from a mini-symposium on Shelly Kreiczer-Levy’s and Baoshi Wang’s article “The Family of the City, the Family of the Country“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 328–353.]

The Family of the City, the Family of the Country by Shelly Kreiczer-Levy & Baoshi Wang makes an important and unique contribution to the field of Family Law. The rural family has long been ignored in most legal scholarship. While a few academics (myself included) have written about discrete topics concerning the rural family, prior to this article no one had tried to write a conceptual piece about rurality and Family Law. Instead, prior work on the rural family has focused only on one legal issue in one jurisdiction. Think articles focused on abortion rights, child custody disputes, or family inheritance policies. The Family of the City, the Family of the Country takes note of these prior articles and the larger body of literature about rural-urban difference in the law, but then builds on that work.  

What The Family of the City, the Family of the Country adds is a conceptual framework. The authors start by describing the scope of their project: that they present “different types of state involvement in the bifurcation of familial practices of care across geographical distinctions.” It is their look at these “different types of state involvement” in a comparative law context that makes the paper so ambitious. It also means they can offer a more conceptual framework to understand how governments treat families in rural versus urban areas. 

But let me back up to a core piece of knowledge in Family Law that underlies the theories presented in this paper: the government is involved in forming and shaping families. In our individual lives, many of us like to think that we make our choices about our family relationships and structures without influence by the government. As a Family Law professor, one of the first and biggest points I make is that the laws surrounding family influence how individuals live their lives. The best scholarship showing this government influence on the family is probably “Public Vows,” Nancy Cott’s book on marriage. Kreiczer-Levy & Wang build on this basic understanding of Family Law by expanding the analysis: it is not just that the government influences family (this is well-established), but that the government influences family in different ways in urban versus rural spaces (this is their contribution). 

To show this rural/urban difference, Kreiczer-Levy & Wang present three case studies covering intergenerational care in China, family farms in Israel, and abortion access in the United States. The case studies are ambitious—they cover three areas of law in three different countries. The heavy lift is to make sense of such different case studies and to present a way to understand all three. To do this, they have to make an important observation about how rural/urban differences in Family Law are created. They categorize how these differences come about, noting that sometimes governments will engage in “differential treatment” by creating explicit laws treating urban and rural spaces differently, but sometimes governments will create “spatially blind policies” that look the same but apply differently in rural and urban spaces. This categorization—of “differential treatment” versus “spatially blind policies”—is probably the biggest takeaway the article produces because it allows future legal scholarship to build on how rural/urban differences in Family Law originate. 

In order to present their theory of categorization, the authors have to successfully engage with two separate bodies of scholarship. The first is scholarship in Family Law about the government treatment of families. The second is scholarship from law and rurality scholars that looks at rural/urban differences or place-based policies. They manage to draw on both of these bodies of scholarship and make sense of them both. In the coming years, I hope there is future work done at the intersection of rural/urban difference and Family Law. That future work will be able to rely on The Family of the City, the Family of the Country as a conceptual starting point. 

The Spatial Family, Summarising The Family of the City, The Family of the Country 

[Editor’s note: This is the first of four blog posts from a mini-symposium on Shelly Kreiczer-Levy’s and Baoshi Wang’s article “The Family of the City, the Family of the Country“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 328–353.]

Baoshi Wang and I met when we were both visiting The Vulnerability and Human Condition Initiative at Emory as visiting scholars under the guidance and supervision of Prof. Martha Fineman. We were talking about our home country, lives, families, and local laws as we came across a mutual interest: family law and care. I asked Baoshi about a new law that was passed in China at the time and made headlines in the news. According to the law, it is the duty of adult children to visit, care and respect their elderly parents, and a failure to meet this duty can result in criminal sanctions. I was both puzzled and intrigued by the law, as a scholar who has devoted time and thought to intergenerational relations in the context of inheritance law and multigenerational cohabitation. I was puzzled because in Western jurisdictions intergenerational commitments are for the most part considered moral duties, rather than legally binding obligations.  

Baoshi explained the background of this law, having its roots in a rapid urbanization process, designed and supported by state. He also explained the gaps in social security between urban and rural areas, making rural elders reliant on their children for care and support. Urbanization and social security gaps were state policy that had unintended consequences. As young people move to the city to find their livelihood, it became harder for them to visit and care for their parents. The obligation to visit one’s parent came to fix the fragmentation of the multigenerational household. Our conversation made me think about how care in the family can be dependent on spatial categories. Where you live matters for the purpose of your familial duties. I told Baoshi about an example from Israel. Family farms on state owned land are subject to a complex inheritance law regime that mandates only one heir can inherit the farm. The chosen heir is considered “the continuing son/daughter” and is customarily assigned with a duty to care for their parents in their old age. Inheritance rules thus create a divide between care expectations and practices in the city, where care is shared among all children, and care in family farms, where care is the duty of only one child. 

Thinking of these two very different cases together revealed the importance of state involvement in shaping familial commitments that differ across spatial lines. The state, we argue “constitutes and supports different familial practices in urban and rural areas.” 

In the two examples of our home countries, we identify differential treatment by state laws and policies that distinguish between rural and urban areas, resulting in a family for the city and a family for the country. This gap in care practices is not necessarily planned or desired by the state, but can be an unexpected, indirect consequence of its policies or rules.

The differing practices are not always the result of differential treatment. In our third case study, we discuss abortion law in the US (the article was written before Dobbs). In the 2010s, TRAP (targeted regulations of abortion providers) laws were enacted to require providers to have admitting privileges at hospitals nearby. In addition, providers must meet the requirements of an ambulatory surgical center. These laws caused many abortion centers to close. Although the laws were enforced in both rural and urban areas, they had a disproportionate effect on women living in rural areas.  The case thus serves as an example of what we call “spatially blind” policies and laws. Unlike differential treatment laws and policies, spatially blind laws “are similarly applied in different geographical areas” but “ignore gaps in access to medical or social services.” The result is different practices of care in the family. 

The article continues with an analysis of state actions that react to the differing practices of care with an attempt to rectify the gaps resulted by its policies. In China, it was the duty to visit, care and respect one’s elderly parents. In Israel, it was a moderate amendment to the law. In both the Chinese and Israeli case, these gaps in care were an unintended result, a byproduct of the state oversight of the potential outcome of its policies. The article can therefore serve to alert states to this potential implication of spatial policies.    

Even though the article started with a conversation about the practices of care in our respective countries, it did not end there. The laws and policies depicted in the three case studies are not necessarily unique, one may find other stories that support the same conclusion. We use these cases in a bottom-up approach to analyze various forms of state involvement that lead to a bifurcation of practices of care across geographical categories. Our goal was to contribute to the developing notion of the spatial family. The idea started under guidance of Martha Fineman, and we are grateful for her inspiring work, and in particular her work on the role of the state in shaping the practices of care.