Intergenerational Continuity: Can Love and Care Be Mandated by Law?
January 31, 2025
[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.