Kinship through the Twofold Prism of Law and Anthropology
Legal practitioners have much to gain by drawing on findings and insights from anthropological studies of kinship. This chapter first sketches the background of kinship studies in anthropology (including criticisms of the functionalist approach that led to a turn away from kinship studies), summarizes key questions that have preoccupied kinship scholars, and draws two important lessons that can help inform legal practice. The first is the profoundly social and cultural nature of kinship (as opposed to biological); the second is the observation that what may nowadays, at first glance, appear as new ways of organizing and expressing kinship ties in fact show more continuity than disruption. The author illustrates these lessons on the basis of four examples: (a) blended families; (b) same-sex unions; (c) the role of fathers in childrearing; and (d) sexual permissiveness. The chapter next details two specific contexts in which attention to an anthropological approach to kinship can productively inform legal practice. The first involves new advances in assisted reproductive technologies (ART) that challenge the more ‘traditional’ understandings of what constitutes a family as expressed in many state legal systems. The second is the enduring importance of kinship as a form of support that provides reliable protection against the increased vulnerability caused by globalization, marginalization, and persecution. The chapter concludes with some thoughts on the inherent tension between the idea of universal human rights and the constraints on individual self-determination that are often part and parcel of the social support that kinship systems provide.