Oxford University Comparative Law Forum

A Note on Comparative Family Law:
Problems, Perspectives, Issues and Politics

David Bradley^*

(2005) Oxford U Comparative L Forum 4 at ouclf.iuscomp.org | How to cite this article | Discuss this article

Abstract

Many comparatists view family law as an impenetrable and unproductive field of legal policy. This perspective invariably draws on Montesquieu and the argument that there are particularly close ties between a system of family law and the jurisdiction in which it has developed and operates. Consequently, there is no incentive to develop a method for comparative analysis in this field. This negative position has been challenged on a variety of grounds: that family laws can operate as legal transplants; that legal policy in different jurisdictions is converging; or that family law can be treated as well as classified as 'private law' and affects only parties to domestic relationships. This note reviews the opposing positions and outlines supporting evidence. It provides a perspective on comparative family law to resolve the controversy referred to above. The central argument is that a system of family law operates as a component of political economy and is conditioned by political culture and processes. These inter-related concepts provide a framework and basis for comparative analysis of family laws.

Table of contents

• 1. Problems
• 2. Transplants, Convergence and 'Private' Family Law
• 3. Issues
• 4. A Political and Institutional Perspective on Comparative Family Law
• 4.1 Political Ideology, Interests and Objectives: Family Law as a Component of Political Economy
• 4.2 Family Law, Political Culture and the Political Process
• 4.3 A Method for Comparative Analysis of Family Laws
• 5. Politics and the Transplantation of Family Laws
• 6. The Limits of Convergence
• 7. The 'Private' Family Law Fallacy
• Endnotes

1. Problems

Glendon has questioned the very existence of comparative family law.¹ Many other comparatists view laws regulating domestic relationships as particularly problematic. There are, however, optimistic perspectives on the viability and utility of comparative analysis in this area of legal policy. Family law is a contested field of comparative law.

Problems derive from perceptions that a system of family law closely reflects conditions in which it has developed. Comparatists adopting this 'mirror' perspective² not infrequently invoke Montesquieu.³ There was no concept of family or domestic relations law when The Spirit of the Laws was published: this would not emerge until the 19th Century.⁴ From a contemporary standpoint, however, family law might appear to epitomise Montesquieu's assessment that it is purely fortuitous if the laws of one society are suitable for another.⁵

This negative perspective is well represented in commentaries on legal policy in developed countries. If the Paris Congress of Comparative Law in 1900 is taken as inaugurating modern comparative law, the life of the subject reflects reservations over family law. And there appears to have been ample evidence to support these caveats.

The Paris Congress presented comparative law as a subject for scientific investigation alongside emerging disciplines of political science, psychoanalysis and eugenics. Links between sociology and comparative law were strong.⁶ It might therefore have appeared appropriate to include family law in the project that utilised comparative law to identify principles dictating legal development in society.⁷ However, Lambert, the general rapporteur at the Congress, subsequently emphasised the distinctiveness of family laws, 'qui constituent le domaine propre du droit de l'intimité nationale et resteront toujours les plus sûrs asiles du particularisme juridique.'⁸ Pollock and Maitland were also sceptical that family laws, representing differences between 'backward' and 'more successful races,' followed similar paths.⁹

The structure of legislation itself demonstrated different lines of development. The French Civil Code, drafted in the aftermath of revolutionary antipathy to the family, emphasised a law of persons.¹⁰ The BGB drew on German systematization, 'a highly developed cultural product,' and was structured on the family.¹¹ In England, there had been no 'rational' codification of family law; rather incremental modification of a 'natural,' religious order. A modest harmonisation initiative in the 19th Century, restricted to marriage laws within Great Britain and Ireland, had failed. English law lacked even a comprehensive statutory provision governing marital capacity. Family law contributed to a distinctive, reassuring account of English history and superiority.¹² One quip was that England was Protestant before the Reformation and Catholic after it.¹³

In the inter-war period, as a stronger, instrumentalist approach influenced comparative law, Lambert advocated harmonisation in commercial fields, but rejected this for family law. Comparative family law was relegated to a minor role, ancillary to private international law.¹⁴ Wigmore made the same point.¹⁵ Issues such as the status of husband and wife demonstrated the unreality of harmonisation. Thus German law was explicitly patriarchal and National Socialism did little to disturb this. Reforms in Scandinavia in the period 1915 to 1927 promoted women's independence and reflected a political culture in which social democracy would become a major force.

After World War II, Gutteridge emphasised comparative law as method, but largely dismissed family law, noting race, religion and politics as problematic influences. Comparative analysis could identify high standards, he considered, but family law had limited appeal 'except for the purposes of propaganda with which lawyers are not concerned.'¹⁶ Restrictions on interracial marriage in American states, with no direct European counterpart after annulment of Nazi Nuremberg laws, supported Gutteridge's conclusion, as did different commitments to religious values in post-war, West European divorce laws. At one extreme, the Irish Constitution, affirming Catholicism and independence from England, precluded divorce. At the other, the Swiss Civil Code, offering a flexible system for different cantons, included no fault provisions attributable to earlier anti-clericalism and the strength of the Radical Party.

In the late 1960s, Müller-Freienfels identified barriers to unification of family law, but was optimistic regarding regional harmonisation founded on shared values.¹⁷ In Western Europe, the Convention on Human Rights formally inaugurated an 'age of rights' with the potential to undermine laws based on religious values. Development of European welfare states further weakened traditional legal policy, while the European Community indirectly increased pressure for uniformity. However, within a decade of Müller-Freienfels' optimistic forecast, Kahn-Freund judged harmonisation of West-European family laws a hopeless endeavour.¹⁸

'Unparalleled upheaval' of family law in Europe was under way.¹⁹ Salient features of this transformation included liberalisation of principles of sexual morality expressed in legal policy and a focus on child welfare, but differences emerged on sensitive issues including inheritance rights for children of extramarital relationships. In 1975, Finland followed Scandinavian jurisdictions in establishing parity with 'legitimate' children, whereas French, German and English reforms all maintained different forms of discrimination.

Glendon's doubts in the late 1980s regarding the existence of comparative family law were prompted by absence of abortion legislation in Ireland.²⁰ Her more extensive, contemporaneous survey also noted different models of abortion law in Western Europe and the United States.²¹ Closer scrutiny would have revealed differences within these categories, not surprisingly as abortion regulation was acutely problematic, involving state church relations and socio economic and gender inequality. Thus Austria's liberal abortion regime was established merely through exemptions to the criminal law, in contrast to more permissive and positive Swedish legislation. This reflected differing commitments to gender equality. Extension of Glendon's study would also have exposed significant differences within the Soviet bloc²² and with developing countries.²³

Successive editions of Zweigert and Kötz's Introduction to Comparative Law recommended avoidance of family law, conditioned by different moral and political values.²⁴ This appeared fully justified, given legislation spanning Sweden's Law on Homosexual Cohabitation of 1987 to the introduction of same-sex marriage in Belgium in 2003. This was a seminal development in family law involving rejection of a political ideology and centuries of religious dogma. Predictably, therefore, all these laws were different, as originally enacted or subsequently amended.

The argument re-iterated throughout the 20th Century, that comparative family law is problematic, if not impenetrable and unproductive, continues to be reflected in current discussion of a European Civil Code.²⁵ All this, however, has been challenged.

2. Transplants, Convergence and 'Private' Family Law

One view is that family laws are readily transplantable. Watson's perspective on legal transplants is presented in 'weak' and 'strong' forms,²⁶ but includes four particularly significant propositions. First, objections that family laws present particular difficulties for the transplants thesis are dismissed.²⁷ Second, family law is, in fact, called in aid to refute any notion of a national spirit of the laws. This must be an illusion, the transplants argument runs, if identical marital property regimes exist in 'very different' societies and there are also different regimes in 'very similar' communities.²⁸ Third, Watson suggests that 'massive successful borrowing is commonplace in law.'²⁹ Fourth, he is particularly dismissive of the influence of political factors on legal policy. The 'lesson of history', Watson concludes, is of a general lack of concern from political rulers: they 'and their immediate underlings can be, and often have been and are, indifferent to the nature of the legal rules in operation.'³⁰

A more accommodating view of mirror perspectives is that family laws have varied significantly, but there is now spontaneous, 'bottom up' convergence of legal policy. This assessment has been noted in relation to family law in general and also specific issues including marital property and illegitimacy.³¹ On one view, divergence in European family laws merely involves a difference in the timing of reforms.³²

All areas, noted above in support of negative perspectives on comparative family law, do indicate some convergence. England now has legislation detailing restrictions on marital capacity. Racist marriage laws are historical curiosities. So also are provisions discriminating between husband and wife. Moreover, jurisdictions such as Scotland have shifted towards a European civil law property model. Developments in Ireland demonstrate change in even the most restrictive divorce and abortion regimes. German, French and English inheritance reforms support claims of the demise of illegitimacy. Improvements in the status of same-sex partnerships appear incremental, but inevitable: one inference from a 'standard sequences' theory is of the progressive enhancement of legal rights.³³

Another optimistic perspective implies that family law can be treated as well as classified as private law, in the sense that legal policy is concerned principally, if not exclusively, with the rights of parties to domestic relationships inter se. From this positivist standpoint, a system of family law serves no broader objectives in society and can also be segregated from aspects of 'public' and criminal law, not least, issues such as abortion.

This perspective underpins the Commission on European Family Law (CEFL) and its 'main goal',³⁴ which is to develop principles for harmonisation of family law in Europe. Members of the Commission are untroubled by comparative family law's dubious reputation.³⁵ Differences in legal policy are attributed to 'so-called [sic] cultural constraints.'³⁶ The CEFL originally presented itself as investigating feasibility of its project. In fact, it was already confidently at work on divorce and maintenance.³⁷ The Commission's method, which has involved dissecting and isolating aspects of legal policy prior to constructing model laws, indicates its lack of concern with factors determining divorce and support legislation in different jurisdictions and, in particular, with integration of legal policy in particular political programmes.

A preoccupation with private international law figures prominently in the CEFL and may account for its confidence. Characterisation of family law as essentially 'private law' has been a dominant perspective in common law jurisdictions,³⁸ but the sense of assurance in the Commission may owe something to civilian and specifically German legal culture. The CEFL has referred to 'scientific' processes in its methodology.³⁹ This is reminiscent of the Historical School in 19th Century Germany where jurists were 'natural oracles.'⁴⁰ And when codification eventually triumphed, it was intended that bureaucrats and professional lawyers would maintain control.⁴¹ The obvious difference is, however, that the CEFL is not developing a national family law, but focuses on the rights of parties in domestic relationships to construct pan-European family legislation.

3. Issues

Alongside the general controversy over comparative family law, a further factor compounds uncertainty. The line between opposing positions is blurred. Thus Gutteridge noted Nordic harmonisation 'even in the case of family law.'⁴² Zweigert and Kötz made the same point and tentatively referred to the possibility of Nordic co-operation as a model for Europe.⁴³ Kahn-Freund disputed the transplants thesis but noted assimilation of aspects of family law.⁴⁴ And Glendon's attempt to moderate controversy over abortion in the United States implies that European reform processes, if not laws, could achieve this.⁴⁵

There are two principal issues for comparatists. First, are systems of family law intimately associated with particular jurisdictions? Second, if they are, what does this association involve? On this latter issue, there is no precision even among mirror theorists noted above. Pollock and Maitland implied that institutional factors were involved.⁴⁶ Wigmore referred to 'national sentiments and traditions' as the basis of family laws.⁴⁷ Gutteridge mentioned race, religion and politics,⁴⁸ and Kahn-Freund noted social and historical factors, as well as national 'power structures.'⁴⁹ Müller-Freienfels added psychological influences⁵⁰ and Zweigert and Kötz included moral considerations.⁵¹ Among convergence theorists, Pintens has referred to commitment to national family laws as involving 'cultural baggage.'⁵²

The case for including family law within a European Civil Code has been challenged,⁵³ but the CEFL has argued that free movement is impeded by differences in national systems.⁵⁴ Within the European Union, concern with family law is intensifying: a process of 'Europeanisation' is under way.⁵⁵ The CEFL has no official remit, but its project suggests a new ius commune in the 21st Century, broader in scope and application than mediaeval canon law, from which West European marriage laws are derived. In Europe at least, the resolution of controversy and uncertainties surrounding comparative family law may be of more than academic interest.

4. A Political and Institutional Perspective on Comparative Family Law

4.1 Political Ideology, Interests and Objectives: Family Law as a Component of Political Economy

No politician, in any jurisdiction, will disregard family law. This is an indispensable medium to advance political objectives. There is no shortage of illustrations. Comprehensive reforms in revolutionary France are a salient example of legal policy consolidating a new political order. Lenin acclaimed marriage and divorce reforms, introduced within weeks of the Bolshevik Revolution, as a mark of superiority over bourgeois society. This would be a continuing refrain. The family law elements in Mussolini's Lateran Pact and Nazi Nuremberg laws were intended to reinforce fascism, as was Franco's annulment of divorce and abortion introduced by Spanish Republicans. Liberalisation of abortion law and recognition of cohabitation in Yugoslavia reflected the country's relatively independent position within the Soviet bloc.⁵⁶ Ceausescu's obsessive proscription of abortion in Romania demonstrated the extent to which megalomania complements totalitarianism.

Family law supports political interests in democratic societies. A fault line is apparent in the evolution of legal policy. Protagonists contesting reforms have included those with an investment in a secular state and their opponents committed to principles of social organisation founded on religious values. Family law reform provides unrivalled opportunities to establish political ideology. Underpinning controversy over central issues such as the status of same-sex relationships are fundamentally different perspectives. Human agency is viewed as essentially rational or, from a conservative and religious perspective, as flawed and consequently to be controlled, particularly in relation to sexual activity.

Political interests will have an investment in all aspects of legal policy. A system of family law will tend to emphasise a traditional concept of the family and individual morality or, alternatively, collectivism and egalitarianism as the basis of social order. Legal policy may therefore complement social welfare policy, for instance 'advanced' Scandinavian welfare states, and state corporatist and residual welfare models in the Federal Republic of Germany and England respectively.⁵⁷ Consequently, family law can impact on taxation. Particular interest groups, such as mediators, will also have an investment in family law and will seek to colonise territory held by lawyers.

Family laws have implications for gender and labour market policies and for socio-economic inequality. In Sweden, for example, maintenance has been curtailed to promote women's independence. Gender equality has been a constant refrain from social democratic elites, but has not been achieved. Patriarchy or class interests are responsible.⁵⁸ The Swedish welfare state is built on discrimination. Ideologues such as Alva Myrdal (who valued her own independence and was no stranger to privilege⁵⁹) advocated sterilisation of the 'deficient.'⁶⁰

Family law is political discourse. Thus, in England, child support legislation, enacted in 1991 under a neo-conservative administration, was presented as putting children's interests first, but formed part of a broader agenda. This measure was introduced when inequality was increasing and intended to secure the national interest by curtailing welfare provision. New child laws were also intended to 'civilise' the market.

Marriage law figured prominently in Bismarck's Kulturkampf and consolidation of power in 19th Century Germany.⁶¹ Subsequent developments relating to formalities for marriage and attempts at reform read as political history in Portugal, Bolshevik Russia, Finland, Italy, Denmark, Sweden and England.⁶² Family law reforms may also promote regional autonomy: the Catalan Family Code and regional legislation in Spain regulating non-marital relationships provide an illustration.⁶³ And in post-communist societies, new family laws confirm re-emergence of sovereign states: this is clear from conservative features of the new Lithuanian Civil Code.⁶⁴

Legal policy has disparate objectives, but there is an underlying principle. Family law is a component of political economy in the sense that it is based on political ideology and promotes political interests.

4.2 Family Law, Political Culture and the Political Process

The development and structure of family laws will also depend on aspects of political culture, including the strength of political parties. Legal policy in the Scandinavian countries illustrates this. Even the relatively homogeneous Danish, Swedish and Norwegian family law systems have differed in significant respects. In Denmark, Social Democrats and Radical Liberals have on occasion pioneered liberal laws on issues such as abortion and homosexuality, but these have not matched more radical reforms reflecting the dominance of Swedish social democracy. And notwithstanding progressive innovations in Norwegian family law, the strength of a traditional subculture, evidenced by the role of the Christian People's Party, is apparent in divorce legislation and aspects of legal policy relating to women, notably in marital property, support and abortion laws.⁶⁵

A further aspect of political culture involves prevailing values and mores. In developing contemporary family laws, political interests must accommodate differing commitments to religious values, varying susceptibilities to social engineering and dissimilar orientations to the state.

The detail of legal policy testifies to the significance of religious values, for example in contrasting Dutch and French laws on same-sex relationships.⁶⁶ Public opinion in the Netherlands, conditioned by a 'politics of accommodation' and commitment to human rights, facilitated introduction of same-sex marriage. In France, reformers were noticeably inhibited in breaching religious taboos on homosexuality and also had to negotiate a republican concept of citizenship. The result was the Pacte Civil de Solidarité — an ersatz marriage.

With regard to social engineering, abortion rights are manifestly more secure in Sweden, where opinion is conditioned by collectivism, social inclusion and extensive welfare provision, than in the atomistic, market-oriented United States with abortion and same-sex marriage constituting 'central battlegrounds in…cultural wars.'⁶⁷ And English and German law demonstrate different orientations to the state. English political traditions are rooted in individualism and family autonomy. Antipathy to a 'nanny' (i.e. interventionist) state has reinforced a strong commitment to separate property. Society has absorbed the state in England, it has been argued.⁶⁸ Characterisation of community property as the essence of marriage in the Federal Republic of Germany indicates a more positive view of the state.

Alongside political economy and culture, political processes constitute a third, inter-related factor conditioning family laws. A system of family law, in common with other discourses, produces and transmits power. Control of the reform agenda, and of the presentation and examination of legal policy, is essential for political actors.

In Sweden, for example, appointment of investigative commissions and public consultation though the remiss system have contributed to the legitimacy of innovative family laws. In fact, there has been political manipulation of the reform process. Notable examples include directives for revision of family law, issued by a Social Democrat administration in 1969 and, more recently, the decision to override majority opinion and sanction same-sex adoption. There has also been no urgency to establish commissions to investigate delicate issues such as the effect of liberal divorce reforms on children.⁶⁹

The impact of political processes is also apparent in common law jurisdictions. For example, in New Zealand there has been greater willingness to curtail judicial powers than in England: the result is a stronger commitment to equal division of property on divorce and to an egalitarian society. And constitutional provisions in Canada have dictated faster progression to same-sex marriage than in England, traditionally a nation of 'institutions rather than constitutions.'⁷⁰

4.3 A Method for Comparative Analysis of Family Laws

Developments in family law since the Reformation have delineated differences between nation states. Laws regulating domestic relationships do not simply reflect historical traditions, nor do they represent the spirit of a jurisdiction in some neutral sense. Family laws have an active, contemporary and continuing role in promoting political interests. Legal policy ranks alongside fiscal and welfare policy as an element of national sovereignty.

Examination of the political and institutional dimensions of legal policy will explain the evolution and structure of family laws. A system of family law operates as a component of political economy and is conditioned by political culture and processes. These inter-related concepts provide a method for comparative analysis in this field. In addition, this perspective resolves controversies regarding comparative family law. It exposes the limits of legal transplantation, oversimplification implicit in the convergence thesis and the fallacy that family law is merely 'private' law.

5. Politics and the Transplantation of Family Laws

Watson's claim in support of the transplants thesis, of political indifference to legal policy, appears exaggerated.⁷¹ Mediaeval canon law reflected the authority of the Church in relation to both the secular power and everyday life. The lesson of modern history is that political ideology and priorities exert a significant influence on family laws. Politicians cannot be indifferent, not least as legal policy in this area consolidates political power, establishes a basis for social order and influences distribution of revenues.

The existence of 'the same' marital property regimes in 'very different' societies (adopting Watson's example and terminology⁷²) does not support arguments that there is no national spirit of the laws. Similar property regimes, or other family laws, can satisfy different, even opposing, political objectives. Montesquieu's point on exceptional circumstances for a law to operate in another jurisdiction is over-stated, but what is essential is that transplantation of family laws is acceptable to political interests. For example, separate property constituted law for the plutocracy in England and was also the regime for the aristocracy in Tsarist Russia. However, separate property was initially carried forward after the October Revolution. The first RSFSR Family Code of 1918 explicitly rejected a community system. This reflected a commitment to equality and was also consistent with early revolutionary ideals. Society would be self-regulating with the demise of capitalism and marriage would remain uncontaminated by materialism. When pragmatism began to replace idealism in the Soviet Union, community property was adopted. However, in contrast to democratic societies, contractual freedom was curtailed: the Soviet state dictated compliance with its norms and required support in the form of property rights for women on divorce.

With regard to Watson's claim that 'massive successful borrowing is commonplace,'⁷³ what are the criteria for success? Significant features of family law have been modified when transplantation has occurred. Acceptance in the Turkish Civil Code of 1926 of much of Swiss law is cited as a particularly successful transplant.⁷⁴ However, this Code modified provisions relating to marital capacity, in particular marriage age, as well as aspects of support and divorce law and, in addition, rejected the prescribed Swiss marital property regime. Why, given the degree of uniformity between the two Codes on other issues? The Turkish Minister of Justice himself emphasised the general importance of the Swiss Code for secular modernisation,⁷⁵ but these particular provisions were manifestly too inconvenient or controversial.

How 'massive' and 'commonplace' is transplantation? It is instructive to note failure and reasons for this. For example, the English Law Commission has deferred to political and institutional considerations and rejected foreign laws on divorce, property redistribution and establishing paternity. When the Law Commission did propose co-ownership of the matrimonial home, this was rejected as involving unacceptable state intervention. De Cruz views contemporary, ubiquitous concern with the welfare of the child as a successful family law transplant,⁷⁶ but differences exist on fundamental issues. Thus, in England, governments have continually rejected Nordic social engineering and measures protecting children from parental violence.

In any event, characterisation in the transplants thesis of societies as 'very different' or 'very similar'⁷⁷ appears a crude if not meaningless quantification of cultural differences.⁷⁸ One particular case study meets charges of speculation regarding the determinants of legal policy and provides a revealing illustration of the nature of transplantation. This involves the reception of Swedish family laws in Finland. It is particularly interesting from the transplants perspective, given the common legal heritage of these two jurisdictions and the general inclination in Finland to follow Swedish policy in various fields.

What emerges is a consistent and systematic pattern of difference in family law that is compatible with variations in social and economic policy and, in addition, reflects differences in political culture and processes.⁷⁹ These disparities were also apparent in the past. For example, all Nordic countries, including Iceland, enacted sterilisation laws in the inter-war period, but legislation in Finland and Sweden fulfilled different objectives and was consistent with divergence in family laws.⁸⁰

In general, political and institutional considerations determine acceptance, modification and rejection of transplants and are central to different systems of family law.

6. The Limits of Convergence

So far as convergence is concerned, general trends — liberty, equality and secularity — are clearly apparent in the family laws of developed countries.⁸¹ Response to social and demographic change has been inescapable, but has also varied significantly. Thus, a different ethic pervades the substance and process of reforms in Sweden and England — the detail of Swedish family laws demonstrates proactive endorsement of secular values; English legal policy indicates a reactive response to change.

Scandinavian family laws appear to be a talisman for convergence theorists.⁸² However, a new investigation, initiated by the Nordic Council in 1998, revealed substantial differences in legal policy and questions which the investigators could not answer.⁸³ In fact, explanations can be found in political factors in Sweden, Denmark and Norway.⁸⁴

Family laws diverge on the most basic provisions such as formalities for marriage. In the future, traditional 'moral' concerns may be replaced by a purely economic agenda. Issues such as pension division will become increasingly important. On this, however, there are at present major differences in jurisdictions such as Sweden, the Federal Republic of Germany and England, and divergence here is consistent with welfare models.⁸⁵ Child law will become an increasingly important medium to promote political interests, but here again legal policy has varied. In Australia, for example, there has been a much more considered approach to child support reform than in England.⁸⁶

In general, convergence in family law will depend on 'top down' pressure, including development of a global economy and cosmopolitan human rights law or, in Europe, political integration. Uniform family laws will signal the demise of nation states, if not the end of politics.

7. The 'Private' Family Law Fallacy

This leaves the argument, represented in the CEFL, that family law is merely private law. Jurisdictions will adopt the Commission's recommendations if this is politically expedient or if the European Union acquires new competence relating to family law. If German codification is the inspiration for the CEFL's project, it can be noted that family law provisions of the BGB reflected political priorities when it was legislated.⁸⁷ However, there is little indication that the CEFL recognises the political implications of its recommendations.

To construct a model divorce law, the CEFL surveyed the complexities of divorce legislation in Europe. It then represented majority opinion on basic features such as duration of marriage before divorce and retention of fault as the 'common core.'⁸⁸ This approach proved impossible on other issues, such as the length of separation grounds. Here the CEFL resorted to subjective opinion as to whether the divorce process should be more or less paternalistic, in order to construct 'better' law. Consequently, it has ignored political considerations that have conditioned different models of divorce law in Europe, including the wrangling between Social Democrats and their opponents over German divorce legislation in 1976, the negotiations between the Church of England and Law Commission which produced modest divorce reform in England in 1969, and the controversy over divorce which split the post-Franco government in Spain. For maintenance, the CEFL has proposed a framework law that leaves national courts a broad discretion. This also disregards the way in which legislation has involved different commitments to gender equality, most conspicuously in Sweden, Germany and England.

A contemporaneous divorce reform, introduced in France in 2004, puts the model constructed by the CEFL in perspective. This reform established a complex divorce regime which reflected the priorities of a conservative administration and drew on French political traditions. The compromise between Republican and Catholic interests in the French divorce reform of 1975 was modified, but not abandoned. Unlike earlier socialist reform initiatives, the new French legislation preserved the fault principle. The French legislature and CEFL clearly have different views on what constitutes 'better' divorce law.

The point is the same as for transplants and convergence theories: the detailed structure of legislation is the product of political economy, culture and processes. The agenda of family law will inevitably change, but no politician will ignore this field or can afford to do so. Comparative analysis of family laws does not involve 'private' law in any real sense.

Endnotes

* Law Department, London School of Economic and Political Science, Houghton Street, London WC2A 2AE, United Kingdom. <d.bradley(at)lse.ac.uk> A version of this note will appear in J Smits (ed) Encyclopaedia of Comparative Law (Edward Elgar Publishing, Cheltenham forthcoming)

1 Mary Ann Glendon, 'Irish Family Law in Comparative Perspective; Can There Be Comparative Family Law?' (1987) 9 Dublin University Law Journal 1.

2 William Ewald, 'Comparative Jurisprudence (II)' (1995) 43 AJCL 489, 492.

3 Otto Kahn-Freund, 'On Uses and Misuses of Comparative Law' (1974) 37 MLR 1, 26-7; Glendon (n 1) 1, 2.

4 Wolfgang Müller-Freienfels, 'The Emergence of Droit de Famille and Familienrecht in Continental Europe and the Introduction of Family Law in England' (2003) 28 Journal of Family History 31.

5 Charles-Louis de Secondat Montesquieu, The Spirit of the Laws: English translation in D.W. Carrithers (ed) The Spirit of the Laws, University of California Press, Berkeley 1977) 104-5.

6 Jerome Hall, Comparative Law and Social Theory (Louisiana State University Press, Louisiana 1963) 17.

7 Marc Ancel, Utilité et Méthodes Du Droit Comparé (Editions Ides et Calendes, Neuchatel 1971) 19.

8 Wolfgang Müller-Freienfels, 'The Unification of Family Law' (1968) 16 AJCL 175n1.

9 Frederick Pollock and Frederick William Maitland, The History of English Law Before the Time of Edward I Vol. II, (Cambridge University Press, Cambridge 1895) 253.

10 Wolfgang Müller-Freienfels (n 4) 34-5.

11 Ibid 37-9.

12 Edwin Jones, The English Nation (Sutton, Stroud 2003).

13 Richard Helmholz, Roman Canon Law in Reformation Europe (Cambridge University Press, Cambridge 1990) 4.

14 Edouard Lambert, 'Comparative Law' in Edwin R.A. Seligman and Alvin Johnson (eds), Encyclopaedia of the Social Sciences (The Macmillan Company, New York 1931) 127,128.

15 J.H. Wigmore, 'Editorial Notes' (1926) 21 Illinois Law Review 251, 256.

16 Harold C Gutteridge, Comparative Law (Cambridge University Press, Cambridge 1946) 32.

17 Müller-Freienfels (n 8) 176-177.

18 Otto Kahn-Freund, 'Common Law and Civil Law' in Mauro Cappelletti (ed), New Perspectives for a Common Law of Europe (Sijthoff, Leyden 1978) 137, 141.

19 Mary Ann Glendon, State, Law and Family (North Holland Publishing Co. Amsterdam 1977) 1. See also Mary Ann Glendon, The Transformation of Family Law (University of Chicago Press, Chicago 1989).

20 Glendon (n 1).

21 Mary Ann Glendon, Abortion and Divorce in Western Law (Harvard University Press, Cambridge 1987).

22 E. Zielinska, 'Recent Trends in Abortion Legislation in Eastern Europe with Particular Reference to Poland' (1993) 43 Criminal Law Forum 47.

23 A Eser, 'Abortion Law Reform in Germany in International Comparative Perspective' (1994) 1 European Journal of Health Legislation 15.

24 Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (2nd and 3rd edns OUP, Oxford 1987; 1998) 36 and 40 respectively.

25 T. Möllers, 'European Directives on Civil Law' (2002) 10 European Review of Private Law 777, 796.

26 Ewald (n 2) 491 et seq.

27 Alan Watson, Legal Transplants (University of Georgia Press, Athens 1993) 98.

28 Ibid 107-8. See also Ewald (n 2) 490.

29 Alan Watson, Legal Transplants and European Private Law, Ius Commune Lectures on European Private Law, Maastricht University, Utrecht University and the Catholic University of Leuven (2000) 12.

30 Alan Watson, Roman Law & Comparative Law (University of Georgia Press, Athens 1991) 97.

31 David Bradley, 'A Family Law for Europe: Sovereignty, Political Economy and Legitimation' in Katharina Boele-Woelki (ed), Perspectives for the Unification or Harmonisation of Family Law in Europe (Intersentia, Antwerp 2003) 65, 80-1.

32 Maria Antokolskaia 'The Harmonisation of Family Law' (2003) 11 European Review of Private Law 28,41.

33 Yuval Merin, Equality for Same-sex Couples (University of Chicago Press, Chicago 2002) 326-33.

34 Katharina Boele-Woelki and others (eds), Principles of European Family Law Regarding Divorce and Maintenance Between Former Spouses (Intersentia, Antwerp 2004) 1.

35 Katharina Boele-Woelki (ed) Perspectives for the Unification and Harmonisation of Family Law in Europe (Intersentia, Antwerp 2003) v.

36 Boele-Woelki and others (n 34) 1.

37 Boele-Woelki (n 35) v; Dieter Martiny, 'Divorce and Maintenance Between Former Spouses' in Boele-Woelki (n 35) 529.

38 Michael Freeman, 'Family Values and Family Justice' (1997) 56 CLP 314, 318.

39 Boele-Woelki and others (n 34) 2.

40 Raoul Van Caenegem, Judges, Legislators and Professors (Cambridge University Press, Cambridge 1987) 52.

41 Michael John, Politics and the Law in Late Nineteenth Century Germany (Clarendon, Oxford 1989) 245.

42 Gutteridge (n 16) 153.

43 Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (3rd edn OUP, Oxford 1998) 284.

44 Kahn-Freund (n 3).

45 Glendon (n 21).

46 Pollock and Maitland (n 9) 253.

47 Wigmore (n 15) 256.

48 Gutteridge (n 16) 32.

49 Kahn-Freund (n 3) 13,27.

50 Müller-Freienfels (n 8) 175.

51 Zweigert and Kötz (n 43) 40.

52 Walter Pintens, and Koen Vanwinckelen Casebook: European Family Law (Leuven University Press, Leuven 2001) 14-5.

53 Jan Smits, The Making of European Private Law (Intersentia, Antwerp 2002) 6.

54 Boele-Woelki and others (n 34) 7.

55 Nigel Lowe, 'The Growing Influence of the European Union in International Family Law' (2003) 56 CLP 439.

56 P Šarcevic 'Cohabitation without Formal Marriage in Yugoslav Law' in John Eekelaar (ed), Marriage and Cohabitation in Contemporary Societies (Butterworths, Toronto 1989) 293; E. Zielinska, (n 22) 52-3.

57 David Bradley, 'Family Laws and Welfare States' in Karen Melby and others (eds) The Nordic Model of Marriage and the Welfare State (Nordic Council of Ministers, Copenhagen 2000) 37.

58 David Bradley, 'Perspectives on Sexual Equality in Sweden' (1990) 53 MLR 283; David Bradley, 'The Nordic Marriage Model in Comparative Perspective' in Krister Ståhlberg (ed.), The Nordic Countries and Europe (Nordic Council of Ministers, Copenhagen 2001) 57.

59 Walter Jackson, 'Gunnar Myrdal, Social Engineering and American Racial Liberalism' in Pauli Kettunen and Hanna Eskola (eds), Models, Modernity and the Myrdals (The Renvall Institute, Helsinki 1997) 13,25.

60 David Bradley, 'The Antecedents of Finnish Family Law' (1998) 19 Journal of Legal History 93, 108.

61 JM Roberts Europe 1880-1945 (2nd edn. Longman, London 1989) 77. And for the political saliency of civil marriage in the construction of the BGB, see John (n 41).

62 Establishment of civil marriage in Portugal followed the Revolution of 1910 and creation of a 'bitterly anticlerical republic:' Roberts (n 61) 77. Civil marriage was introduced within weeks of the October Revolution and accompanied other family law reforms which were applauded by Lenin as 'a great beginning:' V.I. Lenin Collected Works Vol 29 428,9. In contrast, Finnish and Danish Social Democrats pressed for mandatory civil marriage, but failed. And the 'socialist offensive' in Sweden in the early 1970's produced a proposal for marriage by registration, alongside secularisation of family laws, but was not introduced: the Social Democrats knew 'never to move too far ahead of public opinion.' See David Bradley, Family Law and Political Culture (Sweet & Maxwell, London 1996) 72-74. Marriage law figured prominently in Mussolini's Lateran Treaties and in the accommodation of Church and State: 'we have given God to Italy and Italy to God… perhaps the times called for a man such as he whom Providence has ordained we should meet.' (Roberts n 61 457). The combination in England of civil and religious marriage, but with a special place for the Established Church, is a reflection of institutional interests: see David Bradley, 'Comparative Law, Family Law and Common Law' (2003) 23 OJLS 127, 129.

63 Gabrial Garcia Cantero, 'The Catalan Family Code of 1998 and other autonomous region laws on de facto unions' (2001) The International Survey of Family Law 397.

64 Šarunas Keserauskas 'Moving in the Same Direction? Presentation of Family Law Reforms in Lithuania' (2004) The International Survey of Family Law 315.

65 David Bradley, Family Law and Political Culture (Sweet & Maxwell, London 1996) 177-237.

66 David Bradley, 'Regulation of Unmarried Cohabitation in West-European Jurisdictions: Determinants of Legal Policy' (2001) 15 International Journal of Law, Policy and the Family 22.

67 Michael Grossberg, 'How to Give the Present a Past?' in Sanford N. Katz, John Eekelaar and Mavis Maclean (eds), Cross Currents (Oxford University Press, Oxford 2000) 1, 22.

68 N Johnson, 'Law as the Articulation of the State in Western Germany' (1978) 1 West European Politics 177, 182.

69 David Popenoe, Disturbing the Nest (Aldine De Gruyter, New York 1988) 314.

70 Bradley, 'Comparative Law, Family Law and Common Law' (2003) 23 OJLS 127, 129.

71 Watson (n 30) 97.

72 Watson (n 27) 107-8

73 Watson (n 29) 12.

74 Watson (n 27) 98; Watson (n 29) 8-9.

75 Mehmed Essad, 'Exposé des motifs' in Code Civil Turc, (Rizzo, Constantinople 1926) xiii-xvii.

76 Peter De Cruz, 'Legal Transplants: Principles and Pragmatism in Comparative Family Law' in Andrew Harding and Esin Örücü (eds), Comparative Law in the 21st Century (Kluwer Academic Publishers, The Hague 2002) 101.

77 Watson (n 27) 107-8.

78 David Bradley, 'Convergence in Family Law: Mirrors, Transplants and Political Economy' (1999) 6 Maastricht Journal of European and Comparative Law 127, 142.

79 David Bradley, 'Equality and Patriarchy: Family Law and State Feminism in Finland' (1998) 26 International Journal of the Sociology of Law 197; David Bradley, 'Children's Welfare, Children's Rights and Political Economy in Finland' (1998) 6 International Journal of Children's Rights 1; David Bradley, 'Politics, Culture and Family Law in Finland: Comparative Approaches to the Institution of Marriage' (1998) 12 International Journal of Law, Policy and the Family 288; David Bradley, 'Comparative Family Law and the Political Process: Regulation of Sexual Morality in Finland' (1999) 26 Journal of Law and Society 175.

80 David Bradley, 'The Antecedents of Finnish Family Law' (1998) 19 Journal of Legal History 93.

81 Bradley (n 65) 238.

82 Pintens and Vanwinckelen (n 52) 16.

83 Peter Lødrup, 'Comparative Studies of Nordic Law' in Margaret F. Brining (ed), (2001) The ISFL Family Letter 1.

84 Bradley (n 65).

85 Bradley (n 31) 100.

86 Mavis Maclean, 'The Making of the Child Support Act of 1991' (1994) 21 Journal of Law and Society 505.

87 John (n 41) 217-8.

88 Boele Woelki and others (n 34) 2; 13-65.

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