Oxford University Comparative Law Forum
A Note on Comparative Family Law:
Problems, Perspectives, Issues and Politics
(2005) Oxford U Comparative L Forum 4 at ouclf.iuscomp.org | How to cite this article
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
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
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
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
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
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
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
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.
* 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.
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.
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.
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
7 Marc Ancel,
Utilité et Méthodes Du Droit Comparé (Editions Ides
et Calendes, Neuchatel 1971) 19.
Müller-Freienfels, 'The Unification of Family Law' (1968) 16
Pollock and Frederick William Maitland, The History of English Law Before
the Time of Edward I Vol. II, (Cambridge University Press, Cambridge 1895)
Müller-Freienfels (n 4) 34-5.
Jones, The English Nation (Sutton, Stroud 2003).
Helmholz, Roman Canon Law in Reformation Europe (Cambridge University
Press, Cambridge 1990) 4.
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.
Wigmore, 'Editorial Notes' (1926) 21 Illinois Law Review 251, 256.
C Gutteridge, Comparative Law (Cambridge University Press, Cambridge
(n 8) 176-177.
Kahn-Freund, 'Common Law and Civil Law' in Mauro Cappelletti (ed),
New Perspectives for a Common Law of Europe (Sijthoff, Leyden 1978) 137,
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).
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.
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.
(n 2) 491 et seq.
Watson, Legal Transplants (University of Georgia Press, Athens 1993)
107-8. See also Ewald (n 2) 490.
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.
Watson, Roman Law & Comparative Law (University of Georgia Press,
Athens 1991) 97.
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.
Antokolskaia 'The Harmonisation of Family Law' (2003) 11 European
Review of Private Law 28,41.
Merin, Equality for Same-sex Couples (University of Chicago Press, Chicago
Boele-Woelki and others (eds), Principles of European Family Law Regarding
Divorce and Maintenance Between Former Spouses (Intersentia, Antwerp 2004)
Boele-Woelki (ed) Perspectives for the Unification and Harmonisation of Family
Law in Europe (Intersentia, Antwerp 2003) v.
and others (n 34) 1.
(n 35) v; Dieter Martiny, 'Divorce and Maintenance Between Former Spouses' in
Boele-Woelki (n 35) 529.
Freeman, 'Family Values and Family Justice' (1997) 56 CLP 314, 318.
and others (n 34) 2.
Van Caenegem, Judges, Legislators and Professors (Cambridge University
Press, Cambridge 1987) 52.
John, Politics and the Law in Late Nineteenth Century Germany (Clarendon,
Oxford 1989) 245.
(n 16) 153.
Zweigert and Hein Kötz, An Introduction to Comparative Law (3rd
edn OUP, Oxford 1998) 284.
and Maitland (n 9) 253.
(n 15) 256.
(n 16) 32.
(n 3) 13,27.
(n 8) 175.
and Kötz (n 43) 40.
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.
and others (n 34) 7.
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.
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.
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.
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.
Bradley, 'The Antecedents of Finnish Family Law' (1998) 19 Journal
of Legal History 93, 108.
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).
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.
Garcia Cantero, 'The Catalan Family Code of 1998 and other autonomous
region laws on de facto unions' (2001) The International Survey of Family
Keserauskas 'Moving in the Same Direction? Presentation of Family Law
Reforms in Lithuania' (2004) The International Survey of Family Law 315.
Bradley, Family Law and Political Culture (Sweet & Maxwell, London 1996)
Bradley, 'Regulation of Unmarried Cohabitation in West-European Jurisdictions:
Determinants of Legal Policy' (2001) 15 International Journal of Law, Policy
and the Family 22.
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.
Johnson, 'Law as the Articulation of the State in Western Germany'
(1978) 1 West European Politics 177, 182.
Popenoe, Disturbing the Nest (Aldine De Gruyter, New York 1988) 314.
'Comparative Law, Family Law and Common Law' (2003) 23 OJLS 127, 129.
(n 30) 97.
(n 27) 107-8
(n 29) 12.
(n 27) 98; Watson (n 29) 8-9.
Essad, 'Exposé des motifs' in Code Civil Turc, (Rizzo,
Constantinople 1926) xiii-xvii.
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.
(n 27) 107-8.
Bradley, 'Convergence in Family Law: Mirrors, Transplants and Political Economy'
(1999) 6 Maastricht Journal of European and Comparative Law 127, 142.
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.
Bradley, 'The Antecedents of Finnish Family Law' (1998) 19 Journal
of Legal History 93.
(n 65) 238.
and Vanwinckelen (n 52) 16.
Lødrup, 'Comparative Studies of Nordic Law' in Margaret F.
Brining (ed), (2001) The ISFL Family Letter 1.
(n 31) 100.
Maclean, 'The Making of the Child Support Act of 1991' (1994) 21 Journal of
Law and Society 505.
(n 41) 217-8.
Woelki and others (n 34) 2; 13-65.
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