David Bradley*
(2005) Oxford U Comparative L Forum 4 at ouclf.law.ox.ac.uk | How to cite 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.