A family law for Europe? Sovereignty, political economy and legitimation

Abstract

This paper analyses three central issues which confront the Commission on European Family Law and similar initiatives to harmonise legal policy applied to domestic relationships. First, what is at stake for nation states, if they cede control and adopt a uniform family law? Second, how can the Commission, or comparable agency, legitimate selection of particular legal models for harmonisation? Third, does the view, supported within the Commission, that family laws in Europe are converging, have any validity? The paper does not oppose, in principle, a family law for Europe or examine what new competence European institutions will require if harmonisation is to be achieved. The perspective in this paper is that laws regulating domestic relationships are a significant component of political economy. It is this which ties a family law so closely to the country in which it operates. The objective here is to demonstrate that legal policy constitutes a powerful medium to promote political interests and objectives, and that substantial differences remain between European jurisdictions in this respect. Convergence is seen elsewhere as establishing a “common core” of legal policy or model of “better law,” which resolves problems of legitimation. This paper argues that while broad trends in family laws in Europe are clearly in evidence, the convergence thesis is an over-simplification. It fails to recognise the extent to which political and institutional factors have determined the response to social change and influenced the structure of legislation. Moreover, these factors influence national systems of family law. Consequently, it is problematic to isolate particular areas of legal policy as the Commission on European Family Law seeks to do. It is important to move beyond abstract analysis and generalised accounts of family laws, not least in relation to assumptions about harmonisation and convergence. The paper therefore includes three case studies to support its principal arguments. The general aim is to counter the view that convergence and barriers to harmonisation can be considered primarily, if not exclusively, from a legal standpoint. It is imperative in this field of law to adopt a broader approach. The case studies are detailed and provide a chronology of family law: they look back to the immediate past; examine contemporary developments; and anticipate future legal policy. In conclusion, the paper notes the absence of precedents for the project to develop a European family law and considers the significance of this initiative for political union in Europe