January 2006 The Non-Subversive Function of European Private Law
© 2006 The Author 79
Journal compilation © Blackwell Publishing Ltd. 2006
Unlike contract law harmonisation, the perspective of harmonisation of family law
in Europe is commonly perceived to be a very problematic and/or peculiar question.
According to the traditional approach, family law—more than other fields in private
law—purports political objectives. It is conceived as a medium of political economy.
In this framework, family law is considered a means of social organisation, belong-
ing neither to the public sphere, nor entirely included in the private one (where the
public/private distinction has not been deconstructed or otherwise revised).
For these reasons, some European observers face the question of harmonisation of
family law with scepticism: family law régimes show a stronger inclination (than pure
patrimonial law) to engage in social engineering. As a result, the harmonisation of
family law would limit national sovereignty in strategic fields. Moreover, constitutional
constraints are deemed crucial in family law régimes, as family law impinges on the fun-
damental rights of both individuals and groups. Nevertheless, European family-law
systems—as the supporters of harmonisation emphasise—are converging along three
main paths or trends: liberty, equality, and secularity. Therefore, European family laws
already share the same crucial political goals.
In this context, European family laws are facing a common challenge: the so-called
privatisation of family relationships, which features new regulatory perspectives as far
as freedom of contract enters into the scene of the family.1This development offers
new opportunities for re-evaluating the relationship between harmonisation of contract
law and harmonisation of family law in Europe.
The aim of this article is to challenge the dominant view, which stresses the ‘unique-
ness’ of the family law harmonisation process, as a reflection of the traditional
approach, reconstruing the family as a separate realm from the market and from
freedom of contract. In part I, through discussion of some crucial issues of contract
and family regulation, shared by both patterns of har monisation, I will question the
traditional divide between family law and contract law as fields marked by a kind of
essential diversity. As a result, it will be shown that, in many aspects, family and con-
tract are firmly tied in the harmonisation process.
In part II, I will address the question of methodology in the process of family law
harmonisation. My aim here is to challenge the currently dominant view underpinning
the two major approaches to the harmonisation process, showing that both are dealing
with a notion of family law as separate and essentially different from the core of private
law. In particular, my claim is that family law is not more deeply policy-oriented than
other private law fields and that emerging political objectives are neither pervasive nor
coherent in any national (family) legal system. Therefore, they are not decisive in deter-
mining a presumed intrinsic diversity of family law with respect to ‘pure’ patrimonial
In parts III and IV, I will discuss current notions and models of family law
emerging from legislation in Member States and Community law. Here the non-
harmonisation of family law in Europe reveals its paradoxical effects as it turns into a
factor of uncertainty in the implementation of basic gears of European integration,
such as free movement provisions. In this framework, European Institutions appear to
regard family law and its harmonisation according to the same outdated approach that
has been criticised with reference to a part of family law scholarship, with respect to
1See papers collected for the ISFL 2003 European Regional Conference, The Role of self-Determination in
the Modernisation of Family Law in Europe,Tossa de Mar-Girona, 9–10 October 2003, available at: