The Non‐Subversive Function of European Private Law: The Case of Harmonisation of Family Law

• Published date: 01 January 2006
• Author: Maria Rosaria Marella
• DOI: http://doi.org/10.1111/j.1468-0386.2006.00308.x
• Date: 01 January 2006

The Non-Subversive Function of European

Private Law: The Case of Harmonisation

of Family Law

Maria Rosaria Marella*

Abstract: This article challenges the widely diffuse view of family law as peripheral to

private law. It aims to the de–marginalisation of family legal issues, by showing their ties

to the market realm and freedom of contract. In this theoretical framework, the article

analyses the process of family law harmonisation in Europe. In particular, it focuses on

three steps or aspects in respect to which the presumed peculiarity of family law is pro-

claimed and reveals, at the same time, its groundlessness: the status/contract dichotomy

as a ref‌lection of the family/market divide which seems to inf‌luence future developments

of the harmonisation of law in Europe; the presumed political character of family law,

which represents the leitmotiv in most recent harmonisation projects; and the subsequent

strictly national character of family law, which makes EC institutions much more cau-

tious in intervening in these matters than in any other f‌ield of private law.

Introduction

In the past decade the attention given to European law has been increasingly focused

on private law, in particular on the law of contract. European law reviews offer a variety

of essays on the different questions concerning contract law harmonisation, while

several books are dedicated to the big issue of the times: European contract law.

In contrast, scarce consideration is reserved for family law as a subject of harmoni-

sation or unif‌ication, so much so that one wonders whether the family is by any means

a subject of European integration. Recently, even the intense debate about European

Civil Code seems to pay no attention to family law. Apparently, family law is still con-

sidered to be mainly a matter of national concern. Why?

European Law Journal, Vol.12, No. 1, January 2006, pp. 78–105.

© 2006 The Author

Journal compilation © 2006 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Professor of Law, University of Perugia (Italy) Faculty of Law, SJD Comparative Law, Florence (Italy).

This paper was f‌irst presented to ‘A Conversation on Private Law Harmonisation in The EU’, at the

Harvard Law School, 18 May 2004. I thank Daniela Caruso, Duncan Kennedy, Janet Halley, Hugh

Collins, Christian Joerges, Fernanda Nicola, Jordi Ribot Igualada, Elena Bargelli, Fausto Caggia,

Francesco Cerrone, and Giovanni Marini for comments on earlier drafts. I am grateful to Luca Cruciani

for research assistance.

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

law.

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:

.