Development of family law in Western and Eastern Europe: Common origins, common driving forces, common tendencies

Journal of Family History

Volumn 28, Issue 1, 2003, Pages 52-69

  Antokolskaia, Maria V ^a  

^a UTRECHT UNIVERSITY   (Netherlands)

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EID: 0037565034     PISSN: 03631990     EISSN: None     Source Type: Journal    
DOI: 10.1177/0363199002238554     Document Type: Review

References (92)

1. Maria Antokolskaia, Ineke de Hondt, and Gert Steenhoff, Een zoektocht naar Europees familierecht (Deventer: Kluwer, 1999).
2. For example, Georges Duby, Ridder, vrouw en priester (Amsterdam: Becht, 1985); Jack Goody, The Development of the Family and Marriage in Europe (Cambridge, UK: Cambridge University Press, 1983); Mary Ann Glendon, The Transformation of Family Law (Chicago: University of Chicago Press, 1989); Max Rheinstein, Marriage Stability, Divorce, and the Law (Chicago: University of Chicago Press, 1972).
3. For example, Georges Duby, Ridder, vrouw en priester (Amsterdam: Becht, 1985); Jack Goody, The Development of the Family and Marriage in Europe (Cambridge, UK: Cambridge University Press, 1983); Mary Ann Glendon, The Transformation of Family Law (Chicago: University of Chicago Press, 1989); Max Rheinstein, Marriage Stability, Divorce, and the Law (Chicago: University of Chicago Press, 1972).
4. For example, Georges Duby, Ridder, vrouw en priester (Amsterdam: Becht, 1985); Jack Goody, The Development of the Family and Marriage in Europe (Cambridge, UK: Cambridge University Press, 1983); Mary Ann Glendon, The Transformation of Family Law (Chicago: University of Chicago Press, 1989); Max Rheinstein, Marriage Stability, Divorce, and the Law (Chicago: University of Chicago Press, 1972).
5. For example, Georges Duby, Ridder, vrouw en priester (Amsterdam: Becht, 1985); Jack Goody, The Development of the Family and Marriage in Europe (Cambridge, UK: Cambridge University Press, 1983); Mary Ann Glendon, The Transformation of Family Law (Chicago: University of Chicago Press, 1989); Max Rheinstein, Marriage Stability, Divorce, and the Law (Chicago: University of Chicago Press, 1972).
6. I do not intend to take sides in the discussion on the role of economic and ideological factors in the transformation of family law. It is of course impossible to deny a certain dependency between the modernity of family law and the level of economic development. The question is how strong and direct this dependency is and to what extent ideological and other factors serve as a link between them. I have no answer to these questions. At this point, my intention is limited to the rather positivist observation of discrepancies and correlations between these factors and the level of modernity of family law at certain points of its development.
7. The last step in the development of the rules on the formation of marriage was made at the Council of Trent in the sixteenth century.
8. See, for example, the letter of the Apostle Paul to Corinthians (1 Cor., 7, 1.).
9. Sergei Troitskii, Khristianskaia filisofia braka (Moscow: Put', 1995), 186.
10. Judith Grubbs, Law and Family in Late Antiquity (Oxford, UK: Clarendon, 1995), 142.
11. However, such disapproval still manifested itself until deep into the Middle Ages. Even in 1146, when the emperor of the Holy Roman Empire, Henry II, was canonized, he was praised for his exceptionally chaste marriage life. He completely abstained from physical relations with his wife Kunigunde so that both remained virgins until their death. Duby, Ridder, vrouw en priester, 73-74.
12. Grubbs, Law and Family in Late Antiquity, 148.
13. Troitskii, Khristianskaia filisofia, 192.
14. Paul Neuhaus et al., "The Family in Religious and Customary Laws," in International Encyclopaedia of Comparative Law, vol. 4 of Persons and Family, ed. Mary Ann Glendon (Tübingen: Mohr, 1983), 16-17.
15. Duby, Ridder, vrouw en priester, 47-48.
16. Ibid., 197.
17. Ibid., 197; Glendon, Transformation, 25.
18. Ibid., 197; Glendon, Transformation, 25.
19. For instance, the Russian Prince Vladimir was born to his father's concubine, who was a housekeeper of his father's wife Olga. This origin did not preclude him from being recognized as a son and from inheriting the realm. Konstantin Nevolin, Istoria rossiiskikh grazhdanskikh zakonov, vol. 1 (St. Petersburg: 1851), 312.
20. Goody, Family and Marriage in Europe, 73.
21. For these reasons, Charlemagne did not give his daughters in marriage but gave them as concubines to limit the number of potential heirs. Duby, Ridder, vrouw en priester, 58.
22. Goody, Family and Marriage in Europe, 77.
23. Grubbs, Law and Family in Late Antiquity, 226-27.
24. Ibid., 228-229.
25. Matteus 19, 8-9.
26. Of most influence in this respect was the struggle of Emperor Leo VI to have his second marriage blessed at the end of the ninth century. Troitskii, Khristianskaia filisofia, 192.
27. Duby, Ridder, vrouw en priester, 179.
28. From the third degree in the sixth century to the seventh degree in the twelfth century. Goody, Family and Marriage in Europe, 56.
29. Dispensation was possible up to the fourth degree.
30. Goody, Family and Marriage in Europe, 145.
31. Duby, Ridder, vrouw en priester, 221.
32. The informality of pre-Christian divorce law did not always mean an easy divorce because other social regulators ensured the stability of the family. This was, for instance, the case in Rome for many centuries.
33. Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983). In this challenging book, Berman presents the medieval canon law as a first example of a modern Western law system and the medieval Catholic Church as a first example of a Western centralized state.
34. To my mind, this is a vulnerable point in the analysis of Willekens, who tries to explain the changes of family law via the changes of the social function of the family. Willekens starts his analysis from the function of the family in the agrarian societies at the beginning of the eighteenth century when, as in the feudal period, land was of primary economic importance. I wonder whether the function of the family in those days differed so much from the Roman society of the classical period, which was also in essence agrarian, and whether this difference could explain the informality of family law and the low level of institutionalization of marriage in Rome. See Harry Willekens, "Explaining Two Hundred Years of Family Law in Western Europe," in Het gezinsrecht in de sociale wetenschappen, ed. Harry Willekens (The Hague, the Netherlands: VUGA, 1997), 59-93.
35. Duby, Ridder, vrouw en priester, 110-11.
36. Goody, Family and Marriage in Europe, 44-45, 145.
37. Glendon, Transformation, 31.
38. Katharine O'Donovan, "Marriage: A Sacred Union or Profane Love Machine?" Feminist Legal Studies 1 (1993): 88.
39. Susan Moller Okin, Justice, Gender and the Family (New York: Basic Books, 1989), 91.
40. Michael Freeman, "The Austin Lecture: The Private and the Public," in Constituting Families: A Study in Governance, eds. Derek Morgan and Gillian Douglas (Stuttgart: Steiner, 1994), 22-39.
41. In the view of Locke because (in the absence of consensus between husband and wife) "the last determination (i.e. the rule) should be placed somewhere, it naturally falls to the man's share as the abler and stronger." John Locke, Two Treatises on Civil Government (London: J. M. Dent & Sons, 1970), 157.
42. John Stuart Mill, The Subjection of Women (Cambridge, MA: MIT Press, 1974), 33. See also the introduction to this book by W. R. Carr, p. vii.
43. Katharine O'Donovan, Sexual Divisions in Law (London: Weidenfeld and Nicolson, 1985), 8.
44. See also Willekens, "Explaining Family Law," 77.
45. Ibid., 80-83.
46. Cees Asser en Jan Wiarda, Personenrecht (Zwolle: Tjeenk Willink, 1957), 496-97 (translated).
47. "The Sabbath was made for man, and not man for the Sabbath."
48. Jacob de Ruiter, "Drie trends in het familierecht," Rechtkundig Magazijn Themis (1990): 195-200.
49. For example, Marjorie Shultz, "Contractual Ordering of Marriage: A New Model for State Policy," California Law Review 70 (1982): 251, formulates this as follows: "specific prescriptions about right and wrong must be replaced by a new credo: tolerance of individual variations and values. In the same way, if individual fulfilment is the ultimate value, then pursuit of it justifies sacrificing such goals as permanence [of marriage]."
50. An example is the objective of the Swedish legislator not to give marriage any privileges over unmarried cohabitation in order not to impose any moral or ethical judgments. Anders Agell, "Should and Can Family Law Influence Social Behaviour?" in The Changing Family: International Perspectives on the Family and Family Law, eds. John Eekelaar and Thandabantu Nhlapo (Oxford, UK: Hart, 1998), 125-38. To my mind, this objective can also be seen as the choice for another, tolerance-based morality.
51. The scope of this article forces me to skip a few centuries (although the family legislation of the French Revolution and the Prussian Allgemeine Landrecht of 1794 were of great importance for the process of the modernization of family law) and to jump to the twentieth century.
52. This, of course, is a rather simplistic sketch of a more complicated situation. East European law was not modern in all respects. Portugal was the first country where radical reform took place, albeit not lasting reform. In some other countries, the modernity of family law differed significantly from one particular institution to another.
53. David Bradley, Family Law and Political Culture (Scandinavian Laws in Comparative Perspective) (London: Sweet and Maxwell, 1996), 10.
54. For an overview, see Bradley, Family Law and Political Culture, 9-13, and Swenne Schmidt, "The Scandinavian Law of Procedure in Matrimonial Causes," in The Resolution of Family Conflicts, eds. John Eekelaar and Sanford Katz (London: Butterworths, 1984), 80.
55. For an overview, see Bradley, Family Law and Political Culture, 9-13, and Swenne Schmidt, "The Scandinavian Law of Procedure in Matrimonial Causes," in The Resolution of Family Conflicts, eds. John Eekelaar and Sanford Katz (London: Butterworths, 1984), 80.
56. See Willekens, "Explaining Family Law," 87.
57. Duby, Ridder, vrouw en priester, 8.
58. Bradley, Family Law and Political Culture, 5.
59. Lars Tottie, "The Elimination of Fault in Swedish Divorce Law," in Marriage and Cohabitation in Contemporary Societies, eds. John Eekelaar and Sanford Katz (Toronto: Butterworths, 1980), 131.
60. Rheinstein, Marriage Stability, 153.
61. Bradley, Family Law and Political Culture, 6.
62. David and Louise Gaunt, "Le modèle Scandinave," in Histoire de la famille, vol. 2 of Le choc des modernités, eds. André Burguière, Christiane Klapisch-Zuber, Martine Segalen, and Françoise Zonabend (Paris: Colin, 1986), 471-95.
63. Rheinstein, Marriage Stability, 154.
64. Bradley, Family Law and Political Culture.
65. Ibid., 156.
66. Ibid., 138.
67. Decree of December 18, 1917, "O grazhdanskom brake, detiakh u vedenii knig aktov grazhdanskogo sosnoiania," SU RSFSR, 1917, no. 1, st. 160; decree of December 19, 1917, "O rastorzhenii braka," SU RSFSR, 1917, no. 10, st. 152; "Kodex zakonov ob aktokh grazhdanskogo sosnoiania, brachnom, semeinim i opekynskom prave," SU RSFSR, 1918, nos. 76/77, st. 818.
68. Dimitrii Genkin, I. Novitzkiia, and N. Rabinovich, Istoriia sovetskogo semeinogo prava (Moscow: Juridicheskaia Literetura, 1949), 419.
69. Sergei Raevich, "Brarnoe i semeinoe pravo," in Osnovi sovetskogo prava, ed. Dmitrii Magerovskii (Moscow: Gosudarstvennoe Izdatel'stevo, 1927), 426.
70. Implementation of the reforms was accompanied by terror and repression against the clergy and the religious population.
71. Communist ideology, as such, did manifest itself but during this period did not get its own way. An example is the debate about the registration of marriage. Young communists headed by the prominent feminists Inesse Armand and Alexandra Kollontay, who were granted important positions in the Bolshevik government, strove for the abolition of registration. They referred to Engels's "Origins of the Family, Private Property and the State" and argued that marriage had to die out soon and that its temporary preservation was just a "concession to the religious prejudice of the population." Lenin, who on this issue represented a more moderate group, was as usual more interested in the actual political impact than in the classical notions of Marxism. He argued that Engels's writing should be understood in such a way that only the "bourgeois family" was doomed to die out to make way for a new type, the "proletarian family." See Lenin, letter to I. Armand, Bolshevik, 1939, no. 13, 59.
72. Willekens, "Explaining Family Law," 78, typifies these reforms as "radical reforms out of tune with socio-economic structures."
73. The family law of 1918 introduced the so-called registrative establishment of paternity. Women, married women included, could, until three months before the birth, make a declaration before the registration officer that a certain person was the father of their child. The putative father could contest this declaration before the court within two weeks. Failure to do so (in time) was treated as recognition.
74. The opinion of the population at large was never examined. My guess is that perhaps about 5 percent of the population (90 percent of whom consisted of the illiterate agrarian population) would have supported the reform. This would have been no different, however, with the reforms of Peter the Great.
75. The termination of the New Economic Policy by the end of the 1920s abolished all small family businesses in the urban regions. The collectivization at the beginning of the 1930s completely destroyed the agrarian family household. The family was no longer the only source of income for dependent family members. In 1922, only 25 percent of the total working force was female; in 1940, this number had risen to 39 percent; and in 1945 (due to the war), it was 56 percent. (See Basile Kerblay, "Familles socialistes," in Histoire de la famille, vol. 2, eds. André Burguière, Christiane Klapisch-Zuber, Martine Segalen, and Françoise Zonabend [Paris: Colin, 1986], 437-70.) The family ceased to be an important economic unit. Single women who earned an income from employment and received alimony from the fathers of their children were more or less able to bring up their children alone. Although social security was in an inadequate state, women benefited from it equally.
76. For instance, the Family Code of 1918 left the pre-Revolutionary separate property regime of marital property intact. This caused problems under the new liberal divorce law because women without an income of their own had no claim to a share of family property. For this reason, the Code of 1926 introduced a marital property regime of limited community that gave these women proper protection.
77. Vedomosti Verhovnogo Soveta SSSR, 1944, no. 37.
78. In Russia, Stalin's family legislation is widely perceived as just another excess of totalitarianism. Even contemporaries experienced it as extremely unjust. Although no one at that time could say a word against it, lawyers generally tried to soften its consequences. Since the courts were not allowed to grant the illegitimate child maintenance payments from its natural father on the basis of the man's paternity, they granted them instead on the basis of the factual upbringing of the child by the natural father. Factual upbringing was at that time a distinct ground for maintenance obligations. After the death of Stalin, abortion was again legalized. The Fundamental Principles of 1968 not only restored the possibility to establish the paternity of the natural father but also did so with retroactive effect. At the same time, divorce law was liberalized.
79. Rheinstein, Marriage Stability, 231-43; Willekens, "Explaining Family Law," 78.
80. Rheinstein, Marriage Stability, 231-43; Willekens, "Explaining Family Law," 78.
81. Willekens, "Explaining Family Law," 78.
82. Kerblay, "Familles socialistes."
83. Rheinstein, Marriage Stability, 231.
84. As Rheinstein, analyzing early Roman divorce law of the republican period, rightly points out, in reality there is no clear correlation between the restrictiveness of divorce law and the stability of the family.
85. The divorce rate in 1938-1939 was 4.8 perthousand. In 1958-1959, it was the same. Not only did this rate not decrease while the Ukase of 1944 was in force, but it increased to 5.3 per thousand instead. Frans Willekens and Sergei Scherbov, "Demographic Trends in Russia in Population and Family," in European Studies of Population, vol. 2, eds. Hans Van den Brekel and Fred Deven (The Hague, the Netherlands: NIDI, 1995), 199.
86. See Glendon, Transformation, 89.
87. A distinguished lawyer of that time wrote, "The socialist State reserves for itself wide latitude for direct and active involvement in family relationships. . . . The state denies the qualification of relations between sexes as individual, intimate, and of no interest for State and society. . . . It dictates, determines rules to guarantee the interests of the collective, to force individuals to fulfil their duties towards the collective." Gennadii Sverdlov, "O predmete i sisteme sotsialisticheskogo semeinogo prava," Sovjetskoe gosudarstvo i pravo, 1941, no. 1, 58.
88. The hero and martyr of that time was a young pioneer killed by his family because he denounced his father as a kulak.
89. Rheinstein, Marriage Stability, 236.
90. The Netherlands serves as another example: this country with a modern economy had until recently in several respects a very outdated family law, which is generally attributed to the strong influence of the Christian political parties.
91. The general line of development of family law in East Europe is exactly the same as in the rest of the continent. Even the temporary counterreform under Stalin is not completely without precedent. The Nazis just did not have enough time to implement their ideas about family law (see Glendon, Transformation, 175). The concept of "socialist" family law is, in my view, not more than a remnant of the propaganda of the Soviet era. See Maria Antokolskaia, "The 1995 Russian Family Code: A New Approach to the Regulation of Family Relations," Review of Central and East European Law 22 (1996): 635-60 at 640.
92. The general line of development of family law in East Europe is exactly the same as in the rest of the continent. Even the temporary counterreform under Stalin is not completely without precedent. The Nazis just did not have enough time to implement their ideas about family law (see Glendon, Transformation, 175). The concept of "socialist" family law is, in my view, not more than a remnant of the propaganda of the Soviet era. See Maria Antokolskaia, "The 1995 Russian Family Code: A New Approach to the Regulation of Family Relations," Review of Central and East European Law 22 (1996): 635-60 at 640.