Comparative Law, Family Law and Common Law

Abstract

General works on comparative law view analysis of family law as particularly problematic. Political and institutional dimensions of legal policy are primary concerns. One assessment, over 50 years ago, while not unreservedly negative, was that '[fJamily law is so largely moulded by racial or religious and political considerations that comparison is fraught with difficulty and apt to be inconclusive'.1 This appraisal may be attributed to a phase in the development of comparative law, after an appreciation of the complexity of the subject had replaced the grand design of the early 20th century.2 The standard work on classification of legal systems subsequently struck a more positive note, referring to increased harmonization in various fields. However, this also hinted that family law was, to some extent, a special case.3 And more recently, in their discussion of comparative method, Zweigert and K6tz recommend avoidance of topics 'heavily impressed by moral views and values, mainly to be found in family law and in the law of succession'.4 In the search for functional equivalence of legal policy, they advocate focusing on 'those parts of private law which are relatively unpolitical '.5 Contrary to these negative positions, comparative examination of family laws does serve a purpose. Moreover, political factors, which these authors find so problematic, are central to this. Cross Currents provides an opportunity to investigate this perspective in relation to two common law jurisdictions. This collection of essays originated as a sequel to A Century of Family Law, published in 1957 to commemorate the anniversary of judicial divorce and abolition of ecclesiastical jurisdiction over marriage in England.6Cross Currents