Abstract
The ‘cultural constraints argument’, submits that family laws are embedded in unique national cultures, that this cultural and historical diversity is unbridgeable and therefore family laws are not spontaneously converging and cannot be deliberately harmonised. This article argues against the core assumption of the cultural constraints argument – the alleged embedment of family laws in unique and unchangeable national cultures. History shows that in the field of family ideology and law one cannot really talk of unique national cultures, but rather of a pan-European culture, which is not homogeneous but an amalgamation of pan-European ‘conservative’ and pan-European ‘progressive’ cultures. The relative influence of these two opposing family ‘cultures’ varies from country to country and from time to time. Examinations of history of family law suggest that there are the differences in the balance of political power between ‘progressive’ and ‘conservative’ forces, rather than national culture that determines the differences in the pertinent national family laws.
Highlights
‘Family laws are embedded in unique and cherished national cultural heritages of particular countries’ – this is the core of the so-called ‘cultural constraints argument’.1 The ‘Cultural constraints argument’ further suggests that this cultural and historical diversity is unbridgeable and family laws are not spontaneously converging and cannot be deliberately harmonised
It is clear that the conclusions presented above in relation to the alleged fundamental differences between the legal cultures of common law and civil law can apply to the civil law countries when compared to each other
The conclusion of this brief excursion into legal culture is that with regards family law, legal cultures in Europe do not possess a unique national character, at least not in such a way that this should affect the conclusion previously drawn with regards the other elements of national culture relevant to family law, namely that in the field of family ideology and law, there is so such thing as a unique national culture, but rather a pan-European conservative and a pan-European progressive culture, and a plethora of variety in between
Summary
‘Family laws are embedded in unique and cherished national cultural heritages of particular countries’ – this is the core of the so-called ‘cultural constraints argument’.1 The ‘Cultural constraints argument’ further suggests that this cultural and historical diversity is unbridgeable and family laws are not spontaneously converging and cannot be deliberately harmonised. In my earlier work[14] I tried to make a first step in the direction of a more fundamental qualification of the cultural constraints argument, by bringing to light the common historical roots of family law that all European countries have in common. This endeavour inspired me to undertake a five-year study into the convergence and divergence of family law in Europe.[15] I was challenged by the idea of exploring the main objection to family law harmonisation, the so-called ‘cultural constraints argument’. Law and national culture – Arguing against the cultural constraints argument
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