Family Law Exceptionalism in Comparative Law

Abstract

Today, family law is, to a surprising degree, at the center of com parative law inquiries committed to legal unification. Comparative family law projects range from analyzing convergence and harmoni zation proposals in the West, to law and development schemes in the rest of the world. The most salient reforms of abortion, same-sex mar riage, transsexual, and adoption rights are increasingly promoted at the transnational level through international human rights and an tidiscrimination principles. Regional and international human rights tribunals in Europe and Latin America are called upon to interpret the right to family life, non-discrimination, and freedom of movement principles to redefine the contours of domestic family, immigration, and employment law regimes. While comparative lawyers are increas ingly involved in shaping these transnational family law regimes, they present their choices as reflecting objective scientific knowledge that they have acquired through the comparative law method. This consensus about a single comparative law method is troubling because it allows comparison between abstract family law regimes that bear little relevance to what happens in practice or to the proposal of a best family law regime for unification purposes, while obscuring the political and economic implications of adopting one particular family law regime over another. Since the early 1900s, however, two conflicting methodologies have characterized the work of Western comparative lawyers address ing the family: social-purpose and positive-sociology functionalism. These Western comparative lawyers separated the individualist and universal sphere of the market from the altruistic, organic, and tradi tional sphere of the family. Because of this market I family dichotomy, family law was marginalized by those interested in the harmonization