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Bradley, David --- "Family Law" [2006] ELECD 176; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 25

Section Title: Family Law

Author(s): Bradley, David

Number of pages: 14

Extract:

25 Family law*
David Bradley


1 Introduction
Glendon has questioned the very existence of comparative family law
(Glendon, 1987a, p. 1). Many other comparatists view laws regulating
domestic relationships as particularly problematic. There are, however,
optimistic perspectives on the viability and utility of comparative analysis
in this area of legal policy. Family law is a contested field of comparative law.

2 Problems, perspectives and issues
Problems derive from perceptions that a system of family law closely reflects
conditions in which it has developed. Comparatists adopting this `mirror'
perspective (Ewald, 1995, p. 492) not infrequently invoke Montesquieu
(Kahn-Freund, 1974, pp. 26­7; Glendon, 1987a, p. 2). There was no concept
of family or domestic relations law when The Spirit of the Laws was pub-
lished: this would not emerge until the 19th century (Müller-Freienfels, 2003,
p. 31). From a contemporary standpoint, however, family law might appear
to epitomize Montesquieu's assessment that it is purely fortuitous if the laws
of one society are suitable for another (Montesquieu, 1750, pp. 104­5).
This negative perspective is well represented in commentaries on legal
policy in developed countries. If the Paris Congress of Comparative Law
in 1900 is taken as inaugurating modern comparative law, the life of the
subject reflects reservations over family law. And there appears to have been
ample evidence to support these caveats.
The Paris Congress presented comparative law as a subject for scientific
investigation alongside emerging disciplines of political science, psycho-
analysis and eugenics. Links between sociology ...