THE PROCESS OF MODERNISATION OF FAMILY LAW IN EASTERN AND WESTERN EUROPE
Difference in Timing, Resemblance in Substance

Masha Antokolskaia (Utrecht University)

In this article, it is submitted that the historical development of family law in Europe allows a fundamental re-evaluation of the stereotype argument that harmonisation and unification of family law is unfeasible because of unbridgeable historical and cultural differences between the various European countries. The line of the argument put forward can be summarised as follows.

1. The family law of the whole European continent before the Reformation was mainly uniform canon law. It consisted of two separate systems, Catholic and Orthodox, which in fact were very much alike. The unification of canon family law in the Catholic part of Europe was achieved around the 12th century and brought about dramatic changes. In Orthodox Europe, the process of unification, although more spread out in time, led to almost the same results.

2. The development of family law from the end of the Middle Ages until today can be seen as the gradual abandment of concepts of canon family law. Pre-ecclesiastical family law and current family law have more similarities between them than both have in relation to ecclesiastical family law. In a way, the process of distancing from the canonical heritage can be seen as a return to the informality of pre-ecclesiastical family law.

3. The process of gradually abandoning the concepts of canon law was essentially the same in all European countries, and took place under the influence of the same liberal ideas. The general trend can be described as the gradual change from a transpersonal to a personal approach. This process, however, did (and still does) not take place simultaneously. The major differences in the history and current state of the family law of the European countries can be considered differences in the timing and in the extent of this process. In countries with a persisting strong religious influence, such as Greece, Italy and Ireland, this process has plodded along wearily and slowly. In Scandinavia and Eastern Europe, where secularisation took place at an earlier stage and canonical concepts did not obstruct reform, the process was speedier and more radical. But the general direction of the changes was and is undoubtedly the same everywhere.

Special attention is devoted to the post-Revolutionary reforms in Russia, because many attempts to explain the development of family law do not include them, or treat them as excesses, and place them outside explanatory theories.

The author's study of this subject is in a rather preliminary stage. More extensive research will be undertaken in the coming years. Therefore, the author welcomes all informed reactions at M.Antokolskaya@law.uu.nl

Cite as: M. Antokolskaia, The Process of Modernisation of Family Law in Eastern and Western Europe: Difference in Timing, Resemblance in Substance, vol 4.2 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (September 2000), <http://www.ejcl.org/42/art42-1.html>

Contents
Introduction
1. The Catholic West and the Orthodox East: The formation of a uniform medieval canon of family law
2. From pre-Christian law via canon unification to modern times: A helical process?
3. The medieval dogmas: Obstacles to modern person-orientated family law
4. From the medieval uniform law to the diversity of modern times: Difference in timing, resemblance in substance
Conclusion
Notes
Literature

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