The Process of Modernisation of Family Law in Eastern and western Europe: Difference in Timing, resemblance in Substance Masha v antokolskaial Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or othenwise, except for reasonable quoting, clearly indicating th source. Readers are permitted to make copies, electronically or printed, for personal and classroom use Abstract 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 change l art 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 tod ay 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 a persisting strong religious influence, such as Greece. Italy and Ireland, this process mao with can be considered d ifferences in the timing and in the extent of this process. In countries plodded along wearily and slowly. In Scand navia and Eastern Europe, where secularisation speed ier and more rad ical. But the general direction of the changes was and is undoubted/y took place at an earlier stage and canonical concepts did not obstruct reform, the process wa the same everywhe 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 authors study of this subject is in a rather preliminary stage. More extensive Senior Research Fellow of the Molengraaff Institute for Private Law, Utrecht University, The Netherlands. Ms Antokolska ia's research has been made possible by a fellowship of the Royal Netherlands Academy of Arts and Sciences
The Process of Modernisation of Family Law in Eastern and Western Europe: Difference in Timing, Resemblance in Substance Masha V. Antokolskaia1 Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract 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 1Senior Research Fellow of the Molengraaff Institute for Private Law, Utrecht University, The Netherlands. Ms. Antokolskaia’s research has been made possible by a fellowship of the Royal Netherlands Academy of Arts and Sciences
research will be undertaken in the coming years. Therefore the author welcomes all informed reactions at M.Antokolskaya@law.uu. nl Contents Introduction 1. The Catholic West and the Orthodox east: The formation of a uniform med ieval 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 med ieval uniform law to the diversity of modern times: Difference in timing resemblance in substance Literature Introduction Last year, I was asked to make a contribution to a report for the Netherlands Comparative Law Association on the prospects for the harmonisation and unification of family law in Europe. 2 This obliged me to scrutinise the stereotype argument that harmonisation and unification of family law is unfeasible because of unbridgeable historical and cultural differences between the various European countries. Going back in time in search of the roots of the diversity of current family law in Europe, I became highly interested in the correlation between the level of modernisation of family law and the influence of concepts inherited work I strongly rely 3 What I suggest in this article is that this correlation is the key to e from medieval canon law. This correlation has been noticed by several scholars, on who important insights into the historical development of family law in Europe that allow a fund amental re-evaluation of the aforementioned argument of unbridgeable differences. I will devote some special attention to the post-Revolutionary reforms in Russia, because I have noticed that many attempts to explain the development of family law do not include them, or treat them as excesses, and place them outside explanatory theories. I think that Russian post-Revolutionary developments can and should be placed within an explanatory framework, and i will try to show how they can fit within such a framework. I should mention that, at the moment, my work on this subject is in a rather preliminary stage. The suggestions I make in this article are based on a preliminary study which has inspired me to undertake more extensive research in the coming years What i will submit 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 12 th 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 Antokolska ia, De Hondt and Steenhoff( 1999) SE. g, Duby (1985), Goody(1983), Glendon(1989)and Rheinstein(1972)
research will be undertaken in the coming years. Therefore the author welcomes all informed reactions at M.Antokolskaya@law.uu.nl 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 Introduction Last year, I was asked to make a contribution to a report for the Netherlands Comparative Law Association on the prospects for the harmonisation and unification of family law in Europe.2 This obliged me to scrutinise the stereotype argument that harmonisation and unification of family law is unfeasible because of unbridgeable historical and cultural differences between the various European countries. Going back in time in search of the roots of the diversity of current family law in Europe, I became highly interested in the correlation between the level of modernisation of family law and the influence of concepts inherited from medieval canon law. This correlation has been noticed by several scholars, on whose work I strongly rely.3 What I suggest in this article is that this correlation is the key to important insights into the historical development of family law in Europe that allow a fundamental re-evaluation of the aforementioned argument of unbridgeable differences. I will devote some special attention to the post-Revolutionary reforms in Russia, because I have noticed that many attempts to explain the development of family law do not include them, or treat them as excesses, and place them outside explanatory theories. I think that Russian post-Revolutionary developments can and should be placed within an explanatory framework , and I will try to show how they can fit within such a framework. I should mention that, at the moment, my work on this subject is in a rather preliminary stage. The suggestions I make in this article are based on a preliminary study which has inspired me to undertake more extensive research in the coming years. What I will submit 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. 2Antokolskaia, De Hondt and Steenhoff (1999). 3E.g., Duby (1985), Goody (1983), Glendon (1989) and Rheinstein (1972)
2. The development of family law from the end of the Middle Ages until today can be seen as the gradual abandonment 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 d istancing 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 rad ical. But the general direction of the changes was and is undoubtedly the same everywhere 4. The composition of the group of countries where family law had already been rad ically revised at in the beginning of the 20th century -Scandinavia, the Soviet Union and Portugal -reveals a discrepancy between the level of economic development and the modernisation of family law, and suggests a primary role of ideological factors such as breaking with religious concepts and the influence of liberal id 1. The catholic West and the Orthodox East: The formation of a uniform medieval canon of family law In Western Europe, the formation of uniform canon rules on marriage and divorce had been completed by the beginning of the 12 th century by the reforms of Pope gregory VII (1073-1084 ) In spite of the schism of 1054 that separated the Orthodox countries from the West, a comparable formation process took place in the Orthod ox world around the same time. The ecclesiastical unification concerned mainly the rules on marriage and divorce, but because of the crucial importance of those institutions for the determination of the legal position of offspring, for inheritance and for the rights to family property, the whole area of family law was influenced. Therefore it is possible to speak, with some reservations, of medieval canon family law in general The Gregorian reform was in many aspects the final point in the formation of uniform ecclesiastical family law, s but the beginning of the formation process was almost 600 years earlier. In the first centuries of Christianity, the Church did not pay much attention to marriage. The dominant ascetic and eschatological attitude in the early Church led to the disapproval of sexuality and the appreciation of celibacy above marriage. 6 The early Church 4i do not intend to take sides in the discussion on the role of econom ic and ideological factors in the and to what extent ideological and other factors serve asa link between them. I have no answer to these cy o, transformation of family law. It is, of course, impossible to deny a certa in dependency between the modemit family law and the level of economic development. The question is how strong and direct this dependend questions. At this point, my intention is limited to the rather positivist observation of discrepancies and correlations between these factors and the level of modemity of family law at certain points of its development SThe last step in the development of the rules on the formation of marriage was made at the Council of Trent in the 16th century 6See, for example, the letter of the Apostle Paul to Corinthians(1 Cor, 7,1
2. The development of family law from the end of the Middle Ages until today can be seen as the gradual abandonment 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. 4. The composition of the group of countries where family law had already been radically revised at in the beginning of the 20th century - Scandinavia, the Soviet Union and Portugal - reveals a discrepancy between the level of economic development and the modernisation of family law,4 and suggests a primary role of ideological factors such as breaking with religious concepts and the influence of liberal ideas. 1. The Catholic West and the Orthodox East: The formation of a uniform medieval canon of family law In Western Europe, the formation of uniform canon rules on marriage and divorce had been completed by the beginning of the 12th century by the reforms of Pope Gregory VII (1073-1084). In spite of the schism of 1054 that separated the Orthodox countries from the West, a comparable formation process took place in the Orthodox world around the same time. The ecclesiastical unification concerned mainly the rules on marriage and divorce, but because of the crucial importance of those institutions for the determination of the legal position of offspring, for inheritance and for the rights to family property, the whole area of family law was influenced. Therefore it is possible to speak, with some reservations, of medieval canon family law in general. The Gregorian reform was in many aspects the final point in the formation of uniform ecclesiastical family law,5 but the beginning of the formation process was almost 600 years earlier. In the first centuries of Christianity, the Church did not pay much attention to marriage. The dominant ascetic and eschatological attitude in the early Church led to the disapproval of sexuality and the appreciation of celibacy above marriage.6 The early Church 4 I do not intend to take sides in the discussion on the role of economic and ideological factors in the transformation of family law. It is, of course, impossible to deny a certain dependency between the modernity of family law and the level of economic development. The question is how strong and direct this dependency is and to what extent ideological and other factors serve as a link between them. I have no answer to these questions. At this point, my intention is limited to the rather positivist observation of discrepancies and correlations between these factors and the level of modernity of family law at certain points of its developmen t. 5The last step in the development of the rules on the formation of marriage was made at the Council of Trent in the 16th century. 6See, for example, the letter of the Apostle Paul to Corinthians (1 Cor., 7, 1)
did not have its own rules on marriage but tolerated the marriages entered into according to the secular law of the spouses(Roman law, Jewish law or Barbarian customary law) Although different in many aspects, Roman and customary law had at that time as a common feature the absence of any obligatory civil or religious formalities for the conclusion of marriage. Marriage was a matter for the family and did not fall under the competence of the state or of religious authorities. In Roman law, legal marriage was created by the mutual consent of the spouses(in the absence of marriage impediments ).8 As Christianity originating as the religion of a small group of dissidents, eventually became the state religion of the roman Empire, the ascetic disapproval of marriage gradually diminished. 9 The ascetic attitude came into conflict with a more worldly trend that strived towards the sacralisation of marriage,and this finally became the predominant attitude The contradiction between these two approaches may explain the slow pace with which ecclesiastical marriage law came to be formulated In the 4 th century, the trad ition of blessing perfect marriages by a priest came into existence. 10 Initially, that rite was of no significance for the lawfulness of the marriage. Later, it became one of the possible forms of the formation of a marriage. In Byzantium, Church solemnisation became obligatory in 893 by an Act of Emperor Leo VI Around the 12th century, this rule was accepted in the whole Orthodox region. 11 The Roman principle of consensus facit nuptials was maintained, but Church solemnisation was added as a second constitutive element of a valid marriage. At the same time, the Orthodox Church proclaimed marriage to be a sacrament. Consensus and Church solemnisation together made marriage a sacrament. 12 In the Catholic part of Europe this process took even longer. In post-Roman times and even in Carolingian times(8 th to 10th century ) the Church blessing was unusual and marriages were celebrated accord ing to local customs. 13 At the time of Pope gregory VIl, the development of the concept of marriage as a sacrament was completed 14 and the Church ceremony was prescribed, but it was only after the Council of Trent that Church solemnisation actually became a prerequisite for the legal valid ity of a marriage. The difference with the Orthodox doctrine was that it was not blessing and consensus together. but rather consensus alone which made marriage sacred. The priest was more a witness than a main actor in the ceremony. I5 The same picture arises if we look at the changes in the attitude towards concubinage 7Troitskii(1995), p. 186 Grubbs(1995), p. 142 9However, such disapprovalstill manifested itself until deep into the Middle Ages. Even in 1146, when the Emperor of the Holy Roman Empire, Henry Il, was canonised, he was praised for his exceptionally chaste marriage life. He completely absta ined from physicalrelations with his wife Kunigunde so that both rema ined virgins until their death; Duby(1985), pp. 73-74 ioGrubbs (1995), p. 148 IITroitskii(1995), p. 192 2Neuhaus(1983), pp 16-17 3Duby(1985)pp.47-48 14Duby(1985)p.197 Duby(1985),p.197, Glendon(1989)p.25
did not have its own rules on marriage but tolerated the marriages entered into according to the secular law of the spouses (Roman law, Jewish law or Barbarian customary law).7 Although different in many aspects, Roman and customary law had at that time as a common feature the absence of any obligatory civil or religious formalities for the conclusion of a marriage. Marriage was a matter for the family and did not fall under the competence of the state or of religious authorities. In Roman law, legal marriage was created by the mutual consent of the spouses (in the absence of marriage impediments).8 As Christianity, originating as the religion of a small group of dissidents, eventually became the state religion of the Roman Empire, the ascetic disapproval of marriage gradually diminished.9 The ascetic attitude came into conflict with a more worldly trend that strived towards the sacralisation of marriage, and this finally became the predominant attitude. The contradiction between these two approaches may explain the slow pace with which ecclesiastical marriage law came to be formulated. In the 4th century, the tradition of blessing ‘perfect’ marriages by a priest came into existence.10 Initially, that rite was of no significance for the lawfulness of the marriage. Later, it became one of the possible forms of the formation of a marriage. In Byzantium, Church solemnisation became obligatory in 893 by an Act of Emperor Leo VI. Around the 12th century, this rule was accepted in the whole Orthodox region.11 The Roman principle of consensus facit nuptias was maintained, but Church solemnisation was added as a second constitutive element of a valid marriage. At the same time, the Orthodox Church proclaimed marriage to be a sacrament. Consensus and Church solemnisation together made marriage a sacrament.12 In the Catholic part of Europe this process took even longer. In post-Roman times and even in Carolingian times (8th to 10th century), the Church blessing was unusual and marriages were celebrated according to local customs.13 At the time of Pope Gregory VII, the development of the concept of marriage as a sacrament was completed14 and the Church ceremony was prescribed, but it was only after the Council of Trent that Church solemnisation actually became a prerequisite for the legal validity of a marriage. The difference with the Orthodox doctrine was that it was not blessing and consensus together, but rather consensus alone which made marriage sacred. The priest was more a witness than a main actor in the ceremony.15 The same picture arises if we look at the changes in the attitude towards concubinage. 7Troitskii (1995), p. 186. 8Grubbs (1995), p. 142. 9However, such disapproval still manifested itself until deep into the Middle Ages. Even in 1146, when the Emperor of the Holy Roman Empire, Henry II, was canonised, he was praised for his exceptionally chaste marriage life. He completely abstained from physical relations with his wife Kunigunde so that both rema ined virgins until their death; Duby (1985), pp. 73-74. 10Grubbs (1995), p. 148. 11Troitskii (1995), p. 192. 12Neuhaus (1983), pp. 16-17. 13Duby (1985), pp. 47-48. 14Duby (1985), p. 197. 15Duby (1985), p. 197, Glendon (1989), p. 25
In Roman society, concubinage was accepted for unmarried persons as a secondary form of conjugal union. Among some peoples that inhabited Europe in post-Roman times concubinage was accepted even for a married man. 16 The early Church was also tolerant of concubinage. The concubine was a member of the household of the man and her children were not entirely excluded from the family structure. 17 In Western Europe, the Church only started to oppose concubinage in the Carolingian era. Concubinage occurring simultaneously with marriage became impossible, and the children of a concubine could only inherit in the absence of offspring from the lawful marriage 18 Around the 11 th and 12th centuries, the rules on marriage law became so imperative in both parts of Europe that concubinage left the stage completely. The concubine became no more than a mistress, and her children were As marriage became more and more institutionalised divorce law became more and more restrictive. In pre-Christian times, there was a considerable freedom to divorce. In classic Roman law, divorce, as well as marriage, was a private, informal transaction. 20 Before the restrictive rules of Augustus and the subsequent reform by Constantine, both divorce upon mutual consent and unilateral divorce were possible. Divorce upon mutual consent survived the reforms, the grounds for unilateral divorce were strictly limited. 21 The Christian Church has shown an aversion towards divorce from the very beginning. Initially, the Church refused to bless all second marriages because it was held that the spiritual ties created by marriage survived not only divorce but also the death of one of the spouses. Although the New Testament mentions the possibility of repudiating an adulterous wife, 2 there was no uniformity on this point in the Catholic and Orthodox worlds. The Orthodox Church accepted under pressure from the Byzantine emperors, 23 a limited possibility for divorce and remarriage. The Catholic Church tolerated divorce and remarriage until deep into the middle Ages. The ind insolubility of marriage was declared for the first time in the 8th century. But until the Gregorian reform, there was no clear border between annulment and dissolution of marriage. Only around the 12th century did the indissolubility of marriage become really enforced. At that time the divorce and annulment of marriage became the exclusive affairs of the Church. In the case of adultery, separation was the only option, with no possibil ity of remarrying. In the case of violation of the prohibited degrees of consanguinity, the marriage was null and void. This meant that it was considered never to have taken place, and the sacrament was considered never to have been given. That is why in such a case(re)marriage 6For instance, the Russian Prince Vladimir was bon to his fathers concubine, who was a housekeeperof his father's wife Olga. This origin did not preclude him from being accepted as a son and from inheriting the realm Nevolin(1851),p.312 17 Goody(1983)p.73. I8For these reasons, Charlemagne did not give his daughters away in marriage but gave them as concubines in order to limit the number of potential heirs, Duby (1985), p. 58 Goody(1983),p.77 2 Grubbs(1995,pp.226-227 2ldem,pp.228-229 22Matthew 19.8-9 2Of most influence in this respect was the struggle of Emperor Leo VI to have his second maria ge blessed at the end of the 9th century; Troitskii (1995),p. 192
In Roman society, concubinage was accepted for unmarried persons as a secondary form of conjugal union. Among some peoples that inhabited Europe in post-Roman times concubinage was accepted even for a married man.16 The early Church was also tolerant of concubinage. The concubine was a member of the household of the man, and her children were not entirely excluded from the family structure.17 In Western Europe, the Church only started to oppose concubinage in the Carolingian era. Concubinage occurring simultaneously with marriage became impossible, and the children of a concubine could only inherit in the absence of offspring from the lawful marriage.18 Around the 11th and12th centuries, the rules on marriage law became so imperative in both parts of Europe that concubinage left the stage completely. The concubine became no more than a mistress, and her children were bastardised.19 As marriage became more and more institutionalised, divorce law became more and more restrictive. In pre-Christian times, there was a considerable freedom to divorce. In classic Roman law, divorce, as well as marriage, was a private, informal transaction.20 Before the restrictive rules of Augustus and the subsequent reform by Constantine, both divorce upon mutual consent and unilateral divorce were possible. Divorce upon mutual consent survived the reforms, the grounds for unilateral divorce were strictly limited.21 The Christian Church has shown an aversion towards divorce from the very beginning. Initially, the Church refused to bless all second marriages because it was held that the spiritual ties created by marriage survived not only divorce but also the death of one of the spouses. Although the New Testament mentions the possibility of repudiating an adulterous wife,22 there was no uniformity on this point in the Catholic and Orthodox worlds. The Orthodox Church accepted, under pressure from the Byzantine emperors,23 a limited possibility for divorce and remarriage. The Catholic Church tolerated divorce and remarriage until deep into the Middle Ages. The indissolubility of marriage was declared for the first time in the 8th century. But until the Gregorian reform, there was no clear border between annulment and dissolution of marriage. Only around the 12th century did the indissolubility of marriage become really enforced. At that time, the divorce and annulment of marriage became the exclusive affairs of the Church. In the case of adultery, separation was the only option, with no possibility of remarrying. In the case of violation of the prohibited degrees of consanguinity, the marriage was null and void. This meant that it was considered never to have taken place, and the sacrament was considered never to have been given. That is why in such a case (re)marriage 16For instance, the Russian Prince Vladimir was born to his father’s concubine, who wa s a housekeeper of his father’s wife Olga. This origin did not preclude him from being accepted as a son and from inheriting the realm; Nevolin (1851), p. 312. 17Goody (1983), p. 73. 18For these reasons, Charlemagne did not give his daughters away in marriage, but gave them as concubines in order to limit the number of potential heirs; Duby (1985), p. 58. 19Goody (1983), p. 77. 20Grubbs (1995), pp. 226-227. 21Idem, pp. 228-229. 22Matthew 19, 8-9. 23Of most influence in this respect was the struggle of Emperor Leo VI to have his second marriage blessed at the end of the 9th century; Troitskii (1995), p. 192
was possible. 24 This was more than a technicality. In the course of the Middle Ages, the prohibited degrees of consanguinity, affinity and spiritual affinity (created by baptising)were extended in such a manner25 that most noble families were related to each other within a prohibited degree. 26 Although the priests were obliged to make a genealogical inquiry before celebrating marriage, the prohibitions were often violated. 27 Sometimes this was wilfully done to ensure the possibility of d issolving the marriage. Duby cites an illustrative letter from a 12th century knight who remarks about his prospective wife: Without any doubt she is related to me within the third degree. That is not close enough to stay away from her. But if I want, and if she does not suit me, I can, on the basis of this relationship, obtain a divorce. 28 As a result the difference between the Catholic and Orthodox canon rules on the termination of marriage was less significant than it seems. The possibility of annulling an endogamous marriage in Western Europe had almost the same practical meaning as the limited possibility of divorce in the case of adultery in Eastern Europe As this brief summary of the formation of med ieval ecclesiastical marriage law shows Catholic and Orthodox canon marriage law was, in spite of a formally different approach to the constitutive elements of marriage and to the admissibility of divorce, in effect very much alike. Both gave marriage a closed, strongly institutionalised character 2. From pre-Christian law via canon unification to modern times: A helical process? In a way, the comparison of medieval ecclesiastical marriage and divorce law with pre-Christian law and current law evokes the image of a circular movement, or better still, of a spiral. Pre-Christian family law, with its informal rules on the formation of marriage, easy divorce, tolerance towards concubinage and acceptance of illegitimate children, resembles modern family law much more than medieval law. The difference between pre-Christian and modern law is of course tremendous because we are talking about completely different societies, but still the similarities are striking. The development of marriage and divorce law from the middle ages to the present can be seen as the gradual return to the informality of pre-Christian times, but on a different level; thus the use of a spiral as a metaphor. The most illustrative examples of this return to informality are some radical changes introduced during the french and russian revolutions What is the place of the medieval canonical unification in the overall line of the development of family law? What were the reasons for the unification? Should it be seen as a temporary regress or a necessary step forward? There is no simple answer to these questions It was a crucial period in the history of family law, a time of unity when there were as yet no significant differences, a kind of ius commune of family law. It was also the period in which many concepts were formed that have been dominating family law almost until the present That is why medieval law is so often, consciously or unconsciously, used as a point of reference in debates about the modernisation of family law. 29 I think that medieval family 24Duby(1985p.179 25From the third degree in the 6th century to the seventh degree in the 12th century; Goody (1983), p. 56 6 Dispensation was possible up to the fourth degree 27Idem, p. 145 Duby(1985),p 221(my translation) 9To my mind, this is a vulnera ble point in the analysis of willekens, who tries to explain the changes in family
was possible.24 This was more than a technicality. In the course of the Middle Ages, the prohibited degrees of consanguinity, affinity and spiritual affinity (created by baptising) were extended in such a manner25 that most noble families were related to each other within a prohibited degree.26 Although the priests were obliged to make a genealogical inquiry before celebrating marriage, the prohibitions were often violated.27 Sometimes this was wilfully done to ensure the possibility of dissolving the marriage. Duby cites an illustrative letter from a 12th century knight who remarks about his prospective wife: ‘Without any doubt she is related to me within the third degree. That is not close enough to stay away from her. But if I want, and if she does not suit me, I can, on the basis of this relationship, obtain a divorce.’28 As a result, the difference between the Catholic and Orthodox canon rules on the termination of marriage was less significant than it seems. The possibility of annulling an endogamous marriage in Western Europe had almost the same practical meaning as the limited possibility of divorce in the case of adultery in Eastern Europe. As this brief summary of the formation of medieval ecclesiastical marriage law shows, Catholic and Orthodox canon marriage law was, in spite of a formally different approach to the constitutive elements of marriage and to the admissibility of divorce, in effect very much alike. Both gave marriage a closed, strongly institutionalised character. 2. From pre-Christian law via canon unification to modern times: A helical process? In a way, the comparison of medieval ecclesiastical marriage and divorce law with pre-Christian law and current law evokes the image of a circular movement, or better still, of a spiral. Pre-Christian family law, with its informal rules on the formation of marriage, easy divorce, tolerance towards concubinage and acceptance of illegitimate children, resembles modern family law much more than medieval law. The difference between pre-Christian and modern law is of course tremendous because we are talking about completely different societies, but still the similarities are striking. The development of marriage and divorce law from the Middle Ages to the present can be seen as the gradual return to the informality of pre-Christian times, but on a different level; thus the use of a spiral as a metaphor. The most illustrative examples of this return to informality are some radical changes introduced during the French and Russian Revolutions. What is the place of the medieval canonical unification in the overall line of the development of family law? What were the reasons for the unification? Should it be seen as a temporary regress or a necessary step forward? There is no simple answer to these questions. It was a crucial period in the history of family law, a time of unity when there were as yet no significant differences, a kind of ius commune of family law. It was also the period in which many concepts were formed that have been dominating family law almost until the present. That is why medieval law is so often, consciously or unconsciously, used as a point of reference in debates about the modernisation of family law.29 I think that medieval family 24Duby (1985), p. 179. 25From the third degree in the 6th century to the seventh degree in the 12th century; Goody (1983), p. 56. 26Dispensation was possible up to the fourth degree. 27Idem, p. 145. 28Duby (1985), p. 221 (my translation). 29To my mind, this is a vulnerable point in the analysis of Willekens, who tries to explain the changes in family
law should certainly not be seen as a kind of degrad ation or regress. It perfectly suited the medieval society of the time. The political background of the formation of this law was the political power of the Church that was strong enough to introduce and to enforce uniform rules. The ideological background of the unification was the- at that time still almost undisturbed -unity of the Christian belief. Mystique and dogmatism were inherent to the society of that time. As soon as the canon concept of marriage as a sacrament had taken root, it was accepted by the population as self-evident The political and ideological influence of the Church may explain the fact of the unification, though not the substance of the uniform law. To explain this substance is not easy For some innovations the background is more or less clear. To declare marriage a sacrament granted it an appropriate position in the set of values of that time. The institutionalisation of marriage, the banning of concubinage and the bastardisation of children born outside wedlock cannot be understood apart from the so-called feudal revolution: the introduction of the feudal system with the right of succession belonging to the first-born as its corner stone Around the 11th century, the horizontal, cognate family structure of Carolingian times, in which male and female heirs were equal, was replaced by the vertical, agnate family structure in which only the male line was important and male heirs were privileged. 30 The goal of this change was to limit the amount of heirs in order to prevent the further division of land. The restrictions of family law served the same purpose Other features of canon law are more difficult to explain. Uphold ing the requirement of free consent to marriage clearly ran against the interest of the feudal families to have as much room as possible for the arrangement of strategic marriages between the noble clans The only explanation I can suggest lies in Christian ideology on the issue of free consent. The free will as one of the central concepts of Christian philosophy was required for the other sacraments, baptising and communion. It seems logical that marriage, once proclaimed as sacrament, also fell under this requirement. The impossibility of repudiating a childless wife and to remarry, or to conclude endogamous marriages, also ran against the crucial needs of the feudal families, because it made it more difficult to keep the land within the clan. In this light, the -to my taste, a bit too cynical -explanation by Goody, who suggests the Churchs craving for power behind these changes, 31 is not convincing. By declaring marriage to be indissoluble, the Church diminished its own possibilities of profiting from its prerogative to grant or refuse divorce. The only explanation I can suggest is that the concept of marriage as a sacrament compelled the Church to consider it to be indissoluble Though the background of the medieval unification leaves us with more questions than answers, one can observe that it was rather multicoloured. Economic and ideological factors were interweaving and complementing one another 3. The medieval dogmas: Obstacles to modern person-orientated family law The uniformity of canon marriage and divorce law only lasted until the Reformation. From law by way of the changes in the social function of the family. Willekens starts his analysis from the function of the family in the agrarian societies at the beginning of the 18th century when, as in the feudal period, land was of primary econom ic importance. I wonder whether the function of the family in those days differed so much from the Roman society of the classical period, which was also in essence agrarian, and whether this difference could expla in the informa lity of family law and the low level of institutiona lisation of marriage Duby(1985)pp.110-111 3 Goody(1983)pp.44-45,145
law should certainly not be seen as a kind of degradation or regress. It perfectly suited the medieval society of the time. The political background of the formation of this law was the political power of the Church that was strong enough to introduce and to enforce uniform rules. The ideological background of the unification was the - at that time still almost undisturbed - unity of the Christian belief. Mystique and dogmatism were inherent to the society of that time. As soon as the canon concept of marriage as a sacrament had taken root, it was accepted by the population as self-evident. The political and ideological influence of the Church may explain the fact of the unification, though not the substance of the uniform law. To explain this substance is not easy. For some innovations the background is more or less clear. To declare marriage a sacrament granted it an appropriate position in the set of values of that time. The institutionalisation of marriage, the banning of concubinage and the bastardisation of children born outside wedlock cannot be understood apart from the so-called feudal revolution: the introduction of the feudal system with the right of succession belonging to the first-born as its corner stone. Around the 11th century, the horizontal, cognate family structure of Carolingian times, in which male and female heirs were equal, was replaced by the vertical, agnate family structure, in which only the male line was important and male heirs were privileged.30 The goal of this change was to limit the amount of heirs in order to prevent the further division of land. The restrictions of family law served the same purpose. Other features of canon law are more difficult to explain. Upholding the requirement of free consent to marriage clearly ran against the interest of the feudal families to have as much room as possible for the arrangement of strategic marriages between the noble clans. The only explanation I can suggest lies in Christian ideology on the issue of free consent. The free will as one of the central concepts of Christian philosophy was required for the other sacraments, baptising and communion. It seems logical that marriage, once proclaimed as a sacrament, also fell under this requirement. The impossibility of repudiating a childless wife and to remarry, or to conclude endogamous marriages, also ran against the crucial needs of the feudal families, because it made it more difficult to keep the land within the clan. In this light, the - to my taste, a bit too cynical - explanation by Goody, who suggests the Church’s craving for power behind these changes,31 is not convincing. By declaring marriage to be indissoluble, the Church diminished its own possibilities of profiting from its prerogative to grant or refuse divorce. The only explanation I can suggest is that the concept of marriage as a sacrament compelled the Church to consider it to be indissoluble. Though the background of the medieval unification leaves us with more questions than answers, one can observe that it was rather multicoloured. Economic and ideological factors were interweaving and complementing one another. 3. The medieval dogmas: Obstacles to modern person-orientated family law The uniformity of canon marriage and divorce law only lasted until the Reformation. From law by way of the changes in the social function of the family. Willekens starts his analysis from the function of the family in the agrarian societies at the beginning of the 18th century when, as in the feudal period, land was of primary economic importance. I wonder whether the function of the family in those days differed so much from the Roman society of the classical period, which was also in essence agrarian, and whether this difference could explain the informality of family law and the low level of institutionalisation of marriage. 30Duby (1985), pp. 110-111. 31Goody (1983), pp. 44-45, 145
then on, the regulations of the various protestant Churches and the secular laws of the advancing national states led to increasing divergence, although the direction of the changes was essentially the same. The end of uniformity did not mean the end of the dominance of the ecclesiastical concepts of the Middle Ages. Although the Protestant countries rejected the sacral character of marriage and the principle of its indissolubility, most of the canon heritage survived. As Glendon puts it: [SEcular government simply took over much of the ady-made set of the canon law. 32 With the differentiation within the Church and the Enlightenment, ideological pluralism increased, and it became more and more difficult for the state to justify the canonical concepts it had taken over. The unity of ideology and belief. so typical for the Middle Ages, was now gone. Canonical concepts such as marriage as a monogamous union for life, the unacceptability of concubinage, the prohibition of consensu divorce and the exclusion of illegit imate children from the family structure, gradually lost their self-evidence. Nonetheless, they were upheld for a considerable time, much longer than other medieval political and religious dogmas. Subject to serious discussion for the first time during the French Revolution, they again ruled almost uncontested for a long time thereafter They remained an inseparable part of the status quo. In the absence of a rational explanation (apart from an appeal to religion), these concepts were partly accepted as self-evident because of an unawareness that they had not always existed they were partly seen as features of a highly developed civilisation. They only came seriously under fire towards the end of the 19th century One of the possible reasons for this late liberalisation of family law is the remarkable time difference between the progress of liberal ideas about public life and the progress of the same ideas about life in the private sphere. The ideas of the Enlightenment were primarily focused on the rights and freedoms of the individ ual as a citizen, not of the individual as nal private person. The family remained part of the private domain where individualism, perso freedom and equal ity were acknowledged much later. AsO Donovan observes: Read ings of the major social contract theorists from Hobbes to Rousseau confirm that the family is taken as natural, as pre-given. Marriage, foundation of family, ensures the subord ination of women, which is presented as inevitable. The free individuals who contact in the social contract are male 33 On the same grounds, Okin doubts the universalism of Kant's ethic. Kants use of gender-neutral terms serves, in her eyes, only to cover the fact that he did not extrapolate his conclusions to women. 34 The same applies to classical liberalism.35 Although Locke was one of the first to defend the contractual nature of marriage, he thought it to be self-evident that women and children fell under the authority of men. 36 Only in the 19th century did mill explicitly apply liberal ideas to women. But even he remained reticent about one of the most prominent dilemmas of that time: the admissibility of consensual divorce. 37 Feminist writers 5ODonovan(1993), p.88 4okin(1989)p.91 SSee Freeman(1994), pp 23-25 36In Locke's view, because in the absence of consensus between husband and wife the last determ ination (i.e the rule) should be placed somewhere, it naturally falls to the mans share as the abler and stronger'; Locke (1970),p.157 37Mill(1974), p 33. See also the introduction to this book by w.R. Carr,p.vi
then on, the regulations of the various Protestant Churches and the secular laws of the advancing national states led to increasing divergence, although the direction of the changes was essentially the same. The end of uniformity did not mean the end of the dominance of the ecclesiastical concepts of the Middle Ages. Although the Protestant countries rejected the sacral character of marriage and the principle of its indissolubility, most of the canon heritage survived. As Glendon puts it: ‘[S]ecular government simply took over much of the ready-made set of the canon law.’32 With the differentiation within the Church and the Enlightenment, ideological pluralism increased, and it became more and more difficult for the state to justify the canonical concepts it had taken over. The unity of ideology and belief, so typical for the Middle Ages, was now gone. Canonical concepts such as marriage as a monogamous union for life, the unacceptability of concubinage, the prohibition of consensual divorce and the exclusion of illegitimate children from the family structure, gradually lost their self-evidence. Nonetheless, they were upheld for a considerable time, much longer than other medieval political and religious dogmas. Subject to serious discussion for the first time during the French Revolution, they again ruled almost uncontested for a long time thereafter. They remained an inseparable part of the status quo. In the absence of a rational explanation (apart from an appeal to religion), these concepts were partly accepted as self-evident because of an unawareness that they had not always existed; they were partly seen as features of a highly developed civilisation. They only came seriously under fire towards the end of the 19th century. One of the possible reasons for this late liberalisation of family law is the remarkable time difference between the progress of liberal ideas about public life and the progress of the same ideas about life in the private sphere. The ideas of the Enlightenment were primarily focused on the rights and freedoms of the individual as a citizen, not of the individual as a private person. The family remained part of the private domain where individualism, personal freedom and equality were acknowledged much later. As O’Donovan observes: ‘Readings of the major social contract theorists from Hobbes to Rousseau confirm that the family is taken as natural, as pre-given. Marriage, foundation of family, ensures the subordination of women, which is presented as inevitable. The free individuals who contact in the social contract are male.’33 On the same grounds, Okin doubts the universalism of Kant’s ethic. Kant’s use of ‘gender-neutral terms’ serves, in her eyes, only to cover the fact that he did not extrapolate his conclusions to women.34 The same applies to classical liberalism.35 Although Locke was one of the first to defend the contractual nature of marriage, he thought it to be self-evident that women and children fell under the authority of men.36 Only in the 19th century did Mill explicitly apply liberal ideas to women. But even he remained reticent about one of the most prominent dilemmas of that time: the admissibility of consensual divorce.37 Feminist writers 32Glendon (1989), p. 31. 33O’Donovan (1993), p. 88. 34Okin (1989), p. 91. 35See Freeman (1994), pp. 23-25. 36In Locke’s view, because in the absence of consensus between husband and wife ‘the last determination (i.e., the rule) should be placed somewhere, it naturally falls to the man’s share as the abler and stronger’; Locke (1970), p. 157. 37Mill (1974), p. 33. See also the introduction to this book by W.R. Carr, p. vii
criticised Mill because his striving for female equality still mainly concerned public life Private life and the family remained largely on the periphery of his attention. 3& Feminist criticism of liberalism usually focused on the fact that the inequality of women was generally neglected. But when things went wrong, the family was a cage for two Conservatism in family and private life was perhaps more to the detriment of women than of men, but it did affect men too. The man was equally deprived of the possibility of escaping a broken marriage or to legitimise children born out of wed lock The long-stand ing disregard of the family and the private sphere by liberal philosophy was part of the ideological background of the phenomenon that med ieval concepts prevailed much longer in family law than in society in general. It also probably forms at least a part of place in the countries that were most influenced by classical liberal philosopy o d not take the explanation for the fact that the first and most radical reforms of family law d Also illustrative of the late liberalisation of family and private life is the development of the ideas about the place of romantic love. In days gone by, the family was the domain of duties, not of feelings. Affection was desirable but not necessary. With the growth of prosperity and the change of the social function of the family, which no longer formed the basic economic unit, 4o the pressure imposed by duties diminished and more room was given to personal freedom. For the first time in history, romantic love entered the family. Before that time, the place for romantic love was normally envisaged outside the family. The courtly love of the troubadours was not directed towards one's own spouse. Tristan and isolde Lancelot en Guinevere were lovers, not spouses. Only in the 19th century did romantic love raise its banner within the family. The literature of that century shows a wide range of desperate conflicts between romantic love and one of the central canonical dogmas the inadmissibility of consensual divorce. Galsworthy's Forsyte Saga, Flaubert's L Education sentimentale and Tolstoys Anna Karenina and The Living dead are just a few well-known examples. This conflict raged for 150 years until only in the 1960s, with the acceptance of consensual divorce, love became the true basis for the family With individualism and personal freedom invading the family, the ideas concerning its social function and its whole image changed The family came to be regarded as a union based on love, its primary purpose being to serve the happiness of its members. This change from a transpersonal to a personalistic approach is, to my mind the most important transformation that has occurred in family law over the last two centuries. The essence of transpersonalism is the sacrificing of the interests of individuals to abstract values. This attitude was typical of med ieval society but in the private sphere it has dominated well into modern times. Family law was one of its last resorts. An everyday example of the endurance of transpersonalism can be found in the words of the Dutch Minister of Justice delivered in 1947, who stated that"It ] he acceptance of a monogamous marriage as the socially recognised form of cohabitation of man and woman, logically brings about that a difference must be made between children in and out of wed lock. Not because the legislator does not have any compassion with these indeed innocent children.. but because the interest of society as a whole in the preservation of the respect for the institution of marriage, has priority over the individual interests of those persons 41. The abstract interests of society as envisaged in this 38O'Donovan(1985), p. 8 39See also Willekens(1997), p. 77 40 Willekens(1997),pp.80-83 4 Asser/Wiarda(1957), pp 496-497(my translation; emphasis added)
criticised Mill because his striving for female equality still mainly concerned public life. Private life and the family remained largely on the periphery of his attention.38 Feminist criticism of liberalism usually focused on the fact that the inequality of women was generally neglected. But when things went wrong, the family was a cage for two. Conservatism in family and private life was perhaps more to the detriment of women than of men, but it did affect men too. The man was equally deprived of the possibility of escaping a broken marriage or to legitimise children born out of wedlock. The long-standing disregard of the family and the private sphere by liberal philosophy was part of the ideological background of the phenomenon that medieval concepts prevailed much longer in family law than in society in general. It also probably forms at least a part of the explanation for the fact that the first and most radical reforms of family law did not take place in the countries that were most influenced by classical liberal philosophy.39 Also illustrative of the late liberalisation of family and private life is the development of the ideas about the place of romantic love. In days gone by, the family was the domain of duties, not of feelings. Affection was desirable but not necessary. With the growth of prosperity and the change of the social function of the family, which no longer formed the basic economic unit,40 the pressure imposed by duties diminished and more room was given to personal freedom. For the first time in history, romantic love entered the family. Before that time, the place for romantic love was normally envisaged outside the family. The courtly love of the troubadours was not directed towards one’s own spouse. Tristan and Isolde, Lancelot en Guinevere were lovers, not spouses. Only in the 19th century did romantic love raise its banner within the family. The literature of that century shows a wide range of desperate conflicts between romantic love and one of the central canonical dogmas: the inadmissibility of consensual divorce. Galsworthy’s Forsyte Saga, Flaubert’s L’Éducation sentimentale and Tolstoy’s Anna Karenina and The Living Dead are just a few well-known examples. This conflict raged for 150 years until only in the 1960s, with the acceptance of consensual divorce, love became the true basis for the family. With individualism and personal freedom invading the family, the ideas concerning its social function and its whole image changed. The family came to be regarded as a union based on love, its primary purpose being to serve the happiness of its members. This change from a transpersonal to a personalistic approach is, to my mind, the most important transformation that has occurred in family law over the last two centuries. The essence of transpersonalism is the sacrificing of the interests of individuals to abstract values. This attitude was typical of medieval society, but in the private sphere it has dominated well into modern times. Family law was one of its last resorts. An everyday example of the endurance of transpersonalism can be found in the words of the Dutch Minister of Justice delivered in 1947, who stated that ‘[t]he acceptance of a monogamous marriage as the socially recognised form of cohabitation of man and woman, logically brings about that a difference must be made between children in and out of wedlock . . . Not because the legislator does not have any compassion with these indeed innocent children . . . but because the interest of society as a whole in the preservation of the respect for the institution of marriage, has priority over the individual interests of those persons’ 41. The abstract interests of society as envisaged in this 38O’Donovan (1985), p. 8. 39See also Willekens (1997), p. 77. 40Willekens (1997), pp. 80-83. 41Asser/Wiarda (1957), pp. 496-497 (my translation; emphasis added)
purely moral judgement concerning monogamy is given priority over the interests of innocent children. That is transpersonalism pur sang. This approach, prevailing until so recently, is still based on the medieval concept of marriage, although the author himself will hardly have been aware of this link The personalistic approach is also as old as the world itself. It is one of the cornerstones of Christian philosophy. 42 The essence of personalism is that the interests of the individual receive priority over abstract moralistic values. Because the abstract values in question were based on the old patriarchal family morals inherited from the Middle Ages, the ift to the personalistic attitude is often described as the liberalisation of family law from the influence of morality. 43 In fact, family law was merely released from the old family morals in favour of a new, person-orientated morality, based on an ideology of tolerance. 44 The moral d imension of family law is inevitable: the choice for the individual and his/her interests is the choice for a morality of another kind. 45 4. From the medieval uniform law to the diversity of modern times: Difference in timing, resemblance in substance The liberation from the medieval heritage took place in all European countries without exception, and is not entirely complete even tod ay. The driving forces(notions of personal freedom, autonomy and the equality of men and women) and the direction( towards a person-orientated family law)were the same everywhere, but the process was far from being synchronised in the various countries. 46 The beginning of the 20th century witnessed an accelerating process of liberalisation of family law that had previously dragged on so slowly From that time onwards, a distinction can be made between countries in the vanguard and those in the rearguard. The Scandinavian countries, the Soviet Union and the Eastern European countries led the way, the South European countries held up the rear, and the rest of Europe can be placed somewhere in between. 47 The countries where a rad ical reform of family law took place earliest were Portugal, Scandinavia and the Soviet Union. For those who try to explain the development of family law by way of economic ad vancement, the composition of this group of countries must be something of a mystery. Of all places, it was in agrarian Catholic Portugal that, after the 42 The Sabbath was made for man and not man forthe sabbath' 4 De ruiter(1990),pp.195-200 44Eg, Shultz formulates this as follows: " [S]pecific prescriptions about right and wrong must be replaced by a new credo: tolerance of individual variations and values. In the same way, if individual fulfilment is the ultimate value, then pursuit of it justifies sacrificing such goals as permanence [of marriage]: Shultz(1982),p. 251 45 An example is the objective of the Swedish legislator not to give marriage any privileges above unmarried cohabitation in order not to impose any moral or ethical judgments; Agell (1998), pp. 128-129. To my mind, his objective can also be seen as the choice for another, tolerance-based morality 46The scope of this article forces me to skip a few centuries(although the family legislation of the French revolution and the Prussian Allgemeines Landrecht of 1794 were of great importance for the process of the modemisation of family law)and to jump to the 20 century 47This, of course, is a rather simplistic sketch of a more complicated situation. East-European law was not modern in all respects. Portugal was the first country where radical reform, albeit not lasting reform, took place In some other countries, the modernity of family law differed significantly from one particular institution to another
purely moral judgement concerning monogamy is given priority over the interests of innocent children. That is transpersonalism pur sang. This approach, prevailing until so recently, is still based on the medieval concept of marriage, although the author himself will hardly have been aware of this link. The personalistic approach is also as old as the world itself. It is one of the cornerstones of Christian philosophy.42 The essence of personalism is that the interests of the individual receive priority over abstract moralistic values. Because the abstract values in question were based on the old patriarchal family morals inherited from the Middle Ages, the shift to the personalistic attitude is often described as the liberalisation of family law from the influence of morality.43 In fact, family law was merely released from the old family morals in favour of a new, person-orientated morality, based on an ideology of tolerance.44 The moral dimension of family law is inevitable: the choice for the individual and his/her interests is the choice for a morality of another kind.45 4. From the medieval uniform law to the diversity of modern times: Difference in timing, resemblance in substance The liberation from the medieval heritage took place in all European countries without exception, and is not entirely complete even today. The driving forces (notions of personal freedom, autonomy and the equality of men and women) and the direction (towards a person-orientated family law) were the same everywhere, but the process was far from being synchronised in the various countries.46 The beginning of the 20th century witnessed an accelerating process of liberalisation of family law that had previously dragged on so slowly. From that time onwards, a distinction can be made between countries in the vanguard and those in the rearguard. The Scandinavian countries, the Soviet Union and the Eastern European countries led the way, the South European countries held up the rear, and the rest of Europe can be placed somewhere in between.47 The countries where a radical reform of family law took place earliest were Portugal, Scandinavia and the Soviet Union. For those who try to explain the development of family law by way of economic advancement, the composition of this group of countries must be something of a mystery. Of all places, it was in agrarian Catholic Portugal that, after the 42‘The Sabbath was made for man, and not man for the Sabbath.’ 43De Ruiter (1990), pp. 195-200. 44E.g., Shultz formulates this as follows: ‘[S]pecific prescriptions about right and wrong must be replaced by a new credo: tolerance of individual variations and values. In the same way, if individual fulfilment is the ultimate value, then pursuit of it justifies sacrificing such goals as permanence [of marriage]’; Shultz (1982), p. 251. 45An example is the objective of the Swedish legislator not to give marriage any privileges above unmarried cohabitation in order not to impose any moral or ethical judgments; Agell (1998), pp. 128-129. To my mind, this objective can also be seen as the choice for another, tolerance-based morality. 46The scope of this article forces me to skip a few centuries (although the family legislation of the French revolution and the Prussian Allgemeines Landrecht of 1794 were of great importance for the process of the modernisation of family law) and to jump to the 20th century. 47This, of course, is a rather simplistic sketch of a more complicated situation. East-European law was not modern in all respects. Portugal was the first country where radical reform, albeit not lasting reform, took place. In some other countries, the modernity of family law differed significantly from one particular institution to another