A 1909 article on the courts by political scientist W. F. Dodd observed that “In this field [public policy] decisions of the courts necessarily depend not upon any fixed rules of law but upon the individual opinions of the judges on political and economic questions; and such decisions, resting, as they must, upon no general principles, will be especially subject to reversal or modification when changes take place in the personnel of the courts.” Dodd presciently encapsulated what became the standout theme surrounding the twentieth-century Supreme Court. This chapter conveys how judging and judges on the Supreme Court in several different ways came to be perceived in instrumental terms. The events covered are the 1937 Court Packing Plan and its aftermath, the reforms brought by the Warren Court, and the backlash against those reforms as they played out in connection with later Supreme Courts, leading up to the present.

Court packing plan

President Franklin D. Roosevelt's failed 1937 “court packing plan” has been characterized as a “great constitutional war,” which culminated in a “constitutional revolution.” It was the closest the country had come to a genuine constitutional crisis since the Civil War and Reconstruction.

Roosevelt's New Deal legislative program was an attempt to find solutions to the ongoing economic crisis and to ameliorate the most desperate social and economic consequences that continued to linger from the recent Depression.

The U.S. legal system, to put it dramatically, is in danger of becoming less of a system of law. Concentrating on judging, this assertion will be demonstrated through two themes that have shown up at various points throughout this book. The first theme is that the rule-bound character of the legal system is reduced when achieving purposes or focusing on ends becomes the paramount goal of judges in their decisions. The second theme is that a legal system requires that judges render decisions according to the applicable rules, not according to their own political views or preferences. It is antithetical to the very notion of “the rule of law” for legal decisions to be determined by the personal views of the individual judge. Both of these themes raise vexing issues about the separation of law and politics in the decision-making of judges. The legal quality of the system – the reality of the rule of law – hinges upon how these issues are dealt with in contemporary law.

Antithesis between rule-bound and purpose orientation

Friedrich Hayek offered a highly influential definition of the rule of law: “Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced before-hand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge.”

An instrumental view of law – the idea that law is a means to an end – is taken for granted in the United States, almost a part of the air we breathe. This operates in various ways: as an account of the nature of law, as an attitude toward law that professors teach students, as a form of constitutional analysis, as a theoretical perspective on law, as an orientation of lawyers in their daily practice, as a strategic approach of organized groups that use litigation to further their agendas, as a view toward judges and judging, as a perception of legislators and administrators when enacting laws or regulations. In all of these contexts, people see law as an instrument of power to advance their personal interests or the interests or policies of the individuals or groups they support. Today, law is widely viewed as an empty vessel to be filled as desired, and to be manipulated, invoked, and utilized in the furtherance of ends.

A few centuries ago, in contrast, law was widely understood to possess a necessary content and integrity that was, in some sense, given or predetermined. Law was the right ordering of society binding on all. Law was not entirely subject to our individual or group whims or will. There were several versions of this. Law was thought to consist of rules or principles immanent within the customs or culture of the society, or of God-given principles disclosed by revelation or discoverable through the application of reason, or of principles dictated by human nature, or of the logically necessary requirements of objective legal concepts.

Although non-instrumental views of law were widely repeated through the end the nineteenth century, as the foregoing two chapters establish, in two important arenas instrumental views of law had already take hold earlier. Legislation was seen in throughly instrumental terms throughout this period, and expanded in volume and significance with the passage of time; the practice of law, in crucial respects, was also described and perceived in instrumental terms. Both of these arenas of instrumental understandings of law – explored in this chapter – fed into and set up the more pervasive instrumentalism to come in the twentieth century.

Contest between legislation and common law

In eighteenth-century England, and for at least a century before that, legislation was an increasing source of law-making. Classical views of the common law allowed little place for the active creation of law by legislation, however. Within the common law tradition, the proper role of legislation was mainly to declare preexisting customary law (although it often did more than that). Jurists claimed that the common law was coherent, ordered, and comprehensive. Legislation posed a threat to the systematic and rational nature of the common law. Jurists accorded supremacy in the hierarchy of law-making to the common law, for only common law judges were trained in rational science of law, not legislators, and only judges could be trusted to faithfully recognize the customs of the people. Judges were openly hostile to the increase in the frequency and scope of legislation, which they opposed at every turn.

In the past two-hundred-plus years, the period traced out in this book, the U.S. legal culture has been deprived of two sets of ideals that provided the foundation for law for more than a millennium. Both of these sets of ideals, in different ways, were central to the rule of law.

The defining characteristic of the first set of ideals was that law consists of fundamental principles that even the sovereign law-maker is bound to obey. This was the classical understanding of the rule of law – the notion that there are legal limits on law itself. The non-instrumental views of law described in the first chapter – divine law, natural principle, reason, customs descended from time immemorial – were the source of these controlling legal principles. Owing to these qualities, it was thought, the law had a built-in integrity, a core of good and right. These non-instrumental views of law grounded, provided content for, and set limits on the law itself. The shift to an instrumental understanding of law had the effect, therefore, of removing a foundational source of grounding, content, and limits on the law, leaving law an empty vessel without built-in restraints.

The defining characteristic of the second set of ideals was that law represents the common good or public welfare. This quality made the law of and for the community, deserving of obedience by citizens.

Today there is an incalculably mammoth amount of state and federal legislation, covering virtually every conceivable subject, and an immense volume of administrative law, with more than seventy-five thousand pages of administrative rules, regulations, and proceedings published each year in the Federal Register. Administrative agencies gather knowledge and apply scientific expertise to establish regulatory schemes that effectuate legislative policies, and to monitor the achievement of legislatively established goals. Administrative law is thus a purely instrumental creature, created to carry out legislatively determined ends. Legislation, as Part 1 conveys, as been understood in consummately instrumental terms as well, for more than two centuries.

Battles over and through legislation and administrative regulations are no novelty. James Madison warned in Federalist 10 of the dangers of competing “factions,” which had already made their presence felt in the state legislatures of the day. These battles were especially heated at the outset of the twentieth century. Louis Jaffe wrote in the 1937 Harvard Law Review:

Hence, the group conflict happening today in the legislation and administrative regulatory arenas is old stuff. This is not to say, however, that what is happening today is not different in any significant respects from the past.

It is characteristic of non-instrumental views that the content of law is, in some sense, given; that law is immanent; that the process of law-making is not a matter of creation but one of discovery; that law is not the product of human will; that law has a kind of autonomy and internal integrity; that law is, in some sense, objectively determined.

In the Medieval period in Europe, two distinct but commingled types of law possessed these characteristics. The first type was natural law and divine law in the Catholic tradition – the Ten Commandments, for example. Divine and natural law were thought to be binding upon and to be infused in the positive law that governed society. They were pre-given by God and were the product of God's will, unalterable by man. They were objective in that they constituted absolute moral and legal truths that were binding on all, providing the content of and setting limits upon positive law. These laws and principles were disclosed through revelation (mainly scripture) and discerned through the application of reason implanted in man by God. As medieval scholar Walter Ullmann put it, “the law itself as the external regulator of society was based upon faith. Faith and law stood to each other in the relation of cause and effect effect.”

The second type was customary law. Everyday life during the Medieval period was governed by customary law, or, more accurately, by overlapping and sometimes conflicting regimes of customary law: feudal law, the law of the manor, Germanic customary law, residues of Roman law, trade customs, and local customs.

Rates of marriage are declining in the European Union. Rates of divorce in some member states are increasing rapidly. Rates of cohabitation are escalating. It seems, in fact, that the institution of marriage is unpopular, and increasingly so. Or, is it? Both the Netherlands and Belgium have introduced marriage for same-sex couples, and a significant number of member states now provide some form of legal recognition of same-sex relationships. Contradictions abound: the European Convention on Human Rights and the Union's Charter of Fundamental Rights both declare the ‘right to marry’ and prohibit discrimination on the grounds of sexual orientation. Yet, the Court of Justice and the Court of Human Rights refuse to define gay and lesbian partnerships as families and defend marriage as the preserve of heterosexual couples only.

In such a complex, controversial and empirically challenging context, what is the role of law and, in particular, the role of European Union law in the regulation of intimate relationships? The answer to such a question is not immediately apparent. It may be desirable that there is no regulation of intimate relations at the Union level, but this is not realistic in view of the competence of the Union. In the fields of equality, free movement, immigration, asylum and judicial co-operation, to name just a few areas, it is simply not possible for the Union to avoid encroaching on personal relationships.

Any study of European Union law must be set within a theoretical framework. Accordingly, the aim of this and the following chapter is to establish just such a framework, laying the foundations for the subsequent examination of the concept of family and emerging family law of the Union. This chapter begins by offering a brief sketch of recent jurisprudential debates regarding the nature and future of European legal integration. This is an essential precursor to the subsequent section which proposes a human rights foundation for analysing concepts of family and as a basis for the Union's family law.

Positivism, pluralism and the jurisprudence of the European Union

During the previous decade or more, the impact of European integration on established jurisprudential paradigms has become ever more apparent. In simple terms, nothing really seems to fit any more. On the one hand, classical legal positivism, so dependent upon conceptions of unitary sovereignty, coherent systems, hierarchies and rules, suddenly appears to be hopelessly arcane. On the other, the more radical postmodern critique, whilst celebrating this apparent incoherence, rarely seems capable of answering the more pressing policy questions.

The aim of this section is to suggest that the way forward lies between these extremes, with a system of rules that is better able to address the questions of particularity and ‘otherness’ that underpin the postmodern critique and which moves away from the paradigms of positivism. This is a solution which caters to reality. The new Europe is very much a legalistic Europe.

The ‘dominant ideology of the family’ is that of a white, heterosexual, married couple, with children, all living under the same roof, where the husband is the main breadwinner and the wife the primary carer of children and other dependants. In other terminology, this is, of course, the traditional nuclear family. This is ‘the family’ which frames debates on families and family law and it is the ideal against which other family forms and practices are measured. It is also ‘the family’ which bears little comparison to the realities of family life in Europe today, yet it continues to exert significant force over judicial reasoning and legislative activity. This chapter examines, first, the dominant ideology of the family, before going on to outline the realities of family life, the new sociological explanations for changes in family practices and the new and emerging ideals of family life. It is argued that the European Union must embrace a more diverse, pluralist concept of family which should then form the basis for its regulation of families and emerging family law.

The dominant ideology of the family

The dominant ideology of the family reproduces stereotypes and norms for women, men and families, which may not reflect reality, but which frame discussion of issues and against which the legitimacy of individual claims are judged. As Diana Gittins suggests, the ideology of ‘the family’ has ‘influenced, and continues to influence, social policy and the ways in which laws are formulated and implemented for the population overall’.

When this book was first conceived, my aim was to analyse the concept of family employed in a number of different areas of substantive Community law. The thought of writing a book which also included a detailed discussion of the family law of the European Union never entered my head. If it had, I should have thought it would be a very short book indeed. However, in the late 1990s, when carrying out research for an article on the developing concept of family in European Union law, I came across references to family law in discussions regarding the prospects for a European civil code. The deeper I delved, the more astonished I became. Not only was there already a Matrimonial Convention, but also a proposal to Communitarise it in the form of a regulation. I was very surprised that I had not come across this material before then. Where was the discussion of these extremely important, and potentially very controversial matters, not just in the academy but in public debates more generally? While academic scholarship has caught up with these developments, public debate remains scandalously absent. Indeed, in reality, it is only scholarship in common law countries and in the English language that has ‘caught up’; there has been a long and detailed discussion of family law harmonisation in other European jurisdictions.

When writing, then, in 1999, about the possible creation of a family law for the European Union, I feared I was being too conspiratorial in suggesting such developments.

Unity and diversity. That is indeed what Europe has been and should be about. At present, however, there is a grand debate taking place within the Union over just this theme. To be specific, the question is whether or not we should unify the private laws of Europe, effectively erasing the present diversity and pluralism. That is the extreme end of the debate, with more nuanced approaches focusing on harmonisation, as distinct from unification, and some speaking of a reform of ‘legal science’ such that harmonisation and perhaps unification will come about organically through the work of scholars, teachers and judges. While these debates were initially confined to the fields of tort, contract and commercial law, they are now a feature of family law discussions.

Despite the differences, what remains common to each of these approaches is the belief that some form of greater commonality, on a continuum from harmonisation to unification, is to be encouraged and welcomed. Existing shared norms, in the form of universal human rights principles, are not enough, but are indeed merely the basis, and for some the rationale, for greater assimilation.

The concept of parenthood, the nature of parenting, even who is a parent, are all contested ideas. Many disciplines are grappling with changing realities in relation to parenting, attempting to map developments, contextualise them and examine their effects; the prospects for the future are analysed and prophecies made. In the context of European Union law, however, such rigorous and complex theoretical analyses are largely absent. Partly this is due to the limited competence of the Union to act in the controversial terrain of parenthood. Mostly, however, it is due to a fundamental theoretical failing, to an ignorance of the wider panoply of contexts and circumstances which affect parenthood today. Thus, to the extent that the concept of parenthood, and particularly ideas about motherhood, have come within the competence of Union law and before the Court of Justice, a remarkably narrow and traditional approach has been taken, premised on the ‘dominant ideology of the family’ discussed in chapter 2.

It is imperative that a reconsideration of this limited, atheoretical and apolitical approach to parenthood takes place. The Union must move away from a traditional ideology of motherhood and fatherhood. For law and policy to reproduce, legitimise and promote gender distinctiveness in parenting is to entrench existing patterns which are often discriminatory. The Union must embrace more modern approaches to parenting based on principles of gender neutrality.

In 2000, the European Union adopted its first measure in the field of family law. This was an historic moment. The European Union had crossed the Rubicon: a legal measure had been adopted in a field of law so precious to individuals, families, politicians and so significant in terms of national power and sovereignty. Yet there was no fanfare, nor public protest. Indeed, hardly anyone knew this had happened, even family lawyers. This probably remains the case, even amongst scholars of European Union law. Why? This was because Regulation 1347/2000 on the recognition and enforcement of judgments in matrimonial matters had been adopted as part of a raft of measures designed to facilitate ‘judicial co-operation’ between states in an effort to create an ‘area of freedom, justice and security’. It sounds as anodyne as it was portrayed. While the focus – the fanfares and the protests – are on the immigration and asylum measures of the area of freedom, justice and security, the supposedly more technical field of judicial co-operation gets little attention. This is a terrible error.

The adoption of the Regulation, known as Brussels II, was only the first of a number of family law measures, and for some it represents the first step towards a harmonised or even unified family law for the member states of the European Union.