INTRODUCTION AND OVERVIEW: WHY FAMILY LAW SHOULD BE LINKED TO THE CULTURAL BASICS OF SOCIETY

The aim of my article is to apply the ‘law as culture perspective’ of the Käte Hamburger Center for Advanced Study in the Humanities named ‘Law as Culture’ to questions of family law. I will start with the fundamental question of why culture should matter at all in family law affairs. I shall do this even though the burden of proof seems like it ought to be the other way around, that is one should have to explain why in matters so deeply related to tradition, religion and the nation as family structures and their regulations, culture should not matter at all (section 2). This is indeed not a completely innocent kind of inquiry because there is or has been at least an important debate about the ‘cultural restraints argument’. To answer this question is of crucial importance for the basic orientation of our centre.

All this presupposes that we are talking about the same subject, that is to say that we are treating family – not its normative regulation but the conception of what ‘family’ means – as identical across different times and different civilisations. A look at family semantics in the world could reveal a wide range of differences.

Next I want to remind you of the importance family law had for the founding fathers, sons, nephews and grandchildren of the discipline I try to stand for: sociology. Especially in Durkheim's writings, the analysis of family law is a privileged methodological tool to grasp by way of the law the structures of family life (section 3).

I then have to mention the difference of law in the books and the living law approach in order to foresee what contemporary debates in European family law may mean for this fundamental distinction. We cannot avoid taking a look at the concept of law used in this context. The more we project culture into the concept of law, by way of including symbolic and ritual elements of the force of law, the easier it becomes to retrace the cultural traits of family law as well, without necessarily calling it a constraint (section 4).