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The Social Approach in Family Law: a study of the Family Law treatise tradition of Latin America
Isabel C. Jaramillo
January 18, 2009
Latin American countries do not share a set of rules on marriage, divorce and parent-child relationships that could meaningfully be called Latin American Family Law. However, treatises on Family Law written in each jurisdiction may be understood as part of a regional tradition in the sense that scholars understand their work as situated in a field composed by shared authorities.The possibility of sharing in this way is perceived as related both to the prospect of a transnational or universal debate on Family Law,[1] and to the opportunity of having regional doctrines developed upon similar rules included in the Civil Codes adopted by most Latin American countries in the nineteenth century.[2]
In effect, even though after achieving independence from Spain each of the independent states repealed all colonial legislation and struggled to create rules that would conform to the specificities of each new State and bring much needed progress, Latin American states ended up adopting very similar rules in the realm of civil law.[3]In fact, most countries adopted in the late nineteenth and early twentieth century the draft Civil Codes of Andrés Bello and Dalmacio Vélez Sarsfield.[4] The two jurists, in turn, claimed to have been inspired not only by similar sources (Spanish and Roman Law, the Napoleonic Code, the Civil Code of Louisiana, the works of Portalis and Savigny, among others) but by each other.[5]
The overlaps in legislation regarding marriage, divorce and parent-child relationships became particularly relevant as treatises developed into the dominant form of legal scholarship and the ideal tool for teaching in most countries in the regioncirca 1920.Firstly, because treatises are presented as providing correct interpretations of the rules in force and these rules are mainly understood as included in legislation. Secondly, because treatises aspire to overcome the simplicity of the commentaries by introducing a conceptual structure and using more information to interpret legal rules.[6]
In this paper I will characterize Family Law treatises in Latin America as subscribing four theses about the family, law and legal scholarship: 1) that the family is a “social fact”, “the fundamental nucleus of society”; 2) that family relations are relations of interdependence; 3) that the law must recognize the family as worthy of protection and must regulate family relations attending to the solidarity that informs them; and 4) that legal rules on marriage, divorce and parent-child relationships are the most relevant for families. I will refer to this as the social approach in family law and I will maintain that this approach to family law gathers its energy in Latin Americaby representing itself as the only alternative to individualist and totalitarian approaches to family law and by clinging to social rights rhetoric.
Ipropose that legal scholars in Latin America should pay more attention to the many critiques that have been furthered against the social approach theses at least for three reasons. The first reason is that, for the most part, these theses have progressively become formulas that treatise writers use but do not bother to justify at least by bringing up to date the authorities used. In my opinion, this routinization of the ideas per se has impoverished the debate in family law and calls for a revision of mainstream family law scholarship.The second reason is that this approach has skewed the debate over family law reform toward the issue of what gets labeled as a family, contributing to minimize the importance of understanding and working through rules for conflicts within affective relationships. Finally, critiques of the social approach to family law might illuminate problems with the social rights solution that are hardly being discussed among Latin American scholars.[7]
For this paper I examined the table of contents and bibliographies of the Family Law treatises written by Latin American authors that I found in the five largest libraries in Bogotá (see Appendix 1.),[8]in the CATALOGO DE BELLO of the University of Chile, the catalog Argentinean Universities and the HOLLIS Catalog of Harvard University (see Appendix 2). This allowed me to select a sample of elevencanonical treatises for a detailed study of their introductory comments and some of the comments of particular sets of rules (see Appendix 3.).[9]
Even though these thirteen treatises still could be understood as diverse in terms of their political inclinations and of their relation to their historical and geographical environments, I have chosen to focus on the structure that I found as being repeated in all of them and not on the variations, and for this reason I will write as if the tradition consisted of only one book recently written, including references to the sample for illustration but not as argument.
I believe this distortion is justified, on the one hand,because the repetition in itself may be read as having effects that can be described generally notwithstanding possible variations in the way in which the treatises are appropriated in different contexts. On the other hand, because the treatises identified as canonical can be assumed to be currently in use since most of them have been updated in the last 10 to 15 years or are cited by the most recent versions of other canonical treatises.[10]Finally, because this paper does not intend to be mainly an intervention in the debate about the possibility of a Latin American legal tradition, but a contribution to the general project of understanding family law exceptionalism and family law scholarship.[11]
Indeed, I will show that, in the treatise tradition of Latin America, family law exceptionalism works through the social to produce three types of effects. First, it grounds the enterprise of writing treatises on “family law”, regardless of the intention of the legislator, by justifying the existence of a separate field. Second, it justifies using the social sciences to defend a certain interpretation of a rule or the need to change existing law. Third, it justifies a set of doctrines and institutions as proper to family law and necessary to fulfill its goals of reflecting and protecting families.
This paper is divided in two parts. In the first part, I provide an account of the way in which Family Law treatises written in Latin America articulate the four theses I have called the “social approach” to family law. I explain how treatise writers dedicate the first chapter of the treatises to anthropological and sociological accounts of the family and to a discussion about the place of family law within the public/private divide; their interpretations of the idea of solidarity and its relevance for family law; and the defense of the doctrines of constitutionalization, abuse of rights, family patrimony and protection of informal unions and the offspring conceived in them.
In the second part I present a version of the defense that family law treatise writers have devised to cling to the social approach and the appeal it has in a post-cold war context. In this part I also provide a list of the critiques that have been proposed against the social approach theses with a suggestion of bracketing for a while our adherence to these beliefs.
Part I: The Social Approach in Family Law
Family law treatises in Latin America exhibit a surprising similarity: they all start with a chapter dedicated to the family and an explanation about the relationship of family law to the family (to a large extent citing the same authorities to ground both claims), and then they go on to set forth and interpret the rules of: marriage, divorce, legitimacy and parent-child relationships. Even though the contents of the sections vary, there are some characteristics they have in common beyond their mere titles that I would like to underscore here. First, they all claim that the autonomy and internal coherence of family law as a field bears some relation to the fact that its rules reflect or respond to the reality of families. Second, they assert that family relations are essentially relations of interdependence; this interdependence is reciprocal in the case of the spouses, and hierarchical in the case of parents and children. Third, they argue that law must recognize the family as worthy of protection and must regulate family relations attending to the solidarity that informs them.
In this part I provide an account of how the treatises include these ideas in their initial narrations of the field and in their defense of certain institutions and doctrines. In each case I also give some illustration of the routes that the ideas seem to have followed on their way to the canonical Latin American family law treatises this paper is about.
1. The Family as a Social Fact
The idea that the family is a social fact appears as relevant to settle three types of discussions in the treatises: discussions about the autonomy of the field, about the classification of family law, and about the relevance of evolution or change in the family for family law. The effect of the idea that the family is a social factis that the answers to questions related to any of these three debates claim to be grounded on reality that can be known and represented using the methods of the social sciences, rather than on logic or history. Thus, although these treatise writers are far from taking social science seriously, it turns out to be convenient to set up a space for arguments about responsiveness and mirroring of particular rules.
The justification of the autonomy of the field of family law, that is, of its internal coherence and specialization, is considered a mandatory exercise for every family law treatise not only because of the importance that is attributed to the characterization of the field in the elucidation of the interpretation of the rules that end up being considered as relevant, but also because most Civil Codes in the region, following the Code Napoleon, lack a chapter on the Family or the Household and, until recently, did not have either a specialized Family Code.[12] In light of the connection to the Code Napoleon, it is not surprising that the most cited work in this regard is Julien Bonnecase’s “La philosophie du Code Napoleon appliqué au droit de famille,” published originally by E. de Boccard in Paris in 1928 and published in Spanish in Mexico in 1945 by José M. Cajicá.[13]
Bonnecase’s book, published almost thirty years after the German Civil Code entered into force[14] is explicitly presented as a defense of the validity of the Code Napoleon in front of the loss of prestige of the French masterpiece following the enactment of the German and Swiss Civil Codes. The book tries to accomplish this by claiming to use the general directives or principles that inspired the Code Napoleon to establish a field not considered by the drafters of the Code but included in the new ones, and to systematize the “apparently very varied and disorganized” legislation on the topic that was enacted in the previous fifty years and was not integrated to the Code.
Bonnecase’s most widely cited passage is his definition of family law as the set of “legal rules, personal and patrimonial, that have as their exclusive, principal, accessory or indirect object to preside the organization, life, and dissolution of the family”. The representation of the family as an organism is further underlined in the paragraph following this definition:
“Across centuries, indeed, we have started to realize that the family is an organic reality made of the intimate and hierarchical union of a group of related persons, as well as of the community of goods that belongs to them, in which the particular activities of the individuals that form it is more or less absorbed. In other words, the family constitutes a form of fusion of persons and goods, the legal rules of personal and patrimonial character are absorbed in a whole.”[15] (emphasis added)
After justifying the field this way, treatise writers engage the issue of the classification of family law. Is it private law? Is it public law? Is it “social law”? Does it belong to a category of its own? Again, answers to these questions are understood to require taking into consideration the nature of the family as a social fact. The most cited author in this debate is Antonio Cicu for his elaborate defense of the impossibility of including family law in either side of the private/public divide.[16]
Cicu’s argument starts from a characterization of the family as an “organic reality” and a “social reality” that situates its existence beyond the satisfaction of the individual needs of its members. He argues that the basic link uniting the family is a psychic fact: humans seek a complement and they find it in the family. Because this cohesive force is beyond conscience and will, the family is a natural and necessary formation.[17]
The nature of the force binding together the family in turn determines that family law cannot be considered public or private law. The ends that correspond to this natural social unit are different from those animating either side of the divide.[18] He finds family law to be closer to public than to private law, however, in that family members as well as public officials have powers that are explicitly bound by a superior interest.[19] This superior interest, in his opinion, is different from a collective interest, setting family law apart from private law, because it is not the sum of the individual interests of the members of the aggregate.[20] The superior interest of the family, nonetheless, is different from the superior interest of the State in that it is restricted to the family aggregate while the State extends to all citizens and therefore is general in a way in which the interest of the family, or familial interest, is not.[21]
Cicu also refused to label family law as social law in light of his appreciation of the nature of the force binding its members. Criticizing Otto Gierke for not taking into consideration the reasons for belonging to a group when establishing the social law/individual law binary, Cicupointed out that the fact that the associations Gierke was referring to were all associations established through the “free and voluntary activity of the individual”, determined that the associations within social law were all juridical persons in which the interest of the whole could be understood as the sum of the interest of each.[22] In this sense, Cicu argued, the family could not be understood as similar to the juridical persons which Gierke understood as regulated by social law. As opposed to the family, Cicu explained, these associations lacked “the organic substratum that is the site or basis of the independent psychic life”.[23]
The position according to which family law should be considered social law is attributed by most treatise writers to the German author Heinrich Lehmann and to the Argentinean Jorge Antoni. Following the treatises, for Lehmann, family law should be considered social lawbecause the family is an aggregate existing between the individual and the state, because it is the environment for the formation of the individual’s personality, because as an aggregate it preceded the state, because in the family the innate social spirit has been satisfied, and because family relations are fundamentally regulated by nature, religion, and morals.[24]Antoni, in turn, is presented as arguing that family law is social law because in family law the subject is the collective entity, “the will is a function of the duty”, “relationships are reciprocal”, and “when a right is exercised a duty is fulfilled”.[25]
After presenting Cicu’s, Lehmann and Antoni’s arguments summarily, however, most treatise writers argue for including family law in the realm of private law. They point out that, while it is true that the family is a social aggregate, it is true neither that individuals do not exercise their free will when deciding to form a family, nor that other relations considered to be governed by private law are not relations of interdependence in the same sense that family relations are.[26]In consequence, private, or civil, law is defined simply as comprising “the rules that govern common or general situations,” these situations being those “of the man of his house, of his family; of one who is born, grows up, buys or rents his household or a field, mortgages, educates his children, inherits, writes a will, and dies; in sum, to the man when he behaves simply as such in relation to others that behave in the same way, without qualification or particularity”.[27]
Finally, the idea of the family as a social factappears as the reason for citing, in otherwise dry doctrinal treatises, anthropological and sociological accounts of the “origins” and “evolution” of the family. Using the social sciences to describe the family underscores the privileged access of science to the correct understanding of the family and the demands it makes to family law. Thereafter, even though the treatises will go on to present interpretations of the rules that do not claim to have been sanctioned by social scientists, bits of social science literature appear as arguments when the authors see fit to discuss the reform of some piece of legislation.