Family Rights and Religion

John Eekelaar

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000152111
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The interaction between individual rights, which are often seen in secular terms, and religion is becoming an important and complex topic not only for academic study but for practical policy. This volume collects a range of writings from journals, edited collections and individual books which deal with different aspects of the interaction within the context of family life, and which appear with their original pagination. These studies have been selected because they throw a sharp light on central elements of the role of religion in determining the structure of the rights of family members in relation to one another, both from an historical and contemporary perspective. While many of the writings are focused on US and European systems, selected writings covering other systems illustrate the universal nature of the topic. The studies are accompanied by a reflective commentary from the editor which sets the writings in a broad context of social, constitutional and philosophical thought, with the aim of stimulating critical thought and discussion.

Part I
Religion and the social structure

1

DEVELOPMENT OF FAMILY LAW IN WESTERN AND EASTERN EUROPE: COMMON ORIGINS, COMMON DRIVING FORCES, COMMON TENDENCIES

Maria V. Antokolskaia

An analysis of the historical development of family law in Europe allows for a reevaluation of the argument that harmonization and unification are unfeasible because of unbridgeable historical and cultural differences between the European countries. Between the Gregorian reforms and the Reformation, the family law of Europe was mainly uniform canon law. There were two very similar systems of canon law, the Catholic and the Orthodox. The development of family law from the end of the Reformation until today can be seen as the gradual abandoning of concepts of canon law. Although this process was essentially the same in all European countries, it did (and still does) not take place simultaneously. The major differences between the current family laws of the European countries can be considered to be differences in the timing and extent of the said process.

In 1999, I was asked to make a contribution to a report for the Dutch Association of Comparative Law on the prospects for the harmonization and unification of family law in Europe.¹ This obliged me to scrutinize the stereotypical argument that harmonization and unification of family law are 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 laws in Europe, I became highly interested in the correlation between the level of modernization 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.² What I am suggesting in this article is that this correlation is the key to important insights into the historical development of family law in Europe that allow for a fundamental reevaluation 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 merely as excesses, placing 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 am making in this article are based on a preliminary study that has inspired me to undertake more extensive research in the coming years.

My theses can be summarized as follows:

1. The family law of the whole European continent before the Reformation was mainly uniform canon law. This law consisted of two separate systems—Catholic and Orthodox—that in fact were very much alike. The unification of canon family law in the Catholic part of Europe was achieved around the twelfth 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 abandoning of concepts of canon family law. Preecclesiastical 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 the preecclesiastical 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 as 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 secularization took place at an earlier stage and canonical concepts obstructed reform less, the process was speedier and more radical. But the general direction of the changes was and is undoubtedly everywhere the same.

4. The composition of the group of countries where family law had already been radically revised at the beginning of the twentieth century—Scandinavia and the Soviet Union—reveals a discrepancy between the level of economic development and the modernization of family law³ and suggests the more primary role of ideological factors such as the break with religious concepts and the influence of liberal ideas.

THE CATHOLIC WEST AND THE ORTHODOX EAST: THE FORMATION OF A UNIFORM MEDIEVAL CANON FAMILY LAW

In Western Europe, the formation of uniform canon rules on marriage and divorce had been almost completed by the beginning of twelfth century by the reforms of Pope Gregory VII (1073–1084). Despite the schism of 1054 that separated the Orthodox countries from the West, a comparable 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 a uniform ecclesiastical family law,⁴ 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.⁵ The early Church 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).⁶ 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, in the absence of marriage impediments, legal marriage was created by the mutual consent of the spouses.⁷ As Christianity, originating as the religion of a small group of dissidents, finally became the state religion of the Roman Empire, the ascetic disapproval of marriage gradually diminished.⁸ The ascetic attitude came into conflict with a more worldly trend that strove toward the sacralization of marriage, and this finally became the predominant attitude.

The contradiction between these two approaches can explain the slow pace with which ecclesiastical marriage law came to be formulated. In the fourth century, the tradition of blessing “perfect” marriages by a priest came into existence.⁹ 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 the Byzantine church, solemnization became obligatory in 893 by the act of Emperor Leo VI. Around the twelfth century, this rule was accepted in the whole Orthodox region.¹⁰ The Roman principle of consensus facit nuptias was maintained, but Church solemnization 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 solemnization together made marriage a sacrament.¹¹

In the Catholic part of Europe, this process took even longer. In post-Roman times and even in Carolingian times (eighth to tenth centuries), the Church blessing was unusual and marriages were celebrated according to local customs.¹² At the time of Pope Gregory VII, the development of the concept of marriage as a sacrament was completed,¹³ and the Church ceremony was prescribed, but it was only after the Council of Trent that Church solemnization 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 that made marriage sacred. The priest was more a witness than a main actor in the ceremony.¹⁴

The same picture arises if we look at the changes in the attitude toward concubinage. In Roman society, concubinage was acceptable for unmarried persons as a secondary form of conjugal union. Among some peoples who inhabited Europe in post-Roman times, concubinage was accepted even for a married man.¹⁵ 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.¹⁶ 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.¹⁷ Around the eleventh to twelfth centuries, the rules on marriage law became so imperative in both parts of Europe that concubinage was swept off the stage completely. The concubine became no more than a mistress, and her children were bastardized.¹⁸

As marriage became more and more institutionalized, divorce law became more and more restrictive. In pre-Christian times, there existed a considerable freedom to divorce. In classic Roman law divorce, as well as marriage, was a private informal transaction.¹⁹ Before the restrictive rules of Augustus and the subsequent reform by Constantine, both divorce by mutual consent and unilateral divorce were possible. Divorce by mutual consent survived the reforms, but the grounds for unilateral divorce were strictly limited.²⁰ The Christian Church from the very beginning showed an aversion toward divorce from the very beginning. Initially, the Church refused to bless all second marriages because of the view that the spiritual ties created by marriage survive not only divorce but also the death of one of the spouses. Although the New Testament mentions the possibility of repudiating an adulterous wife,²¹ there was no uniformity on this point in the Catholic and Orthodox world. The Orthodox Church accepted, under pressure from the Byzantine emperors,²² 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 eighth century. But until the Gregorian reform, there was no clear borderline between annulment and dissolution of marriage. Only around the twelfth 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 only, separation with no possibility to remarry was possible. In the case of a violation of the prohibited degrees of consanguinity, the marriage was null and void. That 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 was possible.²³ This was more than a technicality. In the course of the Middle Ages, the prohibited degrees of consanguinity, affinity, and spiritual affinity (created by baptizing) were extended in such a manner²⁴ that most nob...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Introduction
• Part I: Religion and the Social Structure
• Part II: The Family and the Transmission of Religious Identity
• Part III: Religion and the Welfare of Family Members
• Part IV: Religion and Belonging
• Part V: The Secular State and Religious Groups
• Index