Deconstructing and reconstructing family law through the European legal order

Abstract

This thesis investigates the hypothesis that the interpretation of European Union law, both primary and secondary, is having a deconstructive effect on national family law and is reconstructing it via the European Union legal order. The broad impetus of this research stems from the assumption that the nation state has undergone significant change and is, in addition, now influenced by the fast-pace development of a supranational/transnational body of law. As a result, of these twin-dynamics what are termed here as peripheral family law cases are being reconceptualised by the European legal order. This is quite incredible considering the isolated position family law was forced to assume as a result of it being coupled with tradition, morals, and local custom in the past. The research conducted herein follows a genealogical approach to developments based on a framework adopted from Duncan Kennedy’s Three Globalizations thesis concerning the regulation of family relationships. It begins with an analysis of the globalization of Classical Legal Thought, during which family law did not even exist as a discreet legal field, to an evaluation of the Social where we note the failure of social engineering attempts in terms of the breaking down the family/market dichotomy that had been so firmly entrenched previously. Finally, the study arrives at the crux of the thesis in investigating the neo-formalist langue and its influence in resolving the peripheral family law issues that have come before the Court of Justice of the European Union demonstrating how the family has been incorporated into the citizenship discourse which has led to its reconceptualization and lifted it outside of the traditional, patriarchal framework. What we question, however, is the change in discourse at the EU level from being based in a market logic to a more socially inclined grammar. In this vein, the fundamental rights perspective is examined, particularly considering the influence of the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. Following on from this, we proceed, to investigate the effects of the EU Citizenship provisions and how this move, to what can arguably be conceived as a European identity-building project, could potentially reconceptualise family law in Europe.