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Published online by Cambridge University Press: 20 April 2023
Private law rules are characterised by their stability. However, a significant number of these rules has undergone fundamental change over the course of history, especially the regulation of the individual and the family; that is, the way legal subjects, their capacity, their relationships and their legal consequences are organised.
1. MARRIAGE AND FAMILY LAW
Historically, two major issues have been significant for family law. The first concerns marriage and the institution of the family. It is said that marriage is an institution that was used by the Church to ‘control the numbers of offspring’. Given the reproductive cycle of human individuals:
there is the ever-present problem of adjusting, by law and custom, the number of offspring to the food provisions, and especially the issue of avoiding unwanted offspring and, in any case, of managing excess offspring.
The solutions that the Church produced to this problem created a moral system that has never been achieved since. In order to regulate procreation and the raising of offspring, an institution capable of providing a means for anticipating needs, and for protection, was required. This institution was marriage, which acquired characteristics similar to modern social security, and which continues to carry out this function to this day, as can be seen in periods of crisis in people’s lives.
This feature has led, over the centuries, to a perverse conclusion: marriage and the family have become synonyms. This has, at times, led to the conclusion that the only valid way to constitute a family is through marriage. This led to another even more perverse result: patriarchy. Hence, all civil codes of the nineteenth century described the husband as the protector of the wife, and obliged her to obey her husband, who had to feed her and authorise the exercise of her legal personality and other rights, including administration of her own property.
The second major issue concerns the regulatory basis of the family, where the question arises as to whether or not the legal system should offer a structure that establishes mandatory rules, according to which the members of a group called the ‘family’ must adjust their conduct. A distinction should be made between two types of relationships among the members of this group.
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