This volume addresses the study of family law and society in Europe, from medieval to contemporary ages. It examines the topic from a legal and social point of view. Furthermore, it investigates those aspects of the new family legal history that have not commonly been examined in depth by legal historians. The volume provides a new 'global' interpretative key of the development of family law in Europe. It presents essays about family and the Christian influence, (...) class='Hi'>family and criminal law, family and civil liability, filiation (legitimate, natural and adopted children), and family and children labour law. In addition, it explores specific topics related to marriage, such as the matrimonial property regime from a European comparative perspective, and impediments to marriage, such as bigamy. The book also addresses topics including family, society and European juridical science. (shrink)

This Article focuses both on the changes that have been made to the legal framework governing post-separation parenting of children in Australia, as well as the processes and discourses via which these matters have been dealt with and debated. Alone among comparable common law jurisdictions such as Canada, the United States, and England, Australia’s family law legislation, and the significant changes made to it in the past fifteen years, can be seen to have been particularly responsive to the lobbying (...) of fathers’ rights groups. It will be suggested that changes to the legislative framework that governs family law in Australia have taken place, at best, without any clear rationale or need and perhaps more problematically, have at times flown in the face of, rather than been undertaken by reference to, the evidence-based research about post-separation parenting practices and what we know about children’s welfare or best interests, the paramount consideration that underpins decision-making in this field. The purpose of this discussion is to attempt to posit some possible explanations for this distinctive path of Australian family law “reform”. (shrink)

Modern times are an arena for two opposing trends: the liberalization of mores and laws, and the distancing of changes and adoption of a conservative position against those that occur. Polish family law clearly fails to keep pace with the changes taking place and does not perceive new phenomena. Is this an intentional act of the legislator leading to the preservation of traditional values, or the expression of disapproval and belief in the transitoriness of new phenomena? It comes together (...) with the introduction of new terminology or new interpretations of already existing concepts. Hence the meaning of some of the current concepts in everyday language differs significantly from their meaning arising from legal instruments. The article is an attempt to deal with this problem. (shrink)

This paper discusses the past and contemporary legal harmonisation exercises of family law in the Nordic countries and Europe. The critique is that the harmonised ‹European family law’ only entrenches the status quo and reiterates traditional family patterns, the male norm, heteronormativity, and a public/private divide represented in the neutral guise of a liberal rights discourse. Furthermore, the critics point out that the political economy of legal harmonisation is, to a large extent, ignored. In the Nordic countries, (...) egalitarianism and broad political deliberation characterised much of the previous legal harmonisation, whereas rights discourse in its liberal sense is a novelty, more or less triggered by the European integration. This paper discusses the gendered implications of the emerging rights discourse in the Nordic countries and the linkages between family law, the labour market and social welfare. The paper argues that the harmonisation exercise cannot be regarded as one consisting only of legal norms and reasoning, but rather it should be discussed from the perspective of a political and epistemological challenge to the prevailing ‹truths’ about marriage, family and sexuality. (shrink)

This article sets out to research and resolve the conceptual lag between the family as defined and recognised in law and the multiplicity of queer constellations of ‘intimate citizenship’ in which families are actually done. The focus is on adult unions outside of conjugal coupledom. The family law practices, and awareness and expectations of adults in such unions were analysed through 21 interviews and the content analysis of 40 documents and were projected against the applicable legal mould. The (...) article then proposes to resolve the existing conceptual lag by advancing a conception of the family as a malleable, open-ended assemblage, in lieu of the current rigid status approach in family law, which is both under- and overinclusive. The proposed conception does justice to the increasing fluidity of family formations, which are not always already domestic, dyadic and sexual. (shrink)

Immigration law is exceptional enough to deserve an administrative law focus of its own. The Administrative Procedure Act (APA) does not demand uniformity in adjudication. Therefore, it may be counterintuitive to argue that any one area of administrative adjudication is exceptional. Removal adjudication is indeed exceptional because it is an extremely dysfunctional system, it operates in a double void of fewer constitutional protections and without the protections of the APA, it relies on a vast network of civil detention, and it (...) is of a different genre than the type of regulation that drove the development of the APA. The exceptionality of removal adjudication demands a review of administrative law doctrine with this exceptionality in mind. (shrink)

Islamic family law plays a significant role in minimizing the unpleasant effects of the family break up faced by the divorced women and their children by protecting their rights to financial support after divorce. This study undertakes to discuss the historical development of the financial rights after divorce applicable among the Muslims in the pre and post colonial periods, particularly with reference to the iddah maintenance, mut’ah, arrears of maintenance, and child maintenance. The study indicates that despite the (...) provisions were inconformity with the Islamic principles, the applications were restricted and influenced by the Shafi’i madhhab. However, the amount of iddah maintenance and mut’ah were substantial taking into account the standard of living of the Malay society in the 15th and 16th century. This means that the welfare of the divorced women was taken care of since the codification of the Islamic law and its implementation in the Malay society. (shrink)

Despite claims of ‘evidence based policy’, the place of empirical evidence in family law reform is ambiguous. There is ongoing socio-legal analysis of the differential value and uses of quantitative data and anecdote in detailing women’s experiences and advocating for change. In this paper, we engage with these issues through a focus on how data were constructed in a key government report, Every Picture Tells a Story, which was used to officially define the problem and outline recommendations in the (...) controversial 2006-08 reform of the Australian Child Support Scheme. Our discussion focuses on two questions: what legitimacy is accorded to different kinds of evidence in family law reform processes?; and, how is this legitimacy gendered? We applied feminist critical discourse analysis to the type, source and claims of the data included in the child support chapter of the report. Our findings indicate that both quantitative data and anecdote were used to privilege fathers’ financial interests and autonomy; in contrast, women’s voices and interests were marginalised. Thus, we argue the legitimacy of data is ascribed through its relationship to the gendered definition of the ‘problems’ of child support, rather than the type of data per se. (shrink)

It seems to be commonly understood that sometimes a family lawyer’s advocacy can go too far; however, absent disciplinary proceedings or a claim in negligence, it is not always easy to identify exactly what line a lawyer has crossed. A lawyer’s role, properly understood, is to pursue their client’s interests within the bounds of legality. In this paper, I examine the positivist conception of the bounds of legality in the context of family law. My examination includes consideration of (...) adversarial and non-adversarial advocacy, how much resolve a lawyer can properly use as an advocate, and the means of a lawyer’s craft – both substantive and procedural tactics. In doing so, I provide a theoretical mapping of the bounds of legality, demonstrating that they are insufficient in family law. My aim is to provide the theoretical tools to help inform change to family law, and the law and professional rules governing lawyers. (shrink)

It seems to be commonly understood that sometimes a family lawyer’s advocacy can go too far; however, absent disciplinary proceedings or a claim in negligence, it is not always easy to identify exactly what line a lawyer has crossed. A lawyer’s role, properly understood, is to pursue their client’s interests within the bounds of legality. In this paper, I examine the positivist conception of the bounds of legality in the context of family law. My examination includes consideration of (...) adversarial and non-adversarial advocacy, how much resolve a lawyer can properly use as an advocate, and the means of a lawyer’s craft – both substantive and procedural tactics. In doing so, I provide a theoretical mapping of the bounds of legality, demonstrating that they are insufficient in family law. My aim is to provide the theoretical tools to help inform change to family law, and the law and professional rules governing lawyers. (shrink)

The object of this article is to clarify the relationship between morality and family law in a variety of legal situations. This will give the reader a better grasp of the kind of case to be included in the traditionalist claim that the idea of legal intervention in the family is a coherent notion. Once this is sorted, we will be in a position to discuss and clarify the radical thesis that "the personal is political.".

Few automated legal reasoning systems have been developed in domains of law in which a judicial decision maker has extensive discretion in the exercise of his or her powers. Discretionary domains challenge existing artificial intelligence paradigms because models of judicial reasoning are difficult, if not impossible to specify. We argue that judicial discretion adds to the characterisation of law as open textured in a way which has not been addressed by artificial intelligence and law researchers in depth. We demonstrate that (...) systems for reasoning with this form of open texture can be built by integrating rule sets with neural networks trained with data collected from standard past cases. The obstacles to this approach include difficulties in generating explanations once conclusions have been inferred, difficulties associated with the collection of sufficient data from past cases and difficulties associated with integrating two vastly different paradigms. A knowledge representation scheme based on the structure of arguments proposed by Toulmin has been used to overcome these obstacles. The system, known as Split Up, predicts judicial decisions in property proceedings within family law in Australia. Predictions from the system have been compared to those from a group of lawyers with favourable results. (shrink)

What defines family law? Is it an area of law with clean boundaries and unified distinguishing characteristics, or an untidy grouping of disparate rules and doctrines? What values or principles should guide it – and how could it be improved? Indeed, even the scope of family law is contested. Whilst some law schools and textbooks separate family law from children’s law, this is invariably effected without asking what might be gained or lost from treating them together or (...) separately. Should family law and children’s law be distinguished or treated together? One would expect disagreement on these questions in any context. In bringing together theorists from multiple jurisdictions and at least two primary disciplines, we should not be surprised to find deep differences in approach reflecting different methodologies and foundational questions. The tension between them, we hope, can illuminate and enrich discussion on all sides. (shrink)

Volume 21, Issue 2, December 2018, Page 163-166.

Despite the efforts of some modern Jewish law scholars, it is difficult to apply models of secular jurisprudence (whether positivist or Dworkinian) to the Jewish legal system. Internal analysis suggests that the “secondary rules” of the system are far too fragile. Rather, the system appears to privilege trust over objectively determinable truth. (But perhaps trust is a concept to which greater attention should be paid also in secular jurisprudence, as a legal realism informed by semiotics might maintain.) The practical implications (...) of this difference are here illustrated both from research on reform of Jewish marriage law and recent developments in the area of law and religion, in the wake of Archbishop Rowan Williams’ advocacy in 2008 of a model of “transformative accommodation”. (shrink)

In this work, the author deals with the source of Ottoman Family Law, its application examples and its transformation adventure, together with theory, based on court records in different cities. It reflects the examples of the concrete side of the practical applications of Islamic family law, the Hanafi sect in particular, reflected in the registers in the Ottoman Empire. In general, the application is in accord with the views in fiqh sources. However, the views in the fürû sources (...) of the Ḥanafī sect on some controversial issues caused difficulties in practice. In order to eliminate the troubled situations, the state power sought a solution by intervening with kanunnâme, adâletnâme and fermans at the request of Sheikh al-Islam. In addition to these records regarding the implementation of Islamic family law, the book also includes, the observations and notes of travelers, ambassadors and researchers who had been in the Ottoman country. Particular emphasis is placed on the parts that reflect the contradiction. The subject in the book is examined two parts as Classical Period and Ottoman Family Law in post-Tanzimat. In second chapter, it is stated that a radical change was made in the Islamic/Ottoman family law by including the views of four sects with the preparation of Hukûk-ı Aile Kararnamesi. (shrink)

This is a review of Laurence Houlgate's "Family and State: the Philosophy of Family Law. It takes a look at the moral theory from which Houlgate begins and raises questions about is correctness and appropriateness, but it finds more to agree with with respect to his middle-level principles. It considers his definition of "family" in the context of contemporary political controversy over such definitions. It looks at his consequentialist justification for the family, agrees with it, and (...) suggests additional supplementary arguments, primarily from Brigitte and Peter Berger, to give additional support for Houlgate's argument. It looks at his justification for family law and agrees with his principle of optimum communal benefit. It seeks to place Houlgate's views within the context of contemporary political debate about being "pro-family" or "anti-family". It then goes on to look briefly at some of the specific issues of family law that Houlgate considers, taking time to raise a few questions about some of them, and concludes by dealing in a more extensive way with the question of what the extent and limits of state interference in the family should be, agreeing with Houlgate's basic position, but considering further its application to specific issues. (shrink)

This book is a unique introduction to the philosophy of law that repairs an enormous gap in the philosophy of law -- a lack of philosophical attention to family law. (In fact, PhilPapers does not recognize the philosophy of family law as a category.) This book uses only cases drawn from family law to illustrate the traditional problems of legal philosophy. This is why I wrote this book as a textbook rather than as a monograph. My hope (...) is that students will learn more about the problems of legal philosophy by using cases with which they might be more familiar than from criminal law cases. Questions for thought and discussion follow each chapter. (shrink)

The ‘best interests’ standard is a highly seductive standard in English law. Not only does it appear to be fairly uncontroversial but it also presents as the most sensible, objective and ‘fair’ method of dealing with decision making on behalf of those who are perceived to be the most vulnerable within society. This article aims to provide a critical appraisal of how the standard has been applied within family law, to outline how the standard is to be applied within (...) healthcare law and, finally, to assess the relevance of the family law experience of the best interests standard to the operation of the standards as envisaged by the MCA. (shrink)