Thematic Field III: Law and Community. On the diversity of global family law cultures and forms of community (2020-2022)

The relationship between law and community is of central importance in understanding both spheres. Without recourse to a legal community as a basis for imposing sanctions and ensuring adherence to legislation, normative projections of professional legal guardians come to nothing, and without legal penetration and consolidation, the “imagined communities” (Benedict Anderson) will only be relevant as just that, rather than ­as a force shaping social life. As Max Weber asserted, legal communities are to be understood as “communities of understanding” (Einverständnisgemeinschaften) which are held together by a “belief in commonality”. Only where such a community dimension exists will the tensions that arise in legal pluralism theories in opposition to normative orders become so volatile. However, behind each of the religious, indigenous, local and regional normative orders making its own claims are social communities which can end up in a situation of conflict and thereby cause overarching adherence to law and, not least, a frequently invoked and legally positivised universal culture of human rights to become fragile.
The normative and indeed emotionally affected boundaries of universalist community­building also reflect the boundaries of a legal community characterising the lives of comrades in law. What Tönnies referred to as a “community of blood” is moving into the centre of our field of vision­ as a result of the removal of primordial binding forces. Family law is coming to reflect changed forms and ideals of family and life in a community characterised by social proximity and emotional entanglement. As such, even in times of globali­sation and the associated pluralisation of community forms, the family remains the central social setting in which the normative resources of a society are produced. Family is also the addressee of basic orders governing the distribution of goods and mutual duty interdependencies, which for this reason are also repeatedly seen as a real or imaginary starting point for translating norm projects from the family unit to society as a whole. The principle of family solidarity, which today extends far beyond the Roman legal concept of solidum (joint liability), finds its normative expression in a large number of legal orders.­
Looking at human rights provisions especially, it is possible to see the normative transformation that goes hand in hand with the changing concepts and practices of family. The freedom to choose a partner, the prohibition of discrimination based on sexual orientation, gender equality, postulates of equality in maintenance law and matrimonial regimes, and the guarantee of the right to enter freely into marriage (subject to the prohibition of forced and child marriage) show how human rights standards are being updated to reflect cultural transformation processes, which in many cases enhance individual autonomy. The area of modern reproductive medicine, which has an enormous influence on our understanding of personality, family and relationship, is also being increasingly pre-conditioned by human rights, even if some international courts (such as the European court of Human Rights) still use a margin of appreciation in recognition of legal culture diversity in the way that individual countries apply the relevant legislation.
In this context, the pluralisation of family structures not only casts doubt on the quasi-biological explanation of family and its naturalistic implications, but also needs to be viewed as an expression of a social transformation of society and its normative foundations as a whole, ­which can in turn be used as a starting point for cultural comparison. Nowhere does the construction of the “other” appear to be so deeply rooted in the views and convictions of the collective consciousness (which shapes memory and the future) as in the family. It is namely certain that “family” and the dispute over its normative nature have a kind of universal “cultural meaning”, but also trigger conflict over validity cultures, as can be seen in connection with Islamic concepts of marriage and family. In this context, international family law facilitates and requires the application of the rights of others by means of the conflict of laws. In the European legal context, the basic principle of party autonomy links the traditionally competing connections in the area of family and inheritance law to the principles of nationality and residence, which in isolation cannot do the binding nature of legal cultures and integration interests sufficient justice. Given the increase in migration flows and, in particular, the current immigration of refugees, it is necessary to review the limitation of the freedom of choice of law to these two legal orders. After all, special reserve clauses within the European Union designed to bolster the ordre public already set limits on the applicability of the law of countries outside Europe. One such clause, the Rome III Regulation, is designed to ensure that applicable divorce law is “compatible with the common values of the European Union”.
Another level of comparison emerges for this thematic field when we consider other forms of community (besides conventional families) and their respective adherence to applicable legislation. These include traditional local neighbourhood communities (with the rich oral tradition of their legal claims), modern clan structures and the “post-traditional communities” within contemporary sub-cultures. All of these forms of community give rise to systems of social norms which can have a tense relationship with state law. In this context, the following key questions become highly pertinent for the Center once again: What is the (potentially conflicting) relationship between particular and universal claims of validity in this context? To what extent do corresponding communities accept applicable legislation? To what extent does this acceptance go hand in hand with pragmatic attempts by these communities to align the legislation with their own norm concepts or even to create validity beyond their own group boundaries?