Bidding Farewell to Good Family Fathers: Advancing the Role of Private Law in the Promotion of Just and Inclusive Societies

This paper examines the use of the expression bonus pater familias in the Portuguese law of obligations as a reference to the standard of care applicable to the performance of a contractual obligation. The paper acknowledges the law’s harmful effects in perpetuating discriminatory gender stereotypes. However, its main goal is to look beyond that, in what appears to be a multi-layered set of inadequacies, focusing on what the use of that expression more discreetly reveals: its formal lack of commitment to guiding social conduct by providing members of society with reasons for action, and its substantive lack of commitment to providing intelligible solutions to real people’s problems. It engages in a dialogue with a range of legal and social theorists and puts forward a defence of a conception of the law as communication: an effective, accountable and inclusive legal system is that which successfully establishes two-way communication flows with all its subjects and is perceived by its subjects as their own. Ultimately, this paper argues for the removal of the expression bonus pater familias from the Portuguese Civil Code and, more generally, from the laws of Portugal.