Finding a Place for “Public Family Law” in Comparative Law

Family law tends to be seen as part of private law. As a result, its public dimension and the contingent policy choices that back the state regulation of families have been obscured. The article illustrates the benefits to comparative family law that ensue from bringing to light this “public” dimension – and using the conceptual lenses of public law. Notably, a public family law perspective can contribute to: (i) addressing traditional themes in comparative family law (such as child support or marriage) more accurately; (ii) expanding our analytical horizon and triggering new strands of research (such as comparisons on the question whether to abolish civil marriage). Part I offers an overview of the two aspects that have contributed to overshadowing the public dimension of family law: the ideology of the private sphere, and the view according to which family law falls under private law. To illustrate the added benefits of a public family law perspective to comparative endeavors, Part II examines a case study: the debate of the abolition of civil marriage in the US. After clarifying the contours of the debate and its constitutional implications, Part III moves to assess the applicability of such debate to Europe. It notes the absence of similar discussions in Europe and traces the potential reasons behind it. Building on the case study, Part III.B. concludes by outlining the benefits of the proposed perspective when comparing family laws across the globe.