Thursday, March 4, 2021

Rationale Behind Protection and Regulation of the Family

(Source: Law of Family Teaching Material   

Aschalew Ashagrie & Martha Belete)

There are various reasons for regulating and protecting the family through the adoption of legislative interventions. Before looking at these reasons it is necessary to define a family. The legal definition of family is not a unitary concept. However, we can find some suggested definitions. 

 

Planiol defines a family as a group of persons who are united by marriage, by filiation or even, but exceptionally, by adoption.[1] Another more or less similar definition is given by Murdok. In that definition, family is considered as ' a social group characterized by common residence, economic cooperation, and reproduction. It includes adults of both sexes, at least two of whom maintain a socially approved sexual relationship, and one and more children, own or adopted, of the sexually cohabiting adults.'[2] 

From the definitions given above, one can categorize the family into nuclear and extended family. The first and basic type of family organization is the nuclear family.  The nuclear family basically consists of a married man and woman with their offspring.[3] ‘The nuclear family is a universal human social grouping. Either as the sole prevailing form of the family or as the basic unit from which more complex familial forms are compounded, it existed as a distinct and strongly functional group in every known society.’6 

An extended family, on the other hand, consists of two or more nuclear families affiliated through an extension of the parent-child relationship rather than of the husband-wife relationship, i.e, by joining the nuclear family of a married adult to that of his parents.[4]  

This way of defining the family has been criticized recently by many, especially by authors in the western society, for its lack of accommodating the changes in the circumstances and societal values. As will be seen shortly, establishing a family relationship will have its own effects, like for instances on issues of child custody, maintenance and other rights and obligations. Defining family in the above manner restricts persons engaged in nontraditional relationships from having those rights and obligations. (Harvard Law Review, vol 104, p 1642-1659)

The family is a very important constitutive part of a society. It has natural, economic as well as social importance. ‘The state of the weakness and of destitution in which the child is born, the amount and length of care he needs, impose upon his parents duties which are not fulfilled in one day and which create the solid foundation of all of the family relation.’[5]  

 

The family is the nucleus of the society, and hence much depends on its safety and security. As Planiol correctly notes, ‘the small family group is the most essential element of all those which compose the great agglomerations of men which are called nations. The family is the irreducible nucleus. And the whole is worth what it itself is worth. When it is impaired or dissolved, all the rest crumbles.’[6] Though the family may contain only few people, the impact that this unit has on the whole society is great. Factors affecting a single family will later on have the effect of affecting the whole society.

Due to the fact that the marital status as well as the family entails community rights and obligations far beyond those implicit in the ordinary civil contract, it is conceded that the states may prescribe the conditions on which the status may be assumed.[7] As a result, marriage laws are subject to the control of the state government; and the interest of the state in the marriage of its citizens has long been recognized. 'The state, it is said, is a party to every marriage. This means simply that the state is interested in the well ordered regulation of the family organization of the persons within its borders.'[8] 

 

The state uses different means to regulate and control the formation as well as the effects of forming a family. One basic means of doing so is through legislations. Laws have various functions within a state. 

'Laws do more than distribute rights, responsibilities, and punishments. Laws help to shape the public meanings of important institutions, including marriage and family. The best interdisciplinary studies of institutions conclude that social institutions are shaped and constituted by their shared public meanings. According to Nobel Prize winner Douglass North, institutions perform three unique tasks. They establish public norms or rules of the game that frame a particular domain of human life. They broadcast these shared meanings to society. Finally, they shape social conduct and relationships through these authoritative norms.[9] 

Hence, the state protects and regulates the family by using its legislative power.

 



[1] Planiol, Vol. 1 part 1, 384

[2] Murdok, Social Structure, (problems of the Family, 162

[3] problems of the Family, 162 6 Murdok, 163

[4] Murdok 162-63.

[5] (planiol, 385)  

[6] (planiol, 386

[7] (murdok, 76)

[8] (Marriage laws, 4 Albert Jackobs)

[9] (Future of family, 10)

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