东欧和西欧的婚姻家庭法的现代化进程.doc

The Process of Modernisation of Family Law in Eastern and Western Europe: Difference in Timing, Resemblance in Substance
Masha V. AntokolskaiaSenior Research Fellow of the Molengraaff Institute for Private Law, Utrecht University, herlands. Ms. Antokolskaia’s research has been made possible by a fellowship of the herlands Academy of Arts and Sciences.
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Abstract
In this article, it is submitted that the historical development of family law in Europe allows a fundamental re-evaluation of the stereotype argument that harmonisation and unification of family law is unfeasible because of unbridgeable historical and cultural differences between the various European countries. The line of the argument put forward can be summarised as follows.
1. The family law of the whole European continent before the Reformation was mainly uniform canon law. It consisted of two separate systems, Catholic and Orthodox, which in fact were very much alike. The unification of canon family law in the Catholic part of Europe was achieved around the 12th century and brought about dramatic changes. In Orthodox Europe, the process of unification, although more spread out in time, led to almost the same results.
2. The development of family law from the end of the Middle Ages until today can be seen as the gradual abandment of concepts of canon family law. Pre-ecclesiastical family law and current family law have more similarities between them than both have in relation to ecclesiastical family law. In a way, the process of distancing from the canonical heritage can be seen as a return to the informality o