The Role of Family Law Research in Legal Policy Debate

[wardlel]

ISFL Colloquium
UPPSALA UNIVERSITET
Juridiska institutionen
21 May 2010

The Role of Family Law Research in Legal Policy Debate
Anna Singer

Delivered as the Introduction to the ISFL Colloquium on the Role of Family Law Research in Legal Policy Debate, held at Uppsala University Faculty of Law on 21 May 2010.


It is a great pleasure for me to welcome you to Uppsala, in particular at this time of the year and to this colloquium. The tradition here is that when we meet at the faculty there should always be an academic discussions and exchange of views before we gather for social activities. This colloquium fulfills this tradition in an excellent way and I look forward to a very interesting discussion on the Role of Family Law Research in Legal Policy Debate but of course, and even more, to the opportunity to meet friends and colleagues for a nice time together.

When we began the discussions concerning the colloquium it seemed almost selfevident that a meeting in Uppsala for the ISFL would recall the memory of Anders Agell, who for many years was very active in the society as a member, a conference organizer and as president. Some of you might even have memories from the ISFL world conference here in 1979 organized by Anders.

Anders was active as a legal scholar during five decades, most of the time at the faculty of law in Uppsala. He is the author of numerous articles and books on topics not only in material private law, where he excelled in tort and family law, but also topics concerning legal theory and legal policy where his writing has been a model to all of us, not the least to Margareta Brattström and myself. On the Swedish arena he was one of the great scholars, in family law The greatest.

It is his writing on legal methods that has been the inspiration for the theme of the colloquium. I can of course not do Anders’ writing justice but I would like to give you a brief idea of his views on this topic.

Anders on several occasions addressed the question of what legal scholars do and should do; what legal scholarship implies. In his opinion a core part of our work in short should be to study the coherence of different rules, both formally and with respect to the relationship between concepts and legal policy. These questions he also addressed in an article published in the BYU Journal of Public Law in 1993.

He often talked about constructive legal science. We should not limit ourselves to the almost technical interpretation of the existing law. Instead we should contribute to the development of the law in different ways, in our argumentation also paying attention to the values behind the law. This point of view might not be novel to legal scientists in other parts of the world, but from a Swedish perspective it was for a long time considered not appropriate for a legal scientist, and might still be to a certain extent. Particularly in Uppsala we have a long standing tradition, starting with the philosopher Axel Hägerström, that since the law itself contains and expresses value judgments, that is statements that in a logical sense can not be proven true or false, legal science should not include value based statements if we want to be considered science. We should limit ourselves to interpretation of the law as the court would interpret it.

But Anders claimed that we have to include value based arguments if we want to really be useful for the development of legal policies, in particular in family law. We ought to strive to help in the construction of a regulation that could fulfill the objectives of family law. He also gave examples of such objectives that in his mind were central; such as creating good living conditions for children. In order to do so, he found it necessary to encourage family stability, parental stability and the equal treatment of men and women.

And we should not limit ourselves to the analysis of the current law. Our responsibility goes further than that.

Legal science should therefore concern itself with the analysis of the coherence of different legal policies, how well the rules can accomplish the goals set out. Such a discussion can be carried out also with no direct reference to the current law. Anders in this context talked about analyzing the goal rationality of the law.

Another task for legal science is to analyze how well the chosen terms and concepts contribute in the fulfilling of the goals. This is an analysis of the terms as such. Are they suitable chosen or designed. Anders talks about rule or term rationality.

Another important aspect to study is how well different rules cooperate, system rationality. In family law this is an important task, in particular in Sweden, since family life is regulated not only in private law but also, to a large extent, in public law. One question is for instance how a well developed system for public child support for children with separated parents enhances family stability.

The fulfilling of these tasks calls for the use of varying methods, including legal-sociological, legal-economic, legal-psychological and other, also statistics. We need to know more about the reality we are regulating. It is clear that legal positivism as a method is not sufficient. And it is against this background that we have seen the emergence of a critical family law, a theory that relates the legal system to the wider social order and the state. I am sure Anders would not have labeled himself a proponent of critical family law but in effect I think that was what he suggested.

If one wants to make an over arching analysis of how the rules function in a certain area it is almost impossible not to include values. You have to start with certain value based hypotheses if you want to get anywhere in the analysis. With that we are moving in to questions that are eventually decided by the law makers, based on political decisions. The making of legal policies. But this is our task. We can not, as legal scientists, withdraw from taking stands to how certain values can be promoted by the legislation. It is not beneficial for the legal policy debate if we as legal scholars withdraw from the debate as soon as values are on the agenda. When it comes to family law, this becomes very sensitive. This is an area or the law that concerns everyone, and at least in Sweden where we have a long standing tradition of social engineering, where the law on family life has been used as a tool to create a desirable society, the interference of legal scholars is not always appreciated. In many instances there is a danger that we from our academic position put forward opinions that will be labeled politically incorrect. There is a danger that we will be silenced this way.

Anders was never silenced. He frequently participated in the public debate on matters concerning family law. And he did not ever worry about being politically incorrect. He rested safely in the knowledge that his opinion was firmly based on sound legal method. He very early on questioned the Swedish regulation on un-married cohabitation, from a legal scholar’s perspective and in that way he contributed substantially to the legal debate. He made sure that every step in the legal process was based on the full picture. He was not always successful in the sense that the law came out as he wanted but he pointed out important implications of the new laws. His never ending engagement in legal policy debate is worth admiration. We don’t have to share his opinion but I think that his fearless involvement in the public debate concerning legal policy certainly is an example to follow.