1 - Pluralism and human rights: a legal foundation for the regulation of families and family law in the European Union

Summary

Any study of European Union law must be set within a theoretical framework. Accordingly, the aim of this and the following chapter is to establish just such a framework, laying the foundations for the subsequent examination of the concept of family and emerging family law of the Union. This chapter begins by offering a brief sketch of recent jurisprudential debates regarding the nature and future of European legal integration. This is an essential precursor to the subsequent section which proposes a human rights foundation for analysing concepts of family and as a basis for the Union's family law.

Positivism, pluralism and the jurisprudence of the European Union

During the previous decade or more, the impact of European integration on established jurisprudential paradigms has become ever more apparent. In simple terms, nothing really seems to fit any more. On the one hand, classical legal positivism, so dependent upon conceptions of unitary sovereignty, coherent systems, hierarchies and rules, suddenly appears to be hopelessly arcane. On the other, the more radical postmodern critique, whilst celebrating this apparent incoherence, rarely seems capable of answering the more pressing policy questions.

The aim of this section is to suggest that the way forward lies between these extremes, with a system of rules that is better able to address the questions of particularity and ‘otherness’ that underpin the postmodern critique and which moves away from the paradigms of positivism. This is a solution which caters to reality. The new Europe is very much a legalistic Europe.