Cohabitation and Comparative Method

AuthorRobert Leckey
Publication Date01 Jan 2009
Cohabitation and Comparative Method
Rob ert Leckey
The paper intervenes in current policy debates onu nmarried cohabitation and comparative law
debates on methodology. It adopts a culturally alert, discursive methodology of comparison to
study regulation of unmarried cohabitation under the common law and c ivil law as well as the
e¡ect of an entrenched right to equality protecting against marital status discrimination.It iden-
ti¢es not di¡erent legislative solutions to a common problem, but distinct discourses of family
law regulation. Yet the approaches are le ss radically opposed tha n is often thought. Discursive
comparison tends to highlight dominant voices at the expense of minority ones,wrongly char-
acterising minority views as foreign to a tradition. Discursive comparison should not con¢ne
itself to a synchronic view of present legal debates; a richer diachronic approach will also attend
to views within a legal tradition’s past.
Legislatures and policy makers in manyplaces are sensibly turning theirattention
to the question of unmarried couples. Sometimes theydo so simply in response
to the prevalence and openness of this form of family life. Other times they do
so because a court has put them on notice that the di¡erential treatment of
married and unmarried couples runs afoul of an entrenched human right such as
equality. Whatever the impetus, the search for appropriate regulation of
unmarried couples often turns to comparative law. Comparatists typically
contrast regulation of these relationships by the common law and civil law:
at least limited recognition of unmarried couples appears in some common
law jurisdictions, while the civil law of the family typically remains ¢xed
¢rmly on marriage. Such comparison may inform policy makers and enlarge
the menu of doctrinal options. It also raises substantial methodological questions,
among them the choice of jurisdictions to study and the appropriate form of
Faculty of Lawand Institute of Comparative Law,McGil lUniversity.Earlier versions were presented
to Exploring the Borders of Law,Technologya nd Governance in NorthAmerica, NorthAmerican Consortium
on Legal Education (NACLE), Fordham Law School, New York, 13^14 April 2007; Extended and
ExtendingFamilies, Centre for Research on Families and Relationships, Edinburgh,27^29 June 2007;
and Legal Cultures and Cultures of Legal Education in Canada, Canadian Association of Law Teachers,
McGill University,27^28 May 2008. I thank participantsat those occasions for their comments.I grate-
fully acknowledge fundingby the WainwrightMemorial Fund and the John DobsonFoundation. Seth
Earn and Emily Caputoprovided excellent research assistance. My colleagues EricAdams, Benjamin
Berger, Angela Campbell, Madeleine Cantin Cumyn, Patrick Glenn, Evge
Łniya Goriatcheva, John
Ha¡ner, Jocelyne Jarry, Nicholas Kasirer,Thomas Lipton, Roderick Macdonald, Derrick McIntosh,
and CatherineValcke provided helpful comments on earlier versions.This paper received an Honour-
able Mention in the annual scholarly papercontest of the Canadian Association of LawTeachers.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(1) 48^72
Functionalism is a prominent method of comparison, focusing on legal rules
in di¡erent places as various solutions to a common problem.
The functionalist
approach on this family lawquestion would seek out the‘best’solution to the pro-
blem of unmarried couples and the vulnerability experienced by women and
children. Important as functionalist comparisons of cohabitation regimes
undoubtedly are, this paper treads a di¡erent course. It draws inspiration from
culturalcritiques of functionalism.
Such critiques underscore the di⁄culty of fully
understanding rules in isolation from their context.
They emphasise that legal
rules are understandable only in light of the discourse in which they are
This paper adopts the methodological assumption that legal dis-
course, not rules, stands at the core of comparison. Consequently, when it
compares the regulation of unmarried couples under the common law and the
civil law, it will seek to elucidate the distinct legal discourses on this matter of
familylaw.The di¡erentiation of these discourses of cohabitation can help clarify
debates in places, such as the United Kingdom, where a major policy review is
under way.
Methodologically, the paper also contri butes to comparatist explorations. Cul -
tural comparison is rightly viewed as richer and les sred uctive than functio nalism.
The paper argues, though, that it may inadvertently reify an author’s original legal
tradition (self) and a di¡erent tradition (other) as more distinct than they really
are.It may emphasiseonly the dominant voicesof a tradition’s discourse. Simulta-
neously, it maycast minority voices as external tothe tradition. Suchcomparison,
illuminating the discourses framing a problem in the present, can obscure even
the recent past. In order to appreciate legal traditions’ internal complexity, com-
paratists would do well to attend to a wide range of legal sources and to ideas
expressed across time.
The paper explores these important methodological questions in comparative
family law, and comparative law moregenerally, via a benchmarkjudgment from
the Supreme Court of Canada and the ensuing scholarship. Nova Scotia (Attorney
General) vWal s h
(Wa l s h ) assessed the constitutionality of the property conse-
quences of unmarried cohabitation. In the Canadian common lawcontext, coha-
1 R. Michaels, ‘The Functional Method of Comparative Law’ in M. Reiman n and R. Zimmer-
mann (eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006);
K. Zweigertand H. K˛tz,An Introductionto ComparativeLaw (NewYork:Oxford University Press,
3rd ed, trT.Weir,1998).
2 M. Graziadei,‘The Functionalist Heritage’ in P. Legrand and R. Munday (eds),Comparative Legal
Studies: Traditions and Transitions (Cambridge: Cambridge University Press, 2003) 114^116; P.
Legrand,‘Comparative Legal Studies and the Matter of Authenticity’ (2006) 1Jour nal of Compa ra-
tiveLaw 365, 394^401.
3 M. van Hoecke,‘DeepLevel ComparativeLaw’ in M. van Hoecke(ed), Epistemologyand Methodol-
ogy of Comparative Law (Oxford: Hart Publishing, 2004) 167.
4 M. van Hoecke and M. Warrington, ‘Legal Cultures, Legal Paradigms and Legal Doctrine:
Towards a New Model for Comparative Law’ (1998) 47 ICLQ 495, 495, 521^522; G. Samuel,
‘ComparativeLaw and Jurisprudence’ (1998) 47 ICLQ 817, 835. See also the advocacy fora ‘literary
analysis’methodology of comparative law in M. de S.-O.-L’E. Lasser, ‘The Question of Under-
standing’i n Legranda ndMunday, n 2 above, 203^207.
5 See LawCommission, Cohabitation:The FinancialConsequencesof RelationshipBreakdown(Law Com
No 307, July 2 007).
6 2002 SCC 83; [2002] 4 SCR 325.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(1) 48^72

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