Comparative Family Law and the Political Process: Regulation of Sexual Morality in Finland
| Published date | 01 June 1999 |
| DOI | http://doi.org/10.1111/1467-6478.00121 |
| Date | 01 June 1999 |
| Author | David Bradley |
This article demonstrates a basis for comparative analysis of family laws.
It illustrates the extent to which political constraints influence the
development of legal policy and reception of foreign models. The article
takes the form of a case study and examines Finnish law relating to
unmarried parenthood, informal cohabitation, and same-sex partner-
ships. Comparisons are drawn with Swedish law. Finland and Sweden
have maintained a remarkably close association. Similarities and points
of departure in the reform process and detail of legislation in these two
jurisdictions point up the institutional dimensions of family law.
INTRODUCTION
A recent review of Mary Ann Glendon’s study of Western family laws urged
greater interest in comparative studies.1Accompanying this enthusiasm,
however, were indications of the somewhat insecure foundations for compar-
ative analysis both as an academic discipline and as an aid to law reform.
It was doubted, for example, whether Glendon would have predicted the
ferment in English family law in the 1990s reflected in the radical revision
of child support law, the defeat of a modest extension of rights for unmarried
cohabitees in 1995, and the subsequent, troubled course of divorce reform.2
© Blackwell Publishers Ltd 1999, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* London School of Economics and Political Science, Houghton Street,
London WC2A 2AE, England
I am grateful to Markku Helin and Matti Savolainen of the Ministry of Justice, Finland; Raimo
Lahti and Anu Pylkkänen of the University of Helsinki; Risto Jaakkola of the Helsinki Research
Institute of Legal Policy; Henrik Stenius of the Finnish Institute, London; Sally Dickens and
the anonymous referees for commenting on an earlier draft of this article. Errors and opinions
are mine.
175
JOURNAL OF LAW AND SOCIETY
VOLUME 26, NUMBER 2, JUNE 1999
ISSN: 0263–323X, pp. 175–91
Comparative Family Law and the Political Process:
Regulation of Sexual Morality in Finland
DAVID BRADLEY*
1A. Bainham reviewing M.A. Glendon, The Transformation of Family Law (1996) in (1997)
9 Child and Family Law Q. 331–4, at 333.
2 id., p. 331.
And so far as the Family Law Act 1996 is concerned, the reviewer lamented
the state of English divorce law, took comfort in the fact that the system
in operation in France appeared to be more complex, and applauded the
simplicity of the divorce reform enacted in Sweden in 1973. In fact, Swedish
family law attracted general approval.3
The review does allude to the ideological context for policy formation and
to this extent dispels any impression that law reform and cross-cultural
transplantation of legal policy can be autonomous processes insulated from
political considerations. This article develops this perspective. Its object is
to demonstrate the impact of institutional factors on laws regulating domes-
tic relationships. The medium for this illustration is an examination of
Finnish law and comparison with Swedish legal policy. The basis for the
exercise is the fact that the Finnish and Swedish legal systems have a common
root and, as outlined below, a remarkably close relationship, with Sweden
as the dominant partner, has been maintained between these two juris-
dictions. Against this background, the article focuses on the response in
Finland to the sensitive project of replacing the code of sexual morality
which has discriminated against extra-marital relationships. From the refer-
ence point of the common legal heritage and continuing association with
Sweden, it compares the process of law reform in Finland relating to children
born outside marriage, unmarried heterosexual cohabitation and same-sex
partnerships and considers the reception in Finnish family law of Swedish
legal transplants on these issues.
All developed countries whose family laws are founded in the Christian
tradition are faced with the task of reconstructing this value system. It is
not, however, a function of this article to prompt the introduction (or rejec-
tion) of Finnish or Swedish policy prescriptions in this area, although they
may have some intrinsic interest. From the perspective adopted here, the
minutiae of legal policy and detail of reform in Finland, described below,
are an expression of political values and institutional priorities. The primary
purpose of the article is to indicate the type of constraints on policy develop-
ment and on the adoption of foreign laws which may apply in any juris-
diction. A study of Finnish family law provides a singular if not unique
opportunity for this purpose, given the strength of legal traditions shared
with Sweden and the extent to which Finland has adopted Swedish initiatives.
LEGAL TRADITION, POLITICS, AND SOCIAL STRUCTURE
IN FINLAND
Finland formed part of Sweden prior to 1809: common legal traditions
shared by these two jurisdictions derive from this period. A special relation-
ship has been preserved subsequently. The impact of Swedish influences on
176
© Blackwell Publishers Ltd 1999
3 id., p. 332.
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