The religious element in the evolution of family law

• Author: Roxana Albastroiu - Lavinia Olah
• Position: Ph.D. Candidate, Faculty of Law and Administrative Sciences, University of Craiova, POSDRU/88/1.5/S/49516 'Cresterea calitatii si a competitivitatii cercetarii doctorale prin acordarea de burse' - Lecturer, Ph.D. Faculty of Law and Administrative Sciences, University of Pitesti
• Pages: 257-260

THE RELIGIOUS ELEMENT IN THE EVOLUTION OF FAMILY LAW

Roxana Albstroiu 

Lavinia Olah 

Abstract

Religiousness, as a respectful attitude aspiring towar ds the esoteric, but with a prosa ic quality, proves

to be a main cha racteristic of humanity. The relation between law and religion is an extremely complex and

changing one; it varies thr oughout history, given that it adapts to the conscience of its public, in order tha t make

its mark on the curr ent realities.

Key words: the Church, the State, family law, marria ge, secularization.

Introduction

The law is not detached from the complexity of the social life which is of a relational quality. “In its

classic sense, the law is closely tied to the context.”

1Similar to other lega l institutions, the family has cha nged so

much throughout time both in regar d to its functions a s well as its structure. Actual facts which corr espond to

the r eal conditions of humanity have altered the view on the family, giving rise to legisla tive reforms aimed at

this exact topic.

1. The evolution of relations between juridical norms in family law and religious norms

Depending on its frequency, one type o f relationship or another will lead to the creation of a new

regulating legal measure, or the periodic nature of a certain natural event will undoubtedl y necessitate its being

considered fro m a legal point of view. Scientists from the previous centur y were wondering where the family

had come from, those in present times, question where it is heading.2

In these circumstances the bond between the law and religion appears inevitable in history. “The la w

has never been given the secular appearance that it has at present”.3 Obviously, there was a period in the history

of ever y state, when the law and religion “were overlapping” in the sense that law was considered as having

divine origin.

The secularization of all institutions take place step by step, thus accomplishing the separation, more or

less violent, of the religious functions and attributes from the secular ones, and the result of this was the

separation of Church and State. Although we must remember, even in this case, a certain q uiescent bond remains

between the law and religion at a psycho-social level.

It was the French Revolution of 1789 that marked the scored triumph by secularizing marriage, an act

which brought with itself a new rational, lay spirit of mind, hostile to religious ideas. This new way of thinkin g is

part of the vast secularization that took over the whole of Europe. During the Renaissance, the secularization of

public la w was t he first step in this process of emancipating the law from the tight grip of religion, followed

subsequently by private law.

After a period wherein certain fields – family law, for example – were regulated exclusively b y

religious norms, and others supported the co-existence of two types of norms, religion formally separate itself

from the law. Sovereignty will no longer be a heavenly right but a populist one. After all, we are in the presence

now of a new mysticism, given that even the father o f modern democracy, Jean Jacques Rousseau, entitles his

own system “the ci vilian religion”. “Precisely how the absolute monarch had the right to the lives and wealth of

his subjects in the name of God, so shall the general will, as Rousseau conceived it, have the r ight over the lives

and the wealth of its citizens.”4

With regards to private law, specificall y marriage which is one of the traditional institutions of the

Church, it was strongly desired that it be released from all the rules and Christian religious implications, and the

result was – according to some 5 - “the distortion of the divine essence of marriage, its indissolubility, by

promoting divorce and restricting the impediments that marriage once posed.”

In the Middle Ages, under the impulse of Christianity and Islam, the central aspect of marriage was

given by the fact that “man and woman are intimately united in that they honour the same gods which are the

 Ph.D. Candidate, Faculty of Law and Administrative Sciences, Uni versity of Craiova, POSDRU/88/1.5/S/49516 “Creşterea calitii şi a

competitivitii cercetrii doctorale prin acordarea de burse”; roxana_albastroiu@yahoo.com

 Lecturer, Ph.D. Faculty of Law and Administrative Sciences, University of Pitesti; lavinia_olah@yahoo.com

1 Gheorghe Dnişor, Filosofia drepturilor omului, Universul Juridic Publishing House, Craiova, 2011, p. 221.

2 Cristiana Mihaela Crciunescu, Regimuri matrimoniale, All Beck Publishing House, Bucharest, 2000, p. 3.

3 Ion Craiovan, Filosofia dreptului sau dreptul ca filosofie, Universul Juridic Publishing House, Bucharest, 2010, p. 48.

3 Ibidem, p. 49.

4 Ibidem, p. 49.

5 Iulian Mihai L. Constantinescu, Biserica şi instituia cstoriei, Condiiile administrrii cstoriei, Aius Publishing House, Craiova, 2008,

p. 43.