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Advanced Introduction to Private Law

Jan M. Smits

In this Advanced Introduction, one of the world's leading private law scholars takes the reader on an intellectual journey through the different facets and dimensions of the field, from the family home to Kuta Beach and from Thomas Piketty to Nina Hagen.
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Family law

Jan M. Smits

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, the field that deals with the legal consequences of intimate relationships. The traditional relationships family law recognises are those between husband and wife and between parent and child, but in the last few decades family law has greatly expanded its grasp and now also includes the regulation (or deliberate lack thereof) of, for example, relationships between same-sex partners, cohabitants, and sperm donors and their genetic children. The expansion of family law to this wider range of relationships reflects the law’s willingness to take the increasing diversity of modern family life into account.

This increasing attention to a great variety of relationships makes the term ‘family law’ somewhat misleading. The real question here is what we owe to those whom we love, those with whom we live or those with whom we share genetic ties. These obligations are not only of a financial nature but also relate to duties to protect, care and support others. Some have spoken of ‘family law exceptionalism’: unlike the market, families are about intimate, affective and vulnerable relationships.1 Interestingly, the emergence of a separate field of study of these relationships only took place in the nineteenth century when German scholars, headed by Von Savigny, ‘invented’ family law and placed it opposite the law of contract.2 Unlike the market-driven and ‘universal’ contract law, essentially the same everywhere, each nation’s family law, altruistic and dutiful, would be the unique manifestation of the spirit of a people. Also unlike contract law, these domestic relationships would, in Von...

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