Famille structurelle, famille fonctionnelle : réflexion sur le travail prétorien d'adaptation de la notion de famille à travers la jurisprudence de la Cour européenne des droits de l'homme et de la Cour suprême du Canada

Authors: Bensa, Clémence
Advisor: Belleau, Marie-Claire; Lamy, Bertrand de
Abstract: Although universally known, there is no consensual agreement of the concept of family. The different social sciences, as well as the various branches of law, can’t agree on an unanimous definition. The family presents the paradox of being intimate while depending on the public sphere with regard to its recognition and exercising of the rights related to it. In recent years, the notion of family has been increasingly influenced by fundamental rights and the internationalization of personal relationships. The law, which is normally rigid, seems to have difficulty apprehending the complexity and variability of family situations. Therefore, the use of vague opinions by the legislator offers the judge more latitude of what constitutes a family. In this context, the comparative study of the jurisprudence of the European Court of Human Rights and the Supreme Court of Canada highlights the elements taken into account by judges when they take up family litigation. While the elaboration of a definition does not seem to be able to effectively determine the frame of the notion of family, the use of a mechanism seems, on the contrary, to offer a more flexible approach to the family phenomenon. There are two variables at the heart of the mechanism used in this study that correspond to the two sides a family can fall into: a structural side, which itself will be divided into two components, a legal and a biological one, and a functional side. This dichotomy makes it possible to take into account the real and the complex in a very evolutionary area. In addition, it offers the keys to reasoning by inviting jurists to think about the family without creating causal links between the different sides of the family that are constantly articulated, often agreeing, sometimes conflicting.
Document Type: Thèse de doctorat
Issue Date: 2019
Open Access Date: 26 September 2019
Permalink: http://hdl.handle.net/20.500.11794/36680
Grantor: Université Laval
Collection:Thèses et mémoires

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