Public-Law and Private-Law Nature of Family Legal Relations

Introduction: legal dualism, conditioned by the differentiation of the private and public law spheres, has been given a thorough attention in theoretical studies but was never considered with a focus on family legal relations. This paper attemptsto comprehensively study scientific theories explaining the mechanism of separation of law into private and public (theories of the legal regulation subject and theories of the legal regulation method), as well as their relationship with the material and formal criteria for dividing law into private and public. The study pays special attention to clarifying the public-law and private-law nature of family legal relations in the context of discussing the independence of family law as one of the branches of law. It is proposed to transform the question of classifying family law under private or public law into solving the issue of the balance of private and public interests. The purpose of the study is to form a scientific understanding of family legal relations through the prism of the theory of dualism of law as well as the theory of interest as performing the function of a criterion within the framework of the proposed concept. Methods: traditional normativism served as the ontological component of this scientific study and predetermined the algorithm for the research object cognition. The author took as a premise the idea of a universal connection between phenomena and processes, thoroughly substantiated within the framework of materialistic dialectics. The study employed general scientific research methods, including induction, deduction, analogy, abstraction, comparison, etc. Special scientific methods were particularly helpful: the actual picture of public-law and private- law regulation of family relations was outlined using the dogmatic legal method; the meaning of legal regulations was clarified in the process of interpreting the legal norms of family legislation and legislation of other branches, which made it possible to substantiate the conclusions formulated in the work; the historical-legal method helped the author trace the evolution of scientific ideas about dualism in law, about the independence of family law as a branch of law, etc. In addition, the inter-branch method was of great importance for this study since it made it possible to take into account the inter-branch links between family law and the related branches of law. Results: the study has proved that revealing the public-law or private-law focus of the protected interest makes it possible to determine the legal nature of family legal relations that corresponds to this interest. Conclusions: the heuristic and methodological significance for modern family law doctrine of dividing law into private and public is clarified; the fundamental impossibility is proved of identifying family legal relations as those having unambiguously public-law or private-law nature; specific examples show the critical importance of interest in determining private-law or public-law effects on social relations; the paper presents evidence of the independence of family law as an individual element of the Russian legal system; the need for a legal definition of the ‘family’ concept is substantiated.