State and Society - the "Legal Culture" in the “Interdisciplinary” Comparison between Legislation and Family Law and between Law in the Book and Law in Action

In my opinion Family Law represents the litmus test of the setting of the relationship between the law and the "legal culture" of a People. Furthermore this is the field where the delta between the combinations of the law in the books with the law in action is wider. With this paper I intend to demonstrate, how the cultural, social and political-economic evolution of a given society (in particular the contemporary Italian society and more generally the European societies) accentuates the disconnection with "positive law" and how "family law", despite having "universal" aspects, is so intimately linked to society so that it represents the fulcrum of legal culture reflecting the ideas, the traditions, the religions the cultural and political approach of the peoples living in the same Country. It may be interesting, for instance, outline how strong and wide had been the evolution, in the last half century, of the “Mediterranean Family” in the light of the influence of the “Nordic or Continental Family” model and the growing of economic and welfare as the development of new political and scientific thoughts. One more difficult point in contemporary Family Law is the emerging of multi-communitarian approach even in Countries, like Italy, in the past not touched by the problem of immigration and the growth of strong foreign communities. This means also the needs to understand if there is a “contamination” between different rules and if the State should or not intrude in order to “defend” the “national” traditions or may admit a kind of parallel body of rules or at least admit a “bleeding” of the rules of Family Law. Again there is a clash between what is the “ideas” and “legal order” of the legislator (and the Authorities) and the reality, i.e. the law in action. In my opinion analysing this aspects, thanks to an “interdisciplinary” approach and methodology, it becomes easier to understand, through family law, the cultural identity of different social groups, evaluating the possibilities of dialogue or "rejection" of different models and the possible overcoming of the positivist dimension. The role of the jurist, especially in the field of Family Law should be to observe the reality and to construe the rules, not to use the rules to force the reality