Julio-Diciembre 2015

Vol. 5 No. 2

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Interacción y Perspectiva Dep. Legal pp 201002Z43506

Revista de Trabajo Social ISSN 2244-808X

Vol. 14 N

Octubre-diciembre

ARTÍCULO DE INVESTIGACIÓN

Enfoque funcional para comprender la esencia de la familia

DOI: https://doi.org/10.5281/zenodo.11155223

Alexander Mokhov *, Yury Svirin **, Vladislav Sorokin ***, Eduard Artyukhov ****,

Alexey Pеkshev *****

Resumen

La legislación rusa aún no ha desarrollado una definición jurídica unificada de familia.

Sin embargo, la ciencia civil intenta comprender la institución familiar desde diferentes

perspectivas. Los autores del artículo defienden los valores familiares tradicionales, pero

se esfuerzan por considerar la institución familiar desde un enfoque funcional. Creen que

es posible fijar las funciones de la familia como institución socio-jurídica a nivel doctrinal.

Basándose en el enfoque funcional, el aparato conceptual de la familia y otras ramas del

Derecho, así como la legislación centrada en la familia, pueden formarse en el futuro.

Este enfoque de la definición de familia permite la necesaria diferenciación de las familias

teniendo en cuenta su ciclo vital. El tema se estudia utilizando métodos científicos

generales (análisis sistémico y teórico) y especiales (derecho comparado, análisis lógico,

técnico y jurídico, especificación e interpretación). La tarea principal es estudiar la

institución de la familia en la actualidad e identificar las cuestiones teóricas y prácticas

del concepto de familia. Los autores también consideran la doctrina, el derecho positivo

de Rusia y la práctica judicial en casos de familia, que estipula la necesidad de un

enfoque funcional para comprender la esencia de la familia.

Palabras clave: política familiar, esencia de la familia, enfoque funcional, legislación

centrada en la familia.

Abstract

Functional approach to understanding the essence of family

Russian legislation has not developed a unified legal definition of family yet. However,

civil science attempts to comprehend the institution of family from different perspectives.

The authors of the article defend traditional family values but strive to consider the

institution of family using a functional approach. They believe it is possible to fix the

functions of the family as a socio-legal institution at the doctrinal level. Based on the

functional approach, the conceptual apparatus of family and other branches of law, as

well as family-centric legislation, can be formed in the future. This approach to defining

Mokhov, Svirin et all /Enfoque funcional para comprender la esencia de la familia

693

family allows for the necessary differentiation of families with due regard to their life

cycle. The topic is studied using general (systemic, theoretical analysis) and special

(comparative law, logical, technical, and legal analysis, specification, and interpretation)

scientific methods. The main task is to study the institution of family at present and

identify theoretical and practical issues of the family concept. The authors also consider

the doctrine, positive law of Russia, and judicial practice in family cases, which stipulates

the need for a functional approach to understanding the essence of family.

Keywords: family policy, essence of family, functional approach, family-centric

legislation.

Recibido: 29/02/2024 Aceptado: 15/04/2024

* Doctor en Ciencias Jurídicas, Profesor, Investigador Jefe del Centro de Investigación Científica de la

Universidad Estatal Panrusa de Justicia (RLA del Ministerio de Justicia de Rusia), Moscú, Rusia. ORCID ID:

https://orcid.org/0000-0001-8139-7932 . E-mail: med-farm-law@mail.ru

** Doctor en Ciencias Jurídicas, Profesor de la Universidad Estatal Rusa de Justicia (RLA del Ministerio de

Justicia de Rusia), miembro de la Academia de Ciencias Naturales, Abogado Honorario de Rusia, Moscú, Rusia.

ORCID ID: https://orcid.org/0000-0001-7616-2637 . E-mail: usvirin@mail.ru

*** Doctor en Ciencias Jurídicas, Profesor Asociado del Departamento de Apoyo Jurídico a la Economía de

Mercado de la "Escuela Superior de Derecho" de la Facultad de Administración Estatal y Municipal de la

Academia Rusa de Economía Nacional y Administración Pública bajo la Presidencia de la Federación Rusa,

Moscú, Rusia. ORCID ID: https://orcid.org/0000-0002-0279-9907 . E-mail: sor.vladislav2013@yandex.ru

**** Jubilado Primer Adjunto del Fiscal de San Petersburgo, Rusia. ORCID ID: https://orcid.org/0000-0002-

7977-1515 . E-mail: e.artiuhov@yandex.ru

***** Doctor (Medicina), Profesor Asociado del Departamento de Derecho Médico, Universidad Estatal de

Derecho de Moscú Kutafin (MSAL), Moscú, Rusia. ORCID ID: https://orcid.org/0000-0001-6076-609Х . E-mail:

avpekshev@mail.ru

1. Introduction

The range of methods and techniques for understanding social and legal reality is

wide. One of the universal methods is the functional approach. It is applicable both for

describing various biological, technical, and other systems and for studying objects of

social and human sciences, including the science of law. Being a regulator of social

relations, law considers systems from the standpoint of possible influence through

certain tools. An accurate description of a system (primarily the social system, including

family) and the identification of its main functions in the doctrine are necessary to

determine possible and most effective methods of influencing it. The regulatory and

protective functions of law cannot be fully realized without the knowledge of the exact

structure of a system, its functions, strengths and weaknesses, and the vulnerability of

their connections. To protect a social system and its ability to perform the most

significant functions in ever-changing conditions, legal science should be aware of the

main threats and risks to its sustainable functioning.

The traditional family as a unity of a man and a woman is studied by such sciences

as philosophy, sociology, medicine, law, etc. The set of family functions varies in different

sciences. This is due to their subject field, tasks, and other characteristics. However, this

does not mean that certain functions can be discarded or rejected by legal science.

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Intersectoral, interdisciplinary, and systemic approaches require their consideration and

careful study. Not all of them have direct access to doctrinal conclusions, let alone a

direct impact on national legislation. Lawyers recode the knowledge of other sciences to

solve their problems. Such activity should be carried out not rigidly but delicately.

Otherwise, the recommendations developed and implemented into social practice will

not work or will periodically fail. The result is the need to make amendments and

additions to national legislation to more accurately configure systems and reduce the

number of failures in their operation. Thus, an elementary translation from one language

to another is not just recoding the original text and creating a new product to understand

its main content but a full-fledged process aimed at preserving its initial content and

stylistic features.

2. Methods

In this study, the selection of sources was thoroughly carried out to ensure a

comprehensive and representative examination of the family as a socio-legal institution.

The methodology incorporated a deliberate choice of sources through comparative

jurisprudence, prioritizing documents that provided a deep insight into the legal

frameworks governing family structures and their societal functions. Furthermore,

logical, and technical-legal analyses were applied to these selected sources, enabling a

detailed and systematic exploration of legal norms, principles, and their practical

implications. This approach was underpinned by a strong theoretical foundation in

epistemology, guiding the analysis towards a nuanced understanding of the family's role

within the context of Russian society. Through this methodical selection and examination

of sources, the study aimed to uncover the intricate dynamics of family functions,

highlighting both legal and social perspectives.

3. Results

The scientific approach to studying family began to take shape in the middle of the

century and was determined by the development of sociology. Family was the

subject of sociological science and was considered a unit of human society and the

fundamental basis for the development of civil society and the state. The Soviet

sociologist A.G. Kharchev (1979: 75) understood family as

“a historically determined system of relationships between spouses, parents, and

children as a small social group, whose members are connected by marriage or

parental relationships, a common life, mutual moral responsibility, and social

necessity, which stipulates the social need for the physical and spiritual

reproduction of the population”.

A more detailed definition of the family was developed by the sociologist N.D. Shimin.

Shimin considered family a specific form of social life of people determined by the

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695

economic system of society, based on marriage or kinship and including the entire set

of existing relationships (between husband and wife, parents and children, different

generations). It develops due to the joint versatile activities of its members, in which

both the needs of society (the physical and spiritual reproduction of the human

personality ensuring the joint functioning of people in the sphere of personal life) and

the individual are realized (Shimin, 1989).

We believe that a family is a voluntary union of a man and a woman, based on the

principle of reciprocity, love, and respect, to reproduce and raise offspring, which is the

main unit for the construction and existence of society at a certain period of its historical

development.

Family as a social institution has the following characteristics: specific social roles

(husband, wife, father, mother, child, etc.); a special form (official marriage); public and

unspoken norms typical of family members; and family values. In Russian doctrine,

scholars identify three functions of family (reproductive, educational, and economic)

(Agaltsova et al., 2016). L.B. Schneider (2000) identifies a wider range of functions.

Schneider lists reproductive, economic, regenerative, educational, control, recreational,

social, and psychotherapeutic functions, as well as the function of spiritual

communication. In legal science, the essence of family and its constitutive features and

functions are debatable. As a rule, the emphasis is laid on marriage registered in

accordance with the established procedure, consanguinity, and cohabitation. Legal facts

are consolidated in the doctrine that entails legal consequences. This forms a circle

between law and legislation. Even in the Soviet family law, the definition of family was

given by listing the grounds for its emergence (based on marriage or kinship) and its

inherent characteristics (an association of persons related by mutual rights and

responsibilities, mutual moral and material community and support, the birth and

upbringing of offspring, running a common household) (Vorozheikin, 1974).

Article 1 of the Family Code of the Russian Federation of December 29, 1995 No.

223-FZ (State Duma of the Federal Assembly of the Russian Federation, 1995)

reproduces the constitutional norm on the protection of family and establishes the

provision that family legislation is based on the need to strengthen family. Along with

the main provisions of the code, it is not so much about family as it is about family

members (men, women, minors, disabled family members, etc.). Surprisingly, the core

act of family legislation (the Family Code of the Russian Federation) does not contain

the family concept. Moreover, the code is devoid of a conceptual apparatus. Therefore,

many scholars do not enter discussions about the essence of family but simply reproduce

well-known formulations in their scientific works and commentaries on legislation.

Due to vague and ambiguous approaches to family as a social and legal institution,

there are constant disputes in Russian doctrine regarding the need to consolidate such

concepts as family and marriage, as well as their derivatives. Less frequent disputes

concern fixing the mandatory and optional characteristics of family and its functions.

Many authors believe that it is unnecessary or difficult to define these concepts. M.V.

Antokolskaya considers family an exclusively sociological and not legal phenomenon. In

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Antokolskaya’s opinion, it makes no sense to develop a starting definition for

jurisprudence (Antokolskaya, 1996). However, law enforcement officers work with

categories developed primarily by legal science. It is allowed to use special facts and

skills from other sciences and areas of human knowledge only in the most difficult cases.

In some countries, the concept of family is fixed not only by national doctrine but

also by law. According to Article 59 of the Code of the Republic of Belarus on Marriage

and Family of July 9, 1999 No. 278-Z (House of Representatives of the Republic of

Belarus, 1999), a family is understood as an association of persons related to each other

by moral and material community and support, running a common household, and

having rights and responsibilities arising from their marriage, close relationship, or

adoption.

According to T.V. Shershen (2010: 17), “The concept of family should be consolidated

due to both practical and theoretical reasons. It is also required to create an effective

mechanism for the legal protection of family, ensuring its stability and sustainability in

the Russian society and the state”.

A.A. Ashin and M.A. Nekrasova propose to consolidate the definition of family at the

level of federal law. They define it as

“An association or union of persons living together based on ethnicity, marriage,

kinship, or adoption and guided by mutual respect and support, whose members

have mutual personal non-property and property rights and obligations

associated with a community of life, in which moral values and rules of conduct

are formed that are protected by the state” (Ashin & Nekrasova, 2019: 12).

In our opinion, this definition lacks the features and functions necessary and

sufficient for recognizing some community or association based on kinship, property,

and other characteristics as a family and not any other form of cohabitation. Law

enforcement practice ensuring the stability of family, civil, and other legal relations pays

much attention to the mandatory and optional features of family. They lay the basis for

developing the doctrinal (subsequently, legislative) concept of family.

Some authors consider it difficult or even impossible to fix such a definition in

regulatory legal acts in connection with the development and transformation of the

family institution. For example, there are same-sex marriage and cohabitation. In this

regard, a question arises: Do these forms of implementing certain functions by

individuals constitute family? Under Russian legislation, the answer is no. Cohabitation

does not guarantee the same property rights for its parties as marriage. By virtue of the

Constitution of the Russian Federation, marriage is regarded exclusively as a union of a

man and a woman.

A traditional group or union is far from a family. Can a group of people living under

the same roof but not related by marriage (kinship) be considered a real family? Hardly.

Such groups may include military groups and persons living in orphanages, nursing

homes, and other institutions. Therefore, connections that do not pursue goals typical

of the institution of marriage and are not based on the principle of voluntariness are

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697

difficult to classify as family-related. In this regard, we cannot agree with some Russian

authors who propose to expand the concept of family. Yu.S. Kabanova (2020: 126)

proposes to consolidate the following definition in the Family Code of the Russian

Federation:

“A family is an association of individuals based on marriage or kinship, property,

adoption, or other forms of placing children in a family, or the joint residence and

household management, which should be protected by the state and whose

members are connected by personal relationships of trust and common life and

interests”.

The second part of the definition stating that a family includes not only persons

related by marriage or kinship but also any persons living together, running a common

household, and sharing common interests cannot be perceived positively since it violates

the historically established norms of morality. This concept contradicts traditional values

and may pose a threat to mental (spiritual, socio-cultural), demographic, social, and

other types of security.

In accordance with the Decree of the President of the Russian Federation of

November 9, 2022 No. 809 “On approving the Fundamentals of State Policy to preserve

and strengthen traditional Russian spiritual and moral values” (President of the Russian

Federation, 2022), a strong family is classified as one of the traditional values. Western

values call into question the idea of a strong family, which leads to its erosion through

destructive ideological influence on Russian citizens. A family is often regarded as one

of the private-law communities (Kokova, 2016) along with legal entities of private law.

Households, family business, and family entrepreneurship are common categories of

economic science. For economics as a science, the economic function of any subject

comes first. For legal science, this is not the only one and not the dominant function.

According to Article 1 of the Family Code of the Russian Federation, family relationships

are built on mutual love, respect, and assistance. Personal non-property relations are

the most important in family relationships. Moreover, civil legislation is applied to

property and non-property relations between family members that are not regulated by

family law insofar as this does not contradict the essence of family relations. V.S.

Nersesyants (1999) also dwells on the fundamental differences in relations between

family members and members of civil society who are not related by blood.

A family is a relatively small and isolated group of persons, formed under specific

property and kinship relationships, functioning according to public and unspoken rules

based on existing traditions and social values.

According to a systems approach, family is viewed as a social, open, self-organizing,

and self-regulating system (Kovalenko, 2012). If we consider family a functional self-

regulating system that has its life cycle, then we need not so much to formulate a precise

concept but determine the main functions of a family as a unit of society. Their feasibility

analysis helps answer the following questions: What is a family? And What is its

surrogate?

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Part 1 of Article 31 of the Housing Code of the Russian Federation of December 29,

2004 No. 188-FZ (State Duma of the Federal Assembly of the Russian Federation, 2004)

contains a list of possible family members of the owner of a residential premises (spouse

living together with the owner, as well as children and parents of the owner). The Civil

Code of the Russian Federation (Articles 672, 1088, 1127, 1183, 1273, etc.) (State

Duma of the Federal Assembly of the Russian Federation, 1994) deals exclusively with

family members of a tenant, owner, or testator. Federal Law of October 24, 1997 No.

134-FZ “On subsistence minimum in the Russian Federation” (State Duma of the Federal

Assembly of the Russian Federation, 1997) understands a family as persons related by

kinship and/or property, living together and running a joint household. This law

establishes the legal basis for determining the living wage in the country and provides

state guarantees for citizens and other social protection measures. In the logic proposed

by the legislator, family is of interest to the state and society exclusively in the context

of the social policy it implements, or more precisely, in its permanent fight against

poverty.

Indeed, poverty is a common problem for young, single-parent, and extended

families, as well as families in difficult life situations. However, the role of the modern

state is not limited to measures of social support. Surprisingly, the Soviet legislation

used the same technique in an attempt to define family not in a law designed to regulate

family relations but in a completely different act. The family concept was introduced in

the Law “On compulsory military service” of 1930 (Central Executive Committee, Council

of People's Commissars of the USSR, 1930). Family was defined as “a labor- or blood-

related association of persons of different degrees of kinship, living together and running

a common household or sharing budgets”.

A comprehensive analysis of Russian legislation shows that each ministry and

department, based on their competences and tasks, classifies as family members those

persons in a way that is beneficial and suits them. This misguided practice developed

back in the USSR has not been overcome to this day. In this connection, E.M. Vorozheikin

(1974: 33) claims that “there cannot be several definitions of family in law for different

branches. It must be universal”.

Defects in legislation give rise to legal conflicts, some of which can only be resolved

in court. According to the legal position developed by Russian courts, family members

include children in relation to each other, i.e., brothers and sisters. A different

understanding of this norm would mean a restrictive interpretation of law. The court’s

resolution that a brother and sister should be considered family members only if they

are dependent does not correspond to the current legislation since the fact of relationship

is not determined by the legislator due to the fact of being dependent. Kinship is an

unconditional category, not dependent on the financial situations and obligations of

family members towards each other.

Disputes regarding the maintenance obligations of family members sometimes cause

difficulties for courts. Clause 48 of Resolution of the Plenum of the Supreme Court of the

Russian Federation of December 26, 2017 No. 56 “On the application of legislation by

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courts when considering cases related to the collection of alimony” (Plenum of the

Supreme Court of the Russian Federation, 2017) enlists family members entitled to

maintenance payments. In addition, the act clarifies the occurrence of maintenance

obligations to actual caregivers. Resolution of the Plenum of the Supreme Court of the

Russian Federation of April 23, 2019 No. 10 “On the application of Part 4 of the Civil

Code of the Russian Federation” (Plenum of the Supreme Court of the Russian

Federation, 2019) states that when deciding whether persons belong to a family, the

court shall consider family relationships and personal connections, periods of

communication, the nature of their relationship, and other significant circumstances.

In our opinion, the doctrine is concerned not with a formal-legal but systemic

understanding of the institution of family. Law and legislation are not identical

phenomena. The existing conceptual apparatus not directly enshrined in federal law

allows solving the main problems that arise in law enforcement practice.

Along with a special or legal understanding of family, V.A. Ryasentsev (1982)

proposes to study the sociological understanding of this institution. This approach allows

understanding the essence of family better and implementing state family, social, and

other policies more effectively.

The legislation of other countries enshrines a sociological and even ideological

understanding of family in their regulatory legal acts. According to Article 21 of the

Constitution of Greece, family is the cornerstone of the preservation and advancement

of the nation (Konstitutsiya Gretsii, 1975). Article 41 of the Constitution of Ireland

recognizes a family as the natural primary and fundamental unit group of society. Family

is also viewed as a fundamental moral institution (Konstitutsiya Irlandii, 1937).

An attempt to formulate a more general understanding of family, not limited to a list

of legally significant facts, was made by Russian legislators. The Draft Federal Law “On

the fundamentals of state support for family in the Russian Federation” developed by

the Federation Council in 2007 (State Duma of the Federal Assembly of the Russian

Federation, 2007) proposes to consider a family an association of persons based on

marriage or consanguinity, connected by a common life and mutual responsibility. This

small addition to the definition (“mutual responsibility”) would have presented a family

not as a union of individuals connected by mutual rights and obligations but as a new

subject of law. At the doctrinal level, if family is singled out as an independent subject,

it is done with reservations (as a self-organizing and self-regulating subject, as a special

subject whose interests may not coincide with the interests of individual family members,

etc.).

According to A.M. Rabetz, society is not ready to determine the legal personality of

a family, either as a social institution or as a group of individuals, at the current level of

legal thinking. Rabetz (2022) does not exclude the predominance of a new view on the

legal personality of a family.

A.A. Mokhov also draws attention to the formation of the family institution as an

independent entity along with the individual, society, and the state. In other words, it

should become a separate addressee for the creation of family-centric legislation. In

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Mokhov’s opinion, the constitutional amendments of recent years, as well as strategic

planning documents, cannot be implemented without changing the approach of society

and legislators to the institution of family (Mokhov, 2023).

A detailed analysis of the basic approaches to family shows the following functions:

biological, spiritual (mental), social, and economic. Thus, family exists in a system of

relationships: personality – family – society – state.

Family functions are close or identical to those of the individual. This is no coincidence

because any person is a social being historically adapted to living in a family, tribe, and

society. Even an adult with basic skills could not survive outside a group for a long time.

They gained this opportunity a little over a hundred years ago.

The biological (reproductive) function is the realization of one’s biological purpose as

a biological unit (the birth of children, procreation, and reproduction). The very

etymology of the word “family” is directly related to the birth and upbringing of children.

When describing this function, anthropologists and biologists usually use the following

words and phrases: “biological predetermination”, “heredity”, and “human nature”.

Unlike animals, humans face the task of not only quantitative but also qualitative

reproduction. In society, it is not the strongest that survives and produces offspring but

rather the fittest (emotional intelligence, etc.).

Today, biological, social, spiritual, and economic functions are closely intertwined.

The external conditions of a family’s life (economic, social, and the use of certain

technologies (for example, counter-reproductive) have a strong impact on its

reproductive function, i.e., the reproductive potential inherent in adults by nature.

The spiritual function of family is the basis of its well-being. The Code of the Republic

of Belarus on Marriage and Family fulfills the task of strengthening a family as a natural

and basic unit of society following the principles of universal morality, preventing the

weakening and destruction of family ties. Specialists in the field of pedagogy and

psychology describing the spiritual (mental) function of family are guided by the

following concepts: “family relationships”, “family atmosphere”, “personality

development”, “formation of mental processes”, “psychotherapy”, “roles”, and “role

behavior”. Representatives of traditional religions view family as a small church.

The social function is among the main family functions. In the literature, the family

institution is considered one of the three active forces in human socialization. Family is

one of the oldest social institutions responsible for both current and intergenerational

transmission of basic values and constituting the basis of society or its groups. We

distinguish between general (traditions, customs) and individual (specific embodiment,

refraction of traditions, social practices) aspects (Glazkova, 2015). Thus, K.P.

Pobedonostsev (2003) considers it important to encourage people to enter into marriage

since its goal is to fulfill the law of nature. Family is engaged in upbringing and education

and organizes effective communication between family members and other persons. It

also plans recreation and leisure activities and satisfies other non-material needs of its

members. In industrial (let alone post-industrial) societies, the tasks of education and

upbringing have been transferred to public and state institutions. However, family has

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701

also preserved them. Within this function, care is taken for family members, including

their health and well-being. To a limited extent, family members also provide social

control. The social function is of great importance, and many authors claim that social

kinship can give rise to family relationships (Svirin et al., 2023).

The economic function of family has been widely considered by sociologists,

economists, and, in recent years, lawyers. The ability of individual family members, as

well as the family as a whole, to own the means of production highlights the phenomenon

of family entrepreneurship. In addition, any family constantly solves economic and

household problems, acting as a regular consumer of goods (food, clothing, household

appliances, etc.). Basic labor skills are formed and developed within family.

Consequently, family is often described with the following statements: “the formation of

labor culture”, “production and labor activity”, and “the development of skills”.

Indeed, the development of an individual family function and its activity in

implementing certain tasks is determined by both external circumstances (favorable and

unfavorable socio-economic, political, and other living conditions) and the stage of the

family’s life cycle.

For a newly formed and young family, a biological function (namely, childbearing)

comes to the fore. For a mature family, it is more important to take care of the education

of their children, raising grandchildren, etc. At a certain stage of development, an

established family actively forms its economic base.

As older family members approach the end of their life cycle, they become more

concerned with consolidating and transmitting traditional values to future generations,

passing on positive family experiences and sometimes property.

4. Conclusions

Based on our study, the following conclusions can be drawn:

 Today, the effective implementation of state family policy requires a legal

understanding of the essence of family from the standpoint of a functional approach.

When developing strategic plans and other documents, it is necessary to consider

not only the legal facts that mediate individual family relationships but also the full

range of social relations under study.

 To implement state family policy and ensure the stability of law enforcement

practice, the concept of family needs to be established (at the level of doctrine

and/or legislative level).

 Family should be regarded as a special subject of social relations. The identification

of family (rather than its members) as an independent addressee of the policy being

pursued will help to solve social problems.

 The functional approach allows us to determine four main functions that characterize

family and distinguish it from other groups (communities): biological, spiritual

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(mental), social, and economic. The demand and use of a particular function depend

on several internal and external factors. The most important characteristic of a

family is its life cycle (young family, mature family, etc.).

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