Gender equality is an issue that is on the agenda, this fight being led by feminist movements, who see in all expressions that refer to the male gender, an opportunity for the banning of our lexicon, which is why I am surprised that the expression bonus pater familiae can still be used, in our legal system.
Rogério COPETO
Colonel of the GNR
Master in Law and Security and Homeland Security Auditor
The expression bonus pater familiae used in Roman Law designates in the abstract a normal person, according to the social standards, civic and family society, for whose behavior the concept of "due diligence" is measured, emerging as the careful measuring element because in legal situations and serves to define the "fault".
In practice, it is said of someone who did not act with fault or, at least, with legally relevant fault, who used the "due diligence of a good householder".
It is in paragraph 2 Article 487 of the Civil Code, under the title "Guilt", we find the reference to the term "good family man": “Guilt is appreciated, in the absence of other legal criteria, the diligence of a good father, given the circumstances of each case”.
And because the Civil Code has not changed, the "good father" expression will resist, despite the low price that the males currently checks, contributed to this, recent cases of murder of women at the hands of men, in the context of domestic violence, causing men are seen as potential aggressors, including good family men, we must protect and continue to have as a reference in our legal system, for purposes of assessing the "fault".
However, it is true, that with this article I may be to alert the Portuguese feminist movements, to the subject, leading them to take steps to eliminate the expression "good family man", for being sexist and violate gender equality.
this argument, which has been used by the French feminist movements, that much before proposing the elimination of the designation of "father" and "mother" of the forms of French public schools, so as not to discriminate against people of the same sex, took measures to eliminate the expression bon père de famille, having the same been purged of all French laws in 2014.
It was precisely in August 2014, that France eliminated the reference to bon père de famille from all French legal diplomas, having this legislative change occurred with the adoption of the "Equality Act", a “Law No. 2014-873 of 4 August 2014 for real equality between women and men", which came into force with the aim of public institutions, implement a 'Gender Equality Policy
The legislative initiative of that "Equality Act", It was responsible for a set of seventeen deputy(a)s French environmentalist party, who presented a proposal to suppress the expression bon père de famille due to its sexist nature, having been approved in the same 21 January 2014, despite the heated political debate, which included the opposition of deputy(a)s conservative, they called the initiative "language totalitarianism".
The "Law of Equality" was finally approved in August 2014 and made the expression bon père de famille disappear from fourteen articles, ten in the Civil Code (that inspired our), and the remainder in special laws, having eliminating been justified by its authors, in that the expression is outdated and obsolete (literally, outdated) and that goes back to the patriarchal système, It is misunderstood by citizens, can be easily replaced.
This reform resulted in France as well, the replacement, the archetype known in all countries of the Roman tradition (including Portugal) I am a good father of a family, by the standard of "reasonableness", Following the Anglo-Saxon tendency, where expression is used, and the elimination of the good father of the family's role model, that existed in French law.
On this basis, the authors of the "Equality Act" argued that the change was a strictly terminological, propose the following replacements: A palavra care of a good father (care of a good father) series substitute for reasonable care (reasonable care), and; a good family's father (good father) the word "raisonnablement" (reasonably).
This change in French legislation thus eliminates the expression bonus pater familiae, with the justification that it is outdated, and that goes back to the patriarchal system, proposing a mere change in terminology, that does not affect the content itself, It is the notion of "reasonableness" in tune with the notion of "good family man", so the change would be minimal and limited to a kind of linguistic update, being which are basically eliminated antiquated expressions of a patriarchal society model, that the "Equality Act" aims to eradicate, arguing in favor of the reform that the standard of the bon père de famille is a stereotype based on sex and that it justifies its replacement by one that is not.
This argument has before been applied in France, particularly in 2012, when the deletion of the word "mademoiselle" (Ms), maiden name (maiden name) and married name (married name) in all administrative forms, being replaced by “madame” (Mrs) to the respective state civil protection. Is at 1970 the expression le chef de famille had been deleted (the householder), that for centuries identified the husband as the highest authority within the family.
The purge of the bon père de famille in France was mainly motivated by gender equality, eliminating a pattern that worked for centuries, It is problematic for some, for representing the personification of the social role of the paterfamiliae, a patriarchal family model, forgetting, however, its functionality as a standard of "due diligence" and "care", that has nothing to do with their role within the family, neither with gender.
The expression bonus pater familiae is used to identify a model of sensible and current person behavior, normal diligence, standard or rule of conduct that a normal society expected of a reasonable person in general and not a particular man, so the consideration of what is or is not reasonable to always depend on what the judicial operator, ultimately the judge, meant by normal or not, in which case the expression "good family man", as neutral as the word "reasonable".
That is why, if the argument of gender deserves attention, critical reflection on this matter should also be made, because on one hand the notion of "good family man" can be difficult to understand for a lawyer who has not studied Roman law, which is the case of the Anglo-Saxon, also the mere automatic replacement by the standard of "reasonableness", stimulated by the influence of international and European harmonization, motivated by feminist movements, It does not imply a greater ease in their understanding and application, so the import standard of "reasonableness" Anglo-Saxon can create major constraints and doubts, I hope that we will protect it from the continuity of the use of the good father of the family, in our legal system.
We finished proposing the creation of Hashtag: #peladefesadobonuspaterfamiliae; #somosbonuspaterfamiliae;
Note: Republishing the article “For the defense of a good father of the family", published in Lidador Noticias in 10 April 2019. The text constitutes the exclusive and unique opinion of its author, which only binds to this and do not reflect the opinion or position of the institution where it provides services.
