CHAPTER XXIX
The Japanese Family System.
More than once in the course of this narrative has reference been made to the Japanese family system, the influence of which is responsible for so much that is distinctive in the political and social life of the people. A short sketch of this system, as it works to-day, may therefore be not without interest for the reader.
Prior to July, 1898, when the present Civil Code came into force, matters concerning family law were governed by local custom, which varied not only in each province, but often in different districts of the same province. All such matters are now dealt with in accordance with the provisions of Books IV and V of this Code, and in accordance with the complementary Law of Registration, which came into operation in a revised form on the same date as the Code. The working of the family system since then has, therefore, been uniform throughout the country.
Before going further it may be well to explain what is meant by the word “family” in Japanese law. It denotes something to which we have nothing analogous. It means a grouping of persons bearing the same surname and subject to the authority of one who is the head of the family, and who may or may not be the common parent, or ancestor; and it is in this sense that the term “member of a family” is used in the Code, and in the complementary law above mentioned. This family, which may be comprised in one household, or may embrace several, may be the main branch of the parent stock, or only a cadet branch. In either case it constitutes what is known to the law as a family; succession to the headship of it is regulated by strict provisions; and the person who is its head is invested with certain well-defined authority. Kinship is not essential to membership in this family group, for the law provides that a relative of an adopted person may under certain circumstances become a member of the family which the latter has entered.
There is, however, another and larger family group which consists of all those who stand towards each other in the position of kindred as defined in Article 725 of the Code. In this latter group, which finds its embodiment, so to speak, in family councils, lies to a great extent the key to the real position of the individual in Japan.
The Japanese family system is thus a combination of relatives into two groups, and every Japanese, therefore, is to be regarded in two capacities: first as a member of the smaller family group—the legal family—and, as such, unless he is head of the family himself, subject to the authority of its head; and, secondly, as a member of the wider group of kindred, with whom he is closely connected by rights and duties, and as such, whatever his position in the family may be, subject in certain matters to the control of family councils. But the position of a Japanese in his dual capacity as a member of both the smaller and larger family groups has little in it of the permanency and stability which are found in our family life. It is affected not only, as with us, by marriage and divorce, but is also liable to constant change by separation from the family through adoption, and its dissolution, through abdication or other causes mentioned in the Code, and by the conditional liberty given to a person to change his family allegiance, so to speak, and transfer himself from the authority of one head of a family to that of another. The artificial character of both groups is likewise heightened by the frequency of adoption, which so closely resembles kinship that no material difference exists between the two.
In noting briefly the main features of the Japanese family system it will be convenient to begin with those which have their counterpart in Roman Law, namely, parental authority, the position of women, the custom of adoption, and the religious rites of the family.
Parental Authority.—It is doubtful if at any time parental authority in Japan ever approached the rigour of the Roman patria potestas, although in the now obsolete Codes offences were punished more severely when committed by children against parents than when the reverse was the case. The doctrine of filial piety, however, which inspired this discrimination, never in practice excluded the duties of parents to children. In Japan, moreover, parental authority has always been subject to two weakening influences—the intervention of family councils, and the custom of abdication. It now includes both paternal authority, and, in certain cases, maternal authority, a thing unknown to Roman law. This authority, never of a joint nature, is exercised over children who are “members of the family” of the parent in question during their minority, and even afterwards so long as they do not earn an independent living. Japanese law speaks of a person as a child, irrespective of age, as long as either of the parents is alive, and a parent’s right to maintenance by a son, or daughter, has precedence over the rights in that respect of the latter’s children and spouse.
Position of Women.—The legal position of women in Japan before modern legislative changes is well illustrated by the fact that offences came under different categories according to their commission by the wife against the husband, or by the husband against the wife, and by the curious anomaly that, while the husband stood in the first degree of relationship to his wife, the latter stood to him only in the second. The disabilities under which a woman formerly laboured shut her out from the exercise of almost all rights. The maxim Mulier est finis familiæ (“The family ends with a woman”) was as true in Japan as in Rome, though the observance may have been less strict owing to the greater frequency of adoption. All this has been greatly changed. In no respect has greater progress been made than in the improvement of the position of women. Though, like those of her sex in other lands, she still labours under certain disabilities, a woman can now become the head of a family; she can inherit and own property, and manage it herself; she can exercise parental authority; if single or a widow, she can adopt; she can act as guardian, or curator; and she has a voice in family councils.
Adoption.—The desire to preserve the continuity of a family is usually the motive of adoption wherever the custom is found; and in countries like Japan, where ancestor-worship has survived in the practice of family rites, the anxiety to make due provision for the performance of these rites has acted as an additional incentive. But nowhere else, probably, has adoption been conducted on so large a scale, or played so important a part in the social life of the community that has practised it. It is not limited, as with us, to the adoption of minors, for the adoption of adults is as common as that of children. Nor is it confined to the adoption at any one time of a single individual, the adoption of a married couple, though somewhat rare, being a recognized custom. Nor does any character of finality attach to the act, for a person may adopt, or be adopted, more than once, and adoption may be dissolved or annulled.