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.
The elaborate treatment given to the custom in the Civil Code testifies
to its importance in Japanese social life, and at the same time shows
the extent to which the interests of the individual in this respect are
subordinated to those of the family.
Before leaving the subject it may be well to remind the reader that in
the case of the Imperial Family the custom of adoption was, as already
mentioned, abolished some years ago.
FAMILY RITES.—The characteristic attitude of mind towards religious
matters, referred to in an earlier chapter, which enables a Japanese
writer to describe his countrymen as being dualist in respect of
religion, is reflected in Japanese family, or household, rites. Before
the introduction of Buddhism in the sixth century each household had its
_kamidana_, or Shintō altar, which is a plain wooden shelf. On this the
cenotaphs of deceased members of the family were placed. The adoption of
Buddhism led to the introduction of a _butsudan_, or Buddhist altar,
which is a miniature shrine of wood, and to this the ancestral cenotaphs
were transferred. But the Shintō altar remained, and served as the
depository of charms from the chief Shintō shrine, the _Daijingū_ of
Isé, as well as of charms from the shrines dedicated to the various
tutelary deities of members of the family, and, in spite of the Shintō
revival that accompanied the Restoration of 1868–9, the two altars, with
their respective uses, have remained unchanged.
The performance of family rites in the strictest manner is usually
confined to the upper classes and well-to-do farmers. In the worship of
Shintō deities these rites consist of reverential obeisances made every
morning before the Shintō altar, the lighting of a small lamp on it
every evening and the presentation of offerings of rice and _saké_ on
certain days of each month. From time to time also branches of the
_Cleyera japonica_ are laid on the altar. The ancestral rites conducted
before the Buddhist altar differ in some points of detail according to
the professed religion, Shintō or Buddhist, of the family. In each case,
however, the cenotaph of the deceased person, which is a small wooden
tablet bearing the posthumous name or date of death, is placed on, or in
front of, the Buddhist altar. When these cenotaphs become too numerous,
one or two are made to serve for all. Offerings of food are made, and
religious services held on various anniversaries of the death. On these
occasions a feast is also provided. In Buddhist households the Buddhist
altar is never without flowers, while offerings of tea and rice are
made, and incense sticks lighted, every morning. During the annual
“Festival of the Dead,” which is not recognized by the _Shin_, or
_Montō_, sect of Buddhists, more elaborate rites are performed.
The other features of the family system which remain to be noticed are
the position occupied by the head of a family, succession thereto,
abdication, family councils, marriage and registration.
HEADSHIP OF FAMILY.—In Japan the parental authority and the authority
exercised by the head of a family are quite distinct, but the two may be
vested in the same individual, who may be a woman. When vested in
different individuals, they represent a sort of _condominium_, as, for
instance, in cases where the consent not only of the parent, but of the
head of the family, is required.
The head of a family exercises authority over all its members whom the
law recognizes as such. It is not necessary that these should form part
of his or her household, for, as has already been explained, the group
represented by the word family may embrace several households. Nor need
they be relatives, though usually some tie of kinship exists. This
authority includes the right of consent to the marriage and divorce, the
adoption, and the dissolution of adoption, of each member of the family;
the right of determining his or her place of residence; and the right of
expelling such person from the family, and of forbidding his or her
return to it. The head of a family has also the right of succession to
property in default of other heirs. But the headship of a family carries
with it also duties and responsibilities; the duty of supporting
indigent members of it; the duty, under certain circumstances, of
guardianship, and responsibility for the debts of all.
Save in exceptional cases, succession to the headship of a family is
limited to persons who are “members of the family,” in the legal sense
of the term. These rank according to the degree of relationship. Failing
lineal descendants, an heir may be appointed in other ways defined by
the Code.
ABDICATION.—What for want of a better word is generally known to
foreigners by the term abdication is the retirement of a person from the
position of head of a family. As women can under the Civil Code become
heads of families, it follows that abdication is no prerogative of the
male sex.
Japanese scholars who have investigated the subject, notably Professors
Hozumi and Shigéno, agree in tracing the origin of the present custom to
the abdication of sovereigns, instances of which occur at an early
period of Japanese history. These earlier abdications were independent
of religious influences, but with the advent of Buddhism abdication
entered upon a new phase. In imitation, it would seem, of the retirement
of head priests of Buddhist monasteries, abdicating monarchs shaved
their heads and entered the priesthood; and when, later on, the custom
came to be employed for political purposes the cloak of religion was
retained. From the Throne the custom spread to regents and high officers
of State; and so universal had its observance, amongst officials of the
higher ranks, become in the twelfth century that, as Professor Shigéno
states, it was almost the rule for such persons to retire from the world
at the age of forty or fifty, and nominally enter the priesthood, both
the act and the person performing it being termed _niūdō_. In the course
of time the custom of abdication ceased to be confined to officials, and
extended to the feudal nobility, and the military class generally,
whence it spread through the nation. At this stage of its transition its
connection with the phase it finally assumed becomes clear. But with its
extension beyond the circle of official dignitaries, and its consequent
severance from tradition and religious associations, whether real or
nominal, abdication changed its name. It was no longer termed _niūdō_
(entrance into religion), but _inkio_ (retirement), the old word being
retained only in its strictly religious meaning; and _inkio_ is the term
in use to-day.
The connection of the custom with religion having long since vanished,
the Japanese of the present day who abdicates is in no way actuated by
the feeling that impelled European monarchs in past time to end their
days in the seclusion of the cloister, and which finds expression in the
phrase “to make one’s soul.” Apart from the influence of traditional
convention, which explains the great hold upon the nation acquired by
the custom, the motive seems to be somewhat akin to that which leads
people in other countries to retire from active life at an age when
bodily infirmity cannot be adduced as the reason. In the one case,
however, it is the business, or profession, the active work of life,
which is relinquished, while in Japan it is the position of head of a
family which is given up, the result being the effacement of the
individual so far as the family is concerned. Moreover, although
abdication usually implies the abandonment of business, this does not
necessarily follow. That in many cases the reason for abdication lies in
the wish to escape from the tyrannical calls of family life, encumbered
as it is with legal duties and responsibilities, as well as tedious
ceremonies, is shown by the fact that the period of a person’s greatest
activity not infrequently dates from the time of his withdrawal from the
headship of the family.
As in the case of adoption, abdication is now more strictly regulated
than formerly. Women are permitted to abdicate irrespective of age; but
a man is not allowed to abdicate until he has attained sixty years of
age, except under certain conditions imposed by law.
FAMILY COUNCILS.—Family councils represent, as has already been
explained, the larger of the two groups into which Japanese society may
be regarded as divided. They usurp many of the functions which we are
accustomed to associate with Courts of Law, and, though an appeal may
always be made to the latter from the decision of a council, apart from
the reluctance of most people to take this step, the chances of success
are too remote to favour its frequent adoption.
Family councils are of two kinds: those convened for the determination
of some particular question; and those which are established for the
purpose of taking charge of the affairs of persons without legal
capacity. The former are dissolved when the question at issue has been
settled; the latter continue until the legal incapacity ceases. The
summoning of a council and the selection of its members rest with a
court of law, but in certain cases the members may be appointed by will.
The functions of family councils cover a wide field, ranging from giving
consent to marriage and adoption to protecting the interests of a minor
in cases where the interests of parent and child conflict. Their
authority in no way diminishes the influence brought to bear upon an
individual by the wide circle of relations from whom they are chosen,
but rather serves to increase it; nor does their existence as a species
of family tribunal preclude the settlement of family matters in an
informal manner without recourse to the elaborate machinery provided by
the law.
MARRIAGE.—Before the present Civil Code came into operation the question
of marriage was regulated by fragmentary enactments issued from time to
time, which dealt with various points connected with marriage and
divorce, but never with the subject as a whole. Validity of marriage is
quite independent of the marriage ceremony, which is a purely social
function. Marriage is effected simply by registration. Notice is given
to a registrar by both parties and two witnesses who are of age. This
notice may be either verbal or written. When the registrar has satisfied
himself that the marriage is in accordance with the provisions of the
law, the name of the person entering the other’s family is inscribed in
the register of that family and is expunged from the register of the
family to which he, or she, previously belonged. The marriageable age
for men is seventeen years; that for women fifteen. No one who is not
the head of a family can marry without the consent of the head of the
family. In many cases, also, the consent of parents, or of a guardian,
or of a family council, is necessary. Japanese law recognizes two kinds
of divorce: judicial divorce; and divorce by arrangement between the
parties.
FAMILY REGISTRATION.—If proof were needed that society in Japan centres
round the family, and not the individual, it would be supplied by the
institution known as Family Registration. The subject is too complicated
to justify any detailed reference to it in these pages. It will be
sufficient to mention that in every district a separate register is kept
for each house in which the head of a household is also the head of a
family; those whose names appear therein being regarded as having what
is called their “permanent register” (_honséki_) in the place in
question. Persons who are heads of households, but not of families, are
borne on other family registers. Thus the names entered in a family
register at the time it is prepared under the address of a certain house
are not necessarily those of persons who are members of the particular
household indicated. Nor are they necessarily those of persons who were,
or are, resident in the district. They are simply those of all persons
who, irrespective of their place of residence, are members of the family
of which the occupant of the house in question is the head _at the time
when the family register is prepared_. The family, therefore, and not
the household, is the basis of this registration, the house merely
supplying the address where the permanent register is established.
Family registers are prepared (1) when a person establishes a new
family, or (2) when the head of a family chooses to transfer his
permanent register to another place, in which case the previous register
is called “original permanent register” (_genséki_). Except in these
cases, family registration and residence are quite independent of one
another.
As in the case of Status and Residential Registration, matters
concerning family registration are dealt with by the registrar of a
district. It is notice to this official that gives validity to marriage
and divorce, to adoption and its dissolution, to abdication and to
succession to the headship of a family.