Family Law Reform in Postwar Japan: Succession and Adoption

By Joy Larsen Paulson

How does a nation, defeated in war, respond to externally imposed reforms that set that nations family system upside down, completely eliminating the familys modus operandi At least that is what the elimination of family kinship and single inheritance in reforms by the Supreme Command for the Allied Powers (SCAP) in the 1948 Civil Code was meant to do.
How did the Japanese respond to these reforms in Family Law that many believed would result in the destruction of the family? This study looks at succession and adoption in the years following the reform to understand how the Japanese were able to circumvent the Code and shape the family to meet their evolving needs.

• Language: English
• Publisher: Xlibris US
• Release date: Aug 24, 2010
• ISBN: 9781453540251

Joy Larsen Paulson

Joy Paulson, a Minnesota native, moved to Boulder, Colorado in 1957 with her husband, David, an architect and design faculty member at the University of Colorado. In 1970, with three children in high school, Joy joined the wave of women returning to (or beginning) college. At CU she completed a BA, an MA, and a Ph.D. in Japanese History while also co-editing, with Dr. Joyce Lebra, three books: Women in changing Japan, Chinese Women in Southeast Asia, and Woman and Work in India. Joy’s research involved extensive travel, especially in Japan, where she and David lived for seven months.

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CONTENTS

I    INTRODUCTION: THE FAMILY

The Problem

What Is the Family: The Prewar Family

Family Law

Rural Society

What Has Changed: The Postwar Family

Family History Revised

Demographic Studies

Life Cycle

Structure

Methodology

Context of Study

Japan

Cross-Culture

II    FAMILY LAW IN THE CIVIL CODE

Compiling the Meiji Civil Code

Compiling the 1948 Civil Code

The Postwar Reforms

Legitimacy and Acknowledgement

Adoption

The House and Relatives

House in the Meiji Code

Succession in the Meiji Code

Succession in the New Code

III    THE KOSEKI IN JAPANESE FAMILY LAW

Evolution of the Koseki System

Postwar Koseki: Function

Adoption in the Koseki

IV    THE FAMILY COURT

Background

Composition and Operation of the Family Court

Justice

Class A Determination

Summary

V    ADOPTION

Adoption as an Adjunct to Succession

Historical Adoption

Fictive Parent Child Relationsips

Tokugawa Adoption

Early Maiji Adoption

Meiji Civil Code Adoption Law

Contemporary Adoption

Postwar Civil Code Adoption Law

Questionnaire Responses

VI    SUCCESSION

Pre-Tokugawa Succession

Succession in the Tokugawa Period

Merchant Succession

Succession among Bureaucrats

Succession among Commoners

Succession Under the Meiji Civil Code

Postwar Succession

Agriculture and Family

Socioeconomic Basis of the Farm Family

Alternatives to Equal Succession

Succession Taxation

Reality of Succession

City Succession

Questionnaire

VII    CONCLUSION

GLOSSARY

BIBLIOGRAPHY

APPENDIX

TABLES

Table

1-1    Size of Household

1-2    Adoptions

3-1    Koseki and Family Court-Approved Adoptions

3-2    Comparative Adoption Statistics

3-3    Koseki Adoption by Location

3-4    Koseki Adoption by Location and Type

4-1    Who Renounces?

4-2    Disposition of Renunciation Requests

4-3    Class A Determination Cases

4-4    Reasons for Renunciation

5-1    Distribution of Respondents

5-2    Distribution of Adoption by Age and Year

5-3    Distribution of Adoption by Year

5-4    Distribution of Adoption by Sex, Age and Type

5-5    Relationship between Adoptor and Adoptee

5-6    Type of Adoption by Region and City Size

5-7    Adoption by Year and Type

5-8    Birth Order of Mukoyōshi Adoptees

5-9    Adoptor’s Own Sons in Mukoyōshi Adoption

5-10    Distribution of Adoption by Sex and Type

5-11    Distribution of Family Court Adoption by Sex

6-1    Farm Types in Japan Before (1945) and After (1957) the Institution of the Occupation’s Agricultural Land Reform Program

6-2    The Number of Persons in Farming Households According to Size of Farm (in acres)

6-3    Number of Generations in a Single Household by Occupation, 1920 (in percent)

6-4    Family Type by Location (in percent)

6-5    Should the Eldest Son Live with His Parents?

6-6    Farm Households

6-7    Parents’ Ideas About Living with Children

6-8    Ideas About Division of Parents’ Estate

6-9    Eldest Son Greater Share, By Occupation, 1968

6-10    Atotori for Paternal Grandparents

6-11    Atotori for Maternal Grandparents

6-12    Items Succeeded To By Paternal Grandparents Atotori

6-13    Items Succeeded To By Maternal Grandparents Atotori

6-14    Choice of Successor and Living with Parents

6-15    Parents’ Atotori

6-16    Living with Parents

6-17    Do Parents Need an Atotori?

6-18    Do You Need an Atotori?

6-19    Parents’ Expectations for Living with Children

6-20    Parents’ Reasons for Living with Children

6-21    The Most Important Duty of the Atotori

6-22    Children’s Expectations for Living with Parents

6-23    Children’s Reasons for Living with Parents

Paulson, Joy Larsen (Ph.D., History)

Family Law Reform in Postwar Japan: Succession and Adoption

The family system of prewar Japan, a feudal derivative of samurai family codes and upper-class values codified in the 1898 Meiji Civil Code, was drastically reformed by Occupation authorities of the Supreme Command for the Allied Powers (SCAP) in the 1948 Civil Code.

The old system provided for a househead responsible for family members who were in turn subject to the head, and for house property to be held by the head and passed intact to a single successor, ideally the eldest son. Insofar as individual rights were limited by the rights of the head, SCAP considered the system undemocratic. Of greater concern to SCAP was the extension of the system’s paternalistic pattern to other levels of social organization, especially to the government where the emperor’s position as head of the nation was likened to that of the househead. It was here that obedience to and respect for the head were exploited as national polity.

Rights of the head were legally eliminated from the 1948 Code by abolishing succession to house headship. To interrupt the intergenerational link afforded by primogeniture, the 1948 Code provided equal inheritance. In contrast, though adoption has been used for centuries to provide heirs, adoption law was left virtually intact.

Succession and adoption are the focus of this work which uses Family Court cases, government and private surveys and statistics, koseki (family register) statistics not published elsewhere, studies and comments by Japanese scholars and bureaucrats, case studies, and 477 questionnaire responses to trace the pattern of postwar succession so as to measure the effect of succession law reform on the family system.

Conclusions indicate that reform had only minimal impact on the family system because either legal provisions were circumvented or changes that occurred were at least equally the result of processes already in effect. This suggests the presence of internal forces that modify the effect of external change.

ACKNOWLEDGMENTS

I should like to acknowledge my gratitude to those people and institutions whose help and encouragement made this work possible. Two University of Colorado Doctoral Fellowships provided financial assistance. Nishikawa Yoko worked with me one full summer on the questionnaire; Professors Yuzawa Yasuhiko and Masaoka Kanji pretested it in Tokyo and helped with revisions. Professor Lawrence Beer shared with me his valuable contacts in Japan. Togasaki Tamiyo, Izumi Koide and Kurita Junko of the International House Library in Tokyo provided research assistance. Professors Sato Mamoru and Sawai Seiko guided me through the intricacies of the village in Akita. Professor Ralph Mann introduced me to the computer, read the manuscript and checked the demographics.

CHAPTER I

INTRODUCTION: THE FAMILY

The Problem

The enactment of a democratic constitution in Japan on November 3, 1946, opened the question of family law reform. The family law sections of the 1898 Meiji Civil Code were, even at the time of their enactment, feudalistic holdovers from the family system of the Tokugawa samurai class and not at all in keeping with the democratic posture of the remainder of the code. Meiji Code family law provided for a househead with authority over the housemembers and encouraged primogeniture. Occupation authorities (and many Japanese as well) considered these features undemocratic and contrary to provisions of the new constitution. Article 13 of the new constitution provided for the respect of people as individuals and their right to life, liberty and the pursuit of happiness. Article 14 granted all people equality under the law. Article 24 specifically provided that in matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.[1] The new constitution was scheduled to become valid on May 3, 1947, at which time, in accordance with Article 98, all laws in violation of the constitution (such as the authority of the househead) would become invalid. As a consequence, the legal family system of the Meiji Civil Code, which had escaped substantive reform since 1898, necessarily underwent extensive revision at the hands of the Supreme Command for the Allied Powers (SCAP), Occupation authorities, in the 1948 Civil Code.[2]

That the supporters of the family system codified in the Meiji Civil Code were able to withstand attempts to reform it both before and after its adoption in 1898 attests to the strength of the belief that the traditional family system was the basis of Japan’s stability during the political crisis following the 1868 Meiji Restoration. Little wonder, then, that though the liberal members of Japanese society might welcome the Occupation reforms as long overdue, the conservative majority opposed the wholesale destruction of the family system of our country.[3] The postwar reform was, indeed, a massive social experiment. Such large-scale externally imposed legal revision of a family system had not before been attempted. To the Japanese was handed the task of adjusting to a system of family law containing values which were not only incomprehensible to but were opposed by, in one respect or another, nearly everyone.

It was feared in Japan that the reform of family law would result in the destruction of the family. Such a fear is based on the assumption that a particular structure or system is necessary to maintain the family as an institution; that, in other words, the human family to survive requires a legal or social framework which, moreover, it is dangerous to alter. The family is recognized and protected not just in Japan but throughout the world as the basic unit of society.[4] It is important therefore that the effects on the Japanese of this experiment and their response to it be understood. Is it possible that the ability of the family to survive stress (a partial loss of the framework, a wall or two of the structure) has been underestimated? Is it possible that the family is less a unit subject to the pendulations of change, more a stable but not inflexible institution with mechanisms for change?[5]

It is the purpose of this work to examine a key reform, succession, and its corollary, adoption, to learn (1) how the law has affected the people and (2) how the people have affected the law. Succession, in particular primogeniture, is the means by which families traditionally assured their spiritual and physical continuity. Adoption has been resorted to historically upon failure to produce a suitable heir. Succession law was drastically revised in the new civil code; primogeniture was legally abolished as equal succession became the rule. Adoption law, on the other hand, went from the Meiji to the 1948 Civil Code virtually unchanged, perhaps because its raison d’etre, the ie (house or family), was nullified.

If the family is truly ruled by change, we should expect to find an end to the continuity formerly provided by the ie through primogeniture and adoption. We should expect to find at the least in urban areas adherence to the legal demand for equal succession. And we should expect to find the practice of adoption of male adults at the least substantially reduced. If, on the other hand, we find the practices of primogeniture and the adoption of adult males flourishing, we must assume the family to be capable of adapting for its own sake. Before addressing these expectations, which comprise the heart and substance of this work, it will be useful to review the existing literature on the Japanese family.

What Is the Family: The Prewar Family

In Japan, modern study of the family originated in the fields of rural sociology and family law. Study of family law was stimulated by attempts to compile a civil code after the Meiji Restoration in 1868, a process which consumed more than twenty years. At issue were the laws governing relatives and succession. Acceptance of a first draft, modeled on the French code, was advocated by those Japanese who believed it was a necessary step toward achieving revision of the unequal treaties imposed on Japan by the Western nations and by those who believed the Western family system would strengthen Japan. The draft was opposed by members of the postponement group who, though also seeking revision of the unequal treaties, thought introduction of Western family law would weaken Japan by destroying the traditional basis of its society—the family.[6] The view of the traditionalist postponement group regarding family law prevailed. The first three books of the Meiji Civil Code relating to general provisions, real rights and obligations were practically a translation of the then new German Civil Code and were promulgated in 1896.[7] In contrast, books four and five on relatives and succession, not promulgated until two years later in 1898, were principally an expression of so-called traditional family patterns.[8] Moreover, it was the pattern of the samurai upper-class that was used, not the pattern followed by the common people.[9] Even so, it was considered a revolutionary abandonment of the traditional Japanese family system, the ideal of whichhad been assumed more than expressed, because it introduced the Western conjugal ideal.

The controversy precipitated debate in the Diet and among the public and divided legal circles. Legal scholars were motivated to examine the differences between the Western family and the Japanese ie, neither of which were at that time well understood. In doing so, they employed a variety of means to describe the Japanese family system, including ideology, feudalism and economic theory.

Family Law

An early and persuasive advocate of the traditional family pattern, Hozumi Nobushige defends the Meiji Civil Code by showing the close relationship between ancestor worship and Japanese family law.[10] The relationship is illustrated most clearly in the law of adoption.[11] To die without an heir is the greatest filial impiety; adoption was a last resort to prevent the extinction of worship. As early as the Taiho Code, 702 A.D., adoptees were limited to kin or clansmen, adoptors to males over sixty and females over fifty who had no male issue.[12] From these restrictions Hozumi infers that adoption was not merely for the consolation of childless couples but had the function of perpetuating ancestor worship. During the Tokugawa Period (1600-1868) deathbed adoption by anyone from seventeen to fifty-five years of age was permitted to prevent houses from becoming extinct (death-bed adoption was not permitted to those over fifty-five because it was felt that anyone of that advanced age should already have provided himself with an heir). Hozumi comments the law takes every precaution against the contingency of a house becoming extinct; for with the extinction of the house, the worship of its ancestors would come to an end.[13] There were other reasons for preventing the extinction of a house. When the house of a feudal lord became extinct, his estate was forfeited and the stipends of his samurai also came to an end, resulting in unemployed samurai, called ronin. The Tokugawa Shogunate in fact prohibited death-bed adoption in 1616 and the houses of many feudal lords became extinct. The thousands of ronin created as a result became so troublesome and politically dangerous the shogunate was forced in 1651 to modify the rule.[14]

Hozumi similarly relates succession to ancestor worship by demonstrating the importance of consanguinity in determining the order of succession.[15] Article 970 of the Meiji Civil Code specified that, among lineal descendants, the nearest kin is preferred to more distant, male to female, legitimate to illegitimate, and senior to junior. Lacking a legal heir, one can be chosen from among housemembers in the following order:

1.    the surviving wife if a housedaughter;

2.    the brothers;

3.    the sisters;

4.    the surviving wife if not a housedaughter;

5. the lineal descendants of brothers and sisters.

Hozumi points out the difference in preference of the wife depending on whether or not she is a housedaughter.[16]The assumption is that a consanguinal relative is more likely to continue the worship of ancestors. But the Meiji code was shaped according to the samurai model; it is unlikely that among samurai and in a feudal system a wife from a different house would be a preferred successor.

Ancestor worship, adoption and succession are closely related; ancestor worship provides an ideological basis for the legal family system. But ancestor worship is by no means the sole factor in formulating succession and adoption law.

Western concepts unfamiliar to most Japanese—democracy, individualism and liberalism—flowed into Japan after its opening in 1868. It was feared that Japan’s stability would be shaken by these ideas. But traditional Confucian ideology, in part because it was supported by government policy, did not disappear.[17]Along with new ideas, new methods of production were introduced. Traditional family production, based on the family unit, was supplemented by large scale production, based on the individual.[18]Nakagawa Zennosuke equates the traditional Japanese family with the feudal premodern system of familial production, the small Western family with capitalistic large scale production. He argues that because people join the gigantic mechanism of production as individuals rather than as a family unit, traditional family ties are destroyed—Big families broke into small ones; grown-up children could no longer stay with the parents.[19]In this way the traditional family structure, though supported by law and ideology, came into conflict with and yielded to the capitalistic mode of production. Nakagawa’s view of a feudal/capitalistic dichotomy affecting family size and structure represents a view current in the West until the 1960s.

Legal sociologist Kawashima Takeyoshi saw the family system of the Meiji Civil Code as an obstacle to democracy in Japan and favored the reform proposed for the 1948 Civil Code. To that end he developed a theoretical analysis of the family system.[20] The familistic principle of life[21]is the basic rule of Japanese society and characteristic of social structure in Japan. Kawashima defines three ideal family types in Japan: patriarchal, feudal and modern. The patriarchal type is characterized by the dominant-submissive relationship between the patriarchal family chief and the slave-like family members.[22]An ancient pattern exemplified by the Confucian ideal type in China, it accompanies simple economy and an authoritarian political system. In the feudal family relationships between the chief-father and family members are reciprocal, with rights and duties as in the lord-vassal relationship. Medieval England exemplifies this type. In 1948, Kawashima believed that the modern conjugal-nuclear type, exemplified by the U.S. family, demonstrated the contractual relations of a modern industrial society.

Comparing the Japanese family system with the three ideal types, Kawashima finds that while the absolute duty of patriarchy is modified by the rights of the feudal type, so are the feudal rights modified by duty. In other words, the Meiji family system falls midway between the patriarchal and feudal types. Patriarchal dominant-submissive characteristics prevail among the upper and ruling classes of samurai descent (the model for the Meiji code family law) while the give and take of feudalism prevails among the heimin (commoner) Japanese. Official norms, expressed in ideology and law, reflect upper-class patriarchal ideals.[23]

How can the Japanese family system be changed? Explaining that family patterns are determined by economic structure, i.e.,ownership of the means of production, and by attitudes, Kawashima advocates elimination of the static feudal mode of economic production of farmers and negation of non-modern attitudes.[24] Written after the end of World War II, as the revision of civil code family law was underway, his analysis is a response to the then current evaluation of the family as feudalistic. His suggestions for change corresponded neatly with the land reform goals of SCAP.

For scholars such as Kawashima and Nakagawa, whose careers spanned both the Meiji and postwar civil codes, the massive and sudden reform accomplished by the SCAP-supported 1948 Civil Code created a totally different problem of family law. The Meiji Civil Code required the common-class majority to accept the family norms of the upper-class. With those norms discredited as a result of the 1948 Civil Code, a by-now very traditional majority of Japanese society was expected to adjust to the legal abolition of its family system.

Rural Society

A topic of discussion current in Japan in the 1920s and 1930s was whether or not Japan was yet democratized. The question motivated rural sociologists Kitano Seiichi,Ariga Kizaemon and Oikawa Hiroshi, pioneers of sociological fieldwork in Japan.[25] They felt that to understand Japan they had to understand Japanese society, and to understand Japanese society they had to understand the Japanese family. The family, they believed, is a miniature of society. In their analysis of ie and dōzoku these three were looking for a single principle that could be applied to the whole of Japan.[26] As their published work began to appear in the late 1930s they stimulated one another. Oikawa established the concept of ie as a sociological unit different from the elementary family and introduced the concept of dōzoku as an inter-ie institution.[27] A brief explanation of concepts related to the family such as ie, dōzoku, chokkei, bōkei, oyabun, kobun and kumi as they were developed and discussed by Japanese sociologists will be useful.

Dōzoku and Ie. Put simply, the family in Japan is thought to exist continuously, independent of the birth or death of its members. Each generation is linked to both past and future by a common genealogy and by worship in common of both ancestors and family guardian gods. The literal meaning of ie is house. Ideologically, an ie is a family which recognizes this linkage and submerges its existence as an individual unit to the stream of continuity. An ie which is the original or main family is the honke, or stem family. Its branches are called bunke. The literal meaning of dōzoku is the same family or class. Sociologically, dōzoku is the scientific term applied to a hierarchical group of bunke with a honke at its head. The concept of ie, then, is a vertical genealogical relationship which provides continuity with both past and future generations. The dōzoku is more complex. It links contemporary ie by providing hierarchical patterns for relationship between ie.[28]

In analyzing dōzoku, Ariga concentrated on economic factors, Kitano on blood relationships. Arigadivides family members into two categories.[29] Those recognized by society as being related in the family line are chokkei (direct line) members; those recognized by society as being outside the family line are bōkei (collateral line) members. In a typical three-generation example, the househead, his wife, their eldest son, his wife, and their eldest son (the grandson of the househead) are chokkei members. All other immediate family members, including second and younger sons, along with relatives and servants, are bōkei members. Social status was based on the possibility of succession; even among brothers there was a hierarchically determined status relationship.

Chokkei members were permanent members of the households, couples in successive generations cohabiting. Bōkei members were retained only so long as their labor was required. A small enterprise did not need to retain bōkei as labor. Daughters were married out, younger sons entered other families as yōshi (adopted sons), mukoyōshi (adopted sons-in-law), or as servants. When possible they were allowed to establish new families of their own as bunke. This occurred only rarely among small enterprises. On the other hand, larger enterprises (never numerous) introduced servants in addition to their own bōkei members in order to secure sufficient labor.[30] Ariga makes the point that servants introduced in this manner were recognized as members of the family.[31] Relationships within the ie were not limited to legal parent-child relationships until the Meiji Civil Code. Before then there was also a special master-servant relationship according to which a would-be servant left the ie of his birth and became ko (child) to his master’s role of oya (parent). The grown-up servant might be permitted to form a servant bunke. The hierarchical relationships between the chokkei (honke), kin-bōkei (bunke) and servant-bōkei (bunke or bekke) units were maintained super-generationally. The dōzoku was comprised of these various ie.

Ariga theorized that the admission of servants into a family relationship had an economic function, permitting expansion of an enterprise. The dōzoku, he said, was created to serve this economic function. Kitano’s approach focuses on the eminence of chokkei members as opposed to the admission of servants. Re-examining, in 1959, his own prewar study of the structure of the farming ie of eighteenth century Yuzurihara in Yamanashi Prefecture,[32] Kitano found that chokkei members comprised 80 percent of ie membership, bōkei 14 percent, and resident servants only 6 percent. Few ie included all three. Many ie had only chokkei members. If bōkei members were included, resident servants seldom were and vice versa. Members other than chokkei rarely had spouses. These phenomenon occurred because cultivated acreage was small and the ie had little need for a large labor force. Consequently, the role of resident servants was minor compared with that of chokkei. In this situation, a dōzoku relationship is necessary to safeguard the eminence of the chokkei role by absorbing and exchanging excess bōkei. Kitano concludes that the ie can exist only as a unit of the dōzoku; only this relationship, by ensuring chokkei eminence, can ensure the continuity of the ie.[33] Ariga came to a different conclusion regarding the dōzoku. In the absence of a social security system, the family had to assume responsibility for assuring the livelihood of its members. The need to perpetuate the Japanese family institutionally as ie originates in this responsibility. Accordingly, the dōzoku came into existence to support the continuity of each ie.[34] Ariga also points out that since modern times there have been efforts to perpetuate the ie even when it is separate from the dōzoku. Ariga sees the dōzoku as existing for the sake of the ie, hence reliant on it; Kitano views the ie as dependent on the dōzoku.

As already noted, in their analyses of dōzoku and ie, Kitano and Ariga were looking for a single principle which could be applied to all of Japan. To other sociologists and social anthropologists, dōzoku was just one of several patterns of social organization in Japan. Other patterns they identified were oyabun-kobun (patron-client), kumi (group), and shinzoku (bilateral kindred).[35]

Oyabun-kobun. While the study of biological kinship suffices for isolated aboriginal tribes, it is not sufficient to describe the social relationships among unrelated persons in more complicated societies.[36] These social relationships bring together biologically unrelated persons such as peasants, landlords, workers and tradesmen for cooperative and purposive action. Though the participants are biologically unrelated, the social relationship is institutionalized in a form which imitates kinship. Ceremonies which cement the relationship contain ritual symbolizing, for example, marriage or birth. These patterns are called ritual kinship.[37] One of the purposes served by ritual kin groups is to provide a cushion