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.
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.