4. FAMILY LAW

Instead of the ie-seido, a new family law was prescribed for a received type of nuclear family in 1947, resulting in Westernization of the Japanese family system. Nevertheless, some indigenous factors survive, as seen in the examples below.

(1) Naien³³

Upon receiving the Western system founded upon Christian ethics, the former Civil Code adopted the de jure marriage as the only legitimate way, differing greatly from the indigenous way of the feudal ages. Seeing that there had been provided no system of official registration, a feudal marriage might be regarded as de facto marriage. Seen from another fact, however – that it had in general required social recognition by holding established ceremonies and that such customs had been regarded as of a legal nature in the society – it may have been de jure marriage. Therefore, the received way did not totally replace the customary way of marriage. As a result, under the new system many unregistered wives remained totally unprotected by law in cases where their husbands would not register their marriages. Their marriages are called naien (de facto marriage). The Supreme Court handed down a new interpretation in 1915 that an unregistered marriage was legally significant as a pre-engagement of a marriage to be registered. In addition, the government was during World War II compelled to take legal measures to admit the legitimate status of the wives who lost their husbands in the war before their marriages were registered. After the war, such interpretation in favour of the unregistered wives has been further expanded the better to protect them and their children (cf. Tanaka,1976: 157–162).

(2) Divorce by consent

The former Civil Code and the revised one also opened two ways of divorce: by consent of the involved parties and by a decree of the court. The latter way was received and the number of such cases has been increasing, especially after the war.

(3) Privileged inheritance of family memorials of ancestors The individualistic Civil Code, overruling the former one which adhered to primogeniture, approved equal inheritance among all the children. But “there is one important exception to” it (Smith, 1974: 34). Article 897 conferred the privilege to inherit “genealogical records, utensils of religious rites, and tombs and burial grounds” to “the person who is, according to custom, to hold as a president the worship of the memory of the ancestors.” This was to preserve an indigenous law, for “Such a person may be designated by the previous head of the house, or he may be the person who by custom would have been the legal successor in the past.” (ibid.) Here is embodied the indigenous postulates of perpetuity of a family.

The examples enumerated above were adopted into official state law with an interpretation as being democratic, not as patriarchal or primogenitary. On the other hand, they may function in reality to preserve some attributes of the customary family system.

When the new Civil Code secured equal inheritance for all the children, many farmers did not necessarily welcome it for they feared their farm lands would be divided by the inheritance into plots too small to be financially productive. A group of reactionalists, who wanted to revive ideologically a former type of perpetual family, gave support to these farmers by drafting a proposal in 1949 whose aim was to approve farm land to be inherited en bloc by the child who was responsible for continuing the farming. But they were unsuccessful, for the draft has never passed into law because of strong opposition criticizing its unconstitutionality as an attempt to revive the old ie-seido. (cf. Wagatsuma, 1977: 141–144)

As a result, it is known at least that indigeneity adopted in the official law is not static but dynamic in the possibility of constant transformation in terms of the official provisions on the one hand, yet it functions positively to preserve indigenous practices as well as negatively to encourage a reactionary movement on the other.