Expansion and Restriction: Divergent Paths Towards Modernizing Family Laws in Japan and China, 1868–1930

Abstract

Before their encounters with Western powers in the nineteenth century, Chinese and Japanese societies were deeply embedded in traditional family systems that formed the backbone of their social structures. However, with the onset of legal modernization, these nations adopted nearly diametrically opposed strategies for reforming their customary family laws. Primarily, Japanese legal reformers under the Meiji regime bolstered the family’s authority and emphasized its political role. In stark contrast, the Chinese legal reformers during the late Qing and Republican periods curtailed family authority and diminished its significance. While the modernization of family laws in Japan and China has been the subject of scholarly research, the differences between the two countries and the reasons behind their distinct approaches have not been adequately explored. This Article seeks to fill this gap.

Through a comparative analysis of the legislative histories of both countries, this Article argues that their divergent paths stemmed from differences in the historical functions of family systems and the modern political contexts encountered by legal reformers during the period of legal modernization. In Japan, the family system was historically politically connected with the state, and the Meiji regime solidified its control over this system through modern codification efforts. Consequently, Meiji political elites saw the integration of the populace into the new absolutist imperial regime as advantageous, leveraging the political loyalty of families to achieve this. In contrast, the Chinese family system had become politically disconnected from the state by the late imperial era. In the aftermath of the Republican Revolution, the Guomindang regime navigated a landscape of rival political forces that significantly challenged its authority. Political elites aimed to dismantle customary family laws to weaken the traditional family system, which they viewed as a threat to governmental centralization and societal unity. They also sought to project a modern, liberal image to garner wider political support.

Introduction

Family law has traditionally been seen as deeply embedded in culture and thus resistant to transplantation. This feature of family law is termed “family law exceptionalism.”¹ Yet, some scholars have recently argued that family law can indeed be transplanted successfully,² drawing primarily on evidence from Europe.³ This scholarship, however, has not fully addressed the complex sociopolitical dynamics that facilitate such transplantation. In this Article, I will undertake a comparative study of Japan and China to show how family law and state development were intertwined during the advent of legal modernization. This comparison reveals the political adaptability and malleability of family law to a greater extent than has previously been recognized.⁴

In the first half of the twentieth century, two neighboring East Asian countries, Japan and China, underwent significant transformations. Japan became a fascist and militarist regime in the 1930s and invaded China,⁵ while China, not only resisted the Japanese invasion, but also experienced a Republican Revolution in the 1910s and a Communist Revolution in the 1940s. A key aspect of their modern histories has been the role of political discourse surrounding families and family law. In Japan, the fascist regime’s legitimacy was partly built on the narrative of the “family state” (kazoku kokka), promoting a fictive kinship between the Emperor and Japanese people.⁶ This narrative also supported Japan’s colonial ambitions.⁷ The belief that “Japan is one big family” remains widespread among the Japanese to this day.⁸ China likewise employed family-related discourse in its modern political practice.⁹ During the Republican period, Sun Yat-sen, the inaugural President of the Republic of China (ROC), was dubbed “the Father of the Nation” (Guofu).¹⁰ Following the breakout of the Communist Revolution, slogans like “all peasants are one family” (tianxia nongmin shi yijia) were employed by the Chinese Communist Party (CCP) to rally the peasantry.¹¹ The principles of familial ethics and filial piety continue to influence the Chinese judiciary,¹² with the strategic use of family and kinship networks as a powerful mechanism for the CCP to consolidate its authoritarian rule.¹³

In addition to political rhetoric driven by familial analogies, formal legislation concerning the family system played an essential role in the politics of both countries when they embarked on the task of transplanting Western laws in the late nineteenth and early twentieth centuries. However, their approaches diverge at this point: despite both nations leveraging family discourse in their political practices, Japan and China took markedly different paths in institutionalizing this discourse. Japan, with its first modern civil code, the Meiji Civil Code (Meiji Minpō) of 1898, retained much of its customary family laws. In contrast, China, under the Guomindang (GMD) leadership, abolished customary family laws and minimized the importance of the family system in its first modern civil code, the Civil Code of the Republic of China (ROC) (Zhonghua Minguo Minfa), promulgated in 1930. These divergent approaches to modernizing family law reflect a confrontation with each country’s historical context, where they had to navigate the longstanding tradition that regarded the family, rather than the individual, as the primary social unit.¹⁴

Given the reliance on family discourse in the politics of both countries and their shared a historical emphasis on the family, it prompts the question why they adopted different strategies for modernizing family laws.¹⁵ This Article tackles this query from the perspective of comparative legal history. By reviewing legislative records and existing research on the family and political history of the two countries, I argue that their divergent routes toward modernizing family laws stemmed from two factors: (i) the distinct historical functions of their family systems, and (ii) the different contexts legal elites encountered during their modernization processes.

With respect to the first factor—the historical function of the family—I differentiate between “politically connected” and “politically disconnected” relationships between the family and the state. In Japan, the family system was politically connected, meaning that family relationships were historically integrated with the state and often served as an extension of the administrative apparatus, suggesting that the family system was aligned with political authority and predominantly present within the ruling class. In China, by contrast, the family system was politically disconnected: it historically operated independently of political control and was pervasive across society, maintaining a degree of autonomy from the state.

Regarding the second factor, I argue that the difference in the two countries’ modern settings can be characterized as a contrast between “established authority” and “competing forces.” In Meiji Japan, a centralized authority was firmly established, and anti-government opposition had been effectively quelled prior to the codification of civil laws. In China, by contrast, the GMD was contending with numerous intellectual and political rivals at the time of codification, and thus needed to consolidate support for its governance. Thus, Meiji lawmakers believed that customary family laws, which had previously served the ruling class well, could be expanded to encompass the society as a whole, aiding in the legitimization of the regime’s authority. In the Chinese case, however, the GMD perceived its authority as threatened by various forces, notably the CCP and feminist movements, compelling it to restrict traditional family laws in order to present itself as a progressive party. This approach was motivated by a dual rationale: first, the GMD aimed to win popular support; second, lawmakers saw the restriction of customary family laws as a means to dismantle traditional family structures, which were considered to be an obstacle to the individual’s direct relationship with the state.

Although many scholars have conducted comparative studies of Japanese and Chinese law, these studies have generally stopped short of investigating in detail the two countries’ divergent approaches to modernizing family law. Comparative legal histories of Japan and China have tended to focus on differences and similarities in culture or historical institutions.¹⁶ Some scholars have often attempted to pinpoint the dynamics of legal modernization, while others, especially Chinese, have reflected on why Japan succeeded in transforming itself into a modern constitutional state, while China failed.¹⁷ Although general institutional comparisons of the modern civil codes of Japan and China have been carried out, they have not proposed any specific accounts of why the two countries diverged on the issue of family legal modernization.¹⁸

At a more abstract level, one might argue that the question addressed in this Article reflects broader ideological differences between Japan and China. That is, the legal differences it identifies existed simply because older conservatives dominated the Meiji restoration, whereas younger, more progressive intellectuals drove the Chinese Republican Revolution. Such an approach can be called the “ideological approach,” and it is a paradigm for most studies of Japanese and Chinese modern legal history. For example, on the Japanese side, John Haley argues that the Meiji regime regarded civil law as a channel for expressing social values rather than a system of individual rights,¹⁹ and this conservative approach of Japan originated from the need to protect the upper class—landlords, politicians, and capitalists.²⁰ On the Chinese side, most studies regard the Civil Code of ROC as reflecting a progressive “social-base” ideology,²¹ as well as a commitment to equality.²²

This ideological approach makes sense to some extent, but it does not account for the varied trajectories of family law modernization. Despite its Republican Revolution, China was still under the authoritarian grip of the GMD. In other words, the liberal-leaning family law of the Republic of China existed alongside the GMD’s authoritarian regime.²³ In both GMD-controlled China and Meiji-era Japan, the state maintained absolute power and sought to exert direct control over its citizens.²⁴ Neither regime was genuinely liberal, despite apparent ideological differences. It is therefore difficult to explain differences in family law through a straightforward application of ideological difference—conservative versus progressive—given that both the Meiji regime and the GMD were, in terms of a basic functional analysis, authoritarian powers.

Unlike the purely cultural, institutional, and ideological comparative approaches, this Article adopts a more pragmatic interpretation of the fundamental differences between Japan and China with respect to family laws, focusing on the historical functions of their family systems and the modern contexts in which they arose. Before encountering modern Western powers, Japanese and Chinese societies were rooted in rigorous family-based structures. However, the Japanese family system was tightly connected with political agencies, while the Chinese one was not. When modernization took hold, both established functionally absolutist regimes and needed to grapple with their family traditions, but they did so in different ways. In Japan, family law was considered an effective tool for integrating people into the new political regime where the state’s political authority had already been robustly established; whereas in China, family structures constituted an obstacle to integration in an era when the GMD-controlled state was being undermined by competing political factions.

Before moving forward, it is important to define the concepts of “family” and “family law” as they are used in this Article. While family structures may vary between Japan and China,²⁵ for the sake of comparison and analysis, I will treat the family system as a tangible social organization rather than an idealized historical construct,²⁶ without delving into the various subtypes in each country’s history. As noted by the foremost legal scholar of Chinese family law, Shiga Shūzō, the term “family” can encompass broad and narrow definitions in China: broadly, it can refer to extensive kinship groups, and narrowly, to a single household.²⁷ In this Article, I will use the term “family” in both these broad and narrow senses. Regarding family law, my analysis will concentrate on three main areas: family relations, marriage, and succession.²⁸ Family relations deal with the structure of the family and the authority of its head; marriage covers the rights to marry and divorce; and succession focuses on the status of heirs and the principle governing separating inheritance.²⁹

This Article is organized as follows: Part I sets up a comparative framework to outline the many important similarities between Japan and China in terms of legal modernization, highlighting their divergent paths in the modernization of family laws. Parts II and III discuss how Japan and China established their respective approaches to modern family law, with Japan extending the reach of customary family law from the ruling class to the society at large and China restricting the application of customary family law. Part IV explains why Japan and China made different choices by comparing both the historical functions of their respective family structures and the modern political contexts that shaped their family law legislation.

I. Divergent Paths Towards Family Law

In 1842, after the First Opium War, Britain opened the gates of the Qing Empire and then, along with the United States, gained extraterritoriality in 1843, according to the Treaty of Nanjing and its supplements.³⁰ Fifteen years later, Edo Japan was forced to open to Western countries by ratifying the Ansei Treaties with the United States, Britain, Russia, Netherlands, and France.³¹ In addition to the requirements of opening trade ports and fixing tariffs, those five countries enjoyed extraterritoriality in Japan as well.³² Later on, China and Japan began legal modernization to establish a Western-style—or more specifically, Continental law-style³³—legal system to abolish extraterritoriality and other unequal treaties. One essential step in this process was enacting Western-style legal codes.

A. Similar Starting Points

Both Japan and China were forced to sign unequal treaties, which deprived them of their jurisdiction over foreign nationals. Western countries offered almost identical justifications to both Japan and China for instituting exterritoriality, asserting that their laws were “uncivilized” and unsuitable to “civilized” Westerners. Consequently, the primary impetus for both countries to initiate legal transplantation and enact Western-style laws was to eliminate extraterritoriality and create a relatively autonomous legal system.³⁴

After the Meiji Restoration in 1868, the Meiji government translated many Western laws and invited French legal expert Gustave Boissonade to help draft modern codes in 1873. The Civil Code developed with Boissonade’s assistance, referred to as “the Old Civil Code” (Kyū Minpō) in Japanese modern legal history, sparked a fierce controversy upon its announcement in 1890. Conservative critics (enkiha), who wanted to postpone its implementation, attacked its deviation from Japanese traditions, particularly in family matters, and argued for significant emendations before its application. Ultimately, the enkiha prevailed, leading to the postponement of the Old Civil Code’s enactment. Following revisions, the new version, the Meiji Civil Code, was enacted, drawing influences from Germany rather than France, and remains in effect today, though it has undergone major amendments in family law post-World War II.³⁵ While the enkiha successfully led to the Old Civil Code being revised, the finalized Meiji Civil Code was a compromise that retained many customs but did not meet all conservative demands, with some still arguing that it diverged from the Japanese tradition.³⁶

In China, by the time the Civil Code of the ROC—the country’s first modern civil code—was enforced, two drafts had been completed. The first, announced in 1911 during the final year of the Qing Dynasty (the Qing Civil Code Draft), was never enacted due to the Republican Revolution that year. A second draft (the 1926 Civil Code Draft), completed in 1926 amid the turbulent period when various warlords dominated China, also failed to take effect due to domestic conflict. In 1927, after the reunification of China under the GMD, drafting an effective civil code became a priority. Through comparative analysis of Western laws,³⁷ GMD legislators enacted and implemented the Civil Code piecemeal from 1928 to 1930.

B. Divergent Outcomes

Although the two countries began legal modernization with a similar purpose and transplanted the same legal systems, their outcomes regarding family laws were different. The Meiji Civil Code integrated many traditional Japanese family laws, whereas Chinese legislators chose to abolish their existing laws. Table 1 provides a concise comparison of the divergences in family law within their first modern civil codes.

Table 1 reveals the divergent decisions made by the two countries. In the case of family relations, the Japanese Meiji Civil Code granted executive authority to the parent (typically the father) and the family head (koshu), whereas Chinese civil legislation mandated parental protection of children and significantly reduced the powers of the family head (jiazhang). In terms of marriage, the core distinction lies in the autonomy to marry or divorce. The entry on succession highlights the differences in traditional customary practices of katoku in Japan and zongtiao in China. Japanese legislation preserved katoku succession with gender-specific restrictions, favoring male primogeniture and excluding shoshi, or acknowledged illegitimate children, from inheriting equally with the legitimate offspring.³⁸ In China, not only was the inheritance divided equally among legitimate successors, but the traditional zongtiao practice related to ancestral sacrifices was abolished.

Japan and China exemplify Lawrence M. Friedman’s claim that family laws are more malleable than often perceived.³⁹ This adaptability is evident not only in the comparison between Japan and China, but also when comparing Japan with Europe. Peter van den Berg notes that Japan, unlike Europe, retained many customary laws during the codification. He suggests that, Japan’s goal of codification was more about demonstrating to Western powers the existence of a modern system rather than establishing a unified legal authority, making the retention of customary family laws a strategic choice for aligning with Western legal standards.⁴⁰ However, Ume Kenjirō, revered as the “father of the Japanese Civil Code” (Nihon Minpō no Chichi),⁴¹ challenged this view, noting that “[t]wenty years before, our customs are feudal, secluded customs. . . . In the eyes of foreigners, our country was always a barbaric country. To what extent can our customs be compatible with their customs.”⁴²

The Meiji elites were aware that their traditional customs might be deemed barbaric, in much the same way as Chinese legislators would later denounce their own customs as “violating global trends.”⁴³ In addition, like their Japanese counterparts, Chinese legal elites also struggled to eliminate extraterritoriality by establishing modern codes that would be recognized by Western powers, yet they approached customary laws quite differently. This divergence raises the question of why Japanese elites preserved customary family laws while Chinese elites chose to discard them.

II. Expanding Customary Family Laws in Japan

This Part begins by studying how the Meiji Civil Code expanded conservative family laws to the whole society through its Book on Relatives (Shinzoku) and Book on Succession (Sōzoku). The expansion of customary family laws occurred in two stages. First, the Meiji legal elites preserved and emphasized the customary family laws that pertained exclusively to the ruling class, and second, they expanded these family laws to all social classes by establishing the Meiji Civil Code.

A. Preserving Customary Family Laws

For comparative analysis, I utilize three dichotomies to examine the distinction between “conservative laws” and “progressive laws.” These are: “patriarchy vs. equality” concerning family relations; “familism vs. individualism”⁴⁴ in marriage laws; and “hierarchy vs. fairness” in succession laws.

1. Family Relations: Patriarchy over Equality

The Meiji Civil Code’s Book on Relatives predominantly reflects a patriarchal worldview. This ideology endowed a parent or family head—usually the father/husband—with overarching authority. Both the Old Civil Code and the Meiji Civil Code stipulated that the father wielded parental power unless he was deceased.⁴⁵ Furthermore, the authority of the family head (koshu) was gradually expanded from the Old Civil Code to the Meiji Civil Code, culminating in where the patriarch’s approval was necessary for nearly all family decisions, including leaving the family, marriage, and succession.

This strong patriarchal orientation was not an original feature of the Meiji Civil Code. In the Old Civil Code, both the parent and family head were subject to some specific restrictions. In the proposed draft of the Old Civil Code submitted by the Legal Surveying Committee (hōritsu torishirabe iinnkai jōshinan), the legislators clarified many statutes to regulate parental power. For example, article 217 required that parental power needed to be wielded within the bounds of criminal law, and article 224 stipulated that if the father’s action was deemed to be out of line with the law, his action would be invalid.

However, these relatively progressive statutes met with strong opposition during the controversy surrounding the Civil Code. Chief Justice of the Toyama Trial Court (Toyama Shishin Saibansho), Kobayashi Shigeru, argued: “They all betrayed the ethics . . . if we allow those restrictions, then the family members could start many fights and lawsuits. In this way, the harmony among sons and parents, grandsons and grandparents may be destroyed, thus leading to the country’s ruin.”⁴⁶ Following the enkiha faction’s victory, all such restrictions on parental power were eliminated. In the Meiji Civil Code, the regulation of parental power was addressed only in an abstract manner, within the bounds of what was deemed necessary.⁴⁷

The authority of the family head (koshu) was similarly expanded. The role of the koshu became a pivotal issue during the Civil Code controversy in the 1890s. Critics of the Old Civil Code believed that the koshu’s power was insufficiently defined. Despite ideological claims that the Old Civil Code undermined the family system, a cornerstone of the Japanese spirit according to the prominent Meiji legal scholar Hozumi Yatsuka,⁴⁸ many other legal practitioners pointed to the specific shortcomings of the Old Civil Code. For instance, in its initial draft, the Old Civil Code stipulated that only the founder of the family assume the koshu role, limiting his authority primarily to determining the family’s residence. These limitations led to dissatisfaction among the conservatives. The Mayor of Tokyo, Takasaki Goroku, argued that “the law of the koshu was empty. It tended to let family members be independent and to expand the individual right which contradicted to the family system.”⁴⁹ Takasaki’s remark on the “empty” koshu underscored the concern that the koshu lacked adequate control over the family members. Addressing the issue of control, Iwashige Iwao, a judge at the Osaka Trial Court (Ōsaka Shishin Saibansho) offered his opinion on the powers a koshu should possess. He suggested that the Old Civil Code should empower the koshu to represent the family, approve the jobs of family members, and hold property, provided it was not already designated as belonging to other family members.⁵⁰

The legislature eventually reached a compromise regarding koshu power. In addition to being granted the power that Iwashige suggested, the koshu was also granted the authority to approve marriages, admit new members into the family, and permit existing members to leave the family and join another. Thus, the role of the koshu was transformed from the void title prescribed in the draft Old Civil Code into one endowed with substantial power to manage family members and uphold family order.

2. Marriage: Familism Overrides Individualism

The preservation of familism within the context of marriage began with the initial drafting of the Old Civil Code. Inspired by the Napoleonic Code, the draft stipulated that only minors required parental consent for marriage,⁵¹ with the intention of preventing parental oppression of children.⁵² The rationale behind imposing restrictions on minors was to safeguard them due to their undeveloped judgment, rather than to provide parents with a pretext to abuse their power.⁵³

Yet, this relatively liberal stance was attacked by the conservatives. Their critique was framed within the concept of familism, arguing that decisions about marriage should be made by the family as a whole, rather than just the couple involved. Initially, many opponents contended that adult marriages without parental consent undermined filial piety and, by extension, threatened traditional values.⁵⁴ They further posited that marriage was integral to the family structure, impacting family harmony if the consent of the parents was disregarded. Moreover, marriage was seen as essential for perpetuating the family line and honoring ancestors, transcending mere personal desire and emotion (shikijō).⁵⁵ This perspective, asserting that marriage concerned not only the couple but also the parents and other family members, was echoed by legal scholar Kishimoto Tatsuo, who labeled the Old Civil Code an “evil law” (akuhōritsu). He critiqued the Code’s “individualist” approach, which required only minors to seek parental approval, as potentially damaging to the familial structure and its continuity.⁵⁶

Divorce, just like marriage, was treated as a family matter rather than a personal decision. Contrary to their stance on marriage, critics advocated more leniency in divorce, believing it would better protect familial interests. The original draft Old Civil Code proposed strict limitations on divorce,⁵⁷ justified by the legislators’ statement: “[A]lthough free divorce is our tradition, it has caused many defects and betrayed the assumption that the husband and wife should help each other. Hence, we apply many restrictions in this chapter.”⁵⁸ As in the case of marriage, critics used family-related arguments to oppose the proposed restrictions on divorce. They argued that restricting divorce could lead to unhappy marital environments, potentially distracting the husband from his job and hindering the wife’s ability to manage household affairs. Such domestic discord could undermine the family and negatively impact the stability of country.⁵⁹

As a compromise in the final Meiji Civil Code, the age at which individuals could marry without parental consent was set at thirty for men and twenty-five for women.⁶⁰ Furthermore, anyone under the age of twenty-five years was required to obtain parental consent to divorce.⁶¹

3. Succession: Hierarchy Overrides Fairness

In the Book on Succession, Japan maintained its traditional approach to inheritance, including both the family head position and property, within a hierarchal system. The draft Old Civil Code set down the principles of equal division of inheritance, regardless of gender or legitimacy,⁶² yet it preserved the practice of katoku succession.⁶³ Critics, however, seized upon this to challenge the law. They argued that the principle of equal division violated the primogeniture tradition prevalent in Japan, considering the katoku succession as merely a part of the Book on Acquisition of Property. These critics advocated for its more prominent treatment in a dedicated section.⁶⁴

The principle of equal division was articulated in article 1517 of the Old Civil Code. The drafters contended that:

In our country, the custom of primogeniture has existed for a long time in the name of katoku succession . . . as a custom, it premised the infringement of others’ rights. We have to correct this. Therefore, in our Civil Code, we, on the one hand, enacted the katoku succession, and on the other hand, granted the right of succession to other children as well.⁶⁵

In response, conservatives reiterated their emphasis on lineage, family, and national stability. They invoked historical customs as a critical argument, maintaining, from the imperial family to ordinary people, primogeniture had been a historical constant, and altering it could destabilize the society.⁶⁶ They believed that the adherence to family traditions and the family head and the family system embodied the essence of Japan’s spirit, equating any deviation from this tradition to a betrayal of the nations and its heritage.⁶⁷ Similarly, echoing the defense of koshu authority, a judge at the Matsue Trial Court (Matsue Shishin Saibansho), Arai Yoshinori, asserted that if Japan accepted the principle of equal division, this might provoke fights among successors, and thus influence the harmony of both family and country. Furthermore, from a practical standpoint, the Meiji elites hoped to establish a prosperous country, and the equal division of family legacy was a threat to wealth accumulation.⁶⁸

As a compromise, the original draft of the Meiji Civil Code favored hierarchy over general fairness. The Code adopted a narrower scope for the principle of equal division, specifying that illegitimate children were entitled to only half the inheritance of legitimate offspring.⁶⁹ Structurally, succession was elevated from a mere section within the Chapter on Succession in the Book on Acquisition of Property to a standalone Chapter in the Book on Succession.

B. Extending Family Law to Society at Large

Before World War II, pioneering Japanese legal historian Nakada Kaori characterized family laws within the Meiji Civil Code, notably the koshu authority and the katoku succession, as “new institutions that never existed before” (zenko murui no shin seido).⁷⁰ His assertion was further elaborated by Kawashima Takeyoshi, who noted that the authority of the family head was traditionally confined to the samurai class and was not prevalent among commoners,⁷¹ indicating a lack of uniform family law across society. Instead, family law varied by class.⁷²

Nakada and Kawashima questioned the portrayal by Meiji elites of Japanese family norms as enduring customs and a national cornerstone. This raises the question: What, then, did those legislators believe, exactly? Were they aware that they were promoting laws that belonged to certain classes rather than the whole society?

An examination of the official survey, Zenkoku Minji Kanrei Ruishu (“Collection of National Civil Customs”), utilized by the Meiji government for codification from 1876 to 1880, reveals diversity in succession customs. For example, in regions like Tokaido, Nankaido, and Kinai, there was no strict adherence to male primogeniture, allowing younger sons to inherit the family name and property as well.⁷³ More egalitarian practices were noted in such areas as the Tagata gun in Izu Province, Niihari gun in Hitachi Province, and Tagawa gun in Uzen Province, where there was no gender-based restriction as long as the successor was the eldest in the family.⁷⁴ Although these findings from the period of Meiji codification were not fully leveraged, they indicate that the institutionalized family laws claimed by Meiji legislators were not as uniformly customary across Japan as suggested.⁷⁵

Scholars have studied the differentiation of family laws between ruling samurai and the peasant classes. Beyond the records of the National Civil Customs survey, their studies have confirmed various forms of succession being practiced among the peasantry. At the early stage of the Tokugawa period, from the fifteenth through the sixteenth centuries, most peasants practiced partible succession, allowing both the eldest and the youngest sons to inherit. This radically differed from the samurai’s rule of single succession.⁷⁶ It was not until the late seventeenth century that some peasants, particularly those recognized as titled peasants (honbyakushō), began to follow the samurai’s single succession custom to preserve their social status and property.⁷⁷ The widespread adoption of single succession among peasants is believed to have occurred in the nineteenth century.⁷⁸

Historian Ōtō Osamu posits that the diversity in succession practices was influenced by labor dynamics: to mitigate labor surplus, peasants often designated the eldest child to leave home, allowing the youngest son to inherit the family. Conversely, in areas with labor shortage, the eldest daughter might inherit to maintain the family unit. There were thus no such strict coercive succession laws among those peasants. In most circumstances, peasants made flexible choices to ensure the existence of the family and an adequate supply of labor.⁷⁹

Another customary family law that weighed heavily in the minds of Meiji legislators was the power of the family head (koshu). Undoubtedly, the power of the family head existed among the samurai class.⁸⁰ Did peasants also value it? The answer is no. Much like the flexible succession norms in the peasant class, the same logic applied to the family head: the family head in the peasant communities did not occupy an absolute position of power, either. This claim is based on the division of parental power (shinken) and the power of the family head (koshuken). The shinken power originated from a genetic relationship or marriage, whereas koshuken was a legal power granted by the state to control the stability and continuity of the family. Most studies on the authority of the family head hold that the authority of the family head in the peasant class was not institutionalized the way that it was among the samurai. During the Tokugawa period, although some peasant family heads held obligations to the overlords by virtue of their position, most of them were not granted legitimized power towards family members. In the family, the power over other family members stemmed from shinken, which developed from ethical filial piety and was not as coercive as koshuken.⁸¹ This dynamic reflects the pragmatic approach of peasant families,⁸² who, lacking significant land, relied on collective labor to sustain themselves, contrasting with the samurai class where the koshu was the primary wage earner. Thus, peasant families prioritized practical labor relationships over hierarchical authority, emphasizing individual status-derived authority (father or husband power) over the koshunken.⁸³ Consequently, the koshuken outlined in the Meiji Civil Code may not have been as deeply traditional as the drafters asserted.⁸⁴

In addition, beyond the institutional level, peasants and samurais did not share the same Confucian family ethics.⁸⁵ As an example, bukkiryō, or the Mourning Edicts, was a law that regulated how many days people’s relatives should mourn for them when they died.⁸⁶Bukkiryō was borrowed from the Chinese sangfu system and combined with Japan’s own family and relative tradition. These moral norms were coercive in the samurai class, and if samurais did not follow them, they would be punished.⁸⁷ However, for commoners, these norms were nothing more than mechanisms to make them comprehend the status order within the family and not coercive laws.⁸⁸ Only those peasants charged with public duties would be asked to rigorously follow the bukkiryō.⁸⁹

Did the Meiji legislators know that their asserted family customs were not—at least to most of the population—historical tradition? The answer can be found in their legislative archives as well. Most legislative opinions clearly stated that these family customary laws were laws for samurais rather than commoners. Taking adoption (yōshi) as an example, Judge Kitagawa Seiichi wrote: “Our adoption institution was a legacy of samurai houses (buke). It was aimed for family and thus different from French adoption.”⁹⁰ Kitagawa here emphasized that Japanese adoption was unique because its purpose was the continuation of the samurai family and thus different from Western adoption.

Regarding the power of the family head and succession, legislators explicitly acknowledged the lack of social and historical basis for these practices. Considering primogeniture, a Supreme Court (Daishinin) justice Takagi Tsutomu observed: “Although some may think that primogeniture is the custom from ancient times, it is actually because of wars and the fact that warriors need to enhance their own family and thus create such an institution. Now the society is progressing, and we should reform it.”⁹¹ Moreover, Tomii Masaakira, the leading member of the Meiji Civil Code Committee (Hōten Chōsakai), commented on the ownership of family property and succession:

In our country, despite the strong prevalence of the family system since ancient times, it is believed that family members were allowed to own property. . . . After the power transforming to samurais, the primogeniture was enhanced, and the eldest son was entitled to all inheritance. However, this was limited to the samurai class and did not mean that family members were forbidden from owning private property. When it came to Tokugawa, the commoners still could divide the inheritance . . . it is believed that, family members were allowed to own property regardless of whether they were samurai or commoners since ancient times.⁹²

Thus, it is clear that some Meiji legislators were aware that they were codifying customs specific to the elite warrior, potentially at odds with commoner practices. This discrepancy prompted discussion not only among legal professionals but also within the broader community. A Tokyo Nichi Nichi Shinbun article critiqued: “[T]he so-called family head, koshu, and that the nationals were from the same ancestor, was not our family system. Our family was like a Christian family that based on domestic relations and relatives.”⁹³

III. Restricting Customary Family Law in China

In contrast to Japan, the modernization of Chinese family law from the late Qing period through the Republican era represented a path toward liberalization. Despite legal modernization, a first draft of the 1911 Qing Civil Code nonetheless preserved many traditional practices.⁹⁴ The Civil Code of the ROC aimed for radical political change and eliminated most customary Chinese family laws. According to Hu Hanmin, the President of the GMD Legislature (Lifa Yuan), the newly enacted code was more progressive than those found in Europe, as it was aimed at promoting the general social interest, rather than that of the individual alone.⁹⁵

Analyzing the Chinese modern Civil Codes through the same dichotomies used for the Japanese Code—“patriarchy vs. equality,” “familism vs. individualism,” and “hierarchy vs fairness”—reveals significant shifts: equality took precedence over patriarchy; individualism supplanted familism; and fairness replaced hierarchy. Unlike in Japan, where customary family laws were typically associated with specific social strata, Chinese reformers addressed the challenge of restricting customary family laws widespread throughout the entire society.

A. Abolishing Customary Family Laws

Surprisingly, despite being under the authoritarian rule of the GMD, the Republic of China implemented family laws that were notably progressive. The codification process occurred without significant debate, with the Lifa Yuan authoritatively announcing laws without public involvement.⁹⁶

1. Family Relations: Equality Overriding Patriarchy

The draft 1911 Qing Civil Code granted that parental power be executed first by the father unless he was absent from the family.⁹⁷ In the Civil Code of the ROC, the concept of parental authority was eliminated, shifting the emphasis of the law on the duties of the parents toward the family as a whole rather than the obedience of children.⁹⁸ In their interpretation of the Civil Code, legislators asserted that “parental power can only exist in the old patriarchal society [zongfa shehui]. In modern times, individualism has developed. Therefore, this emphasis on the parental power cannot exist.”⁹⁹

Regarding the status of family members, while Japan differentiated between chakushi and shoshi, Chinese customary family laws provided more nuanced classifications: Legitimate children included those born to the official wife (dizi) and those born to the concubine (shuzi), with non-marital children referred to as sishengzi. Additionally, adoption was categorized between yangzi (children adopted as heirs) and sizi (children adopted for ancestral wordship in the absence of direct offspring). Although these complex classifications persisted both in the the Qing Civil Code Draft and in the 1926 Civil Code Draft,”¹⁰⁰ they abolished in the subsequent Civil Code of the ROC. Qing legislators justified this system, stating: “[O]ur system was distinguished from foreign ones, our sizi adoption centered on preventing families from having no child. . . . Only men could be sizi, and women were not qualified because the sizi system focused on worship and emphasized patriarchal tradition.”¹⁰¹ This rationale was directly countered in the final Civil Code of the ROC, which simplified classifications to “legitimate child” and “adopted child,” with GMD legislators arguing, “old laws were patriarchal and valued sons. And now in our new laws, sons and daughters are equal . . . sishengzi should be protected equally . . . and the so-called sizi in the old law are simply a legacy of the patriarchal system and should be abandoned.”¹⁰²

The process of diminishing the family head (jiazhang)’s authority was a notable aspect of Chinese legal modernization. Both the Qing Civil Code Draft and the 1926 Civil Code Draft granted the family head ability to oversee family matters.¹⁰³ The Qing Civil Code Draft underscored a preference for familism (jiashu zhuyi) over individualism (geren zhuyi).¹⁰⁴ The 1926 Civil Code Draft elaborated on the family head’s powers, including the authorization of family entries or exits, residency decisions, and oversight of marriage and adoption.¹⁰⁵ Additionally, property with unclear ownership was presumed to belong to the family head,¹⁰⁶ mirroring provisions in the Meiji Civil Code. However, in the final Civil Code of the ROC, while a section on the family system remained, the authority of the family head was emptied and only his duty to the whole family was retained.¹⁰⁷ The legislators explained:

Our traditional family head system solely emphasized the father’s power, and ignored his duties. Moreover, the rule that only males can be the family head contradicts the global trend. Therefore, although we remain a family system, we only underline the family head’s duty, and clarify that the family head is inheritable regardless of gender.¹⁰⁸

2. Marriage: Individualism Overriding Familism

Within a societal framework valuing the family as the primary ethical unit, marriage traditionally served the family’s interests over those of the individual. The Qing Civil Code Draft regarded marriage as a tool for continuing the family lineage rather than a romantic union.¹⁰⁹ This once-dominant idea was reversed by the GMD, which decreed that only minors needed parental consent¹¹⁰ and any adult couple could decide on their marriage and divorce freely.¹¹¹

3. Succession: Fairness Overriding Hierarchy

Customary Chinese succession, known as zongtiao succession, involves inheritance related to ancestral sacrifice,¹¹² akin to the Japanese katoku succession, encompassing the family name, sacrificial rites, and property inheritance.

The Qing Civil Code Draft provided no explicit regulations on zongtiao succession, whereas the 1926 Civil Code Draft devoted a chapter to it. This draft stipulated that property inheritance was contingent upon zongtiao succession, eligible only to males, including sacrificial tools, graves, and the family’s genealogical records.¹¹³ In the Civil Code of ROC, zongtiao succession was entirely abolished, with legislators reasoning that the kinship system (zongzu zhidu) had largely disappeared, rendering ancestral worship unnecessary. Furthermore, the exclusion of women from zongtiao succession was identified as a violation of the principle of gender equality.¹¹⁴

In terms of property inheritance, the Civil Code of the ROC diverged from Japanese provisions by not limiting inheritance rights based on the legal status of the child, allowing all legitimate heirs to inherit equally.¹¹⁵

B. Restricting Customary Family Laws in the Whole Society

Legislators in the Republic of China recognized not just the existence of family customs within a particular ruling class as in Japan, but their widespread prevalence throughout the society, making reform seem daunting. As Hu Hanmin noted: “We should conform to the need of the society. In China, the family was still the basic unit of production in rural areas. It is inconsistent with the social situation to destroy the family system.”¹¹⁶ In response, the final Civil Code of the ROC compromised to preserve the family system in name only, while significantly diminishing its authoritative power. The legislators expressed their opinion regarding the family law of the Civil Code of the ROC, stating: “Our family system was the foundation of social organization for thousands of years. If we destroy family, it will influence society too much. Therefore, we should de facto preserve this organization and admit it in the law.”¹¹⁷

How did the customary family laws in Chinese society contrast with the Japanese system? Traditionally, the family is seen as the foundational element of the Chinese society, setting it apart from other cultures.¹¹⁸ But what was the reality on the ground in the early twentieth century? As in our prior discussion of the Japanese case, we begin by reviewing the materials available to legislators during the codification process.

In 1911, the Republican government conducted a survey of civil customs throughout China. Unlike in Japan, where adherence to the family system was weak among commoners, the survey revealed that in China commoners actively maintained specific customary family laws. For instance, in Zhangping xian, Fujian Province in Southern China, the family head was found to have substantial authority, necessitating his signature on all contracts.¹¹⁹ This pattern was consistent in Northern China. In Dalai xian, Heilongjiang Province, the survey found that the considerable authority (quanxian) of the family head was “extreme” (jida). The distinction among dizi, shuzi, and sishengzi was strictly upheld,¹²⁰ and parental consent for marriage was widely practiced.¹²¹ The practice of zongtiao succession, adopting heirs for ancestral sacrifices in the absence of a son (jiantiao),¹²² was common in Hubei and Fujian Provinces.¹²³ Furthermore, from 1912 to 1927, the Supreme Court (Da Li Yuan) recorded 283 cases related to succession, with more than half involving “zongtiao succession,”¹²⁴ underscoring the power of the family head in various cases.¹²⁵

These customary practices persisted even after the promulgation of the Civil Code of the ROC. A survey conducted by the Japanese in rural North China in the 1940s, roughly a decade after the introduction of the Civil Code of the ROC, sheds light on the deep entrenchment of customary family law within Chinese society. An interview with a peasant from Sibeicai Village, Hebei Province, illustrates the tension between GMD’s progressive family policies and entrenched family customs in rural communities:

• Q: Have you applied new laws after the Republic of China?

• A: No, we respect the old customs and do not apply new laws.

• Q: Did you have any difficulty in applying the law of ROC?

• A: Not much, but the “freedom of marriage (ziyou jiehun)” or “father and son are equal (fuzi pingdeng)” makes no sense. The laws that could be applied have been applied, but the family customs that I told you about are customs from ancient times. We do not feel guilty about not applying the laws of the Republic of China.

• Q: Do you mean that parents arrange all marriages?

• A: Yes, the so-called “order of parents (fumu zhi ming)” and “word of matchmaker (meizhuo zhi yan).”

• Q: Is there any young person who chooses the marriage by himself?

• A: No, if so, he will be beaten. Both Confucius and Mencius have taught us Three Principles and Five Virtues (sangang wuchang).¹²⁶

This interview indicates that the Civil Code of the ROC was ineffective in rural areas, where peasants largely dismissed the principles of equality and freedom, emphasized by the legislators, favoring their longstanding customs.¹²⁷ Other surveys conducted by Japanese revealed numerous practices in direct opposition to the values enshrined in the Civil Code of the ROC. Contrary to article 1125, which limited the authority of the family head, rural family heads (jiazhang or huzhang) maintained significant control over family admissions and exits,¹²⁸ children’s education, and the division of the household (fenjia).¹²⁹ Against the martial freedom outlined in article 972, parental consent and authority over marriages was prevalent,¹³⁰ in rural and urban areas alike.¹³¹ Similarly, in Sichuan Province in Southern China, despite the introduction of the Civil Code of the ROC, arranged and early marriages persisted, with free-choice marriages being uncommon.¹³² Examining divorce cases between the 1930s and 1940s, historian Kathryn Bernhardt found that while women had more opportunities for divorce, they did not achieve the legal equality with men promised by the Civil Code, highlighting the disconnect between legal reforms and social realities.¹³³

Moreover, the practice of zongtiao succession persisted, as seen in the aforementioned practice of jiantiao.¹³⁴ Unlike Japan, where commoners did widely share ethical norms such as bukkiryō, its Chinese counterpart, the sangfu system,¹³⁵ remained a fundamental mourning customs in rural China, adhering to strict Confucian mourning regulations.¹³⁶

The persistence of Confucian familial norms, deeply ingrained in the culture and reinforced by state politics,¹³⁷ underscored, as Irene B. Taeuber has noted, the family’s role as a critical pillar of societal unity and local cohesion in China.¹³⁸ In contrast to Japan, where the Meiji Civil Code’s family norms were largely absent in peasant society and confined to the elite, Chinese family customs were deeply rooted across all social strata, rendering the imposition of new, liberal family laws by the GMD seemingly futile. In essence, while Japanese family norms in the Meiji Civil Code were created in the name of “tradition” for commoners, the liberal family laws introduced by the GMD in China were perceived by the peasantry as modern innovations.

IV. A Pragmatic Interpretation of the Divergence: Addressing Modern Challenges with Ancient Family Laws

Customary family laws were pivotal in the legal modernization efforts of both Japan and China. The question arises: why did these two nations take such radically divergent paths toward reforming these laws? I propose that the divergence stems from the pragmatic stance political elites in each country took towards family law. Viewing it as a mechanism for legal transplantation and modernization, their strategies were informed by an assessment of the socioeconomic impacts of legal changes and their influence on the political status and security of the elite. The question then becomes: To what extent did customary family law in these two countries functionally affect their political modernization, and to what extent did these different patterns of influence push political elites to preserve or abandon their traditional family structures?

This is not a new question. Scholars of Chinese legal history, notably Shiga Shūzō, have explored the distinctions between the Japanese and Chinese family systems. Shiga observes that Japanese culture prioritizes the family over the individual, who is considered as a building block of the family unit. In Chinese culture, however, the individual is seen simply as a member of a kinship group.¹³⁹ This distinction highlights the historical divergence between the two family systems: Japan focusing on the family as an entity, and China on the kinship dynamics within the family. Mizubayashi Takeshi compared the organizational position of the two countries’ family systems within their political framework, noting that the Japanese family included both lineage and non-lineage members such as officials (hōkōnin), whereas the Chinese family, particularly post-Qin dynasty and with the rise of the imperial civil service examination (keju), centered on individuals as the basis for societal and state bureaucracies.¹⁴⁰

While these comparisons shed light on the fundamental historical divergence of the family systems in Japan and China, they do not fully address how these differences contributed to the divergent processes of family law modernization. This Article aims to pragmatically interpret how modern legal elites perceived and utilized customary family laws within their respective contexts. This discussion unfolds in three stages: (i) comparing the historical roles of family systems in both countries prior to modernization; (ii) examining the challenges political elites encountered in modern settings; and (iii) considering how these historical roles could be adapted to meet modern needs.

Similar to Shiga and Mizubayashi, who examine family systems through their roles within the political community, my analysis begins by exploring how the relationship between family and state in Japan and China has historically been perceived, drawing on existing research. The key distinction I propose is between “politically connected” and “politically disconnected.” This duality aims to explain the varying significance attributed to the family system during modernization, offering a framework for understanding the Japanese and Chinese family systems more clearly.

Family systems can be described as politically connected or politically disconnected based on their role as potential administrative arms of the state, tasked with political functions, or the absence thereof. In scenarios where the family serves as an administrative unit, it is viewed by political elites as a contributor to modernization, benefiting politics through its ethical norms. Conversely, when the family lacks an administrative role and only follows its own autonomous familial ethics, it is perceived as a potential barrier to state centralization.

In examining their historical roles, I then discuss the challenges these systems encountered in modern settings and how these challenges influenced legislative decisions. Their modern contexts are framed as dichotomies of established authority versus competing forces. The Japanese Meiji regime, having established a strong, centralized authority by the 1890s after suppressing rebellions and solidifying fiscal and administrative structures, sought to legitimize its absolute power, repurposing familial discourse as a means to this end. Although the GMD unified China and started its authoritarian rule in the late 1920s, it lacked a robust financial and administrative base and faced significant opposition, especially from the CCP. The GMD’s urgent challenge was to win as much political support as possible and stabilize its governance, by portraying itself as a progressive, liberal party being a strategic approach to achieving this objective.

A. Historical Functions: Politically Connected vs. Politically Disconnected

Since the two countries both have a long history and the family system also evolved over time, my focus is mainly on the Edo Japan period in Japan (1603–1868) and the Qing dynasty in China (1644–1912). This timeframe precedes the onset of their legal modernization. The roles of family systems during these periods significantly influenced modern elites seeking to navigate customary family laws.

1. Japanese Family System: Politically Connected

As discussed in Part II, some Japanese scholars contend that the so-called “customary family laws” were predominantly practices of the ruling class, rather than universally practiced as assumed by Meiji reformers. However, the institutionalization of these laws within the ruling class linked them closely to the exercise of political power, positioning the Japanese family system as an integral part of the governance structure.

During the Tokugawa period, for example, inheritable family privileges of the ruling class included official salaries, duties, and political positions within the shogunate (bakufu) or local villages (mura). The patriarchal family unit was crucial for transmitting these privileges to the next generation. In this era, to ensure societal stability, only a select few descendants were eligible to inherit the family’s title, name, and official role. For the samurai, who were the ruling class, the family system was about continuing official roles and adherence to the shogunate regulations.¹⁴¹ Families managed status changes internally and represented the family in public matters,¹⁴² acting as administrators of family assets and business responsibilities.¹⁴³ Thus, family laws were effectively governed by public law under the shogunate regime.¹⁴⁴ The family was led by the tōshu or kachō (later formalized as koshu), who played a similar role to that of low-ranking bureaucrats, managing both official and family affairs to ensure the family’s continuation. Under Tokugawa laws, the family and its head were partially recognized by the state,¹⁴⁵ aiding the Tokugawa regime in state governance and promoting social order based on status.

While most peasants did not share the ruling class’s family structure, some titled peasants (honbyakushō) could hold public positions, such as membership in the goningumin, an official group tasked with maintaining village order and tax collection. These titled peasants adhered to strict family norms regarding the headship, marriage, and succession. For example, in the village, only one son of a titled peasant could inherit this status title, linking village succession to official positions.¹⁴⁶ As Wenna Guan summarizes, the Japanese family system was historically formed under forces outside of family—from the Emperor and the government—and thus it naturally served public functions.¹⁴⁷

2. Chinese Family: Politically Disconnected

Although the Chinese Confucian canon regarded family as the fundamental building block of the state¹⁴⁸ and kinship groups played a role in early imperial Chinese state formation around the tenth century,¹⁴⁹ this model of family ethics was not as rigorously enforced or institutionalized in later periods as it was in Japan. Late Qing and Republican era Chinese legislators perceived these deep-rooted family ethics not as an asset, but as a burden to state modernization and power consolidation.

The bureaucratic system of imperial China, as noted earlier, centered around the civil service examination, and emphasized individual merit over family or lineage connections. This system created a divide between the state and the family, with individuals entering the state bureaucracy based on personal achievements rather than familial legacy, thus excluding the family from any direct role in state administration.¹⁵⁰

Consequently, in contrast to the Japanese family system, the Chinese family functioned as an autonomous entity, isolated from other state mechanisms. This distinction was acknowledged by Chinese when drafting the first modern civil code in 1911. In their interpretation of the Qing Civil Code draft, the drafters wrote:

The Chinese family system is thoroughly different from the Japanese one, and hence the law should be different. In China, we need to focus on the organization of the family, namely the relationship between the family head and family member. The systematic relationship [xitongshang zhi guanxi] should not be included.¹⁵¹

In other words, they recognized that, unlike in Japan, where family laws facilitated collaboration between families and political institutions, in China, the family did not integrate into the broader sociopolitical framework or contribute to state functions.

Despite the historical significance of family systems in both countries, Chinese legal elites focused on the potential drawbacks of the family system. As historian David Faure notes, local kinship groups, operating autonomously,¹⁵² dominated village governance in the Ming and Qing dynasties, at times resisting central authority. After the Taiping Rebellion, the Qing dynasty’s reliance on these groups for local governance waned as they became seen as potential adversaries.¹⁵³ Disputes over judiciary and taxation further exemplified the tension between local kinship groups and state authority, with families often bypassing state judicial processes (for example, lynching people who violate laws)¹⁵⁴ and evading taxes through kinship networks.¹⁵⁵

Noble families sought to secure bureaucratic roles through hereditary positions and large kinship groups, conducting ancestral rituals to consolidate power and influence. However, these efforts conflicted with the centralized state’s merit-based official selection, leading both Ming and Qing governments to curtail the influence of noble families.¹⁵⁶ Thus, to the governing elites, these kinship structures posed challenges to individual-state relation, and also to central authority.¹⁵⁷

This concern about the family system was further detailed by Yang Du, a politician during the late Qing and early Republican era, in a speech to the Zi Zheng Yuan, the legislative body of the late Qing period. Yang stated: “If a country wants to have the rule of law, it must evolve from familism [jiazu zhuyi] into statism [guojia zhuyi].”¹⁵⁸ According to Yang, the distinction between statism and familism hinged on the nature of the individual’s relationship with the state. Within the familial network, “there were 400 million people in China, but no one is a national [guomin]. The people in this country can only be divided into two categories: the family head [jiazhang], and the family member [jiaren].”¹⁵⁹ Building on this distinction, Yang urged that modern codes align with statism over familism, highlighting familism’s flaw in fostering a society comprised solely of family heads and members rather than citizens. He further criticized the familial system for leaving people unaccountable to the nation: “Under this family system, people are not responsible for the country. . . . The family head is only responsible for family members, and thus the male members were fed by the family head, and female members are idle.” Such family members “have no relationship with the nation, neither have rights or duties. They don’t have any ability to make their own living. They are burdens on society and state.”¹⁶⁰

The family and state in China were not as politically connected as in Japan, where the family head held administrative powers vested by the state. In China, family heads were solely accountable for their own families and members. Yang had earlier articulated: “That which prevents the state from progressing is the feudal institution; and that which prevents society from progressing is the family system, why? Because there is an obstruction in front of the individual.”¹⁶¹ This focus on the family barred the family unit from becoming an organic part of the state’s structure, leaving the Chinese family as merely an obstacle, differentiating the roles and responsibilities of the state, family heads, and family members.

B. Modern Context: Established Authority vs. Competing Forces

Having compared the historical roles of family systems in both countries, I now turn to the political and intellectual landscapes they navigated during the early stages of radical modernization.

1. Japanese Context: Established Authority

The Meiji Restoration of 1868 marked the beginning of Japan’s journey towards modernization, but the path was not devoid of turmoil. Under the Fukoku Kyōhei policy (“Enrich the Country, Strengthen the Armed Forces”), the Meiji government initiated comprehensive reforms, including conscription (chōhei), land rent system reform (chisō kaisei), and the dismantling of ex-samurai privileges. These changes incited resistance from those who felt their interests were compromised, including members of the former ruling class and restoration allies. The dissent culminated in various rebellions, epitomized by the Jiyūminken Undō (“Liberty and People’s Right Movement”), which demanded democratic reforms such as the establishment of the National Diet, the drafting of a constitution, freedom of speech, and lower taxes. Advocates of this movement argued for a state governance model focused on “individuals” rather than “families.”¹⁶²

Initially championed by former aristocrats, the Jiyūminken Undō quickly spread to the lower classes, including peasants and urban workers, eventually adopting a more violent character. This escalation prompted the Meiji government to enact laws restricting public gatherings, press freedom, and penalizing disrespect towards the Emperor.¹⁶³ Despite these challenges, the movement did not fundamentally undermine the Meiji regime. Research indicates that the initial leaders of the movement reached compromises with the government, distancing themselves from the lower-class advocates for individual rights.¹⁶⁴ Nonetheless, the movement posed a credible threat to the Meiji elite, motivating them to reassert traditional family values as a countermeasure to liberal ideologies.¹⁶⁵

In response, the Meiji government inaugurated the National Diet and promulgated the Dai Nippon Teikoku Kenpō (“Constitution of the Empire of Japan”) in 1889, affirming the Emperor’s supreme authority. Although this Constitution appeared to accommodate liberal demands, it primarily reinforced a feudal authoritarian framework, ensuring the power of the Meiji oligarchs.¹⁶⁶ Despite criticism from key figures like Nakae Chōmin, their opposition no longer posed a significant threat to the government’s stability.¹⁶⁷ Furthermore, with the creation of the Bank of Japan in 1883, the Meiji administration established a robust central financial system, creating a fiscal institution to fund the state.¹⁶⁸ The Meiji regime, then, had already suppressed political dissents and secured the authority by the time it embarked on civil law codification in the 1890s.

2. Chinese Context: Competing Forces

The GMD’s stance towards consolidating its authority while enacting liberal and progressive laws seems paradoxical. Margaret Kuo refers to this as “legal exceptionalism,” but does not delve into the underlying reasons.¹⁶⁹ Yue Du suggests that the GMD’s motivation for liberal family laws aimed to compete “with individual parents for the primary loyalty of their children as well as the resources their children were able to offer.”¹⁷⁰ This explanation, however, falls short for two reasons: it overlooks the broader concern of legislators over the potential threat posed by extended families and large kinship networks; and, as I will discuss, it simplifies the GMD’s challenges to mere rivalry with individual parents, rather than acknowledging the broader spectrum of political adversaries.

Contrary to the stable governance experienced during Meiji Japan, the GMD embarked on legal codification amid a nascent and tumultuous political unity. Facing competition from various quarters, both intellectually and politically, the GMD navigated a complex landscape. Intellectually, the May Fourth Movement, heralded as the modern “enlightenment” of China,¹⁷¹ sparked a jiating geming (“family revolution”), criticizing the traditional family system as a cornerstone of China’s backwardness.¹⁷² Politically, the GMD’s fragile rule was continually threatened by the CCP and former warlords during the codification process.

In stark contrast to Japan’s Jiyūminken Undo, which unfolded under the robust Meiji regime without succeeding in establishing liberty and democracy, the May Fourth Movement emerged amid chaotic warfare among warlords, offering an opportunity to make significant impact. Championing the modernization of Chinese thought and the dissolution of antiquated traditions with the call to “Democracy and Science,” the movement was propelled by urban intellectuals and university faculty. They pinpointed the archaic family system as the root of China’s weakness,¹⁷³ promoting national allegiance over familial loyalty. This marked a shift from traditional Confucian-prioritized familial love as the foundation for broader societal affection.¹⁷⁴

This intellectual shift contributed to the development of legal thought, with many legal scholars endorsing liberal views on family law, advocating a “social-based,” rather than “family-based” approach to civil law.¹⁷⁵ This topic became a focal point for legal discourse, yielding numerous publications in legal journals.¹⁷⁶ These progressive legal philosophies permeated the GMD legislature, finding champions in legislators like Hu Hanmin and John C.H. Wu, who were vocal proponents of social-based legislation.¹⁷⁷ Hu ultimately declared that the Civil Code of ROC embodied the “social-based” perspective following its enactment.¹⁷⁸

Politically, the May Fourth Movement momentum was bolstered by strikes orchestrated by the CCP, highlighting the competitive political landscape between the CCP and the GMD.¹⁷⁹ Once the cooperation between the GMD and the CCP had ended in 1927, the CCP emerged as a formidable political contender: it launched a country-wide propaganda campaign, initiating widespread liberal movements that demanded individual rights and the elimination of imperialism,¹⁸⁰ challenging the GMD’s foundational stability.

The GMD’s challenges extended to military confrontations with former warlords. Despite establishing a nominal central government, the GMD’s consolidation of fiscal and administrative authority was hampered by these warlords, contrasting with Meiji Japan’s earlier success in establishing modern fiscal institutions.¹⁸¹ The dynamics between central and local governance echoed the struggle against local resistance in the early Meiji Japan. The GMD’s authority was continuously contested by ex-warlords, especially in conflicts in the northwest in 1930 during the codification process.¹⁸²

Customary family law entered the stage within a context where liberal ideas about family had already spread and were under discussion. The GMD not only navigated opposition from external forces like the CCP, which had mobilized popular support, but also internal advocacy for liberalism from figures such as Hu Hanmin. Thus, compared to the established authority of Meiji Japan, the GMD’s position was precarious. Adopting liberal values in the Civil Code served dual purposes for the GMD: projecting an image of progressiveness¹⁸³ and addressing the shortcomings of the traditional family systems. Through this legislative strategy, the GMD sought to unify the populace under its governance and solidify its rule.

C. The Way Forward: Expansion and Restriction

This subsection synthesizes the analysis of the historical functions of family systems and their modern contexts in Japan and China, explaining the divergent paths the two nations took concerning customary family laws during legal modernization.

1. Japan: Expanding Family Laws to Strengthen Authority

Amid a stable political climate and the challenges from liberal movements, the Meiji conservatives recognized the risk of inciting unrest and the opportunity to reinforce family discourse. This strategy was aligned with the 1889 Meiji Constitution and the 1890 Imperial Rescript on Education (Kyōiku Chokugo), which emphasized obedience to parents and loyalty to the Emperor.¹⁸⁴ Customary family laws were seen by the Meiji conservatives as a means to practically manage the populace and legitimize the Emperor’s supreme authority, thereby garnering grassroots support.

Two key aspects of family law appealed to the conservatives: its proven historical efficacy in maintaining peace within the families and the state, and its potential for universal application to control society. Succession laws, for example, were crucial for the Bakufu to control officials. Meiji reformers believed the regulatory influence wielded over samurais could be extended across society. To achieve this, it was necessary to legitimize these laws among commoners, despite variations across different regions and classes during the Tokugawa period.¹⁸⁵ Legislators sought to standardize laws nationwide, ensuring consistency with the imperial family and the ruling class,¹⁸⁶ with primogeniture serving as a prime example.¹⁸⁷ Institutionalized family laws underpinned social harmony by clarifying the status, rights, and duties within families, mirroring the hierarchical structure of the state itself. As discussed in Part II, Kobayashi argued that diluting the family head’s authority could lead to legal disputes, disrupting national harmony.¹⁸⁸ The Kyoto Trial Court (Kyōto Shishin Saibansho) echoed this concern in debates over succession laws, which proposed equal inheritance among heirs, illustrating the broader apprehension about weakening familial structures.¹⁸⁹

Beyond concerns of litigation, the conservative faction feared the potential unrest that the new code might incite. Despite incorporating some individualist elements from the Jiyūminken Undō, the Old Civil Code was swiftly criticized by conservatives for its individualist ideas. Their apprehension stemmed from witnessing the tumult caused by various movements, leading to a cautious stance towards laws that promoted individualism.¹⁹⁰ During the Civil Code controversy, one major conservative objection to the “liberal” laws was the fear that fostering individualism would lead to societal discord, drawing parallels with European conflicts exacerbated by individualist ideologies.¹⁹¹ However, by this point, the Meiji government had quelled these disruptive movements, providing a stable backdrop for revisiting traditional family values.¹⁹²

The second aspect of customary family law that appealed to conservatives was its moral and ethical dimensions. When discussing article 750 of the Meiji Civil Code concerning the koshu’s authority over marriage and adoption, Ume Kenjiro argued:

[W]e need to distinguish between lineage [shinzoku] and family [kazoku] . . . when the son becomes adult, whether to obey to his father or not is a moral issue (tokugijō no mondai), the law cannot regulate it. However, if they are in the same family relationship, and the family member does not obey the family head, the latter cannot protect the family.¹⁹³

For Ume, family law intertwined morality with legal structure, necessitating both formal institutionalization and the cultivation of moral narratives.

In the eyes of Meiji elites, the family head was an entity managed and regulated by the state, enabling comprehensive control over families and households via familial moral standards. This approach envisioned a system where family and state were homologous. Although this homologous structure of family and state was derived from Chinese Confucianism, under its institutionalized family system, Japan imbued the family head with greater authority, legally defining him as a quasi-administrative figure bound by Confucian principles of filial piety. This institutional framework can be traced back to the pre-Edo period’s lord–vassal relationship, which employed familial terms like yorioya (“parent-lord”) or yoriko (“child-vassal”),¹⁹⁴ thereby leveraging filial piety as a means to structure political relations in a tumultuous samurai-dominated society.¹⁹⁵

A framework was thus established where the state exerted control over its populace through both practical and moral facets of the family structure, with conservatives championing traditional family norms. Beyond Hozumi Yatsuka’s impactful piece, “Minpō Idete Chūkō Hhorobu” (“Filial Piety and Loyalty Died as the Civil Code Issued”),¹⁹⁶ other legal minds provided detailed arguments against the Old Civil Code’s lack of traditional family laws and their potential detriment to the state. Usui Tatsuyuki of the Akita Trial Court (Akita Shishin Saibansho), for example, criticized the provisions allowing marriage without parental consent:

[I]f children do not obey the parents (regarding marriage), filial piety will lose. And obedience was the foundation for morality. . . . Moreover, the prosperity of a country is related to individuals and families, and families related to husbands and wives. Granting them too much liberty is not a good choice for the country.¹⁹⁷

This argument, suggesting that individual freedom could undermine family authority and thus national stability and prosperity, gained traction during the Civil Code controversy and became mainstream in the legislature. Consequently, the Meiji Civil Code, grounded in patriarchy and political absolutism, dismissed any reformative family law propositions from the Old Civil Code.¹⁹⁸

In Japan, therefore, the family system functioned as a political instrument both subject to, and utilized by, state governance, embodying a “politically connected” relationship with the state. Through this institutionalized family system, the state managed individual behavior within families by linking filial piety to loyalty, leveraging traditional family discourse to consolidate its authority. This discourse laid the groundwork for defining the modern Japanese state’s familial identity in subsequent years.¹⁹⁹

The ethical standards formerly unique to the samurai class²⁰⁰ were adopted at all societal levels, forging a unified, hierarchical society under the supreme authority of the Meiji Emperor.²⁰¹ This strategy not only secured the restoration’s achievements but also the personal interests of the elites,²⁰² echoing the samurai’s historical practices.²⁰³ The logic behind this principle was the political intertwining of family and state, necessitating the preservation and expansion of this system to ensure the stability of the new regime. All citizens, not just the elite, were required to adhere to these family norms under a newly established tradition.²⁰⁴ Hence, the Meiji Civil Code, aligning with the Meiji Constitution, emerged as a testament to this ideological shift.²⁰⁵

2. China: Restricting Family Laws to Gain Support

Upon unifying China in 1927, the GMD recognized the need to project a progressive image to garner support from both intellectuals and the masses. Targeting customary family laws presented an opportunity to dismantle the traditional family structures that obstructed their authority and to promote new “nationals” (guomin), while also showcasing their purported liberal values.

Despite evidence of the persistence of patriarchal views within the GMD,²⁰⁶ Hu Hanmin, in his speech to the Lifa Yuan, sought to differentiate between the GMD’s stance on family from conventional patriarchal perspectives. Echoing Yang Du’s narrative, Hu argued:

President Sun Yat-sen once told us, we need to expand the family [jiazu] and kinship groups [zongzu] to national groups [guozu]. The so-called guozu is like a big family, isn’t it? . . . However, in Chinese history, those large families were difficult to manage, and every family member worked unequally. Many family members were parasites under such circumstances. Therefore, within the family, there was despotism, repression, and reliance. I believe if we could rely on a new small (nuclear) family [xiao jiating], and love the largest family—the country, that would be great.²⁰⁷

According to Hu, the GMD still believed that the family played an important role in the state’s framework, while advocating for the reform of traditional family models.²⁰⁸ The GMD’s Legal Bureau (Guomin Zhengfu Fazhiju) later recognized that family law was “related to the prosperity of the country, and was superior to other civil laws.”²⁰⁹

Nevertheless, the GMD took a different approach to customary family law than Japan did. As Hu suggests, the GMD’s family law intended to pull individuals out of the family so that they could participate fully in the state.²¹⁰ The GMD believed that the Chinese family system was a barrier between to both state formation and the adoption of Western ideals.

Yang Du’s statist argument exemplifies this concern about the relationship between family and state. Building on his argument that under familism, people can only be divided into family heads and family members, and there can be no category for nationals, Yang noted:

If government officials who are supposed to be responsible to the state actually work for their family, it will lead to corruption. From the perspective of the nation, we would call them corrupt officials. But from the perspective of their family members, they are filial sons. The reason for the weakness of China today is that we have too many filial sons and too few loyal officials.²¹¹

This claim emerged from the historical fact that the state could not control the family. The family was a self-interested group within which the family head tried to secure benefits for their family by exploiting society and state, and family members refused to participate in national affairs. In the Republican era, Hu Hanmin took up this critique of the family, continuing to argue that family jeopardized the social and national interest. He claimed: “The reliance of family relatives will gather together and hurt the public in order to benefit themselves. The family was self-interested and did not concern itself with the public social interest.”²¹² In Hu’s eyes, in the family system, only the family head was able to control family members, and family members and family heads were concerned only with the family, rather than the country as a whole. For the GMD, reforming family law was key to integrating citizens into the new state framework and reinforcing its governance.

During the revolutionary era, the GMD, like its Meiji counterpart, needed to exert direct power upon individuals and ensure that its authority remained in place for practical purposes. Nevertheless, the key difference was the Meiji government’s reliance on the family system to anchor its newfound authority, whereas the GMD critiqued customary family laws to align with emerging liberal ideals and engage with the changing political landscape, notably influenced by the May Fourth Movement’s progressive stance on family matters.²¹³ This shift was particularly evident in marriage law reforms, where legislation endorsed the notion that marriage was a free choice of the couple, eliminating the need for parental consent or arrangements. This approach aimed to win support from burgeoning feminist groups in the 1920s,²¹⁴ further energized by the CCP-led mobilizations and the consequential May Thirtieth Movement.²¹⁵ The GMD hoped to win support from these groups and began to advocate for equality between men and women. In the proposal of its National Committee, the GMD wrote:

Our committee acknowledges that after the May Thirtieth Movement, the Chinese feminist movement developed after we received the report. In order to expand the scope of revolution, our party should go into the women’s groups to organize and train them at this time to unite this force under our party flag to make the revolution, and not let them be used by the reactionaries. . . . Regarding changes to law, we should: (1) Enact law that men and women are equal; (2) Grant succession rights to women; (3) Forbid human traffic; (4) Enact marriage law based on the absolute freedom of marriage and divorce. . . .²¹⁶

These initiatives were largely reflected in the Civil Code. The underlying reason for this liberal legislation, which coexisted with an authoritarian regime, was that the GMD needed to project a liberal image to win support and to clear the potential barriers posed by antiquated family laws to creating a new state.²¹⁷

Both the historical function of Chinese family systems, which prevented the state from controlling individuals, and the modern context, in which the GMD competed with other political forces, led the GMD to choose a thoroughly different path than its Japanese counterpart in modernizing customary family laws. In an effort to build a new central state and win support from society, the GMD promulgated relatively liberal family laws within its authoritarian regime.

Conclusion

In this Article, I have explored the distinct approaches Japan and China took towards their customary family laws in their initial modern civil codes, amidst a shared ambition to transplant Western legal principles and pursue modernization. This analysis concludes that the divergent treatments can be attributed to two primary factors: the historical functions of family structures in each country and the differing contexts under which civil codification occurred. These elements collectively prompted the Meiji and GMD regimes to adopt divergent strategies concerning customary family laws, grounded in pragmatic political considerations.

In Japan, the family system was politically connected with the state, historically subject to governmental oversight. By the time of legal modernization, the Meiji regime had consolidated its authority by neutralizing opposition, enabling it to expand the application of traditional family laws—previously confined to the elite—across society to reinforce its absolute power.

Conversely, in China, the absence of historical political connection between the family system and the state was perceived as an impediment to political centralization and modernization efforts. Moreover, during its period of legal modernization, the GMD faced persistent challenges from various sociopolitical factions, and felt a continued need to shore up support from the masses by leveraging liberal political discourse. As a result, the repeal of archaic family laws emerged as a viable strategy for the GMD to present itself as forward-thinking and to remove social barriers that could hinder its quest for centralized governance.

Footnotes

Author notes