Wednesday, October 19, 2022

Xiao on Modernizing Chinese and Japanese Family Law

Weilin Xiao, a  J.S.D. Candidate at Yale Law School, has posted Expansion and Restriction: Two Paths Towards Modernizing Family Laws in Japan and China, 1868-1930:

Before their encounters with the Western powers in the 19th century, Chinese and Japanese societies were both deeply rooted in traditional family systems that constituted their basic social formations. However, as legal modernization dawned, these two countries took nearly antithetical approaches to reforming their customary family laws. For the most part, the Japanese legal elites of the Meiji regime expanded the power of the family and emphasized its political function. In sharp contrast, the Chinese legal elites of the late Qing and Republican eras restricted the power of the family and downplayed its significance. Although many scholars have studied the modernization of family laws in Japan and China, respectively, the differences between the two countries and the underlying reasons for these differences have not been adequately explored. This study seeks to fill the gap.

By comparing the legislative history of two nations, I argue that this divergence originated from the different historical roles that family systems played and the different political contexts legal elites found themselves in during legal modernization. In Japan, the family system was historically “politically connected” with the state, and the Meiji regime had fully established its authority over this system during the process of modern codification. Hence, Meiji political elites thought it best to integrate people into the new absolutist Emperor regime by leveraging the political obedience of the family. In contrast, the Chinese family system had become “politically disconnected” from the state by late imperial times. Following the Republican Revolution, the Guomindang regime faced competing political forces, which seriously threatened its power. Therefore, political elites hoped to abolish customary family laws, thereby weakening the traditional family system that may have jeopardized governmental centralization and social integration. They also believed that this would help them portray themselves as liberal and modern, which in turn would help them win broader political support from society.
A draft of this article won the 2021 Colin B. Picker Graduate Prize by the Young Comparativist Committee of the American Society of Comparative Law.

--Dan Ernst