Waseda Institute for Advanced Study (WIAS)Waseda University

News

Engaging a Theory, Contesting “Family Law Exceptionalism” CHEN, Yun-Ru, Assistant Professor (April, 2016)

☆IMG_0952

  • CHEN, Yun-Ru,  Assistant Professor(April, 2016)

Interested in the relation ship between family law and nationalism

I study law, and I focus on the fields of legal history, legal theory, and family law. I chose these fields because I have always been interested in people. When I was little, I enjoyed sitting quietly with elders in villages when they recounted the stories in the families and shared their opinions and feelings about these matters. My years in Taipei also led me to these fields. Taiwan women’s movements arose at the dawn of democratization and have been vigorous since then. As a law student and then a lawyer in the late 90s and the early twenty-first century, I was intrigued by the various approaches that lawyers engaged in family law reforms.

My current research project, which is related to my doctoral dissertation at Harvard Law School, is to look at the relationship between family law and nationalism in East Asia. I employ comparative methodology and utilize historical archives. I chose Taiwan, once a part of imperial China and then Japan’s colony in the pre-WWII period. One reason is that Taiwanese law, especially family law, connects the experience of the modernization of several East Asian countries, including the development of modern family law in Japan and China. I am engaging a theoretical debate. The theory is called “Family Law Exceptionalism (FLE)”, which tries to both describe and criticize a common phenomenon that family law is more of than not treated as something exceptional.

What is FLE? Firstly, family law is generally seemed to be special in legal studies. In its strict sense, family law covers issues such as marriage, inheritance, and divorce. When lawyers discuss about other areas of civil law or commercial law (I call them “market law”), such as contract, one essential assumption is that a rational and self-reliant person would try to maximize his/her own interests (individualism). However, in the area of family law, the guiding principle might not be so much as to individualism as to altruism: you are supposed to take your family members’ interests into account.

In the context of nationalism, the phenomenon of FLE is not less common. When former colonies established their own nations, they saw western notions of the market and its legal mechanism as essential ways, that is, to strengthen the post-colonial nation by developing its economy. The popular mentality here is to “catch up” with the trend of the world, so that you will not be left behind. Yet, when it comes to family law, the non-Western nationalists are not so keen to adopt the rules. They often deem family laws repositories of legal consciousness and should preserve a space for their own tradition/customs.

In terms of substance, it turns out that nationalist family laws tend to be conservative or neo-traditional. Interestingly, in many countries/areas certain particular customs are selected and nationalized during modernization. For example, primogeniture and same surname for marriage couple in Japan are all connected to the idea of house, the “Ie”. However, many researchers have pointed out that such customs were not as common as ordinary people think before the modernization period starting in 1868. The practice about family had been much more diverse until the particular custom about “Ie” became a national law for everyone.

CHEN_図01

CHEN_図02

Figure 1: FLE

Taiwan, an exception to FLE

One major argument of my research project is that the way in which Taiwanese nationalists advocate for family law reform is, in a sense, an exception to FLE. That is, despite adopting the market law/family binary, Taiwanese nationalists in both Japanese colonial period and the contemporary era advocate for a relatively progressive and liberal family law.

Before further explaining my argument, let me provide a rough timeline of Taiwan’s history. Originally, the ethnical majority in Taiwan was once the Taiwan Aborigine. During the time, family relations among its members were more equal than afterwards. In 1683, Taiwan was incorporated as a part of the Chinese Empire, followed by Japanese colonial rule from 1895 to 1945. After World War II, the Guomindang (the Chinese Nationalist Party) government in China began its rule over Taiwan. The Republic of China (ROC) Code, which was a compromise between the European model and Chinese family tradition, was introduced to Taiwan. Since 1980s, along with the movements for democratization, the ROC Code went through several waves of family law reforms, advocated by women’s right activists. Just like Japan, Taiwan adopted laws from the world and its law has multiple sources. Similarly, like Japanese family law, Taiwanese family law, if compared to the rest of the civil law, houses neo-traditional customs the most.

CHEN_図03

Figure 2 : Multiple Sources of Taiwan Law

 

Now, back to my argument. I will use to the following two cases to exemplify why Taiwan could be understood as an exception in FLE. The first case is situated in colonial Taiwan. I analyzed the discourses of the first generation of Taiwanese nationalists. One of the key figures is Lin, Chenglu (1886-1968). Lin was born in northern Taiwan, studied law and politics at Meiji University (Tokyo) in 1910s and became a Taiwanese nationalist while working as an advocate-journalist. Lin engaged in the debate as to whether Japanese civil law should be introduced to Taiwan. He welcomed Japanese commercial law and civil law. Yet, Lin was much reserved in accepting Japanese laws when it comes to the way of arranging family lives and rejected the primogenital household (Ie) system.

Interestingly enough, it is rather a liberal and modern idea of family, rather than tradition, Lin drew upon in the debate. He stated that the Japanese house system resembled ancient China’s succession of family line. Both of these, Lin asserted, could no longer survive social evolution. In contrast, Lin praised the Taiwanese inheritance system, which entitled every son an equal share, for being in accordance with the “most modern trends of thought.” In other words, Lin adopted a cosmopolitan and progressive approach to defend its family tradition, a widely-shared stance among anti-colonial Taiwanese elites. Thus, Taiwanese nationalists in Japanese colonial period advocated for a special (different from Japan/China) yet progressive/liberal family law. The implication is that nationalist family doesn’t need to be conservative.

Similar trends can be observed in contemporary Taiwan. Compared to other nationalists in East Asia, the current Taiwanese nationalism tends to be more cosmopolitan, inclusive, and liberal (civic nationalism). Feeling being excluded in international community (e.g. Taiwan is not an UN member and does not have an official diplomatic relation with Japan), there is a strong sentiment to “join/connect top of the world” in the society. Also, rather than ethnicity, liberal values, such as liberal democracy, serves as foundations of developing Taiwanese nationalism. For example, in her victory speech early this year, President Tsai Ing-Wen, who is seemed to be a Taiwanese nationalist if compared to the presidential candidate from the other party, said “Taiwan is democracy.” These tendencies could also be observed in family reforms. For example, the same-sex marriage in Taiwan is also being advocated as an issue about universal human rights. Tsai herself also shows support to the related legal reforms. Many passionate advocates urge for such a reform in order to “proudly make Taiwan the first country which legalizes same-sex marriage in Asia.”

Go beyond the dichotomy: the theoretical potential of FLE

FLE is a relatively new theory. It is worth emphasizing that the theory doesn’t lean on one side, either “for” or “against” the common sense that family law is exceptional, but tries to make this phenomenon visible. In this way, the theory can make us see the many other ways about legal reforms and the possibilities for new directions. As I mentioned earlier, in legal reforms, we usually would not reject a legislation just because it is modeled on or inspired by a foreign law. Quite the contrary, especially in terms of business law, we think “oh, we need to catch up with the world”. When it comes to family law, the society often have stronger desire to “preserve” the traditional way of family life.

FLE tries to overcome such a dichotomy we feel so natural and almost inevitable. I argue that, on Market Law, it is actually quite possible that we have different kinds of business models and sometimes it is better to still use local customs/laws. On the other hand, the so-called “traditional family law” might not be so much about tradition as to an invention (e.g. the case of “Ie” system). Also, keeping one’s identity and/or tradition is not necessarily incompatible with progressive vale (e.g the case of Taiwan). FLE reveals the artificial construction of family-market dichotomy which we often find natural. When you think of something as natural, you tend to stop thinking about it further and would say “Sikataganai (nothing can be done about it)”. In fact, there are many things that you can do. So it can be said that FLE opens your mind to those possibilities and I think this is the power of this theory.

Interviewed and written by Miki Masuda

In cooperation with M.A Program in Journalism, Graduate school of Political Science, Waseda University

Page Top
WASEDA University

Sorry!
The Waseda University official website
<<https://www.waseda.jp/inst/wias/en/>> doesn't support your system.

Please update to the newest version of your browser and try again.

Continue

Suporrted Browser

Close