Weilin Xiao on Expansion and Restriction: Divergent Paths Towards Modernizing Family Laws in Japan and China, 1868–1930 (The American Journal of Comparative Law)

"Expansion and Restriction: Divergent Paths Towards Modernizing Family Laws in Japan and China, 1868–1930"
Weilin Xiao
The American Journal of Comparative Law
Published online: August 2024

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 respectively, 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.