| Chapter 1: | From Ōoka Tadasuke to Hozumi Yatsuka |
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Japanese society and, by extension, the Japanese nation-state (minzoku-kokka), which could ill afford the luxury of weakness given the predations of the colonial powers. In such a jungle-like political environment, the pragmatic search for equity was both a necessity and a liability. There was no time for finding good-enough solutions to social problems, and yet no margin for error if those social problems continued to fester. This view of society as a potential liability led to its reconceptualization as the ribwork of the imperial state and the preclusion of apolitical equity in Japan.22
The ie seido
The worsening estrangement between law and society came to a head in the wrangling over the ie seido. The ie seido, or household system—which some conservatives hailed as the key to preserving Japan’s special national polity (or kokutai)—became an issue of unprecedented parliamentary contention during the debate over the revision of the Meiji Civil Code in 1898.23 At issue was whether the law would conceptualize society as a gathering of individuals who had entered into the social contract of their own free will or as a succession of hereditary and ethnic groupings, beginning at the lowest level of the transgenerational family, or ie, and culminating in filiation to the emperor as the sovereign head of the national imperial household.24
For later law-and-society doyen and Suehiro protégé Kawashima Takeyoshi (1909–1992), the ie, as conceived by the Meiji ideologues debating the conceptualization of the family within the Civil Code, had three main facets.25 First, Kawashima argued, the ie was a “lineage group that has nothing to do with domicile, involving a belief in the continuity of its identity despite changes in its membership through deaths, births, and marriages.”26 Indeed, much of this lineage was continued by means of adoption of sons,27 and is therefore, as Kawashima pointed out, indicative of the extent to which legal fiction had long prevailed in Japan.28 Although somewhat different than the equity effected by Magistrate Ōoka during the Edo Period (and championed by Suehiro during the late Taishō