Marriage in Japan Tadamasa Kobayashi*
Marriage in Japan Traditional and Current Forms of Japanese Marriage Tadamasa Kobayashi* 1. Preface Marriage law follows folk practices. As Masayuki Takanashi writes, “Folk practices determine the reality of marriage. Laws cannot change these practices; they can only reflect them” (Masayuki Takanashi, 1969. Minpo no Hanasi. [Tales of Civil Law], p. 168. NHK Shuppan Kyokai). This theory is currently well-established; in fact Japanese family law specifi- cally states that marriage law “must match the sense of ethics and morality that characterizes a nation and should never run counter to social mores” (Kikunosuke Makino, 1929. Nihon Shinzoku Horon. [Theory on Japanese Family Law], pp. 7-8. Gan Sho Do). It is also specified that family law “is based on natural human relations, such as those between a married couple and between parent and child. Such natural human relations are influenced by a country’s climate, manners, and customs, as well as by the human characteristics of its inhabitants. Human relations thus develop uniquely in each country (Kikushiro Nagata, 1960. Shin Minpo Yogi 4. Shinzokuho. [Family Law, Major Significance of New Civil Law, and Vol. 4], p. 10. Tei- koku Hanre Hoki Shuppan Sha). Another writer has gone so far as to say that “Family law is powerless relative to traditional folk practices. Legisla- tion aiming at maintaining social mores is much less effective in practice than, for example, traditional talismans believed to expel evil and sickness” (Zennosuke Nakagawa, 1933. Minpo 3. [Civil Law, Vol. 3], pp. 6-7. Iwanami Shoten). With these views in mind, this paper focuses on traditional family law, particularly on marriage law and related issues, from the perspective of so- cio-jurisprudence rather than based on a strict legal interpretation.
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