By: Fahreen Budhwani
Gender equality has been enshrined into the Japanese constitution since the end of the Second World War. Despite this Japanese society continues to be plagued by startling inequality. Much of the sexism is permissible under Japanese law or a direct result of the legal system. One example of law creating inequality is the ban on dual surnames in Japan. In most countries around the world adopting a single, often the male, surname after marriage is simply tradition; it is not however mandated by law. Even so, traditions are changing, and women are challenging convention. Research from 2015 indicated that roughly 30% of American women who have married in recent years kept their maiden name, either in whole or hyphenated. The increased retention of maiden names after marriage demonstrates that the patriarchal legal order which has demanded for decades that women become legible in law only through marriage is beginning to crumble. While this changing attitude is sweeping across the world, Japan’s judicial system continues to deny women this option. Under Japanese law if couples do not have the same surname their marriage will not be considered legitimate and this has implications for women’s lived experience. Simply put, if Japanese women do not conform they will suffer under laws mistreatment of them.
The legally mandated single surname system in Japan has harmful effects on the nation’s prospects of achieving gender equality since it forces women to accept the prevailing patriarchal order in which they are considered the property of men through marriage. Despite an official United Nations recommendation to dissolve the single-surname system, the Japanese legal system has yet to change. In December 2015 the Japanese Supreme Court released a decision after five plaintiffs sued the state claiming that Article 750, which prohibits dual-surnames, is a violation of the constitution; specifically that it violates the notion of gender equality. Article 750 reads as follows:
“A husband and wife shall adopt the surname of the husband or wife in accordance with that which is decided at the time of marriage.”
In its verdict, the court asserted that article 750 was in fact constitutional. The argument made by the court was that the law dictates that couples must pick a single surname, but the law does not prevent that surname from being the woman's. The judgment is regarded as neutral since a woman’s name can be chosen.
Claims to neutrality however, do not assess the law in context. In practice 98% of Japanese couples choose the husband's last name. One must be compelled to question why the statistics are so high if the law affords true choice and equality. The choice of surname is not the result of an equal or perfect negotiation between “rational” and equal partners. Rather it is the result of historical, social, and cultural systems which oppresses women.
The origin of Article 750 demonstrates how neglecting historical factors affects our understanding of presumed neutrality. Single surnames haven’t always prevailed in Japan. In fact the single surname system was created in the Meiji period (1868-1912) and was enshrined in the Meiji Civil Code – a legal code modeled after the liberal constitutions of Europe and the West. Under this system a woman would enter her husband’s ie (family) and acquire his last name. The ie was the archetype of the nuclear family and stood in contrast to previous marriage patterns where couples would reside in their own homes and the husbands would visit their wives, and often had more than one wife. The emergence of the ie is a prime example of how the law codifies woman’s personhood as contingent on attachment to a man. The ie system “institutionalized patriarchy” as it was based on the legal subordination of wives to their husbands.
The ie was governed by the family register system called koseki where all matters pertaining to the family such as marriage, birth, death, and divorce are logged. All families were recorded through their koseki (a legal register). At birth a woman would appear under her father’s koseki and in marriage would enter her husbands, but at no point could a woman exist on her own koseki. The koseki system illustrates the lack of autonomy women had as individuals. It further demonstrates how men are able to represent women, but women are never able to represent men. A man’s first and last name appears on a koseki where as a woman is only represented by her first name, illustrating the incomplete personhood women embody under the law.
Although the Meiji Civil Code was abolished following the Second World War and a new constitution was drafted, the koseki system and its values survived. The key difference being that Article 750 does not force the wife to take her husband’s surname as it previously did. Nevertheless, the influence of the code, the preservation of the koseki, and the potency of the social norms established during the Meiji period continue to influence which surname married couples adopt. The perception that Article 750 is neutral reflects an ignorance of social, political, and historical factors. The Supreme Court’s judgment purported a notion that a dual-surname system would lead to the collapse of “good old” family values in Japan, ‘values’, which were not natural but were constructed under the Meiji Civil Code. Just as easily as a code is developed it can be dispensed with.
There are in effect two options for Japanese women: conform to the male created legal categories or deviate. The effects of circumventing the single-surname system are dire. A common law marriage - in which the couple can retain both surnames, is void of the legal protections of legitimate marriage. Couples who do not share the same last name give up inheritance rights, the right to make serious medical decisions for each other, and one partner must give up legal parenthood over children since it is impossible for parents of the same child to be legally married with different names. Furthermore, children of parents with different surnames are legally classified as illegitimate. According to Japanese Civil Law clause 904-4 illegitimate children are entitled to half of what legitimate children are entitled to. The negative effects of dual surnames are not only legal, even in society the stigma around dual surnames persists. Some day-care facilities require that children have a single surname (the fathers) to register the child. Similarly in medical visits children with different surnames than their mothers have had treatment delayed because the relationship between the mother and child had to be proven. The negative consequences associated with retaining dual-surnames demonstrates the law's inability to treat individuals who do not conform to its categories equally and fairly.
By creating a “second class” for Japanese women who want to retain their surnames in marriage the law is sanctioning and defining what femininity and marriage should look like. This practice deems marriages which do not conform to the nuclear family model as deviant, morally corrupt, and illegitimate. The consequences associated with a common-law marriage, deters Japanese couples from deviating from the “traditional” model. The single-surname system leaves women with two equally negative options: first, to conform to the laws subjectivity and embrace the patriarchal model of marriage through a single surname to be afforded legal personhood and certain legal rights and protections, or, second, to circumvent the patriarchal model and be denied legibility under Japanese law and face social and legal stigma.
Clearly the single-surname system is outdated and harmful. It is an example of how the presumed neutrality of law fails to live up to its principle of equality. For the law to be truly neutral with regard to surnames, it is necessary for the Japanese state to recognize the political, historical, and social conditions which currently restrict its equal application. Until such changes are ushered in, the current law remains a relic of the Meiji period and its values. It fails to empower women and contributes to Japan’s worsening gender equality ratings.
Sources:
Article 750. Japanese Civil Code. Act 89. “Surname of husband and wife” English Translation. Translation date January 30. 2014. Available at: http://www.japaneselawtranslation.go.jp/law/detail/?id=2252&vm=2&re=02
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