Social Problems in Japan from the Perspective of Roman Law Part 2

© Serhii Yevdokymov

Continuing on from a previous article, Professor Mariko Igimi continues to observe current social issues in Japan from the angle of Roman law.

roman law perspective, familia

Familia in Rome

Slaves, freed slaves and owner

Some of our readers might have a reservation when discussing slaves in terms of families. Familia in Latin, however, connotes slaves as well as family fortune in addition to the group of free men and women bound by blood and marriage. Slaves were, in fact, important possessions of the Roman household, whose competence and loyalty would affect their effectiveness. Therefore, the welfare of the slaves was in the owner’s own interest. Mistreatment of servants, on the other hand, would negatively affect the owner’s business or even lead to deterioration of his property.

The devotion of a slave was to be bestowed by postage. Although the freed slaves (libertus) became free citizens, their relationship with the former owners (patronus) remained. Patroni reserved certain rights ex. for work (opera) or inheritance to the liberti, and freed slaves had to pay homage to their former owners. Modern Roman scholars have focused on such obligations of freed slaves. It has been understood that the common practice of former slaves to continue living near former owners, as many sources suggest, was for the purpose of providing opera for their patroni. This extensive bond between former owners and slaves, however, in my opinion worked both ways, that is, also for the benefit of freedom.

Familia as a safety net

Justinian’s Digest, chapter 34.1, dealing with food bequests (alimentum), has 47 paragraphs, of which 33 paragraphs indicate the beneficiaries. Of these recipients of the food, most were former slaves, even described explicitly as liberti et libertae in 23 paragraphs. Since it is unlikely to impose on their heirs the maintenance of freed slaves who were strangers to the testators, it can be assumed that it was common practice for the former owners to continue to provide food to the former slaves. which they freed. Several texts show that the testators demanded that their heirs ensure their former slaves the subsistence that they provided during their lifetime. The alimentum was, according to D, 34,1,6, given in kind, like food, clothing and a place to live. Thus, it would be unrealistic to offer them unless patroni and liberti share the same household.

In the will, the former owners probably fixed the details of the alimentum according to the living conditions and characters of each of the freed slaves. The heir, meanwhile, might want to change the term because the bond between the heirs and the liberti might be different from that of the predecessors and the circumstances surrounding the parties would change over time. Even in these cases, however, the benefactor and recipient of the food could not change the original arrangements by their mutual consent. Emperor Marcus Aurelius, in his speech to the senate, asked the praetors to intervene in such a transaction to verify whether the cause, the personality of all the actors, and the content of the renewed mandate would justify the agreement (D.2 , 15.8).

The owners’ support for sustaining the lives of slaves went far beyond enfranchisement in keeping freed slaves in the familia even after their death. The emperor also depended on this plan not to throw defenseless freed slaves into the streets. In this sense, the familia played the role of a safety net.

roman law perspective, familia

Japanese IE and current issues in Japan

The traditional Japanese family and its “modernization”

Japanese (IE) families before late 19th century modernization were a group of people, not necessarily related by blood, brought together for the purpose of work. The heads of households were like the CEOs of today. They owned the family patrimony and were responsible for all members of their families, who were numerous enough to continue their “family businesses”. Families, however, were made up not only of efficient workers, but also of disadvantaged affiliates. IE was a place of work as well as a place of belonging. It was also a kind of safety net for vulnerable people.

As part of Meiji Restoration, the government introduced the Family Registration System (KOSEKI) in which every citizen was registered as a member of their IE. Since family law matters, such as marriage, divorce and adoption, are system-related and valid once registered, decisions in this area were made within families while the authorities were only concerned with the accuracy of the recording.

Even after World War II, when Japanese family law was amended in accordance with the new Constitution, which states that “All persons shall be respected as individuals (§13)” and “Marriage shall not be based only on the mutual consent of both sexes… (§24) ”, the KOSEKI system has been maintained, while the extended family of IE has been replaced by the nuclear family which no longer has the capacity to protect vulnerable people . As a result, the Japanese have turned to businesses for their safety net. However, the reform of working methods underway is modifying the company-employee relationship.

Some of the most serious problems in Japan today, such as domestic violence, child abuse, and an extremely high rate of poverty among working mother-child families seem to have common roots in the superficial reform of the ongoing family system. modernization. Despite the obvious fact that families have lost the power and flexibility to protect the weakest, authorities are still reluctant to intervene in family matters and fail to provide a sufficient safety net.

When there is a society, there are always disadvantaged people who need protection and support. In ancient Rome as in traditional Japan, families were the providers.

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© 2019. This work is under license CC BY 4.0 license.

This work was supported by JSPS KAKENHI Grant Number JP18K01219.

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David C. Barham