Recent decades have brought tremendous change to families, and the laws governing families, across East Asia. From new household forms—including divorcees, single parents, adults living alone or with chosen kin, same-sex couples, and transnational marriages—to shifting ideologies of how families should be organized and kinship ties recognized, families have been at the center of substantial social and political change across the region. This special issue examines the intersections and tensions between how families are lived on the ground and the family laws and institutional mechanisms that create the scaffolding for recognizable kinship relationships. The articles use the rubric of “productive encounters” to understand these ongoing engagements of law and family as they unfold over a period of colonial and postcolonial reforms and transitions from authoritarian to democratic governance. The authors ask how laws and administrative regulations take shape through “family encounters,” including interactions between family members and bureaucrats who interpret laws as they enact them. In turn, they trace how kinship is created as individuals with diverse relations with one another encounter this shifting terrain of family laws and regulatory institutions. Drawing on insights from critical legal studies, ethnographic studies of family, cultural studies, and gender and sexuality studies, the articles demonstrate how family laws and administrative regulations are contested in everyday practice through investigating what these regulatory forces make possible and what they foreclose, and how individuals creatively strategize as they engage with formal legal infrastructures to construct desired family forms and kinship relationships.
This special issue focuses on family law reforms and legal encounters in Japan, Taiwan, and South Korea to highlight the continuing legacies of Japanese colonialism as they pertain to family laws across the region as well as to underscore local variation in how longer histories of Confucian social norms have shaped both law and kinship relationships (Burns 2014). The articles examine colonial and postcolonial legal encounters with particular attention to democratic legal reforms and organized movements for social and legal change, addressing topics such as adoption laws and practices, the conceptualization of “rights to family” in law and society, and challenges to the legal institutionalization of heteronormativity and patriarchal family privileges.1 We are inspired by critical approaches to comparative law projects that underscore how such projects often ignore the ideological and political effects of family law and underestimate the constitutive role of liberal legal reforms (Halley and Rittich 2010: 755). With such critiques in mind, the articles take an expansive approach to definitions of both law and family, interrogating the role of the household registration system as a mechanism for producing recognizable kinship and calling attention to “family-adjacent” legal domains that create normative frameworks for kinship, sexuality, and family rights: for instance, military regulations, child welfare policies, and laws regulating assisted reproductive technology use.2
The special issue treats legal and bureaucratic institutions as regulatory processes that adapt flexibly to different contexts while retaining a coherence that enables them to forge an impression of integrity across distinct social worlds. By examining how these institutions create the scaffolding for intimacy and relationality, the individual articles track changing familial statuses over time and the logics of attachment that propel certain family forms to the forefront of national recognition while relegating others to spaces of nonrecognition. In the process, the articles extend the insights of a mutually constitutive approach to law and family by showing how diverse family practices may call into being new legal imaginaries as they engage with and potentially challenge existing legal infrastructures.
Temporality, conflict, and strategizing constitute key themes that run through the issue as the authors analyze diverse contexts for producing family, redressing familial tensions, and creating and reimagining legal infrastructures. Read together, the articles traverse a spectrum of familial and intimate relationships that involve same-sex, opposite-sex, parent-child, and extended kin bonds; that span biological, social, and legal forms of relatedness; that invoke temporalities of attachment from temporary to future oriented; and that crisscross both legal and extralegal domains of practice. Thus, we move beyond a binary approach that designates relationships and family strategies as either marginal or normative by looking closely at how these relationships are created, maintained, and recognized by diverse actors. This emphasis enables us to project outward from embodied experiences of family, intimacy, and relatedness to ask how those relationships are incorporated into national projects of population management and national security: family in these articles is not merely a “privileged instrument for the government of the population,” as Foucault (2007: 105) argues, but also ideas and ideals about intimate relationality that are mobilized by citizens to redefine the very experience of governance and national belonging.
The starting point for this special issue was a conference titled “East Asian Family/Household Law: A Transcultural, Comparative Perspective,” held at the University of Maryland in March 2013. It was organized as part of the Korean Family in Comparative Perspective (KFCP) laboratory for the Globalization of Korean Studies, funded by the Academy of Korean Studies. The late Nancy Abelmann at the University of Illinois, Urbana-Champaign was the principal investigator on the project, and Seung-kyung Kim, then professor of women's studies at the University of Maryland, was a coprincipal investigator. The conference brought together historians, anthropologists, sociologists, and scholars in gender and legal studies to discuss family, household law, and family-related activism in a comparative and historical manner. Papers spanned the period from the turn of the twentieth century to the turn of the twenty-first to understand both the making and unraveling of the family/legal systems that had come to stand for “East Asian” family systems. In the conference, we considered family and household law in East Asia as a regional social and cultural formation that was best analyzed comparatively, and we examined the social history and social life of East Asian family law during a tumultuous century of war, martial law and military dictatorships, and transitions from authoritarian to democratic rule.
After Seung-kyung Kim moved to Indiana University in 2016, she and Sara Friedman (another participant in the 2013 conference) organized a workshop in May 2017 designed to explore in greater depth several themes raised in those previous discussions. With support from a Core University Program grant from the Academy of Korean Studies, we invited three scholars who had participated in the original conference: Allison Alexy (University of Michigan, Ann Arbor), Chao-ju Chen (National Taiwan University) and Sungyun Lim (University of Colorado, Boulder). To broaden our approach to family law and familial intimacies, we also invited Amy Brainer (University of Michigan, Dearborn), Timothy Gitzen (then a PhD student at the University of Minnesota), Kathryn Goldfarb (University of Colorado, Boulder) and Linda White (Middlebury College) to join the workshop. The authors represent a broad array of disciplinary and interdisciplinary expertise, with concentrations in anthropology, history, sociology, law and society, Asian studies, and gender and sexuality studies. The work presented here emphasizes qualitative ethnographic and archival methodologies and discourse analyses that enable our authors to show in fine-grained detail how law and administrative regimes become integrated into intimate life projects organized around diverse family forms and bonds of care, blood, economic support, and sexual attraction.
In this special issue, we consider the household registration system and family laws as “boundary objects,” by which we mean they are plastic mechanisms that enable communication across disparate social domains while also retaining a certain coherence in and of themselves. The concept of boundary objects was first proposed by Star and Griesemer (1989) and later refined by Bowker and Star (1999) in their work on the disciplinary and productive nature of classification practices. Household registration systems and family laws create standardized ideas about family that are shared broadly among different participants in the society who, in their various roles as bureaucrats, legal experts, family members, and activists, engage with these concepts without necessarily having identical understandings of their meanings and consequences. One powerful effect of this boundary work is to define socially and legally recognizable kinship, thereby excluding other kinds of relationships from this privileged domain and determining the family strategies of those who cultivate intimate bonds outside its constructs. The authors astutely analyze these exclusionary infrastructures for what they teach us about the contested process of creating “normative family” and the costs of doing so, especially for those who find themselves living on the margins of legally recognized intimacy and national inclusion.
The household registration system is one such exclusionary infrastructure that has a powerful presence across the diverse contexts addressed in the articles. In its modern form, the household registration system originated in the Japanese colonial administration of the late nineteenth and early twentieth centuries. The system affirmed an ostensibly timeless and unchanging family ideal, one that nonetheless often deviated (and continues to deviate) in practice from family relationships and modes of intimacy as created and lived in daily life. In all three societies this family ideal is rooted in principles of patrilineal descent, patriarchal familial power, and heteronormativity that defined the family as an intergenerational, reproductive unit and that invested men as household heads, fathers, husbands, and sons with considerable privilege and authority. Thus it is not surprising that the household registration system has come under concerted attack from feminists and other family reformers, producing a much-altered form of registry across the region. There remains considerable variation, however, in the significance and everyday presence of the household registry in the three countries, with Japan retaining a more substantive role for the registry in marriage, schooling, and employment whereas reforms in Korea and Taiwan have diminished its salience in everyday life (Chapman and Krogness 2014; Kuo and Chen 2016; Yang 2013). Nonetheless, as the institutional mechanism for defining and recognizing family, kinship, marriage, and citizenship, the household registry creates parameters of possibility for family life while also shaping strategies of resistance to those normative models.
Taken collectively, the articles approach the household registration system, even in its revised forms, as a powerful force for stigmatizing families that deviate from normative models—for instance, those created through adoption and fosterage, common-law marriage, or non-heteronormative intimacies and LGBT childbearing. We see this in Korea where resident members of the household remain defined by their relationship to the household head and where desires for a “clean” registry encourage parents to register adopted children as naturally born (Lim). In Japan, household registration laws work in conjunction with civil family laws to require women to change their surname and enter their husband's registry to marry legally, thereby prompting the feminist strategy of common-law marriage (White). Before May 2019, household registration policies in Taiwan provided no options for recognizing same-sex couples as members of a shared family or acknowledging a non–birth parent's ties with a child, leading to the identification of a same-sex partner or nonbiological child as merely a “lodger” in the household registry (Brainer; Friedman and Chen).
These exclusions prompt us to ask who decides what counts as recognizable kinship and who benefits from these established legal forms. Put another way, the analytic perspectives adopted by our authors shed important light both on presumed normativity in family laws and on efforts to redefine normative kinship. Although these efforts to refuse normative family systems introduce new possibilities for reimagining the domain of family law, they do not lead to unfettered freedoms. Instead, we draw attention to the “double binds” or new forms of marginality such strategies might generate, as in Linda White's careful analysis of the costs to children and women themselves when women refuse to take their husbands’ surname or register their children in a household registry. Similarly, Amy Brainer's nuanced discussion of the diverse family forms created in Taiwan through same-sex intimate bonds and heterosexual marriages emphasizes the legal precarity faced by social parents who care for and often financially support the children of their same-sex partners but who lack formal parental rights or recognition in law. These double binds encourage us to delve more deeply into a broad range of everyday kinship practices and processes of contestation, ever alert to the shifting terrain of legal regulation and the creative strategies developed by those who seek recognition of new (and not so new) familial intimacies and household forms.
Limits of Law
Family laws and administrative institutions such as the household registration system create the scaffolding for intimacy and kinship across the region; as such, they define what it means to live as and to be recognized as a family as well as what kinds of attendant rights and responsibilities are available to differently situated family members. Our authors demonstrate how this definitional process is marked by modes of engagement that over time produce diverse family options that may challenge existing legal-administrative infrastructures. In some cases, these infrastructures effectively establish models for recognizable families that people must accommodate to make their families intelligible; in other cases, they generate strategies and tactics designed to challenge those definitional capacities; and in some contexts creative family practices on the ground forecast, and perhaps even call into being, new legal forms to accommodate them. In short, understanding the relationship between family and law requires analyzing the strategies of management, creation, contestation, and recognition that do not presume straightforward cause and effect but rather productive challenge and riposte as the dominant mode of interaction between familial relationships and legal recognition.
Two key dimensions of family come to the fore as the articles trace these contested engagements: (1) family as an institution that distributes power unequally by gender and age; and (2) family as an institution for mediating the substantive bases for relationality, especially those defined by metaphors of blood and law. Across the three societies, family laws and administrative institutions reproduce gendered inequalities organized through normative heterosexuality, despite revisions to many of those laws and administrative practices that make them, on the face of it, gender neutral (Chen 2009, 2013). Several of our authors show how gendered inequalities are not limited to the nuclear family or married (presumedly) heterosexual couples; they also permeate extended kin relationships through privileging patrilineal descent and inheritance (Lim), through assumptions that a wife will enter her husband's household registry and therefore his family line (White), or through privileging heterosexual marriage as the gateway to both adult independence and extended patrilineal continuity (Brainer). Efforts to renegotiate the hierarchical relationships enshrined in these gendered family models require considerable effort and risk, and those who forge alternative gendered roles and relationships within families (feminists, LGBT individuals and parents, adoptive parents) do so knowing that they may find themselves banished from legal recognition.
The articles by Lim, Alexy, White, Friedman and Chen, and Brainer provide detailed portrayals of how individuals, couples, and families develop strategies that bend ostensibly inflexible legal infrastructures to their alternative desires. Lim's discussion of adoption practices and regulations in Korea from the colonial era through the present demonstrates how adopting parents have strategically registered adoptive children as birth children so as to guarantee the child's status as heir and future household head, despite legal prohibitions on non-agnatic kin fulfilling that socially valued role. Alexy illustrates the inflexibility of Japan's legal system when it comes to resolving family conflicts, and she shows how parents who are forcibly separated from their children by an estranged spouse achieve more acceptable conflict resolution when they work outside formal legal institutions. White describes how some feminist-minded heterosexual couples in Japan who reject the same-surname injunction for married couples manipulate the household registration system by temporarily marrying and divorcing in conjunction with the birth of a child so as to prevent the child from being designated as illegitimate. In their analysis of lesbian co-mother families in Taiwan, Friedman and Chen show how co-mothers combine biogenetic and legal-administrative strategies, many of which creatively adapt existing legal instruments, to create the appearance of a legally sustainable family unit that encompasses relationships otherwise unrecognized in law, such as the co-parent bond and the tie between a non–birth parent and a child. Brainer's analysis of the relationships that LGBT adults create between their families forged through heterosexual marriages and their same-sex partners attests to the fluidity of family practices that have no standing in Taiwan's Civil Code or household registration law. Certainly we do not deny that family laws and administrative regulations do powerful work to shore up heterosexual, patriarchal, and patrilineal family ideals, but these authors also remind us of the many creative strategies cultivated by individuals, couples, and families when faced with these narrowly defined, gendered and (hetero)sexualized family models.
Several of our authors illustrate how familial encounters produce blood and law as metaphors for kinship, emphasizing that blood and law do not automatically create families but must be activated through concrete kinship and legal practices.3 Despite assumptions across all three societies that blood ties generate kinship, Lim, Goldfarb, and Friedman and Chen attest to the need to activate those generative links through the performance of intimacy, care, and legal recognition. Friedman and Chen analyze how the biogenetic strategies adopted by lesbian co-mothers in Taiwan reaffirm the significance of blood as the biological foundation of socially and legally recognized kinship while simultaneously denying its value for co-mother families created around principles of social and substantive parenthood. In her discussion of Japan's child welfare system and obstacles to both fosterage and adoption, Goldfarb contends that even biological kin must be produced as kin through sustained relationships of care over time. Despite the privileging of blood ties in both the child welfare and household registration systems, biological parents who are mostly absent from their children's lives must activate their kinship status through interactions with their children, caseworkers, and institutional caregivers. Lim takes the instability of blood as productive of kinship one step further by arguing that in Korea, the household registry literally produces biological heirs despite a child's origin as a non-blood-related adoptee. Blood is neither an authoritative thing in itself nor a quality that unquestionably produces kinship ties: instead, all three articles underscore both its privileged potentiality and limits to blood's productive power despite the privileging of blood-derived kinship in law.
If the ability of blood and law to generate kinship cannot be taken for granted but must be activated through practices of engagement, then what do we learn from these articles about the temporalities produced by these practices? Goldfarb addresses this issue directly when she invokes the concept of temporariness to capture the contingent quality of law's engagement with and production of kinship in Japan. She focuses on caseworker assumptions that abandoned or abused children cannot be adopted out or even placed in foster homes because of the lifelong primacy granted to blood ties and parental rights. The possibility that a biological parent might reenter a child's life at some point forecloses noninstitutional care arrangements for the simple reason that the legal structure of the household registry privileges blood ties over any other family future. The legal emphasis on biological parentage traps both children and their caregivers in a state of temporariness, unable to work through alternative legal options to create a noninstitutional, “family-like” care situation for the child.
Goldfarb shows how the relationships that different caregivers cultivate with a child invoke different temporalities: the temporary quality of institutional caregivers, the future orientation of foster parents, and a biological parent's constant pull back in time to the family “blood line.” We build here from approaches to temporality that emphasize its non-ontological qualities, understanding temporality not “as a given, innate, or intrinsic quality, but as a matter of contingent and contested social practice” (Ringel 2016: 392). The emphasis on social practice requires attention to how different temporalities are invoked by diverse modes of creating family and how different legal forms generate their own temporal orientations (Grabham 2016). For instance, Friedman and Chen describe the anticipatory quality of Taiwanese lesbian co-mothers’ legal consciousness given pervasive uncertainty about what the legalization of same-sex marriage might promise them as LGBT parents. The anticipation of possible futures is enacted through co-mothers’ strategies of recognition, despite or perhaps because of the contingent promise of legal same-sex marriage. Their decisions shift the nature of causality presumed by linear temporality, not only anticipating but also potentially calling into being an alternative future in which familial intimacy and relatedness are imagined otherwise.
The emphasis on heterosexual reproduction as the foundation for family across the region enacts another form of futurity through family laws that privilege certain kinds of descent and family formation over others. Same-sex sexuality is excluded from this future orientation because of its presumed inability to reproduce the next generation. We see these exclusions in the discourse of anti-LGBT protesters in Korea and Taiwan and in the stance of Taiwanese government officials opposed to legalizing same-sex marriage. The articles included here offer different perspectives on the presumed non-reproductivity of LGBT individuals and couples. Amy Brainer shows how some queer Taiwanese adapt heteronormative kinship structures to their same-sex desires, integrating queer sexuality with heterosexual reproduction. Friedman and Chen underscore the reproductive capacities of LGBT-headed families in Taiwan and their struggles to create a place for their families in law. Timothy Gitzen rejects the aspiration for futurity by using the assumed non-productivity of LGBT Koreans to challenge pejorative assumptions about how queer sex produces a weakened state of national security through both non-procreativity and HIV/AIDS transmission.
Nations are portrayed in familial terms through a process of scaling up from the imagined intimacy and connectedness of nuclear and extended family units to the desired cohesion of national society (Rofel 2007). Yet not all family forms are equally privileged in these narratives of national attachment. Nor are all deemed worthy of national recognition and legal investment. When Alison Alexy asks whether law belongs in families, she refers to the normative assumption among those who work in Japan's legal system that family conflicts are not legal conflicts. But she also gestures to the conflictual terrain on which national interests meet family interests, and where national and international laws converge and often conflict around questions of children's best interests, parental rights, and, as Gitzen reminds us, national security. Gitzen skillfully reads the anti-sodomy clause in Korea's military law as an example of how sex panics link family and nation through positioning heterosexual reproduction at the core of national security.
Several of the articles in this special issue address the question of how we identify family-national stories, asking both where we look for such stories and what we learn from them. Both Alexy and Gitzen direct our attention to legal domains and struggles that exceed more narrowly defined family law or household registration systems—for instance, underscoring the significance of military codes and health laws or international agreements concerning child abduction. Their analyses of the perceived threat of gay soldiers and anal sex for Korea's military fitness (Gitzen) or parents’ experiences of legal abandonment in the face of child abduction by a former spouse (Alexy) alert us to what we might term “bad stories” of family and nation, stories defined by the failure to suture familial ties to national interests through mechanisms of law, conflict resolution, and the production of “healthy” reproductive citizen-soldiers.
By asking whose families or what forms of family are recognized as reproducing the nation, our authors extend the discussion above concerning the power of blood ties from familial descent to national reproduction. Gitzen interrogates the portrayal of gay male sex in Korea as inevitably linked to HIV/AIDS infection, the transmission of bodily fluids assumed to produce death instead of life. Through his perceptive critique of this pervasive image of the diseased gay male body, Gitzen unpacks the assumption that gay Koreans threaten national security both by weakening the country's military fitness and by failing to reproduce the next generation and thereby replenish South Korea's military force. Gitzen's argument about the simultaneous productivity and non-productivity of gay sex can be read as an attempt to disrupt the naturalized link between family and nation as espoused by Korea's anti-LGBT protesters, medical professionals, and military and government officials.
In addition to potentially reproducing the nation, familial belonging also (re)produces national citizenship, here understood less as formal citizenship status and more as “rights to family.” From a variety of perspectives, our authors engage the question of whether citizenship status necessarily provides rights to family and how citizens strategize when denied such rights. Alexy sheds light on the contested national and transnational legal terrain of child abduction by asking whether parents automatically enjoy rights to maintain custodial and care relationships with children despite efforts by an estranged spouse to block such rights. Japanese domestic law and international conventions espouse different understandings of a child's “best interests” and these differences may undermine a parent's right to maintain a relationship with a separated child. Goldfarb suggests that the partibility of parental rights in Japanese law offers resources to social workers who strive to balance parental rights against a child's right to family, providing legal support for child welfare workers who aspire to create sustainable foster family arrangements for children living in state institutions. These cases highlight the contingent quality of rights to family for both adult and child citizens by exposing the diverse ways that legal infrastructures fail to support those rights.
The heteronormative orientation of civil family laws and other regulatory domains creates different constraints for LGBT individuals, couples, and parents who seek to realize their rights to family. After decades of civil society and legal activism, Taiwan's legislature passed a law in May 2019 that legalized same-sex marriage for domestic couples and some transnational couples and that allowed a same-sex spouse to adopt a partner's birth child.4 Existing marriage and family laws elsewhere in the region currently deny same-sex couples the right to formalize their relationships as marriage or to acquire legal recognition as a family unit organized around same-sex parents and children. These cases, together with the limited scope of Taiwan's recent law, show how family laws work in concert with military regulations and laws determining access to assisted reproductive technologies to limit rights not only to family but also to sexual expression, the ban on gay male sex in Korea's military providing one salient example. Despite such efforts to relegate these families and intimate relationships to spaces of nonrecognition, the work of activists, legal reformers, and LGBT families challenges their exclusion through claiming belonging and recognition through terms that are at once intimately familial and national. By framing “good stories” of national inclusion in terms of familial reproduction, however, these actors may create new bases for recognition premised on idealized, homonormative citizens.
The articles in this special issue provide insights relevant for their national and regional contexts as well as for broader transnational trends. They tell family stories that track the lingering influences of Confucian ideologies, Japanese colonialism, and the legal infrastructures introduced by colonial regimes and adapted by the governments—authoritarian and democratic—that inherited those legal and administrative systems. They also detail the influence of international agreements and legal principles—for instance regarding the best interests of the child or equal rights to marriage and family—and show how national engagements between family and law are part of transnational conversations and flows of people and ideas. Through an expansive lens on what counts as “family law,” this special issue of positions demonstrates how debates concerning the legalization of same-sex marriage and the presence of LGBT soldiers in the military are equally relevant in postcolonial East Asia as in North America or western Europe. This argument is not only about staking out empirical and analytic terrain in studies of the region; it is equally a claim for the value of this work for comparative scholarship on family and law.
This project was supported by the Core University Program for Korean Studies through the Ministry of Education of the Republic of Korea and the Korean Studies Promotion Service of the Academy of Korean Studies (AKS-2016-OLU-2250004). We dedicate this special issue to the memory of Nancy Abelmann, whose insight, creativity, and compassion continue to inspire us.
We acknowledge that this focus per force leaves out the productive engagements of family practices and legal regimes in the People's Republic of China, but addressing those engagements given China's socialist legacies and current single-party state would take us beyond the scope of this special issue.
We follow other comparative studies of family law (e.g., Halley and Rittich 2010) in emphasizing the need to analyze provisions in legal domains that lack an explicit connection to narrowly defined “family law” as well as to study the informal norms that influence how family and family-adjacent laws govern the family or household. Whereas some scholars have used this approach to expose how thoroughly market and contract relations infuse the ostensibly “exceptional” domain of family law (Halley and Rittich 2010), we adopt it here to underscore both implicit and explicit connections between the legal and administrative regulation of families and the management of national security and technologies for reproducing the national body.
We do not have the space here to delve into the vast literature on how blood and law operate as key symbols for kinship. One of the founding works on this topic was David Schneider's study of American kinship (1980), but subsequent scholarship in feminist, queer, and science and technology studies has expanded these discussions in powerful new directions. For an admittedly incomplete introduction to this very large body of work, see Dolgin (1995), Mamo (2007), Strathern (1992), Weston (1991), and Yanagisako and Delaney (1995).
Taiwan's Constitutional Court ruled in May 2017 that it is unconstitutional to deny same-sex couples the right to marry, and it granted the legislature two years to implement the ruling. Following the results of referendum questions attached to the national election ballot in November 2018, the legislature passed a separate law instead of revising the Civil Code. The law, which went into effect on May 24, 2019, gives same-sex couples the right to register a marriage, but it excludes transnational couples in which the foreign partner's country of origin does not already recognize same-sex marriage. The law permits “stepparent” adoption in cases where one spouse has a birth child, but it does not allow same-sex couples to adopt a nonbiological child jointly. Finally, the law takes no stand on same-sex married couples’ domestic access to assisted reproductive technology use.