家族研究をとおして《法》を見る

抄録

This paper is to pursue what ‘law’ can be viewed through academic researches concerning family. ‘Family’ is regarded as a minimum and fundamental unit of society which is comprehensive so that family can be seen in any kind of society. However, the term ‘family’ has multiple meanings and its concept can be defined diversely depending on contexts as well as factors such as societal changes. There are a number of researches relating to family conducted in various areas and fields of studies such as law, sociology, history, anthropology, psychology and so on which also illustrates the universality of ‘family.’ In this paper it divides ‘family’ into two types according to its ‘law’, namely A type of family which can be regulated by the state laws including statutes and B type of family which can be regulated by living law and some sort of rules and norms other than the state laws. While A type family is visible in the eyes of the state laws because they are categorised as a ‘legitimate family,’ B type family is invisible as it can be a non-legal but de facto ‘family’ in that respect. Viewing ‘family’ and its ‘law’ by contrasting A type family and the B type family, it has become evident that a boundary between A type family and B type family has always been redrawn. This is because that some of B type family groups shall be ‘upgraded’ its status to A type family as a result of equalisation or conforming gaps among principles, statutes and realities of family systems. For example, a married heterosexual couple used to be the only legitimate unit which was legally recognised in A type but later it included a cohabiting heterosexual couple. It was a landmark case of the former Supreme Court in 1915 which had opened a way to provide remedies with aggrieved ‘common-law-wives’ by taking into account the fact that there were a number of such ‘wives’ abandoned by their husbands’ family without/before notifying marriage. A cohabiting common-law couple, who was once categorised as B type family without legal recognition, is now regarded as a quasi/de facto wife and husband that they have been ‘upgraded’ their status as next to a married couple and shifted in A type family accordingly.