Establishing Children’s Legal Rights: Children,Family,and the State in Taiwan under Japanese Colonial Rule (1895–1945)

Definitions of a Child

Before Japanese colonial rule, most of Taiwan was governed by Qing China and was a highly Sinicized place. ² The Chinese legal culture had prevailed there for over 200 years. Pursuant to the Great Qing Code, which was the main law governing all legal issues in Qing China, ³ there was no clear, general definition of children (minors) or adults. The Code, however, did sporadically define certain age groups according to various contexts. For example, in matters such as taxation and public service (e.g., the building of public infrastructure), the Code uniformly stipulated that males who reached their sixteenth year would have to pay taxes and serve in public projects. ⁴ In criminal matters, however, the culpability of young offenders presented more complexity, intersecting the ages of offenders with layers of criminal severity and with the emperor’s exercise of ultimate judicial power.

Whenever someone who is 70 or over, or 15 or under, or seriously disabled (such as those who are blind in one eye or who have one limb disabled) commits a crime punishable with exile or less, redemption will be received. (If someone is convicted of an offence carrying the death penalty, or if he is sentenced to exile by attaint in the case of plotting rebellion [Art. 255], treason [Art. 254], or high treason [Art. 254], or in a case where the members of the household of one who has made or kept gu poison [Art. 289], or mutilated a living person [Art. 288] or killed three persons in one household [Art. 287]—cases in which a household is still exiled despite an amnesty—this law is not used. But as for all other offences involving an injury to another, monetary redemption is permitted. As for those committing offences incurring a penalty of military exile, redemption will be received as in the case of exile.)

As for those 80 or over, or 10 or under, or critically disabled (as one who is blind in both eyes or who has two limbs that are disabled) who criminally kills another (by plot [Art. 282] or intentionally or during an affray [Art. 290]) so that he should be executed (beheaded or strangled), the said sentence will be proposed and memorialized to the Emperor. (In the case of rebellion or high treason [Art. 254], the law is not used.) The [final] decision [in the case] will be received from the Emperor. If it is a case of stealing, or injuring others (where the offence is not capital), then there may be redemption. (This means that in the case of assaulting and injuring others, it is not permitted [that the wrongdoer should] totally avoid punishment, so it is also ordered that redemption will be received.) As for other offences, they will not be punished. (This means that apart from the previously mentioned cases of killing others, in which a rescript is requested from the Emperor, or stealing and injuring others where redemption is permitted, all the other offences [committed by such persons] are not punished.)

As for those 90 or above and 7 or under, even in the case of a capital offence, there is no punishment. (As for those 90 or above who commit rebellion or high treason, do not use this law.) If there is another who induces [such] a person to commit the act, then punish the one who induced him. If there is property illegally received that must be restored, then the one who has received the property must pay for it. (This means that if a person is over 90 or under 7, he has very little intellect and strength; if there is one who induces him, then the punishment is inflicted on the one who induced him. If there is a theft of property, and another receives and makes use of it, the one who receives it must return it. If the old person or child himself uses it, then it is from him that restitution must be sought.) ⁵

The traditional Chinese legal system granted full legal responsibility only to adult males. Nevertheless, the legal definition of adults and children was in a state of flux. Females and particularly young or particularly old males could be exempted from certain punishments. It is worth noting that, in some cases, local magistrates would refuse to extend exemptions to these categories of people. ⁸

Familism and the Senior–Junior Relationship

In a traditional Han Chinese family, the differences between children and adults have been just as complicated and indeed convoluted as in Qing legal codes. Han Chinese kinship is patrilineal (agnatic) and only the father’s line is counted, thus relegating the mother’s line to the status of an addendum. ⁹ In a patriarchal family, the grandfather or father would be the head of the family and would exercise authority over all members of the family. Although the Great Qing Code noted the importance of “grandparents” and “parents,” the authority of grandmothers and mothers was recognized only because of their position relative to grandfathers and fathers. ¹⁰ The Great Qing Code stipulated the “Ten Great Wrongs,” and of them, both “Gross Unfilialness” ¹¹ and “Lack of Filial Piety” ¹² reflected the overarching importance of sons’ and daughters’ devotion to parents in the family order. ¹³ Consequently, children and grandchildren would acquire little autonomy, even upon reaching maturity, so long as they remained in the presence of their parents. ¹⁴ In addition, according to the Code, elder relatives would always be superior to younger family members. ¹⁵ The entire legal system stressed the family hierarchy by affirming the power and privilege of the family head and senior relatives.

The Great Qing Code stipulated many provisions according to familism and the senior–junior relationship. There were “family exception” provisions that emphasized elders’ superiority and youths’ inferiority. The law recognized that grandparents and parents had authority to punish their grandchildren and children. Much as the emperor possessed great power over his people (including over matters of life and death), a father’s power over his children was great. Parents who killed unfilial children (e.g., children who would scold or beat their parents) or disobedient children (e.g., children who would ignore their parents’ warnings against gambling, adultery, theft, and the like) would not be found guilty of a crime under the law unless the killing had been inhumane. ¹⁶ A local magistrate could order a severe punishment for unfilial or disobedient children if their parents were to permit it. ¹⁷ Nonetheless, by request of the parents, a local magistrate could pardon the child or extend the opportunity of monetary redemption to the child despite such disobedience. ¹⁸ The extent of leniency and of harshness depended largely on parents’ will.

Under the law, parents could exercise almost absolute power over their children, and this power included putting children to death with impunity. Local magistrates would carry out the demands of parents regarding the handling of children. As Chinese historian Qu Tungzu stated, “The government merely acted as agent, framed the regulations and saw to it that they were carried out. But the will of the parents was decisive, and, generally speaking, a child’s freedom or lack of it depended on that will.” ¹⁹

By contrast, children could not accuse their parents or grandparents of having committed a crime even if the accusation were true. ²⁰ An offense against senior family members was much more serious than one against strangers or juniors. ²¹ Scolding a stranger attracted little attention, but scolding a parent or a grandparent was punishable by strangling. ²² Filial criminals sentenced to death or penal servitude under the Qing Code might have their sentence commuted or reduced to a beating or to monetary redemption if the offending children turned out to be the sole source of material support for their aged or infirm parents. ²³

Unlike modern legal systems, where the person is the basic unit, traditional Chinese law treated the family as the basic unit. As a consequence, traditional Chinese law treated family property as belonging to the whole; that is, all gains from each person belonged to the family. In principle, a son—even if he was of age, was married, and had children—could not dispose of the family’s property at will if the family head (grandfather or father) were still alive. ²⁴ Nonetheless, with the approval of the family head, family property might be divided during a family head’s lifetime. ²⁵

Parents’ traditional authority would extend to their children’s marriages: because the goal of “marriage was to produce offspring to carry on ancestor worship, marriage itself became more a family than a personal matter.” ²⁶ Even elderly relatives could arrange a marriage for younger members in their family. A younger and inferior male member could not refuse an arrangement and then marry a female of his choice because his personally arranged marriage would be void. ²⁷

In sum, under the legal structure of familism as well as the senior–junior relationship, a child would always be a child in a family. Any person considered an inferior member of a family would have to submit to the decisions of the family’s elders and support the elders themselves. ²⁸

Changes to the Child–Parent–Family Relationship

Throughout Japan’s entire colonial rule of Taiwan, family and succession matters were governed mostly by Taiwan’s old customs. The old customs initially referred to legal practices in Qing Taiwan, but the Japanese colonial courts adopted “legal theory” or “public order and good morals” to reshape and reinterpret these old customs by referring to Japanese laws. ³⁹ The vagueness of “legal theory” or “public order and good morals” gave the courts leeway to incorporate ideas of individualism and concepts of rights into the old customs. The colonial courts thus, via some decisions, granted minors some legally protected autonomy and a legally recognized voice. Furthermore, the courts replaced parents and senior relatives in a family as the ultimate authority in the regulation of family order under the doctrine of parens patriae.

A traditional Chinese family, as a functioning entity, was a unit of self-government whose head was the father or grandfather. Also, other senior relatives could discipline, supervise, and protect younger family members. In the early period of Japanese rule, the courts affirmed the senior–junior relationship within a family. ⁴⁰ However, later court decisions narrowed the family (especially the senior–junior) relationship. In 1906, the courts invoked the concept of shinken (the Japanese term literally means “parental rights”). Stemming from Western European legal thought, the concept had never before existed in Taiwan and served as a way for the colonizer to reinterpret the colonized society’s senior–junior relationship. ⁴¹ The courts held that the traditional Han Chinese senior–junior relationship had been and remained shinken, which belonged exclusively to parents. ⁴² Furthermore, parents no longer wielded absolute power over their children. Shinken would now fall under the supervision of the state, including the court system (the parens patriae doctrine). Family members cannot unilaterally deprive a parent of his or her shinken. ⁴³ Parental rights shall not be easily deprived or relinquished. ⁴⁴ Only when a parent is unfit (e.g., incompetent to educate a child who is a minor) ⁴⁵ or abusive (aggravated corporal punishment) ⁴⁶ in relation to his or her minor children can the courts take away the parent’s shinken. A new custodianship emerged to compensate for the absence of both parents. ⁴⁷ The child–family legal relationship had thus shifted from an extended model to a nuclear one. ⁴⁸

Property Rights of Children

The courts initially declared that senior relatives still had control over family property. Children could not ask for a division of property if the mother were still alive. ⁴⁹ In 1906, however, the court system changed its approach to this issue. The court system held that if children had reached adulthood, the mother could not refuse to divide the family property. Also according to the courts, the old custom that the mother should be present during the sale of family land was just a matter of family ethics, not a legal requirement. ⁵⁰

Marital Decisions as Representative of Personal Autonomy

Neither the mother nor the father could unilaterally manage a marriage for a child. Initially, the Japanese colonial courts adopted Taiwan’s old custom that marriage or divorce requires not only the consent of the couple but also that of the parents. ⁵¹ But in 1919, a court ruled that marriages, such as contracts, should be based on the mutual consent of two persons. Engagement shares the same requirement. If parents were to hold an engagement ceremony without a minor child’s consent, the engagement would be void. ⁵² The court system recognized the autonomy and the agency attributable to minors by affirming their voice in marriage.

There were limits to the influences that Western-style legal systems had on family and succession matters in colonial Taiwan. Restrained by the “no trial without complaint” doctrine, the scope of a court decision did not extend beyond the particular case. Thus, no court decision could be expected to easily change Taiwanese social attitudes toward familism and old family hierarchies. Minors remained quite possibly subject to the authority of parents and other senior relatives.

Nonetheless, children’s legal status in the family had changed. Taiwan under Japanese colonial rule was no more like Qing Taiwan, where the local magistrate would intervene in family matters only in response to a request of parents or other senior relatives and where these seniors could easily withdraw a case filed to the local magistrate. Instead, the colonial courts assured younger family members that they would acquire full capacity upon crossing the line into legal adulthood. The court system also guaranteed some legal privileges to minor children who brought suits before the court. A reconstruction of family order through the colonial courts’ decisions was made possible by the law’s recognition of children’s autonomy, agency, and rights. In other words, in the new relationship between children and their family, imperial Japan’s colonial court system in Taiwan chipped away at the authority of senior relatives, limiting in particular parental power over children. Nevertheless, the parens patriae doctrine introduced a child–parent–state triangular relationship, and thus, the state had the final word on regulating children’s rights and private family matters.

Juvenile Delinquents

In general, although the modern legal system grants rights to children in courts, it recognizes that children lack adequate reasoning skills, are in a vulnerable stage of physical development, and need instructions from parents, guardians, or the state. Taiwan’s newly acquired modern legal system, therefore, treated children as profoundly different from adults in certain areas of law. ⁵³ In civil matters, for example, minors had to acquire the consent of their parents or custodians before entering into a contract with a third party. ⁵⁴ The law also prohibited minors from participating in any formal political activities out of concern that minors would be unduly susceptible to negative forms of instigation. ⁵⁵ They were not allowed to drink or smoke because of their physical vulnerability. ⁵⁶ In criminal matters, as well, the colonial government made great changes to incorporate the uniqueness of children into the legal system.

During the Japanese colonial rule, the term Syounen (the Japanese term literally means “juvenile”) first appeared in Taiwan’s colonial law referring to people whose life stage was between that of younger children and that of adults. Before colonial rule, the category of juvenile did not exist in Taiwan. ⁵⁷ With the conceptual development of “the juvenile” in Japan, “juvenile-related issues” came to people’s attention in Taiwan via Japan’s diffusion of the modern legal system there. ⁵⁸

The most important youth-related legal development in colonial Taiwan was juvenile justice. In Japan, the first law on juvenile delinquency, the Reformatory Act, was promulgated at the turn of the twentieth century. ⁵⁹ The Act’s correction system was basically American style. Years later, after completing a trip to the United States, a Japanese law professor noted that Americans consider the child incapable of being a criminal and that, therefore, “children’s courts should not be an instrument to punish the child but one that protects and educates.” ⁶⁰ Probably influenced by America’s zeal for reforming juvenile justice, Japan revised its Prison Act in 1908, emphasizing separate treatments for child and adult prisoners. That same year, Japan implemented the Prison Act in Taiwan. ⁶¹ The act provided that inmates under the age of eighteen should stay separate from adult inmates (Article 2, 16). The GGT further stipulated that inmates under the age of twenty-five should be locked in a cell shared by no other inmate, ⁶² that minors and adults should wear different uniforms, ⁶³ that prison officials might provide a formal education to minor inmates (Art. 29 of the Prison Act), and that officials might discipline minor inmates (with scoldings, confinement, etc.) but could not reduce daily meals as a form of discipline (Art. 60–61 of the Prison Act). The GGT prohibited children under fourteen from visiting the prison system. ⁶⁴

In 1922, newer thoughts on dealing with juvenile delinquents were incorporated into the newly enacted “Taisho Juvenile Law” in Japan. ⁶⁵ The new law was bifocal: combining “protection” and “criminal accountability.” Owing to social discontent that centered on the allegedly excessive leniency of the 1900 Reformatory Act, the new law stressed the need for criminal accountability of juveniles. ⁶⁶ Japan also established the Juvenile Inquiry and Determination Office, which—based in Japan itself—served to enforce the law there. ⁶⁷ The Taisho Juvenile Law, however, did not take effect in colonial Taiwan, even though Taiwanese newspapers were committing more and more coverage to juvenile delinquency stories during that period. ⁶⁸

In 1921, with the “assimilation” colonial policy in full swing, imperial Japan extended some of its domestic social welfare policies to its colonies. ⁶⁹ The GGT declared a new child protection policy: juvenile delinquents were to be protected through reformatory education, which would help correct their behavior and help them feel repentance and embrace rehabilitation. ⁷⁰ This policy was evocative of the Taisho Juvenile Law. In 1922, the GGT Reformatory School was established in Taipei. ⁷¹ It admitted students under the age of eighteen and children who were school dropouts, gamblers, lazy, or idle. ⁷² Furthermore, when exploring why a Taiwanese child would go astray, the GGT tended to explain that juvenile delinquency in Taiwan was a cultural production. ⁷³ However, in addition to this ethnocentric view, the “family” factor was taken into account. Officials found that spoiled children or children from broken families tended to become delinquents because their parents failed to provide appropriate education or care. ⁷⁴ Therefore, a reformatory school could substitute for a family and assume shinken, with the principal as the father, educating his children (i.e., the students). ⁷⁵ In 1926, the GGT established the Hsinchu Juvenile Prison. Drawing on the same rationale, the prison stressed educational curriculum, especially ethics classes, with the goal of rehabilitating the young inmates. ⁷⁶

Regardless of the effectiveness of these legal institutions, juvenile justice has long rested on several assumptions: the nature of children is unique, children are uniquely vulnerable and thus should be separate from adults in many juvenile justice settings, and healthy children depend on a healthy family, wherein parents should educate their children. As for this last point, when a family is decidedly unhealthy, the state may substitute for the family on behalf of the children.

Enacting Welfare Protections for Children

In addition to legal protection for juvenile delinquents, the emergence of welfare laws concerning children’s general living conditions in colonial Taiwan was important to the reshaping of the child–family relationship. The welfare system in the first half of Taiwan’s colonial period consisted only of residual “relief” programs. ⁷⁷ In the 1920s, imperial Japan implemented some of its own welfare policies in Taiwan owing to the colonizer’s assimilation policy. The new welfare system undertook a more active effort to improve Taiwanese society and specifically sought to diversify welfare programs there.

In the 1920s, parts of Japan’s new child protection policies took effect in Taiwan. ⁷⁸ According to the analysis conducted by Yoshifusa Kinebuchi, who was one of the core promoters of social welfare policies in Taiwan in the 1920s and 1930s, new social policies regarding children included education, prenatal care and child-rearing skills, health counseling, a legal ban on smoking and drinking, and juvenile reformatory institutions. ⁷⁹ In 1923, the GGT established the district commissioner system in Taiwan in order to investigate child abuse and granted the system’s street-level bureaucrats the power to intervene in family issues that had long been seen as private matters not subject to official interference. ⁸⁰ Five years later, Japanese rulers organized the Taiwan Social Work Association, whose function would be to supervise the efficiency of welfare services and to promote children’s rights in local Taiwanese governments. ⁸¹ Moreover, because the mortality rate of Taiwanese infants was still much higher than that of Japanese infants, the colonial government created a public system of trained midwives to lower these appalling rates. ⁸² And to promote the importance of children, local governments held activities celebrating “Children’s Day” on every fifth of May, starting in 1930. ⁸³

These new child-related welfare policies were in line with the views espoused by Takayuki Namae, a prominent Christian scholar in the field of social welfare policy in prewar Japan. In particular, the policies echoed his advocacy of children’s rights and his assertion that the Japanese government should promote children’s general welfare. He once famously declared, “Children’s rights include three aspects: that is, children have the right to be born well, children have the right to be raised well, and children have the right to be educated well.” ⁸⁴

For Takayuki Namae, children’s right to be born well meant that parents who suffer from alcoholism, syphilis, or tuberculosis have no right to bear children. ⁸⁵ In addition, children’s right to be raised and educated well meant that appropriate schooling is necessary to improve the cultural lives of children. Namae’s specific linking of children’s rights to his theory of child protection and welfare policy marked a new train of thought about children—one that was especially prevalent among scholars and governmental bureaucrats in prewar Japan. It was children’s rights that warranted a general welfare policy and special protection for children. Children were no longer regarded as a father’s or a family’s asset or property; rather, they were subjects that merited considerable attention from the state.

Widely Unregulated Child Labor for Economic Development

Although the Japanese government recognized the importance of children, some extragovernmental events and patterns exhibited underlying points of conflict between various critical national interests and the child protection principle. One such point of conflict concerned child labor issues.

Japan’s industrial revolution began in the late nineteenth century. At the end of the nineteenth century, the negative consequences of industrialization were becoming more and more apparent to the Japanese public. ⁸⁶ Although the Japanese government stipulated mandatory school attendance for Japan’s children in 1872, the mandate was not effective owing to parental conservatism and inadequate facilities. ⁸⁷ Many children worked in factories to make economic contributions to their family. It is not surprising, then, that child labor issues attracted social reformers’ attention and led to calls for child protection legislation. However, because of rigorous opposition from, in particular, the labor-intensive textile industry, it was not until 1911 that the Imperial Diet of Japan passed its own Factory Law, which went into effect in 1916. The Factory Law of 1911 merely prohibited employers from hiring children under the age of twelve (Article 2). As for children’s nighttime labor, the law did not ban it until 1929. ⁸⁸

Japan did not integrate its Factory Law into the governance of its island colony, Taiwan. As a matter of fact, the Japanese government intentionally ignored many pressing needs of the Taiwanese people. In general, colonial powers often developed colonial policies that were blatantly inconsistent with homeland policies and that were just as blatantly discriminatory against the colonies. Japan was no exception with regard to Taiwan. As I mentioned, Japan’s changes to its colonial policy in the 1920s inaugurated the GGT’s establishment of many welfare policies and laws in Taiwan. However, important ones stayed behind in metropole Japan. The 1929 Relief Act and the 1937 Mother and Child Protection Law, which strengthened the state’s legal support for children, did not take effect in Taiwan. The Japanese government’s power over the selection of child protection policies resulted in a rather unsurprising outcome: Taiwanese children received much less protection than Japanese children. Although the GGT promulgated the 1939 Ordinance on Work Hours for Taiwanese workers, the ordinance protected only laborers over the age of sixteen. ⁸⁹

In Japan and Taiwan, child protection laws and policies were inconsistent with other areas of the law and state policy before 1945. ⁹⁰ Although the national policy was that the state should protect and care for these future nationals (including Japanese and Taiwanese minors), the Japanese government and the GGT made concessions in child labor legislation for state’s economic development. During the Second World War, the already scarce protections further yielded to the state’s goal of vanquishing its enemies.

Children under the War Mobilization

Beginning in the 1930s, Japan shifted into its “national mobilization” period, during which Japan changed its legal system to establish the mobilization regime and ceded children’s rights to accommodating Empire’s needs. ⁹¹ Starting in 1938, Japanese students on their summer vacation had to perform five days of related labor; by early 1944, the required labor took up four months of the year. In March 1944, the Japanese government required all students to provide labor for an entire year. ⁹² By February 1945, three million students were mobilized. Vocational school students were asked to work in factories; those studying other subjects helped with farming. ⁹³

The above situations took place in metropole Japan. While the Second World War consumed an ever-increasing amount of Japan’s efforts and possessions, the soon-beleaguered country mobilized all of its own resources in the name of the empire. ⁹⁴ In 1936, the GGT undertook industrial labor mobilization to expand industrial productivity there. Two years later, the plan was integrated into the war projects. ⁹⁵ During wartime, more and more Taiwanese were drafted as military support laborers or nurses for work in Japan’s colonies. “Comfort women” were also “drafted” to serve Japanese military men. ⁹⁶ Children were no exception to patriotic service. In the 1940s, the GGT organized young Taiwanese people to form local youth groups, the overall objective being to promote “national spirit” and to invoke people’s patriotism. These young people also provided public services and some of them became volunteer soldiers in Japan’s military. ⁹⁷

The story of shonenko (the Japanese term literally means youth laborers) gives us another picture of Taiwanese children during wartime and how, under the modern nationalist state, the Japanese government in fact treated children as state property. In 1943, the GGT started to recruit Taiwanese boys to work in airplane factories in Kanagawa, Japan. There were about 8,500 of these boys in total, ranging in age from twelve to twenty years old, but 80 percent of them were only twelve or thirteen years old. ⁹⁸ Many of them were from poor families and had just finished primary schooling.

The GGT provided some incentives to these young boys for their labor: higher salaries and middle school diplomas after three years of factory work. Many of these boys held a gilded view of Japan and considered work in the mother country Japan a fascinating opportunity to wear shoes and to labor in factories. In addition, because only a few people in Taiwan could afford middle and higher education, the twin accomplishments of making money and earning a middle school diploma held significant appeal. Furthermore, as a Japanese citizen, serving the Empire was a high honor. ⁹⁹ These little boys, whose average height was only four feet four inches, then boarded a ship to Japan. They were called “Small Sparrow Troops” by local people around the factory. ¹⁰⁰

Holding a long piece of steel in the left hand and a heavy hammer in the right hand, these boys worked arduously to make airplane parts. ¹⁰¹ The work conditions in the factory were horrible, and these children had to endure the Japanese winter’s cold and snowy weather, which contrasted starkly with the subtropical climate of Taiwan. They often faced a pronounced lack of food and clothes. Later, owing to daytime air raids, the boys had to work overnight. ¹⁰² Some of them even died in the Allied bombing. On December 18, 1944, the US Air Force bombed the airplane factory. The bombing resulted in the gruesome deaths of many of these Taiwanese boys: parts of bodies hung in trees; survivors of the air raid who witnessed the scene thought that the objects were red fruit. Finally, the end of the war came, yet even after Japan’s surrender, the Taiwanese boys knew no rest: General Douglas MacArthur’s imminent visit to Japan required that the defeated hosts prepare to welcome him, and this meant that the surviving boys had to continue laboring on Japanese soil, this time working day and night to repair the airport where the general would be touching down. ¹⁰³

Surviving shonenko then returned to Taiwan. Their homeland of Taiwan, however, had already become a province of China. They turned from heroes of Japan into enemies of China. Of course, the Japanese government’s promises to these boys were never realized, since shonenko were no longer Japanese nationals. ¹⁰⁴

The story of shonenko reflects the disparities at the heart of Japan’s colonial effort to transform Taiwan’s legal treatment of children. Although the Japanese colonial government liberated Taiwanese children from the constraints of traditional Chinese family-based legal restrictions and granted considerable personal legal rights to these children, they become properties of the state. When the Japanese empire called on them, they had to sacrifice. Taiwanese youths’ relatively short-lived sense of patriotic duty to imperial Japan created a historical situation where Japan spent Taiwan’s children in the service of imperial ambitions.