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Jus sanguisnis in Japan: the origin of citizenship in a comparative perspective.

1. Introduction

The transmission of Japanese citizenship follows the principle of jus sanguinis (by parentage). Non-Japanese immigrants and their descendants, even if they were born in Japan, remain foreigners unless they go through the process of naturalization. The rule emphasizing descent rather than birthplace appears to fit well with the image of the ethnically exclusive nature of contemporary Japanese society. However, its original codification dates back to the late nineteenth century, and one cannot simply assume that the goal of ethnic homogeneity led to descent-based citizenship. This paper examines the origin of jus sanguinis in Japan as an illustration of the emergence of membership criteria in the modern state. Three European cases - Britain, France and Germany - provide a comparative perspective. I will argue that in Japan, as in the three European countries, the initial adoption of particular membership criteria had little to do with conceptions of nationhood or nationalism. The paper identifies other determinants of the principle of citizenship, including legal practices prior to the emergence of the modern state, the state's efforts to organize the populations subject to its rule, and domestic and international security concerns.

2. Analytical Framework

Full citizenship, or 'nationality,' defines formal membership in a state. Two legal principles govern the attribution of citizenship at birth: jus soli (by birthplace) and jus sanguinis (by parentage). Under the system of jus soli, second-generation immigrants who are born in the host society acquire citizenship, whereas under jus sanguinis they remain non-citizens.(1) Another principle that may be combined with these two is jus domicili (by residence). This is a principle in which citizenship rights and duties are extended on the basis of long periods of residence rather than origin.

How did cross-national differences in citizenship criteria emerge? What produces and sustains different principles? In his comparative study of French and German citizenship, Brubaker (1992) demonstrates how conceptions of nationhood are related to the principle of citizenship. In his view, an expansive, assimilationist understanding of the French nation led to the adoption of jus soli for second-generation immigrants, whereas an ethnocultural understanding of the nation has supported jus sanguinis in Germany.

However, the legal practices of defining state membership, or distinctions between subjects/citizens and foreigners, had developed before the era of modern national states. Jus soli in England originated from the feudal relationship between the lord and the subject.(2) In France, the parlements between the sixteenth and eighteenth centuries developed a set of criteria for defining who was or was not French, with emphasis on one's birth and residence in the French territory (jus soli and jus domicili components) (Wells, 1995; Brubaker, 1992:37-38). In Germany, member states in the German Confederation developed an inter-state system for organizing state membership in the early- to mid-nineteenth century. Out of concern for the influx of the migrant poor (also 'Germans') from neighboring states, they adopted jus sanguinis as the principle of transmission of state membership (Brubaker, 1992:64-71). In all of these cases, the initial adoption of particular rules about the attribution and transmission of membership had little ideological justification. Yet these original patterns of membership attribution were carried over to the modern era and formally codified into citizenship and nationality law.

Given that citizenship criteria are not a mere reflection of the prevailing self-understanding of the nation, other factors help explain the adoption of a particular principle of citizenship attribution and rules about naturalization. They include the following:

(a) State formation and previous legal practices

The British and French examples suggest that feudalism, empire and monarchy in general are more conducive to jus soli than to jus sanguinis. When the ruler incorporates people of different ethnic origins into the political community and thereby attempts to consolidate its territory, common descent and culture are unlikely to be primary criteria for defining membership. In contrast, a political community created out of an ethnically defined population is likely to adopt jus sanguinis. However, it is also important to recognize the variation within those categories. For instance, not all feudalisms and absolutisms are alike.

(b) State structure

Given that competing interests exist in the society, it is of importance to examine whose interests are instituted into law. State structure, such as the system of representation, has an impact on whether the interests of the state and of social groups (items (c) and (g) below) will be carried through. State autonomy in foreign affairs seems particularly important, given the relevance of citizenship criteria to external relations. For instance, the extension of the category "British subjects" to populations in the colonies indicates a component in British citizenship criteria that has been little affected by particular social group interests (Dummett and Nicol, 1990; Goulbourne, 1991).

(c) State interests

Any state has financial and security concerns. These include taxation, human resource mobilization for war, and the maintenance of social order. For all of these, the state should have an interest in defining its subjects or citizens in some way with a statewide membership. In Europe, modern states created citizenship as a general status, against urban autonomy and the municipal citizenship characterized by a privileged status (Brubaker, 1992:41-42). The institution of state-wide membership as a means of territorial consolidation disregarded ethnic criteria. Just as French state membership, imperial German state membership in the nineteenth century also represented this internal inclusiveness, despite the adoption of jus sanguinis as the principle of citizenship attribution at birth.

(d) Internal legal structure

Nationality law is embedded in the legal system as a whole. Legislation on nationality and naturalization may be influenced by other parts of the internal legal system. In France, for instance, the definition of nationality as an individual status was closely linked with property relations. Stipulations on the acquisition and loss of nationality were therefore included in the Civil Code between 1803 and 1927 (Egawa et al., 1989:33-34).

(e) International legal and political context

Domestic nationality laws are embedded in inter-state systems. Since changes in nationality involve laws on both sides of state boundaries, legislators are likely to be concerned with contemporary international legal norms and compatibility with laws in other countries.

The formal codification of nationality law is distinctly modern (Bos, 1993:634). It began only with the development of a community of national states and as a result of increased inter-state migration that facilitated the distinction between the place of residence and membership in a state. The emergence of the principle of jus sanguinis was in part a product of this new development in the organization of populations.(3) The coexistence of diverse provisions about the loss and acquisition of citizenship made international coordination necessary, leading to the emergence of international legal norms about reducing statelessness and multiple citizenship (Baubock, 1994:24). The origin and development of modern citizenship should therefore be understood in conjunction with inter-state systems and legal norms.

(f) Nationalisms

Although the roots of state membership may be found in the pre-modern era, the early phase of nation-building and the development of nationalism may be relevant to the initial codification of nationality law. The literature on nationalism suggests associations between the type of nationalism and the nature of citizenship. The 'ethnic nation' emphasizes common descent, whereas the 'territorial nation' with a 'state-to-nation' trajectory has a common legal system and citizenship as its central features (Smith, 1986:134-138).(4) It appears, therefore, that ethnic nationalism is consistent with and supports the exclusive nature of jus sanguinis, whereas territorial/civic nationalism is compatible with and conducive to the principles of jus soli and jus domicili. It is important to remember, however, that different types of nationalism and competing conceptions of the nation exist in a given society.

(g) Interests of social groups and the nature of inter-group relations

Various social groups may develop an interest in criteria for citizenship attribution. For instance, an influx of immigrants or their lack of assimilation may provide a basis for supporting or opposing the extension of membership to them. The French citizenship reform in the 1880s and the revision of the German nationality law in 1913 both exemplify a moment when citizenship criteria were politicized.(5) These cases indicate that the articulation of interests in citizenship criteria is related not only to direct intergroup competition but also to various responses by social groups to different kinds of nationalism.

The Japanese case with its principle of jus sanguinis offers several interesting points of comparison. On the one hand, it conforms to European experience in some respects. The codification of the first nationality law coincided with the growth of nationalism, particularly of the kind that can be labeled 'ethnic.' This seems to fit well with jus sanguinis.

On the other hand, Japan might be expected to develop a jus soli system. First, the emergence of a modern state in Japan was preceded by a feudal regime, which in the case of Britain was strongly associated with jus soli. Second, the type of nation-building is closer to the territorial model, as in England and France, than to the ethnic model.(6) Third, Japan was under external pressure to compile modern legal codes. The active introduction of French codes could have resulted in a nationality law with a large jus soli component. Fourth, some social groups developed a movement similar to 'civic nationalism' in the early Meiji period. They could have contributed to pushing the nationality law further away from a strict jus sanguinis system.

Nevertheless, the citizenship criteria established in the first nationality law of 1899 are characterized by the basic principle of jus sanguinis, relatively strict rules of naturalization, and a number of legal restrictions on naturalized persons.(7) The next section examines Japan based on the seven factors identified as relevant to the European cases. The actual process of codification is traced through the Proceedings of the Nationality Law.

3. The Origin of jus sanguinis in Japan

3.1 Potential factors for developing jus soli

Japan had several features that may have supported jus soli and jus domicili in citizenship criteria. For one thing, the Meiji Restoration (1868) that marked the emergence of the modern national state is characterized as a movement of territorial consolidation. The basic policies of the Meiji government were fukoku-kyohei ("enrich the nation, strengthen the army") and kokumin-toitsu (unite the people/subjects) (Sakata, 1958). In the face of the threat posed by European colonial expansion, the leaders of the Meiji government sought to unite people in the territory and imbue them with a national identity as Japanese that transcended local, regional, or han identities. It was crucial for state officials to achieve a greater centralization of administration to effectively mobilize human resources. A major step towards the consolidation of state power was haihan-chiken (abolishing the domains and establishing prefectures) in 1871. In this administrative restructuring, ex-daimyo (han chiefs) who were serving as imperial officials were replaced by new governors appointed by the central government.

Although the emphasis on unity and the use of the Emperor as the symbol of that unity may seem to suggest 'ethnic' elements in the Meiji Restoration movement, the Japanese 'subjectship' as common, nationwide membership was in fact multiethnic in its character. The state disregarded ethnic heterogeneity of the population and attributed Japanese subjectship to minority groups such as the Burakumin, Okinawans, and the Ainu, who had long been differentiated on the basis of racial and ethnic origins.(8) Even though these minorities continued to have less than an equal legal status in practice, the attribution of common subjectship to them can be seen as reflecting a territorial conception of the nation.

Consequently, the state officials' version of the conception of the nation was in fact much closer to the 'territorial' nation than to the 'ethnic' nation. The Meiji government envisioned national integration "from above" by incorporating people in the territory into a common national community. This creation of a national community is similar to the process by which the French state extended its rule to the indigenous populations in the outlying areas who had not yet shared any identity as French.(9) Thus, given the association between 'territorial' nation-building and non-ethnic membership criteria, one might expect jus soli to develop in Japan.

Inclusive membership of the 'native' minority populations was closely related to transnational relations, in particular the crystallization of modern state boundaries. Since the mid-eighteenth century, Japan was drawn into the system of modern states where territories were divided and consolidated as possessions of sovereign states. For instance, the Treaty of the Exchange of Karafuto and Chishima in 1875, concluded between Russia and Japan, prompted the two states to settle the national affiliations of the native people in those regions (Egawa et al., 1989:182-183).

International relations also provided some elements that worked against strict jus sanguinis. While the institutionalization of a modern, Western legal system was an integral part of the Meiji modernization program of fukoku-kyohei, it was also closely tied with the revision of unequal treaties with foreign powers. Western countries demanded, as preconditions for signing equal treaties, that Japan should establish modern legal codes. Towards this end, since the early years of the Meiji era, the government had invited a number of legal experts from Western countries including France, Britain, Germany and the United States. Among them was a French jurist Gustave Boissonade, who actively introduced French law into the drafting of the first Japanese Civil Code (Umetani, 1971). Although the Code itself was eventually abolished,(10) some stipulations on nationality similar to the French law remained in the nationality bill. The French nationality code was built on jus sanguinis as the basic principle; yet it contained strongjus soli and jus domicili components that allowed relatively easy access to citizenship by foreigners. Consequently, the French influence could have pulled the Japanese nationality law toward jus soli.

The factors that favored jus soli and jus domicili were not confined to state interests and transnational relations. A non-ethnic orientation to the national community was also found outside the government, in the People's Rights (minken) movement in the early Meiji years. Since the late 1870s, the People's Rights (minken) groups sprung up and voiced opposition to the government.(11) They opposed the authoritarianism of central bureaucracy and demanded the establishment of a national assembly. Informed by the Western Enlightenment, their vision of national integration 'from below' was akin to the spirit of eighteenth-century 'civic' nationalism as in France in that they were primarily concerned with individual freedom and democratic political processes (Irokawa, 1981). Although the former samurai took the initiative in the movement, wealthy farmers played an active role in organizing local study groups. The movement was widespread enough to threaten the government, which made pledge in 1881 to establish a national assembly in 1890.(12) For the principle of citizenship, the visions of People's Rights activists could have developed into a residence-based conception of fights and duties. In fact, 'private' constitutional drafts prepared by minken groups in 1881 included a couple of examples in which jus soli or jus domicili were primarily employed for citizenship criteria.(13)

Territorial nation-building, the French influence in the compilation of legal codes, the existence of 'civic nationalism,' as well as a feudal regime prior to the Meiji era, all point to the development of jus soli and jus domicili in citizenship criteria. However, other factors pulled the country toward a relatively strict jus sanguinis system.

3.2 Sources of jus sanguinis

One of the key factors that pulled the nationality law toward jus sanguinis was the system of family registration. This system also made the difference between English and Japanese feudalisms. The English feudalism centered on the concept of "perpetual allegiance" that was attached to the subject by virtue of being born in the territory of the king.(14) It was therefore a membership criterion based on the individual. In Japan, in contrast, there was a family-based system of population registry. Consequently, whereas feudalism and lord-subject relations appeared to be conducive to jus soli in Britain, they did not produce a similar effect within Japanese feudalism.

The family registration system was originally imported from China around the sixth century. During the early aristocratic period (7th-9th centuries) the central government used it as a basis for extracting resources from the population, both in kind and in the form of labor (Hisatake, 1991).(15) A family-based organization of the population was reinforced during the feudal period, in particular under the Tokugawa regime, as part of the mechanism of vertical control. Laws in the Tokugawa era (1603-1867) were based on the "four-class system" that placed samurai, farmer, artisan, and merchant in a hierarchical order. Accordingly, family registries were compiled separately for different classes (Hall, 1991:178-180; Fukushima, 1959). The family registration system thus provided successive Japanese rulers with a model of defining and controlling their subjects with the family as a unit, and hence, transmitting membership through parentage rather than by the place of birth.(16)

To the extent that one associates jus sanguinis with common descent and ethnic homogeneity, the Tokugawa seclusion policy that lasted for more than two hundred years is key.(17) The seclusion policy, adopted in the 1630s, seems to have fostered ethnic homogenization within Japanese territory. The policy, however, should also be examined in relation to the family registration system. Contrary to a strict racial regime, it did not systematically exclude all non-Japanese or include as Japanese only those defined by 'Japanese blood.' The seclusion policy rather aimed to stop the movement of people across state boundaries so that the country would be free of foreign influence. In the initial phase in the 1630s, it banned the return migration of Japanese residing abroad, and expelled the children of foreign fathers and their Japanese mothers. Once the system of seclusion was in place, a new set of principles was established in Nagasaki in the early eighteenth century. First, children of mixed marriage were no longer to be taken to their father's home country. Instead, they were to be included in the family registry either of their mothers or of some other Japanese.(18) Second, the resident Chinese was allowed to naturalize if he had assimilated into Japanese lifestyle and intended to remain in the country for a long time, or if he was entering into the wife's family registry through marriage (Hanawa, 1980:302-303).(19) Consequently, the family remained the mode of citizen incorporation through which persons of foreign origin became members of the society.

With the legislation of the Family Registration Law in 1871, the Meiji government again employed the method of organizing the population by family, using existing legal practice. The law was closely related to haihan-chiken (the abolition of domains) legislated three months later, and served as an important tool for the centralization of the Meiji state administration and for fostering national unity. The new system of registration replaced 'class'-specific registries in the Tokugawa era with a common registry for all, although it in fact retained separate categories such as for former samurai families. 'Equality between Four Classes' was used as a slogan, and the new registry created a common Japanese 'subjectship' establishing a direct connection between the people and the government (Fukushima, 1959).(20) The state used the registry for the purposes of conscription and universal compulsory education, both of which were essential components of the policy goals, fukoku-kyohei and kokumin-toitsu.(21)

The family registration system was thus indispensable for the government to pursue its goals. This internal legal context shaped the principle of citizenship criteria. The Prospectus of the Nationality Law states at the outset that one of the issues that the drafters paid particular attention was "to make it compatible with our country's unique family (ie) system" (Kokusekiho Shingiroku, 1969, No. 276:31(22)).

Here, it is useful to make a distinction between ie as part of traditional values and the legal institution of the family registration system. Although the government actively emulated Western laws, the complication of the first ('old') Civil Code invited the "Civil Code Debate" in the early 1880s. Conservatives attacked the Code, which was modeled after the French law, as destructive of Japanese traditional values, including the centrality of ie (family). The Code was eventually abolished.

The interest of the drafters of the nationality bill, however, could not have simply been preserving traditional values. Officials showed no intention of abandoning a Western legal system. Rather, the lesson of the failure in the Civil Code was that the nationality law should be compatible with the existing family registration system embedded in the domestic legal structure. Consequently, the emphasis on "compatibility with the family system" can be interpreted not so much as an ideological turn against Westernization than as a matter involving the compatibility of different parts of the legal system. That is, the drafters tried carefully to balance between modern law compilation and the maintenance of the internal consistency of the family registration system.

For instance, the nationality bill stipulated the loss of nationality by a Japanese woman marrying a foreign man as well as the acquisition of the Japanese nationality by a foreign man who marries the female head of a family (Article 5). Explanatory notes on these clauses reveal the way in which the family system was directly linked with the definition of nationality:

Should a wife who is married to a Japanese husband remain as a foreigner, it would create a situation where a foreigner is present in a Japanese family (ie). Therefore, she shall be a Japanese. Nyufu [a foreign man who marries the female head of a family] enters a Japanese family. Therefore, he shall be a Japanese (Kokusekiho Shingiroku. 1969, No. 276:33).

Consequently, these clauses were designed to avoid any mixing of a foreign nationality holder, and not a person of foreign origin per se, as a member in a 'Japanese family' (Hanawa, 1980:314). Regarding the status of a foreign woman whose husband becomes naturalized, the government official reassured the audience that it would not affect the family registration system because foreigners would not be included in the system (Kokusekiho Shingiroku, 1970, No. 282:25-26).

Coordination between one's family registry and the nationality status had been necessary since before the formal legislation of the nationality law. Following the customary law that had existed from the Tokugawa period, the Meiji government issued a decree in 1873 to regulate changes in the nationality status through marriage and adoption (Hanawa, 1980). The content of this ordinance was practically the same as the stipulations in the Nationality Law referred to above (Article 5). In this sense, the principle of jus sanguinis had few contradictions with pre-modern customary law.

Concerns for having 'modern' codes also encouraged the government to choose jus sanguinis as the basic attribution principle. In addition to consulting with foreign legal advisors, jurists in service of the government carefully studied nationality laws of about thirty countries in preparation for drafting the nationality bill (Hanawa, 1980). One of the rationales for adopting jus sanguinis, according to the Prospectus, was that the principle was much more widely adopted internationally than jus soli (Kokusekiho Shingiroku, 1969, No. 276:31-32).(23) Jus sanguinis was a logical choice from the point of view of the drafters because it was not only the dominant principle of the time but also the one prevalent in Continental Europe where major legal advisors to the government came from.

Compatibility with laws in other countries was apparently important for the drafters. One of their guiding principles was to avoid the cases of both dual nationality and statelessness (Ibid, No. 276:31). For instance, a government official explained in the deliberation how it would be sometimes unavoidable that the husband and wife have different nationalities (Ibid, 1979, No. 282:251).(24) For the sake of international coordination in reducing dual nationalities, even the traditional idea of the family (ie) needed to be compromised to some degree. Yet this was acceptable to state officials as long as they could keep the internal consistency of the family registration system intact. Thus, the adoption of jus sanguinis satisfied two major requirements: compatibility with the family registration system and the compilation of modern legal codes.

These state interests in adopting jus sanguinis did not meet with strong opposition. This was partly due to the state structure that kept opposition to the government in a weak position. However, the lack of dissension seems more important than limited public participation in explaining the adoption of jus sanguinis in the first nationality law.

The People's Rights (minken) movement, despite its potential for voicing jus soli, did not develop into a force opposing jus sanguinis. For one thing, this is because the movement was weakened after the 1881 (Meiji, 14th year) incident. During this internal power struggle within the state, a group of bureaucrats with ideas sympathetic to minken groups were thrown out of the government. The successful faction led by Ito Hirobumi then resorted to repression of the People's Rights movement (Irokawa, 1981:118-119). Even when they were active, however, minken groups did not explicitly advocate immigrants' rights. Instead, they opposed the government's autocratic rule and fought for civil and political rights. In other words, their main concern was the content of citizenship rights, and not the boundaries of the 'Japanese' citizens who were to enjoy those rights.

Even after limited popular participation in the political process began with the creation of the Diet in 1890, opposition to the government remained structurally weak.(25) It is therefore reasonable to consider the nationality law primarily reflecting state interests, specifically that of bureaucrats in the government. Nevertheless, members of the Diet still had opportunities to confront the government. From the early 1890s, for instance, the opposition took the issue of unequal treaties and criticized the government as too compromising with the West. In the legislative process of the nationality law, however, they had fewer objections. According to the Proceedings, the deliberation of the bill focused almost exclusively on the issue of naturalization, such as which high-ranking positions should be made inaccessible to the naturalized. In contrast, the basic principle of jus sanguinis did not receive any attention. In sum, there was no strong social group interest that called for an adoption of jus soli at the time of legislation.

This lack of dissension from jus sanguinis was related to intergroup relations at the time. In the late nineteenth century Japan, "foreigners" usually meant Westerners who were engaged in trade and commerce. The largest group, however, were the Chinese who worked in port cities as sales representatives, domestic servants, and longshoremen (Yamawaki, 1994; Kamachi, 1980).(26) Increases in the number of the Chinese did generate concerns about public morals and effects on wages, and anti-Chinese sentiments were expressed in the public debate. The government issued the Imperial Order No. 352 in 1899, which aimed at controlling and monitoring unskilled foreign labor, namely the Chinese (Yamawaki, 1994:56-71; Kim, 1991). This Imperial Order was issued in the same year when the first nationality law was legislated and "mixed residence" began.(27) The restrictive policy toward Chinese residents might have influenced the codification of citizenship criteria. Despite some anti-Chinese agitation in the public debate, however, the problem of Chinese labor remained that of controlling foreign workers. Neither supporters nor opponents of Chinese immigration explicitly linked it to an issue of the attribution and acquisition of citizenship.

In the deliberation of the bill, Diet members generally assumed foreigners to be Europeans.(28) There were a few remarks on the Chinese as well as on a possible inflow of migrants from neighboring countries. These points, however, were generally put in a hypothetical manner and did not lead to further discussion (e.g., Kokusekiho Shingiroku, 1970, No. 286:26). The passive endorsement of jus sanguinis by Diet members seems to have resulted from a general perception of "foreigners." A relatively small number of non-Japanese residents in Japan, both the Westerners and the Chinese, were regarded primarily as temporary sojourners, expect for a few individuals who might choose to settle and to be naturalized. On the one hand, the Proceedings contain no evidence that suggests support for the principle of jus sanguihis specifically on the ground of preventing "foreigners" from becoming Japanese. On the other hand, in the absence of strong interests for turning immigrants into Japanese citizens, the adoption of jus soli as the basic principle was not likely to be discussed as a realistic option. Within Japanese debates about the nationality law in the late 1890s, immigrants or immigration were not politicized in relation to citizenship criteria. This was in contrast with "crystallization periods" (Brubaker, 1992) in France and Germany.

3.3 Strict naturalization rules

Even when jus sanguinis is adopted as the basic principle of citizenship criteria, however, it may be combined with relatively large components of jus soli and jus domicili as in the case of France. The 1899 nationality law in Japan also incorporated a few elements of jus soli and jus domicili. For instance, residential requirement for naturalization was reduced from five years to three years for those born in Japan. Furthermore, if their parents were also born in Japan, residential requirement could be waived (Article 9). Overall, however, the 1899 nationality law represented a strict jus sanguinis system, characterized in particular by the requirement of state permission for all naturalizations.

The requirement of state permission for naturalization, however, was not a central element earlier in the codification process. Rules about naturalization were generally drawn from stipulations in various countries including France, Italy, Belgium, Germany and the Netherlands. At early stages of drafting, the acquisition of citizenship by declaration, or an option system, was stipulated for long-term residents and Japanese-born children. The 'old' Civil Code, which was abolished, also had employed an option system. In the final draft for the nationality bill, however, all forms of naturalization were uniformly subject to state permission.

One possible explanation for the change was a general shift in institutional models away from the French and toward German systems after the Meiji 14th year (1881) incident. Alarmed by the growth of political parties, state officials led by Ito Hirobumi advocated the Prussian constitutional monarchy as a model of state structure. Whereas the stipulations on nationality in the first Civil Code were heavily influenced by French law, later versions, in particular the draft by Inoue Kowashi, reveal the strong influence of German law. Inoue Kowashi was a state official who collaborated with Ito Hirobumi in the 1881 incident. In drafting a nationality bill, he consulted with Hermann Roesler, a German expert who also assisted the government in drafting the Constitution. However, it should be noted that even the Inoue draft still retained an option system for acquiring citizenship (Tanaka, 1982, No. 457:18-19).(29) Consequently, the orientation toward the German system is not sufficient for explaining strict naturalization rules.

Concern for national security provides a more plausible reason for the attempt to strictly control citizenship acquisition by foreigners. The management of security issues in the nationality law took two forms. First, the permission system for naturalizations ensured administrative discretion of the state. The Ministry of Interior had the authority to reject any undesirable applicants for naturalization. One of the drafters of the bill articulated the importance of discretion in the deliberation. A Diet member questioned if "being of good character" was too vague an expression and whether a more specific stipulation such as "having no criminal record" should be included as an eligibility condition. In response, the government representative explained that specific and rigid conditions were not appropriate and that the decision had to be rested on the Interior Minister, who would make judgment in light of "the interest of our country" (Kokusekiho Shingiroku, 1970, No. 288:20-21). He also added that similar discretionary measures for naturalization were employed in other countries, including the United States, Germany and Portugal.

The restricted rights of the naturalized represented another security measure. In addition to the strict naturalization procedure, the 1899 nationality law also imposed on a naturalized citizen a fairly large number of restrictions of rights compared with stipulations in other countries (Hanawa, 1980:312).(30) High-ranking official positions were not accessible to naturalized people unless they obtained special permission from the state. A state official explained that this was because "it would be dangerous to confer on them rights to occupy important positions immediately after naturalization" (Kokusekiho Shingiroku, 1970, No. 277:19). Not convinced by the selection of restricted rights, Diet members had heated debates about the relative "importance" of public offices and the degree to which the holding of a particular office by a naturalized person might become "dangerous".

Active discussion in the Diet of the rights of the naturalized reflected concerns about the "mixed residence" (naichi-zakkyo). Although foreigners had lived only in designated quarters in port cities, it was anticipated that commercial and residential restrictions on them would be lifted with the implementation of equal treaties with the West. In the "mixed residence" debate that intensified from around 1890, opponents of mixed residence expressed the fear of being overpowered by the Westerners who would enjoy greater freedom of activities in Japan.(31) Economic threat as well as a threat to morals and customs of the Japanese were addressed. In response, proponents asserted the assimilative power of the Japanese and emphasized the benefit of actively bringing in foreign capital as a way to prevent Japan from being colonized (Oguma, 1995:39-44; Gluck, 1985:136).(32)

Proposed restrictions on the naturalized in the nationality bill can therefore be seen as preventive measures against excessive influence by Westerners on the Japanese administration. Although they disagreed on some details, Diet members also endorsed the general idea of imposing such restrictions. The primary issue was security and the maintenance of national independence, not the perpetuation of the Japanese "blood." Consequently, the failure to develop significant jus soli and jus domicili components was primarily due to security concerns in response to the threat of foreign penetration.

3.4 Limited impact of ethnic nationalism

Previous literature has tended to associate jus sanguinis in citizenship criteria with ethnic nationalism and an ethnic conception of the nation. However, ethnic nationalism in the Meiji era had little direct impact on the legislation of the 1899 nationality law and was relatively unimportant compared with the factors discussed above. This is all the more remarkable because ethnic nationalisms gained ascendance from the 1880s.

In contrast with territorial and civic nationalisms, the nationalism that emerged in the late 1880s may be regarded as 'ethnic nationalism.' The ideas of the new nationalists were strongly influenced by the late-nineteenth century nationalism and historicism in Germany and other parts of Europe (Motoyama, 1958). Leading figures in this movement were publicists such as Kuga Katsunan who edited the newspaper Nihon (Japan), and Miyake Setsurei and Shiga Shigetaka, the editors of the magazine Nihonjin (The Japanese) (Gluck, 1985:112-113). Their main idea was the 'reevaluation' or 'rediscovery' of nationality. An emphasis on indigenous culture and tradition was also a theme in the proto-nationalism in the late-Tokugawa period such as kokugaku and mitogaku (Yoshino, 1992:46-49). However, this new group of intellectuals held distinctively modern ideas and differentiated themselves from more conservative groups by demanding a voluntary, spiritual awaking of the 'people' from below. They opposed the 'Westernizing' Meiji state that imposed national unity from above.

The approach of the new nationalists, with an emphasis on the uniqueness of the Japanese 'nationality' and national integration, could have developed into ethnically-exclusive membership criteria. However, while they advocated a new sense of the Japanese nation, they did not formulate any policy proposal for citizenship. Critiquing the government's compromising attitude toward Western countries, Kuga and his colleagues joined in the opposition campaign against the revision of unequal treaties in the 1890s (Motoyama, 1958). In doing so, they in effect attacked the government policy package that included equal treaties, "mixed residence," and the institution of the Western legal system as preparatory measures, of which the nationality law was a part.

A more traditional and conservative circle developed another line of thought that emphasized Japanese uniqueness. It also gained strength in the 1880s, and the Imperial Rescript on Education (1890) marked the penetration of this orientation into the state as well. Incorporating a Confucian moral order into the framework of the constitutional monarchy, the Rescript was designed to educate the population for service to the state and to create Japanese "subjects" imbued with loyalty to the Emperor. The Rescript also helped disseminate the ideology of kokutai (national polity) as well as kazoku-kokka-kan, or the view of the Japanese state as a family.(33) The proponents of kokutai-ron (national polity thesis) argued that the solidarity of the Japanese was rooted in the "natural bonds" of blood. The political integration based on blood association was judged superior to other forms of integration based on either social contract or philanthropy, because it alone could combine order and obedience on the one hand, and love and respect on the other (Oguma, 1995:50-54). The Sino-Japanese War in 1894 fostered national consciousness among the people and further popularized the national polity argument (Gluck, 1985:136-145). The conception of the nation as a blood association was also likely to lead to exclusive membership criteria.

Given the general turn toward traditionalism and conservatism after the late 1880s, one might expect that the Nationality Law in 1899 would also reflect the prevailing political ideas of the time. A few discussants indeed voiced nationalistic sentiments, and the term kokutai occasionally appears in the Proceedings. For instance, a member of the Diet questioned a provision on naturalization, stating that "it would seem problematic in light of the kokutai should a foreign national live in the same family as Japanese nationals" (Kokusekiho Shingiroku, 1970, No. 282:25). Nevertheless, there were very few statements in the deliberation that argued for the exclusion of the people of different ethnic or national origin on the basis of the national polity thesis.(34) Even Watari Seigen, who made statements with the most nationalistic tone among Diet members, did not oppose naturalization of foreigners per se. He argued for the need to carefully consider what would be of interest to Japan, and insisted on the simultaneous naturalization of the husband and wife because he thought it would ensure their commitment to Japan (lbid, No. 286:26-27). Government representatives responded to these conservative or nationalistic lines of argument by insisting on the importance of international coordination in formulating law and the urgent need of the codification itself. At the closing of the debate, a government official urged Diet members to pass the bill, reminding them that "it will be extremely inconvenient if this bill does not pass before the implementation of equal treaties" (Ibid, 1971, No. 296:22).

4. Conclusion

Legal practices prior to the emergence of the modern national state, such as the family registration system and control of foreign nationals, seem the most important influences on the initial codification of the nationality law in Japan. The adoption of jus sanguinis was due to the compatibility with the family registration system, a logical choice on the basis of a comparative study of nationality laws, the attempt to control foreign penetration, and the external pressure to modernize nationality law as a component of international relations and the pursuit of national sovereignty. Despite the ascendance of ethnic nationalism in the 1890s in Japan, its direct impact on the legislation was weak. The codification of the nationality law was, more than anything else, a necessary step for implementing equal treaties with foreign powers. In this sense, the project was carried out within the broad framework of the modernization of legal institutions for which the government, out of statist and bureaucratic concerns, was pushing in opposition to traditional, conservative, and radical ethnonationalistic sectors.

The comparative analysis offered here has several theoretical implications. First of all, it casts doubt on the association between the 'territorial/civic nation' and jus soli on the one hand, and the 'ethnic nation' and jus sanguinis, on the other. The basic orientation of the Meiji national integration was territorial in that the state sought to consolidate its territories with common, state-wide membership. Indigenous minority groups were also incorporated legally as "Japanese subjects." This inclusiveness in terms of ethnicity is common to the European cases. For instance, although Imperial Germany continued to employ the principle of jus sanguinis, its citizenship was inclusive toward non-immigrant ethnic minorities such as Reichspolen, or Polish-speaking citizens of the Reich. Consequently, although territorial nation-building requires the management of ethnic diversity within the population, it is compatible with jus sanguinis. That is, given the preexisting ethnic diversity of populations in the territory, the internal inclusiveness that accompanies the institution of state membership is to some extent a generic feature in state-building.(35)

Support for jus sanguinis as a basic attribution principle, in turn, may not come primarily from the ethnic conception of the nation. Again, a parallel can be drawn with the case of mid-nineteenth-century Germany, where neighboring states adopted jus sanguinis not due to "ethnic" concerns, but rather in order to contain disorder created by migration flows within Germany.

The relationship between nationalism and citizenship criteria is further complicated by the diversity in the conception of the nation. As documented by Brubaker (1992), in both France and Germany the prevailing 'cultural idioms' coexisted with counter idioms. The analysis of late-nineteenth-century Japan also showed the existence of competing conceptions of the nation. However, the Japanese case further suggests that the prevailing type of nationalism does not necessarily engender particular citizenship criteria. This point should be of importance when considering the persistence of the principle of citizenship attribution.

Other factors introduced in the analytical framework help us identify the mechanisms by which citizenship criteria were codified in Japan. First, legal practices and customary law developed in the process of state formation were relevant to the subsequent formal codification of nationality law. The Japanese case is similar to the three European cases in that the origin of criteria for state membership predated the rise of nationalism. Previous legal practices did not themselves determine the subsequent legal development, however. Rather, state interests were critical in reestablishing them as membership criteria in the modern national state.

The Meiji government had an interest in organizing the population for the purpose of extracting resources, consolidating territorial control, and maintaining social order. For pursuing this goal, the state revived the family registration system in a new form, which in turn dictated the parentage-based attribution principle in the nationality law. Whereas British monarchy maintained jus soli that was developed under feudalism, the Meiji Japan maintained the parentage rule developed since before the feudal era. Both cases represent the interplay between customary law and state interest.

Second, the Japanese case calls attention to state interests in security and foreign affairs. Strict rules about naturalization and the restriction of rights imposed on naturalized citizens might be interpreted as a sign of ethnic nationalism. However, at this point, the requirement of state permission for naturalization reflected security concerns in the face of the threat of foreign penetration more than a desire to keep the number of naturalizations to the minimum. Any state is cautious of accepting groups of people whose loyalty is suspect. For instance, the French state took repressive measures against foreigners in the aftermath of the Revolution (Brubaker, 1992:4647). Consequently, exclusive measures based on loyalty need to be analyzed in terms of state interest, and not merely as a reflection of an ethnically exclusive conception of the nation.

Third, the Japanese case also confirms that both domestic and international legal structures shape the process of instituting citizenship criteria. The centrality of the family registry in the Meiji administration system ruled out the possibility of adopting jus soli. In contrast, the close relationship between property ownership and nationality contributed to the prominence of jus soli and jus domicili in French law. Both cases show that the definition of nationality can be affected by the requirements of the internal consistency of the legal system.

The adoption of jus sanguinis was also consistent with the Japanese government's objective of preventing international conflict over nationalities. It should be noted that jus sanguinis, as a basic principle of nationality attribution, was not associated with exclusionary characteristics based on ethnic criteria. Just as many German states followed the precedent set by the Napoleonic Code of 1804 and adopted the parentage-based attribution in the nineteenth century (B6s, 1993:625), the Meiji government looked to France and other Continental Europe for a model of nationality law.

Fourth, state structure and intergroup relations provide contexts in which citizenship criteria are instituted. The historical origin of state membership in both Europe and Japan dates back to the era when it was largely up to territorial rulers, such as feudal lords, kings and emperors, to define their subjects. Both French and German cases suggest that the rise of national consciousness and a greater popular participation in the political process enabled social groups to influence citizenship criteria. In the case of Japan, however, no social groups developed significant organizational interests around citizenship criteria at the time of the legislation of the first nationality law, and this cannot be reducible to their structural weakness vis-a-vis the state. Consequently, it is important to pay attention to the nature of group relations between the majority and minority/immigrant populations, and the conditions under which the matter of citizenship becomes politicized.

Although this study has focused on the early formation of the principle of nationality attribution, the analytical framework proposed here may be extended from the analysis of 'origin' to the reproduction of and change in principles of citizenship. Structural roots that contributed to the adoption of a set of membership criteria at the origin may have also supported the reproduction of the same principle. What deserves greater scholarly attention is the process by which initial criteria of citizenship become tied to specific types of nationalism, and the interests of the state and of other social groups in maintaining or changing those criteria.

NOTES

1 in practice, it is rare to find jus soli or jus sanguinis in its pure form. Nationality laws in most countries combine elements from both principles. For instance, the French law employs jus sanguinis as its basic principle; yet by allowing second-generation immigrants to acquire French citizenship, the system as a whole comes close to jus soli. Consequently, the access to citizenship acquisition by non-citizen immigrants depends on a variety of facets in law, including rules about naturalization and dual citizenship. See Baubock (1994, Ch. 2) for the logic and effects of different principles.

2 Under feudalism, a person born on any lord's land was that lord's subject and owned him allegiance (Dummett and Nicol, 1990:24).

3 This is why jus soli was often considered a remnant of feudal concept based on the ancient, and English, idea of a natural tie to the land of one's birth. In France, objections to unconditional jus soli were expressed in citizenship debates in the 19th century (Brubaker, 1992:90, 95). In Germany in the 1910s, too, jus soli was understood by some as a premodern, feudal concept (Kanstroom, 1993:174).

4 Smith (1991:13) recognizes that these are 'ideal types' and that "every nationalism contains civic and ethnic elements in varying degrees and different forms." However, it is common to portray nationalisms in this dichotomous form, be it civic-ethnic, Western-Eastern, liberal-illiberal, or political-cultural, and to apply them respectively to early nationalisms in the Western Europe (up to the mid-19th century) and to nationalisms since the late 19th century (Hans Kohn, 1967; Hobsbawm, 1990; for the critique of the use of such dichotomy, see Breuilly, 1994:12-13). Brubaker's argument about the contrasting self-understandings of the nation between France and Germany is also consistent with this dichotomy.

5 In Germany, the failure of assimilation policies toward the Poles and the mobilization of Polish nationalism provided a rationale for conservative parties as well as the government to support a system of jus sanguinis (see Brubaker, 1992:119-137; Blanke, 1981). In France, the group in question were the second-generation immigrants who had already been socially assimilated; their exemption from military service was resented in frontier departments and justified the extension of jus soli to second-generation immigrants (Brubaker, 1992, Ch. 5).

6 Here, territorial nation-building refers to the making of a national community through the consolidation of the existing territorial boundaries of the state. In contrast, German national movements are generally associated with "ethnic" elements, with a frequent reference to the Romantic movement in the early 19th century. However, Breuilly (1994:96-115) demonstrates that the role of ethnic nationalism was limited in the political process leading to German unification in 1871. Since the unification of German states also took the form of territorial consolidation, it would be problematic to label German nation-building simply as 'ethnic.'

7 The English translation of the text of the 1899 nationality law is included in FIournoy (1929:382-386).

8 The compilation of family registries started in 1872 for the Ainu in Hokkaido and the Burakumin, and in 1886 for the Okinawans (Sato, 1988:12, 89-91, 154; Hanawa, 1980). The 1872 family registry also incorporated the descendants of the Koreans who had been brought to Japan in the 1590s after Toyotomi Hideyoshi's invasion into the Korean peninsula (Ubukata, 1979:28-29). These groups were thus legally assimilated into the 'Japanese.'

9 This process in France is examined by Eugen Weber (1976). In the Meiji Japan, too, schooling and military service facilitated the acculturation process that made the 'Japanese' out of populations in Japan.

10 See below for the "Civil Code debate."

11 See (Ikegami, 1995) on the interaction between the People's Rights Movement and the Meiji government, which shaped the nature of civil and political citizenship rights instituted into the 1889 Meiji Constitution.

12 The participants in petitions between 1874 and 1881 for the establishment of a national assembly totaled 319,000 individuals; associations for petition movements existed in all forty-six prefectures (lkegami, 1995:209).

13 The version by Ueki Emori, a prominent minken activist, stated that "[T]hose who are in Japanese political society are defined as the people of Japan;" and the "Itsukaichi Draft for Constitution" prepared by a local minken group regarded "anyone born within Japan" as Japanese (Irokawa et al., 1970; Tanaka, 1982, No. 456:3-5; Hanawa, 1980:307).

14 The theory of allegiance and subjecthood was fully articulated in the Calvin's Case in 1608, which remained embedded in the subsequent British laws on nationality (Jones, 1947 Part II, Ch. 1: Dummett and Nicol, 1990:59-63).

15 Under the Taiho Codes (702), the rural populace was registered by households (ko) and organized into villages (Hall, 1991:53-54).

16 Under the family registration system, children's names are added to the existing registry of their parents. This is conducive to jus sanguinis in that one's inclusion into the membership circle (the aggregate of registries) follows from having a parent who is a member.

17 The effort to secure internal political stability, the desire for trade monopoly, and the fear of Christianity drove the Tokugawa regime to adopt the seclusion policy (Hall, 1991:186-188). Under the seclusion system, contacts with abroad were restricted in Nagasaki (Dejima) and with the Dutch and the Chinese only.

18 Once emigration was banned, the Japanese mother of a child of mixed marriage could not be expelled, and both were to remain in Japan (Hanawa, 1980).

19 Contrary to later laws on nationality, both cases here employed a matrilineal system to maintain consistency in the overall seclusion policy (Hanawa, 1980).

20 The gradual transition from a hierarchical, class-based membership structure to a more generalized, common citizenship is similar to the development in Prussia, where the Allgemeines Landrecht, despite its retention of the hierarchical nature of the Stande, paved the way for a more general state-membership (Brubaker, 1992:57-62). The analogy, however, also has a limit in that politically autonomous cities and municipal citizenship rights had not developed in Japan (Ikegami, 1995:218-219).

21 On the close relationship between the family registration system and conscription, see Fukushima (1967, Ch. 5).

22 Hereafter, references to "Kokusekiho Shingiroku" (Proceedings of the Nationality Law) are indicated by the year, issue number, and page numbers of the journal Koseki.

23 The few countries that employed jus soli as the basic principle were some Latin American countries, the U.S. and Britain. As discussed above, the French law, despite its significant components of jus soli, followed jus sanguinis in principle.

24 This refers to the instances where the wife of a naturalized person remains a foreign national.

25 About 450,000 persons, or slightly more than one percent of the population, were eligible to vote in the first election. The power of the Lower House was virtually confined to withholding its vote on the national budget (Hall, 1991:296-299).

26 Between 1895 and 1900, the Chinese population in Japan increased from 3,600 to 6,900, and comprised more than half of the foreign resident population. Others were mostly Europeans and Americans, whereas the number of Koreans began to grow only after the 1910s (Weiner, 1989:5253).

27 The implementation of equal treaties in 1899 enabled foreigners (other than the Chinese) to reside outside foreign quarters and to 'mix' with the Japanese in terms of residence and commerce. See below for the "mixed residence" debate.

28 There was some heated discussion about the nationality status of the wife of a naturalized person. The hypothetical situations often invoked were those of Europeans, such as follows: "What happens to the family registry if a Western man naturalizes but his wife does not?" (Kokusekiho Shingiroku, 1970, No. 282:27); "European countries are far away from Japan: it is not a good idea to allow naturalization by the husband only; the husband and wife should naturalize together" (Ibid, No. 285:26-27).

29 Inoue Kowashi's main concern was to create a law that would enable foreign judges to serve in Japanese courts by regarding them as naturalized upon their appointment. Although he incorporated some provisions from the 1870 German nationality law, many of the provisions in his draft were similar to those of the 'old' Civil Code and other drafts.

30 Access to the following positions were restricted (Article 16): (1) a Minister of State; (2) the President or Vice President or a member of the Privy Council; (3) an official of chokunin [imperial appointment] rank in the Imperial Household; (4) an Envoy Extraordinary and Minister Plenipotentiary; (5) a General Officer in the army or an Officer of flag rank in the navy; (6) a member of the Imperial Diet. Again, the Interior Minister exercised discretion in removing these restrictions for a particular person (Article 17).

31 As high as 60 percent of Japan's export-import trade was still handled by foreigners in 1900 (Kamachi, 1980:65).

32 The "mixed residence" debate also included the discussion of the Chinese. Since many Chinese in Japan were laborers, opponents emphasized the negative impact of "mixed residence" on public morals, hygiene and wages (Yamawaki, 1994:48-60; Komiya, 1993:62).

33 Inoue Tetsujiro, a Confucian scholar in service to the government, was particularly influential in disseminating the 'family-state' ideology through his official commentary on the Rescript (Chokugo Engi). On the formulation and dissemination of the Rescript, see Gluck (1985, Ch. V); Yoshino (1992:89-91); Umetani (1958); Minamoto (1958).

34 An exception is a comment by a government official Ume Kenjiro on Article 16. When asked if other countries also had provisions restricting the rights of naturalized persons to elect or to be elected for Diet members, Ume answered, "while examples from other countries vary, we put the restriction from the point of view of kokutai and also considering racial sentiment [jinshuteki kanjo]" (Kokusekiho Shingiroku, 1970, No. 280:31). In the revised bill submitted by the government to the Lower House, this particular provision was changed, and naturalized persons were granted the right to vote in national elections (Ibid, 1970, No. 289:29-30).

35 This inclusive tendency is less applicable where a state is created primarily as an ethnic nation-state through secession.

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Chronology: Japan

1639 Seclusion Order promulgated

1854-1865 Treaties with foreign powers

1868 Meiji Restoration; resumption of rule by the Emperor

1871 Family Registration Law Haihan-Chiken (abolishment of domains)

1872 Education Ordinace

1873 National Military Conscription Law Land tax system

1881 Decree promising constitution

1885 Beginning of the Cabinet system

1887 Foreign Minister Inoue (Kaoru) failed in treaty negotiations

1888 Emergence of ethnic nationalism (kokusui-shugi)

1889 Promulgation of the Constitution

1889-1892 Civil Code debate

1889-1899 Naichi-zakkyo ("mixed residence") debate

1890 The first Imperial Diet assembly

1890 Imperial Rescript on Education

1894-1895 Sino-Japanese War

1894 Foreign Minister Mutsu succeeded in treaty negotiations

1895 Shimonoseki Treaty (Acquisition of Taiwan)

1898 Revised Civil Law

1899 Nationality Law Revision of treaties: extraterritoriality ended Imperial Order No. 352
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