Elderly Maintenance in Taiwan: A Legally Pluralistic Perspective

 

Grace Ying-Fang Tsai

PhD,
School of Law,
University of Warwick, UK.
laree@warwick.ac.uk

Abstract

This article determines the interaction between customary practices of family mutual support in Taiwan and state law, with regard to the issue of elderly maintenance. Firstly, it examines the way in which plural legal orders of old-age family support actually operate on the ground, and their responses to state law. The courts’ perspective on the divergence between state law and local norms and practices is then reviewed with reference to five illustrative court cases involving elderly maintenance. The article argues that together, state law, other social norms and patriarchal power in the field of elderly maintenance play a significant part in the way in which they interrelate with one another. State law shapes family relations under Confucian ideology, and thus appears to play a dominant role during the interaction of plural legal orders. Local practice and patriarchal power is nonetheless preserved through the use of state law. It is suggested that state law, insofar as it relates to elderly maintenance, needs to be de-centred, and that the gap between state law and social norms of family support could be bridged by incorporating the local practice of family partition within the Taiwanese Civil Code.

Keywords: Elderly Maintenance, Family Law, Family Partition, Inheritance Law, Legal Pluralism, Old-Age Family Support, Social Norms.

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This is a refereed article published on: 28 February 2005

Citation: Tsai, G, ‘Elderly Maintenance in Taiwan: A Legally Pluralistic Perspective’, 2004 (2) Law, Social Justice & Global Development Journal (LGD). <http://www.go.warwick.ac.uk/elj/lgd/2004_2/tsai>

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1. Introduction

According to a Taiwanese national survey conducted in 2000, the aim of which was to establish the nature of elderly people’s living conditions, the number of those whose main income derives from support provided by their children had declined from 65.81 percent in 1986 to 47.13 percent in 2000 (Ministry of Interior, 2000, p 33). It is, furthermore, argued that due to urbanisation and industrialisation, the family’s traditional function of providing mutual support for its members has been undermined (Ku and Chen, 2001, p 100). This has raised the possibility that there is a problem of economic insecurity among elderly people in Taiwan.

The Children’s Support for Parents Draft Bill 2001 was introduced with the purpose of laying down the mechanisms by which, through ‘maintenance orders’ and ‘attachment of earnings orders’, the children of adults would be required to contribute a fixed amount of money to their aged parents’ bank accounts by way of financial support. This draft bill did not enter the legislative process as less than 30 legislators supported it (Legislation Yuan Meeting Rules 2002, Article 8). Nevertheless, some questions were raised by the tabling of the bill: Can the social custom of mutual support within the extended family provide elderly Taiwanese people with an economically-secured old age? What is the actual role of the extended family in cases where elderly people have no income of their own?

Huang (2002, p 69) has indicated that the majority of lawyers were opposed to the introduction of the 2001 Draft Bill because the Family Law 2000 had already stipulated the right of the aged to be maintained by their adult children. Taiwan’s legal education, under the civil-law system, is dominated by the ‘black letter tradition’ (Sugarman, 1991, p 34) in which the law is narrowly defined as a set of regulations enacted by the state or promulgated by the parliament. Backed by political power and legitimacy, the galaxy of state law is usually regarded as if it were an entity capable of controlling the social context.

However, this article argues that the focus on the provision of mutual support regulated in the Family Law 2000 is too narrow for old-age economic insecurity to be resolved. Regulation promulgated by the state and the parliament is not the only form of law. On the contrary, law is a complex aggregation of principles, norms, rules, practices and the activities abstracted from the social context where it exists (Moore, 1973, p 719). As Geertz (1993, p 184) argues, law is a form of social imagination, and the interplay between coexisting norms and cultural perceptions remains spatially and temporally specific. Lawyers practicing among different legal systems can experience different forms of ‘truth’, so far as law is concerned, and may struggle to establish a shared discourse (Cotterrell, 1998, p180). Therefore, it could be asserted that the law and the social context in which it operates must be jointly considered.

Santos (2002, p 437) also points out that people’s legal life is constituted by an interaction and intersection of different legal orders operating simultaneously: that is, by means of a complex interrelationship between state law, customary law and power. Moreover, Fitzpatrick (1983, p 159) maintains that there is a constituent interaction of legal orders and of their framing social fields. The family and its legal order could be profoundly affected by the state legal order, but the latter could also be intensely shaped by the former. While state law is important in constructing family relationships and regulating the position of the aged and their adult children in society, it could be argued that it is also necessary to decentre the state legal system and look beyond it into the realms of social consciousness and relations of power, so as to develop effective strategies for social change (Smart, 1989, p 164; Paliwala, 1993, p 297).

It is widely regarded that Taiwanese society embraces a legal culture which originates from ancient China. Wang (1997, p 150) argues that the legal culture in present-day Taiwan is a combination of traditional Chinese and modern western legal concepts. Many modern legal postulates from western law have gradually been transplanted into Taiwanese society, but Confucianism still has an impact on the Taiwanese legal system. Moreover, it is not new to mention that some customary laws in Taiwan are in conflict with the transplanted state law. For example, Cohen (1978, p 178) indicates that the local system of property relationships in southern Taiwan is in conflict with contemporary inheritance law, which gives sons and daughters equal rights to their father’s property. That is, according to standardised local practices, women would sign away all claims to family land when they marry, or upon their father’s death. However, no study has been conducted to examine how such conflicts among plural legal orders would affect the problem of old-age economic insecurity in Taiwan.

This article considers the interactions of customary practice concerning family mutual support and state law within the social field of elderly maintenance in Taiwan. Firstly, it examines how the plural legal orders of old-age family support actually operate on the ground, and outlines their responses to state law. The courts’ perspective on the divergence between state law and local norms and practices is then reviewed through five illustrative court cases of elderly maintenance. This article then argues that state law, other social norms and patriarchal power in the field of elderly maintenance all play a significant role through their interrelations with one another. State law shapes family relations under Confucian ideology, and thus appears to be in a dominant position during the interaction of plural legal orders. Local practice and patriarchal power is, nonetheless, preserved through the harnessing and use of state law. It could be suggested that state law, insofar as it relates to the maintenance of the elderly, needs to be de-centred, and that the gap between state law and social norms of family support could be bridged by incorporating the local practice of family partition into the Taiwanese Civil Code.

2. State Law Regulating Elderly Maintenance

Under the Family Law 2000 in Taiwan, the right to seek court orders for financial support belongs to not only married couples and children but also to members of the extended family. Lineal ascendants and lineal descendants by blood are first in terms of fulfilling this maintenance obligation, while the head of the household and any other members in the same household come second, brothers and sisters third, and parents-in-law and children-in-law fourth (Family Law 2000, Article 1115).

Accordingly, elderly people may seek a financial order against their children on the grounds that they are unable to sustain themselves (Family Law 2000, Article 1117, Section 1). Parents may also file a complaint against a grown-up child, regardless of their capacity to work (Family Law, 2000, Article 1117, Section 2). The duty of lineal descendants by blood to provide financial support may be reduced on the grounds of financial difficulty, but not entirely waived (Family Law 2000, Article 1118).

It is important to note that both sons and daughters are required to play an equal role in the obligation of supporting parents according to the terms of Family Law 2000. It is also important to note that there is no connection between the obligation of providing elderly maintenance, as regulated in Family Law 2000, and the statutory right to inherit parents’ property, as stipulated in Inheritance Law 1985, in which sons and daughters have an equal right to inherit (Inheritance Law 1985, Article 1138). Moreover, widows are entitled to an equal share of their late husbands’ legacy with their children, as delineated by Article 1144 of Inheritance Law 1985.

In cases where elderly people satisfy the grounds of complaint, the maintenance dispute should first be negotiated by the parties concerned, in terms of means of support (Family Law 2000, Article 1120). According to Dai (2002, pp 541-542), there are three methods of supporting elderly people:

a) The other party could live with the elderly person and look after him/her;

b) The other party could provide goods or money to maintain the living of an elderly person. This pecuniary support could be a lump-sum payments or periodical payments.

c) The other party could establish the ‘support property’ for the elderly person to use or benefit from. (eg a house could be provided so that the elderly person could live in or benefit from the rent).

When determining the extent of support required, the court will consider how the reasonable needs of the elderly may best be met in the light of the resources available. The living costs of the elderly must be taken into account. In making its decision, one of those factors that are taken into account is the position and financial conditions of the person who is obliged to provide support (Family Law 2000, Article 1119).

3. Customary Practice: Family Partition

The prevailing ‘inner core’ of regulatory norms affecting the economic position of elderly people in Taiwan comprises customary family structure and property relationships, which are alien to the family relationship constructed by Family Law 2000. In imperial China, the family (Chia in Chinese) played a highly significant economic role, as it was a primarily social and economic unit consisting of members related to each other by blood, marriage, or adoption, and sharing a common budget and common property. That is, all of the domestic property, including land, crops or money, was always owned in common and maintained for or used by the whole family, with the eldest male or head of the family as trustee. Family members with separate incomes from business or salary were supposed to contribute all of their money to the pool of family treasury administered by the family head or assistant (Lang, 1968, p p17, 158). Under the common budget, the aged parents were financially supported by the undivided patrimony, regardless of their ability to work.

Apart from the disparity of family relationships constructed by Family Law 2000 and local custom, the concept of ‘property ownership’, as regulated by Property Law 1995, deviates from the customary one. Instead of the ‘family’, modern property law recognises the ‘individual’ as the basic economic unit. Elderly people’s rights to property are protected if they have assets. However, the problem of old-age economic insecurity emerges when the social custom of ‘family partition’ (fen-chia in Chinese) takes place, which may require people who are elderly to transfer their property to their adult children before the former’s death.

According to Cohen (1970, p 35), fen-chia was a juridical act of family fragmentation. Parents and children, brothers and other relatives would cease to be members of the same family after the family partition. New families were formed through the division of property. Together with property separation, many kinds of existing or potential co-operation would be terminated. The obligations that tied family members together, such as mutual support, would also come to an end. Pearl S Buck’s novel, A House Divided (1935), provides an early description of the tradition of fen-chia.

Under existing Property Law 1995, fen-chia may take place only in accordance with the aged parents’ wishes, and if the family assets and personal earnings are registered in their names. Customarily, the process of family partition may be initiated not only by aged parents. Rather, any son who is married¹ could, at any time, petition for a division of family property, regardless of the parents’ age (Shiga, 1978, p 135). However, if still alive, the father’s consent must be obtained before the family property can be divided, and, sometimes, he may initiate the division himself. The same applies to unmarried sons.

Traditionally, equal rights to family property apply to brothers, but not the mother or sisters (Cohen, 1978, p 189). It is well known that Chinese women have virtually no property rights. As Lang (1968, p 44) points out, daughters tend to receive small shares of family estate in the form of dowry, while the rest of the family property, in most cases, is distributed among the male family members at the point of family division. Cohen (1978, p 178) also maintains that even though the contemporary inheritance law in Taiwan emphasizes individualism and gender equality in property relations, and grants sons and daughters equal rights to their parents’ assets (Inheritance Law 1985, Article 1185), the standardised customary response to it is to require women to relinquish their right to family property when they marry, or upon the death of one of their parents. Daughters and wives would be regarded as heirs to their father’s and husband’s property only if no man survived in the clan (Lang, 1968, p 44).

Under the custom of fen-chia, maintenance for elderly people appears to be part of the ‘family partition contract’. Cohen (1978, p188) demonstrates that family partition in Taiwan is essentially a contractual procedure, in which a document would be drawn up at the end of partition proceedings which records details of the distribution of property and the allocation of responsibilities among the parties concerned. In some cases, the basic agreement regarding elderly maintenance is noted in the division document, but the methods of support are usually left unspecified. In other cases, the obligations towards the maintenance of elderly people are orally agreed but not included in the texts of partition documents.

According to Dai (2002, p 525), sons usually preserve collective responsibility for supporting aged parents and paying for their parents’ funerals after family partition. That is, the aged parents become the ‘collective dependants’ of the new families established by their sons after fen-chia. A room in each son’s house would be offered, and they would be looked after in rotation, usually monthly. This rotational arrangement is favoured because it makes it unlikely that a son will fail to live up to his commitment (Cohen, 1978, p 190).

There are alternatives to the rotational support of aged parents. For example, a portion of the family property under the title yang-lao (meaning ‘for old-age living’ in Chinese) may be allocated to the elderly person in question (Shiga, 1978, p 135). Alternatively, only one of the sons would support their aged parents, and in return, would receive compensation from the others, which may be in the form of fixed payments or through the assignment of additional land to the party undertaking the responsibility of providing the maintenance. Cohen (1970, p 25) indicates that in areas where land is not fertile or the farming area is rather small, only one son could feasibly remain with his aged parents on the family land. Whether given a cash settlement or not, imposing total responsibility for supporting aged parents upon the son who stays on family land is often be accepted by the other sons as adequate reimbursement.

The alternative arrangement may also be associated with the concept of the ‘eldest grandson’s land (Chang-sun tien in Chinese). The eldest grandson has a special status in Chinese kinship In Wolf’s study of Chinese mourning dress and its symbolism in Chinese kinship (Wolf, 1970, pp 195-196), it is found that the senior grandson goes to the grave dressed like the son, and is regarded as the youngest son of the deceased. Additionally, the senior grandson goes to the grave dressed as a son because he inherits as a son would. In other words, he has the right to inherit a share of the family estate with his father and uncles. According to Cohen (1978), the ‘eldest son’s land’ is rarely, if ever, freely awarded in Taiwanese society, for its allocation is inevitable on condition that the recipient’s family would provide the only support for aged parents (Cohen, 1978, p191). That is, if the ‘eldest grandson’s land’ is allocated, the eldest son’s family is assumed to take sole responsibility for maintenance of an elderly relative.

4. Courts Attitude Towards Plural Legal Orders of Elderly Maintenance

Given the conflict between the state law of old-age family support and the customary practice of family partition, it is useful to provide a sample of the cases that have come before the courts where such conflict has arisen. The interaction between state law and local custom may be effectively examined through the reasons and justifications given in court judgments.

Kaohsiung District Court, 1997 Family Lawsuit No 111

The plaintiff (the adoptive mother) claimed that the defendant (the adopted son) should give her NTD 10,000 per month as a maintenance fee until her death, for the latter was her adopted son and is supposed to repay his parents when he turns into an adult with financial ability. In contrast, the defendant emphasised that he did not give the plaintiff any financial support because the latter had abused him in childhood by stopping him going to school, demanding that he pick sweet potatoes and miscellaneous grain crops left in the farmland, and perpetrating regular physical abuse. He also stated that he had repaid the obligation to support the plaintiff by giving all of his income to her before he got married.

The Kaohsiung District Court maintained that: ‘Support is a legal obligation based on certain family relations in accordance with principles of human relationships and practical necessity. The obligation of support would be exterminated only if the concerned parties die, the family relationship between the two parties has come to an end, or there is no need for support. It could be said that the Confucian ideology of ‘filial piety’ is regarded by the court as a principle of human relationships, and the issue of ‘providing elderly maintenance’ is seen as an ordinary obligation that adult children should fulfill. The nature of the parent-child relationship is not taken into consideration and the extent of the child’s responsibility is not affected in cases of antagonism. In other words, bitter parent-child relationships did not affect the decision in court as to whether there is a maintenance obligation.

Moreover, the defendant asserted that he received no family property from his adoptive parents. It was also maintained that his adoptive father, in return, declared that he would be exempt from the responsibility of providing maintenance for the adoptive parents. Nevertheless, judgment was made in favour of the plaintiff since the defendant failed to provide any evidence in support of his adoptive father’s claims. Therefore, the defendant was still required by the court to pay his adoptive mother’s maintenance fee.

Tai-chung District Court, 1999 Family Lawsuit No 75

The plaintiff (the mother) had four sons and two daughters (the third son died in 1999). She claimed that her eldest son (defendant A) and second son (defendant B), who deserted her, should give her NTD10,000 per month respectively until her death. It was asserted that her fourth son had fulfilled his maintenance obligation by living in the same household. As for two daughters, the plaintiff had no plan to file a legal complaint against them either, since they had shown willing filial piety by giving her pocket money occasionally.

In contrast, defendant A claimed that the fourth son was the only child who received family property from his father. The land and house, worth over NTD10,000,000 in total, were transferred to the fourth son by ‘fake selling’², because he had declared that he was willing to take the sole responsibility of maintaining his aged parents. Based on the concept of ‘fairness’ and ‘justice’, defendant A maintained that the whole responsibility of supporting parents should fall to the one who owned the family property.

In this case, those parties involved reached a settlement during the process of litigation on 3 December 1997: four sons would live with their aged parents in the same household, each for a three-month period in rotation. In cases where the medical fees might exceed NTD50,000, the cost would fall equally to the sons. Owing to the fact that the settlement reached in the process of litigation has the same effect as judgment (Civil Procedure Law 1996, Article 380), the court ruled that the aged mother should be jointly supported by her three surviving sons in rotation, for the settlement should be binding upon those parties involved.

Yun-lin District Court, 1998 Family Lawsuit No.3

The plaintiff (the aged mother) has two sons and three daughters. She indicated that five children and her gathered at the office of a dai-shu³ upon the father’s death, and agreed that the legacy would be inherited only by the sons, and that it should therefore be the sons’ responsibility to look after the aged mother in return. As a consequence of this, it had been argued that the plaintiff and her daughters had given up their right to inheritance, and all of the real estates were transferred under the name of the sons. Owing to the fact that the eldest son had run away on account of debts, the plaintiff claimed that the defendants (the second son and daughter-in-law) should provide her with a maintenance fee amounting to NTD15,000 per month until her death.

By contrast, the defendants claimed that they were willing to look after the plaintiff by living in the same household, but they did not have enough money to pay for the maintenance fee the plaintiff required, for they still had children and a grandmother to support.

Even though both parties appear to agree that the obligation to support the plaintiff belonged solely to the sons due to the partition of family property, the court held that the responsibility for providing maintenance to the plaintiff should be shared equally by sons, as well as three daughters (Family Law 2000, Article 1115), since all of the daughters had good jobs and enjoyed a degree of financial security. As a result, the second son (the defendant) was only required to give the plaintiff NTD 4,000 per month from February 1998 until the day the latter dies.

Chia-yi District Court, 2001 Family Lawsuit No 15

The plaintiff (the adoptive mother) asserted that she had two sons and two daughters. After her husband had died, the family property was jointly inherited by the defendant (the adopted son) and another son born to her, but not the daughters and her. However, the defendant did not fulfil his obligation to provide financial support for the plaintiff. In other words, the plaintiff had been exclusively maintained by another son after the family partition took place. Therefore, the plaintiff claimed that the defendant should give her NTD5,000 per month as a maintenance fee. In opposition to this, the defendant argued that he was willing to look after the plaintiff, but he had not been able to do so because he was unemployed. He argued that he used to give money to the plaintiff, but she told him that he did not need to do so because he was paying for a mortgage and had financial difficulties.

The court found that the defendant owned land, a house and a car according to records kept by Provincial Revenue. Therefore, the court ruled that the defendant had the financial ability to support the plaintiff even though he was unemployed. Based on the statistical data provided by the Executive Yuan in 1999, moreover, the court suggested that the basic living cost for each person should be NT$20,793 per month. Owing to the fact that the plaintiff had two sons and two daughters in total, the court ruled that the defendant only needed to take one fourth of the maintenance obligation. Therefore, the plaintiff’s claim, which required the defendant to pay maintenance fee amounting to NT$5,000 per month, was granted.

Kaohsiung District Court, 2001 Family Lawsuit No 44

The plaintiff (the aged mother) stated that she had five children, three sons and two daughters. She and her late husband owned 17 pieces of land and five houses. Both her daughters and herself had relinquished their right to inherit upon her husband’s death in accordance with social tradition. The three sons inherited houses and lands from their father in equal measure. She was staying in a nursing home costing NTD 30,000 per month. Her eldest and second sons shared the cost, but not the defendant (the third son). She claimed that the defendant’s financial ability was sufficient to share her maintenance fee with the other two sons, and the defendant should give her a lump-sum financial support amounting to NTD 1,310,076 in terms of the average longevity in Taiwan in 1998 provided by the Ministry of Interior. The plaintiff also maintained that her daughters should be exempt from supporting her, because their financial condition had deteriorated since they gave up their right to inherit.

The defendant did not provide any defence document in this case. The court ruled that all five children should take responsibility for providing maintenance together in terms of their financial ability (Family Law 2000, Article 1115). Based on the assets records of five children kept by the Provincial Revenue, the court decided that the maintenance fee for the plaintiff should be NTD 40,000 per month, which should be shared as follows: 1/20^th to the eldest son, 8/20^th to the second son, 8/20^th to the defendant, 1/20^th to the eldest daughter and 2/20^th to the second daughter respectively. The plaintiff’s claim to be supported by the defendant was granted.

Through these court cases, it could be said that family partition is a common practice in the local community. Based on this social custom, the property of elderly people was transferred to adult children in the former’s late years or upon the father’s death. The involved parties generally agreed that only the sons, or one of the sons, would receive family property from aged parents, while the mother and daughters would claim to give up their right to inheritance. In return, it was also well accepted that those who received a share of family property had the responsibility of supporting aged parents as an adequate reimbursement. Therefore, it may be tenable to say that there is a correlation between rights and obligations in terms of the right to family property and the obligation of elderly maintenance, according to the perception of those involved.

There would be no problem of elderly people finding themselves economically insecurity in cases where such an arrangement was accurately followed. However, elderly people, especially old widows, would encounter financial difficulty if the grown-up children who received family property failed to provide the former financial support in return when the former were in need. Moreover, it could be argued that elderly people’s rights to maintenance may be damaged by the conflict between the social custom of family partition and the state law regarding maintenance to elderly people, as applied by the courts.

According to the courts’ judgement, it appears that the courts assume that both sons and daughters, regardless of receiving family property or not, should share the responsibility of providing maintenance to elderly people, as Article 1115 of Family Law 2000 stipulates. Based on the first two court cases mentioned above, elderly people may be better off because the court judgments require the accused sons, who did not receive family property, to fulfil their legal obligation of providing financial support to elderly people.

However, the maintenance fee ordered by the courts may fail to provide elderly people with an economically secure life under such gender-neutral principle of maintenance. This could be demonstrated by the last three court cases mentioned above where daughters were involved. The plaintiffs either positively maintained that daughters should be exempt from the responsibility of support because they had given up their right to family property, or passively showed no intention of filing the maintenance complaint against daughters. By contrast, the courts all held that daughters, as well as sons, had the obligation to support aged parents, and the defendants’ share of elderly maintenance fee was decided as based on the total number of children the plaintiffs had. Given this conflict between the perspectives on elderly maintenance as adopted variously by the concerned parties and the courts, it could be said that even though the courts ruled that part of the maintenance fees should be paid by daughters, such judgment could not be reinforced because elderly people had no intention of asserting their rights to be maintained by their daughters in the court. As a result, elderly people may remain in financial difficulty under court judgements because the amount of maintenance fee the courts require the defendants to pay would be lower than that which is required by elderly people to make ends meet.

A possible explanation for the tendency on the part of courts to ignore the social custom of family partition as a special contract of elderly maintenance and inheritance, and rule the cases in terms of the gender-neutral Family Law 2000 may be embedded in Article 1 of General Principles of Civil Code 1982, which stipulates that ‘in civil matters if there is no provision of law applicable to a case, the case shall be decided according to custom. In other words, state law is given a superior status to social custom, as a legal resource of civil cases (Wang, 1997, p 144). Custom would come to be relevant only if the concerned matter is not regulated by the state law. Therefore, the practice of family partition is excluded from forming the legal basis of maintenance and inheritance cases, because the Family Law 2000 and Inheritance Law 1985 have provided gender-neutral regulations and does not seek to connect financial support of elderly people with inheritance and family partition.

5. Conclusion and Recommendations

It is true that state law takes identity from, and derives support from other social norms. Nevertheless, these norms may simultaneously support and conflict with state law (Fitzpatrick, 1984, p116). In the case of providing maintenance for elderly people in Taiwan, the state family law and the local practice of family support share the same element: elderly people have the right to be maintained by their adult children. In other words, the state law, in effect, reflects the local practice of elderly maintenance which requires grown-up children to fulfil their obligation of supporting aged parents. However, part of the local practice is opposed to state law, so far as gender is concerned. That is, both sons and daughters are obliged to support aged parents in terms of Family Law 2000, while only sons, but not daughters are expected to fulfil the responsibility of elderly maintenance according to local custom in Taiwan. Such a divergence between state law and local practice is derived from the gendered custom of the family partition, which is a special contract for the purposes of providing maintenance to elderly people and inheritance that remains binding upon patrilineal parties only.

This paper does not intend simply to posit the existence of multiple legal orders in the same social field of family support. Rather, it aims to develop hypotheses concerning the relations between normative orders. It argues that normative orders of family support are shaped by state law, but that state law is in turn profoundly affected by normative orders. Moreover, the implication of state law is intensely shaped by the power of patriarchy within the family.

To modernise patriarchal society within China, the principle of gender equality transplanted from the models of modern German and Swiss Civil Codes were introduced in Family Law 2000 and Inheritance Law 1985 (Wang, 1997, p 157; Ma, 1995, p 215). However, according to the civil indictment of the elderly maintenance cases studied above, and a survey of Taiwan’s civil custom conducted by court judges (Ministry of Justice, 2004), widows and daughters are seldom seen to inherit property from their late husbands and fathers. Owing to the fact that the voluntary waiver of one’s right to inherit is permissible as far as the Inheritance Law 1985 is concerned, mothers and daughters sign away their share of family property in most cases (Ministry of Justice, 2004, pp 526- 534). To prevent daughters from asserting the right to inherit upon their parents’ death, moreover, newly-bought real estates are often registered under sons’ names rather than those of their parents (Property Law 1995, Article 758). As for those already registered under an elderly parent’s name, these tend to be transferred to sons before the parents’ death in the form of a sale (Civil Code, Article 345) or gift (Civil Code, Article 406). In return, daughters are not expected to provide their aged parents’ maintenance fees, and aged mothers are expected to be supported by sons. Both these situations may be seen in the plaintiffs’ statements of the maintenance cases, as mentioned above.

It may be tenable to say that the gendered custom of family partition is penetrated by gender-neutral state law. For example, both sons and daughters are obliged to share the responsibility for providing maintenance to aged parents, and have equal access to their parents’ legacy under state law. The effect of state law could comply with local practice, whereby only sons are regarded as heirs who have a ‘maintenance duty—inheritance right ‘ relationship with the father, but only if wives and daughters are willing to relinquish their right to inherit and aged parents do not file a maintenance complaint against their daughters. Consequently, it could also be said that the local custom has survived such that its fundamental elements are shaped by state law (the Civil Code) (Fitzpatrick, 1983, p 159)

Even though state law appears to be in a dominant position in this interaction of plural legal orders, local custom not only resists the penetration of state law but also capture and use the rules of state law (eg the Civil Code) to preserve its existence (Merry, 1988, p 881). Family assets tend to be transferred to sons prior to an elderly parent’s death, or continue to be registered under a son’s name instead of that of a parent’s, and in return, aged parents show no intention of filing maintenance complaints against daughters. As Moore (1973, p 723) maintains, state law is often passed with the intention of altering the existing social arrangements in specified ways, but the latter are often effectively stronger than the former.

Moreover, it is important to note that power relations within the family, especially patriarchal power, impact upon the effectiveness of state law. According to the court cases studied above, the effectiveness of gender-neutral state law, granting that widows and daughters have the right to their husband or father’s legacy, is undermined by the power of patriarchy. Patriarchy is an unequal social relation, which excludes women from privileged activities and transfers the fruits of women’s material labour and nurturing energies to men (Young, 1990, p 50). Owing to the fact that women are denied access to family property, as based on Taiwan’s local custom, it could be said that social relations of property management, based around domestic space, tend to be organised by patriarchy as a system of male control over women’s social reproduction (Santos, 2002, pp 379).

The implication of this paper is twofold. First of all, it is suggested that the Family and Inheritance Laws be changed so as to reduce the disparity between state law and family relations embedded in social customs. Based on the analysis of court cases mentioned above, elderly people’s rights to maintenance could be damaged by the contradiction between the gender-neutral Civil Code and the patriarchal practice in inheritance and elderly maintenance. This ambiguity is embedded within Confucian family relations. The courts tend to ignore the social customs of family partition, and the courts’ decision as to the extent of support the defendant should share tends to be less than that which the defendant is supposed to undertake in terms of the maintenance contract agreed in the process of family partition. In such a process, it is postulated that only sons but not daughters or those without family property are obliged to provide support.

Indeed, some gaps between state law and other social norms may be unbridgeable (Fitzpatrick, 1984, p 128). However, the divergence between state law and the local practice of family partition should be reconcilable by establishing a relationship between the law of family support and inheritance. In other words, family partition should be recognised as a special contract of elderly maintenance and inheritance by state law. A heavier responsibility of elderly maintenance should be imposed on those family members who receive a larger share of the family property, and those who have looked after and supported old people should have the right to a bigger share of the inheritance. Additionally, elderly people should be able to promise assets to the other party after they die, in return for the latter supporting the former in their later years (Beyens-Wu, 1988, pp 316-317). Through such legal changes, elderly people would be more economically secure in cases where they assert their right to be maintained in the court, since heavier support responsibility could be imposed on those whom the aged are willing to file complaints against. Even though such suggestion may be regarded by feminists as bringing society back to patriarchy, it may be argued that elderly women would be better off to be supported by those who benefit from family property according to the special contract of family partition, as compared to being exposed to the conflict of gender-neutral state law and gendered social custom and subsequently falling into old-age poverty as shown in the court cases mentioned above.

Moreover, the legal positivism predominating in Taiwan’s legal education, asserting as it does the autonomy and authority of the law and the law’s moral and political neutrality (Campbell, 2000; Maccormick, 2000, p 48; Kramer, 1999), should be deconstructed. When law is understood sociologically, it is replaced by a conception of participant perspectives on law, interacting with a broader and more inclusive character of law as a social phenomenon (Cotterrell, 1998, p 188). Following this, legal thinking should move away from the ideology of legal centralism to other forms of ordering and their interaction with state law (Merry, 1988, p 889). As Sugarman (1991, p 63) argues, law, by operating like a language, names and claims wider areas of social life, belief, action and intention. Therefore, law’s inherent character as an unsettled product of relations, with a plurality of social norms and power, should be recognised (Fitzpatrick, 1984, p 138). Since law’s identity is constantly and intrinsically subject to challenge and change (Griffiths, 2002, p 309; Fitzpatrick, 1984, p 138), the enquiry of law should not be limited to what state law is. The nature of law in a given context should be reconsidered (Hellum & Stewart, 1998, p 23), and the internal aspect of law perceived by legal participants should be examined (Fitzpatrick, 1991, p 9).

Endnotes

¹ A man’s taking a wife means that he is now juridically an adult in Chinese society (Cohen, 1978, p 188).

² ‘Fake sale’ means that the family estates are transferred within the family in the name of ‘sale’. However, no price would be provided by the ‘fake buyer’ in such cases.

³ Dai-shu is the person who writes legal documents for others in Taiwan. It literally means writing on behalf of someone.

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