JAPANESE CIVIL CODE 395 



In order to reach the ancient conception, we must give to our modern 

 ideas an important extension and an important limitation. We 

 must look on the family as constantly enlarged by the absorption of 

 strangers within its circle, and we must try to regard the fiction of 

 adoption as so closely simulating the reality of kinship that neither 

 law nor opinion makes the slightest difference between a real and an 

 adoptive connection. On the other hand, the persons theoretically 

 amalgamated into a family by their common descent are practically 

 held together by common obedience to their highest living ascendant, 

 the father, grandfather, or great-grandfather. The patriarchal 

 authority of a chieftain is as necessary an ingredient in the notion of 

 the family group as the fact (or assumed fact) of its having sprung 

 from his loins; and hence we must understand that if there be any 

 persons who, however truly included in the brotherhood by virtue 

 of their blood relationship, have nevertheless de facto withdrawn 

 themselves from the empire of its ruler, they are always, in the 

 beginnings of law, considered as lost to the family. It is this patri- 

 archal aggregate the modern family thus cut down on one side 

 and extended on the other which meets us on the threshold of 

 primitive jurisprudence." (Maine, Ancient Law, ch. v.) 



Here I may conveniently compare the house in Japanese law with 

 the family in Roman law, in order to show the characteristics of 

 the former. It differs from the Roman family chiefly in the follow- 

 ing points: 



(1) The house is not a family group held together by "common 

 obedience to the highest living ascendant," as in the Roman 

 family, but is a legal entity originally founded on ancestor-worship. 

 Therefore, it would be nearer the truth to say that it is the 

 highest dead ascendant, by the common obedience to whom a 

 house is held together. The house-head is not necessarily the 

 highest living ascendant, but is a person who succeeds to the 

 authority of the highest ascendant. Sometimes, therefore, a 

 son may be the house-head, and his father may be a house- 

 member under his authority, as in the case of abdication of the 

 house-headship, which I will explain presently. Or, sometimes, a 

 nephew may be the house-head, and the uncle may be a house- 

 member under him as will happen when a grandson succeeds 

 to the grandfather by representation. Or again, there may 

 be no relationship at all between the house-head and the house- 

 member, as I have explained above. 



(2) In consequence of the above difference, the Roman family 

 dissolved at the death of each paterfamilias, and each of the 

 next highest ascendants became in his turn sui juris and a 

 paterfamilias, having all his descendants in his power. Thus, 

 if the deceased paterfamilias had three sons, there would be 



