Working out on your fitness? great…but how is our law doing?: the biological foundations of Japanese family and inheritance law

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Abstract

Is “law, merely the written rules that humans have created to regulate behavior? Or are there biological foundations common to humans and other creatures, that are expressed in written law? Could the determinants and/ or the foundations of law be explained by evolution or "fitness" theory? Family law and inheritance law, inter alia, should reflect the influence of evolution and fitness on family and reproduction, human behavior and psychology. This paper will use the tool of "fitness" to examine and evaluate the family law and inheritance law in the Civil Code of Japan, in an endeavor to take half a step toward explaining human law from the perspective of evolutionary theory. It will reveal the effectiveness, and at the same time the limitations, of such a perspective. To serve this purpose, the paper will first examine the articles in the Japanese Civil Code that represent human behavior which demonstrate much in common with animal parallels maximizing their fitness, such as reciprocal altruism, incest taboo, and mate guarding. These articles in the Code concern loan for consumption, lease incest taboo, presumption of "legitimacy" or determination of paternity of a child, and family support. Second, this paper will examine statutory regulations and their reforms which are not in harmony with fitness theory. These include articles on degree of consanguinity, testamentary document (will) and heirs' legal portion (reserved for the successor at law; or Pftichtteil in German). Finally, the paper introduces the concepts of degrees of fit succession (FS), of presumed fit succession (PFS), and of inclusively fit succession (IFS), to examine and evaluate the reforms on statutory share in succession of a spouse (wife) in the Civil Code of Japan, 1898 to present.

Journal

  • 法学志林

    法学志林 108 (2), 45-73, 2010-09-29

    法学志林協会

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