Jus Sanguinis in Japan The Origin of Citizenship in a Comparative Perspective

Abstract

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. …