Butterfly, the Bride: Essays on Law, Narrative, and the Family

Chapter 6. Law

Chapter Six Law "You know, after all, if you have such a fancy for her, I haven't really married her; one can't really consider her my wife." ... "Not your wife, you say? But, by Jove, though, that's just it; she is your wife." Pierre Loti, Madame Chrysanthemum The story ofMadame Butterfly has as an important part ofits background the marriage and divorce law ofJapan, under which Yamadori, the princely suitor, has already divorced a varying number ofwomen. "Yamadori who was bred to the law, tells me that our law prevails in such matters, the marriage having taken place here," John Luther Long writes.1 What actually was that law? This question might be answered by reference to the professional understanding of the rules of the system, given by an authoritative voice. This authoritative voice differs in the various narratives of Madame Butterfly. Long asserts, "IfPinkerton had told her to go home . .. she would have been divorced, withoutfurther ado. "2 The lawyer-writer indicates that abandonment by the husband means divorce, even in the absence ofjudicial or legislative process. In Hwang's M. Butterfly, abandonment means annulment of the marriage. Pinkerton says, "I split for one month, it's annulled." (The idea ofalease terminable at the end ofany month is associated with the rental of the house in the Long story and again with the idea that a Japanese husband would have Cho-Cho-San for a month and then divorce her.)3 In Belasco there is a reference to divorce by saying (presumably the husband says this) to //walk it back to parent, "4 In one English translationS the idea seems to be that abandonment by the husband gives a "right" ofdivorce.6 The "law" itselfmight be any of these or none, since the question ofwhat the law is can be distinguished from the question what the characters seemed to believe the law was. Even if we knew what law was and was supposed to do, could law have done it? If the Japanese law had mandated ordinary Western monogamous 117 118 BUTTERFLY, THE BRIDE marriage, would that have eliminated the system on which the temporary marriages were based?7 Why are there alternative versions of the Japanese law in the narratives? Why the failure to distinguish between divorce and annulment , a right to divorce and thefact ofa self-executing divorce? One answer might be that Americans writing about foreign law are unclear about its details. Questions oftranslation, for example, are ubiquitous. Another answer is the considerable slippage between what lawyers think the law is and what laypersons think. Yet another is the ambiguity that inheres in law because law exists in language , which remains ambiguous despite our best efforts. Finally, there is some doubt about law when we attempt to fix its meaning . Are we talking about statutes? practice? now? then? holdings? Dicta? Are we talking about instrumental or expressive aspects? These issues are the subject ofthis chapter. How is law understood by people not primarily concerned with law? Is it precisely or accurately understood? Can we talk sensibly about law's expressive, as against instrumental, functions ? These questions are particularly raised by commentators aware of the "limits of law." They suggest that iflaw cannot act instrumentally, it can at least act expressively, communicating values even where it cannot directly enforce them. Thefirst part ofthis chapter considers that proposition, concluding that the messages oflaw are highly complex, even contradictory, and perhaps less well known than lawyers assume. The second part of the chapter addresses more directly differing ideas ofthe role ofthe state as it deals with the family. Instrumental and Expressive Functions of Law The changing role of the family in the law is captured in the headline of a New York Times article published in September 1988: "Family Law: Battle Ground in Social Revolution." In that article, Linda Greenhouse writes, "Family law, long a professional backwater, has become a new constitutional battle ground on which the social revolutions in family structure, child bearing and personal relationships are being fought."8 Family law is an arena in which issues of law and medicine, law and technology, and law and morals, are being discussed. The field is understood as being centrally important to our common situation. Along with this comes a renewed emphasis on the use of law to shape that situation. This chapter concerns the suggestion that expressive or symbolic LAW 119 aspects of...