“He Is Still Your Father”: Tetherings, Social Welfare, and Troubled Parental Maintenance Litigation in Taiwan

Abstract

This article is a story about tetherings, a concept that illuminates the power of law in the relational dynamics of individual-family-state. The concept emerges from my qualitative study of parental maintenance litigation in Taiwan over the provision of financial support to troublous parents, who mistreated their children when they were young. Troubled parental maintenance litigation arises when nobody wants to look after these elderly people, and the state restricts their access to social welfare by holding their estranged children financially responsible. Such litigation leads to empowerments and disempowerments for litigants, as well as legal reform and detriments for the state. Bridging sociolegal scholarship on continuing relations with feminist vulnerability theory, “tetherings” is both an empirical and a normative concept concerned with the relational nature of power, and the openness of humans and institutions to harms and other changes. The concept is empirical, being the paradigm through which I trace disputes and other relational processes of individual-family-state; it is normative because my empirical analysis aims to expose the state’s workings and detail how people respond to law and power that binds them to one another and the state. “Tetherings” advances feminist vulnerability theory and offers a circumspectly optimistic view on the potential of law.

INTRODUCTION

One day in October 2018, Wan-Yi received a phone call from a municipal social worker in Taiwan. For the first time in eighteen years, Wan-Yi learned that her father was alive. Mr. Ma used to drink, gamble, and beat Wan-Yi’s mother, Madam Liao. When Wan-Yi was in elementary school, Mr. Ma left them, and Madam Liao filed for divorce.

The social worker informed Wan-Yi that Mr. Ma had sustained a stroke. She also said that Wan-Yi, her sister, and her two brothers, as Mr. Ma’s adult children, were required by Taiwanese law to pay for his expenses, which included hospitalization, surgery, and long-term care at a facility (or, they could look after him at home). Wan-Yi rushed to the hospital.

“Is that him?” She peered at the bedridden man. Finally, she recognized Mr. Ma’s tattoos. And Mr. Ma recognized her. But he was impaired by the stroke and could not speak. As he raised his hand to gesture, Wan-Yi cowered, her reflexes from twenty years earlier kicking in. Mr. Ma had often shoved Wan-Yi when she tried to shield Madam Liao from his beatings.

If the municipal government pays for Mr. Ma’s expenses, it can recover the debt from Wan-Yi and her siblings, the social worker added. On the day of Mr. Ma’s hospital discharge, Wan-Yi emptied her bank account to pay for his medical treatments and had no money left to take the bus home. Wan-Yi admitted Mr. Ma to a nursing home, and the bills piled up.

“Why should I bear this burden? Why should I live like this? I wish the surgery had failed!” On April 19, 2019, Wan-Yi and her siblings sued for an exemption from their maintenance duty to Mr. Ma. ¹

Wan-Yi was taking advantage of Article 1118-1 of the Taiwanese Civil Code (CC-1118-1), which empowers children to argue that their parents’ past behavior entitles them to be relieved from their maintenance obligation. The alleged wrongdoings of these parents, whom I refer to as “troublous parents,” include nonprovision of child support, heavy gambling, substance abuse, and domestic violence or other criminal conduct. Before the enactment of CC-1118-1, parental maintenance duty could not be exempted based on the parent’s misdeeds. The Taiwanese government enacted CC-1118-1 in 2010 in reaction to public opinion. Nevertheless, CC-1118-1 failed to sufficiently address existing problems and created new concerns for the government, leading to further legal reform.

TETHERINGS, VULNERABILITY, AND LAW

Wan-Yi and Mr. Ma’s story illustrates “tetherings,” this article’s main concept, which helps us examine the role of law in the three-way relationship among individuals, their families, and the state. As part of a larger study on aging and law, I investigated whether and how Taiwanese sue over the legal requirement to provide financial maintenance to elderly parents. From my qualitative, empirical study, I learned that parental maintenance litigation most frequently arises among troublous parents when they have no family willing to provide for them, the state restricts their access to social welfare, and it instead holds their children financially responsible by enforcing “state familism,” its version of the ideology that families bear the primary responsibility of caring for their own. ² Taiwanese parental maintenance laws enjoy some legitimacy because state familism resembles to a certain degree lived familisms, variations of the ideology practiced by Taiwanese in everyday life. As individuals, their families, and the state interact and shape one another’s power and agency, they continuously construct the institution of family (Coontz 1988). ³

My fieldwork on Taiwanese parental maintenance litigation contains references to individuals, families, and the state being bound together. For instance, Taiwanese law labels the relationship between parent and child “direct lineal” (直系) or, literally, “direct binds.” My interviewees describe the estrangement between troublous parents and their children as “a knot in the heart” (心結). They also explain how children of troublous parents are “tied up” (綑綁) by the legal obligations of maintenance and why they apply for exemptions to “loosen the noose” (解套).

Informed by my findings, “tetherings” refers to the power dynamics of human-human, human-institution, and institution-institution relationships. Individuals, their families, and state and social institutions possess varying capacities across time and space to act on others in a relationship—to influence their behavior, ideas, or emotions, through blatant force or subtler forms of control; their power and, conversely, agency to respond to the power of others are relational, mutually dependent on human/institutional interactions that alter their capacities and, thus, their relationships. Correspondingly, all humans and institutions in a relationship are always open, with the potential of being changed and changing for better or worse.

Hence, “tetherings” conceptualizes power dynamics not as static but as unstable social phenomena. Imagine Wan-Yi, Mr. Ma, and state agents bound in a tensional, circular formation without a fixed locus of balance. The formation’s center of tension shifts as the parties exert or respond to power according to the capacities that they possess and summon for the interaction at hand: ⁴ compare the situation where the social worker reminded Wan-Yi of her legal responsibility toward Mr. Ma to the later scenario where Wan-Yi sued and won a CC-1118-1 court ruling. Put succinctly, “tetherings” contains two key components: relational power that connects and fashions the capacities of people and institutions across time and space; and openness, the ongoing propensity for interconnected humans and institutions to change and be changed.

Bridging law and society scholarship with feminist legal writings on vulnerability, I developed tetherings as both an empirical and a normative concept. The concept is empirical because it is the organizing frame through which I trace, describe, and explain relational processes. It is normative because my empirical analysis contains an explicitly critical aim. While using normative ideas to give my empirical analysis a critical emphasis, I substantiate and refine those ideas with my data. The empirical and normative constitute an iterative process to generate and refine tetherings’ conceptualization of the individual-family-state relationship (“family” in this configuration means people deemed to be family members by the state or the individual in question; when I refer to a child as the “individual,” “family” would include their troublous parent, as well as other parent and kinfolk; when I discuss a parent as the “individual,” “family” would be their child(ren) and other relatives).

For tetherings’ empirical sensibilities, I look to law and society’s study of the role of law in continuing relations, such as between merchants (Macaulay 1963), neighbors (Greenhouse, Yngvesson, and Engel 1994), employers and employees Albiston 2010; Nguyen 2019), spouses (Li 2022), and family members (Wang 2019). In particular, I adopt the established approach of tracing the coconstitutive processes of law and relationships, for instance, how disputes travel within and across state and nonstate fora (Nader and Todd 1978); how interactions between state and nonstate orders shape behavior, cognition, and meanings (Ehrlich 1936; Moore 1973); and how relationships evolve as parties engage or avoid the law over time (Yngvesson 1985; Munger 1986). The tracing of processes is also a familiar approach in the study of “trouble cases” (Llewellyn and Hoebel 1941), such as lawsuits (Twining 1972). Therefore, besides denoting the type of parents and litigation, the words “troublous” and “troubled” are a nod toward this line of law and society research.

For tetherings’ normative contents, I build on feminist legal writings on vulnerability propounded by Martha Fineman (for example, 2008, 2012) (hereinafter “vulnerability theory”): ⁵ as relational beings, humans rely on one another and on the state, family, law, and other institutions to fulfill their needs. Deprivation of support could be detrimental, causing injuries of the corporeal (Fineman 2008), economic (Rogers, Mackenzie, and Dodds 2012), and intimate nature (Gordon-Bouvier 2020). My study highlights these key points. For example, Mr. Ma’s earlier behavior brought Wan-Yi and her mother physical, emotional, and economic harms; twenty years later, he needed his children or the state to pay for his medical care.

By advancing a relational view of power and agency to emphasize that everybody is prone to harm, proponents of vulnerability theory want to sideline the neoliberal ideal that individuals should be self-sufficient and autonomous, and call upon the state to assume greater responsibility toward its people (Fineman 2018). ⁶ Proponents also want to stress that state and social institutions, including the family (Marvel 2015), are vulnerable to being challenged; at the same time, even though every person and institution embodies vulnerability, proponents argue that each party experiences it uniquely, which is why women and minorities tend to suffer more (Fineman 2008). In my study, the Taiwanese administration and courts’ struggles with children and their troublous parents over interpretations of familism led the legislature to revise the laws on parental maintenance and welfare. Coincidently, because troublous parents and their children are the most common litigants, they most frequently encounter the direct enforcement of state familism.

However, because vulnerability theory is normative, its proponents understandably spend less effort on developing their arguments with thick, qualitative data. Additionally, in the interest of critiquing state power, these scholars often give short shrift to agency (Mackenzie 2013; Kohn 2014). In sum, analyses of vulnerability theory neglect to explicate the processes of vulnerability, including how ideological powers that produce vulnerability emerge and take effect, and how people experience and deal with it.

Applying the concept of tetherings ameliorates these shortcomings. Tracing the origins, workings, and outcomes of troubled parental maintenance litigation in Taiwan, I draw out the connection between vulnerability, power, and agency. In the language of tetherings, I demonstrate openness through the relational power dynamics of individual-family-state, in particular:

1. (i) how the state compounds the vulnerability of certain types of people with its use of law. In the Taiwanese case, the ideology of familism, constantly reenacted and adapted by individuals, their families, and the state, is the source of power fueling their tetherings. As we saw in Wan-Yi’s story, by explicitly enforcing state familism through civil and welfare laws, the government exacted emotional, corporeal, and moral tolls, not to mention financial pressures, on one group of people especially: troublous parents, who are physically and financially weak, and their children, who are already hurt by their past actions.

2. (ii) how vulnerability is multifarious, and experienced distinctively by different people across time and space ( Gordon-Bouvier 2020 ), as they exercise agency dissimilarly in response to the law to navigate individual-family-state relationships. Although troublous parents and children are vulnerable to and suffer the force of state familism, both parties nonetheless enhanced their capacities because of a new resource, CC-1118-1. Simultaneously, they pay the price for such legal empowerment by suffering new harms in the form of physical, emotional, and moral tolls. With these dis/empowerments, which are the multi-sided outcomes of mobilizing law to adjust their relational power, I also show that agency is not oppositional to but inherently part of vulnerability (Mackenzie 2013).

3. (iii) how the state, too, is vulnerable, open to being transformed by interactions with ordinary people. My study tells us that impositions of power by the state do not necessarily determine the fates of parents and children. Eventually, their interactions can subject the state to wear and tear, and possibly compel it to adjust their three-way relationship. We will see how the Taiwanese government reformed the law in reaction to public pressure and its own financial worries associated with the dis/empowerments of troubled parental maintenance litigants.

Therefore, my analysis of tetherings empirically substantiates vulnerability theory. Moreover, it does so with an understudied case in both law and society and feminist legal writings. Research on aging or care in those two areas of scholarship generally concentrates on American or Western European contexts (for example, Finch 1989; Levitsky 2014), or inequities endured by women, minorities, or lower-income groups (for example, Montgomery 1999; Albiston 2010; Glenn 2010). By contrast, my focus on parental maintenance litigation connects feminist legal scholarship to law and society research involving welfare actors (for example, Sarat 1990; Gilliom 2001; Gustafson 2011; Headworth 2020; Hertogh 2023) as well as to a promising law and society trend of studying parent-child relations in predominantly Han Chinese societies, such as Taiwan (Wang 2019), the People’s Republic of China (PRC) (Liu 2018), and imperial China (Du 2022).

Last but not least, my findings on tetherings refine vulnerability theory’s appreciation for legal power. I provide rich empirical details illuminating how law vitally delineates the power relations among individuals, their families, and the state, and yet how nobody is in total control, not even the state, when they engage laws regulating the family. Vulnerability theorists’ calls for greater state responsibility toward citizens (for example, Fineman 2010; Carr 2013) will almost always involve legal enactment and enforcement. However, extracting lessons from the Taiwanese case, I propose cultivating circumspect optimism for the power of law: any call to adjust individual-family-state relations to increase state responsibility should indeed beware of the possibility that law might bring about intended and unintended results; but such caution should be accompanied by being patiently optimistic about achieving progressive change along an extensive journey of ups and downs, recognizing that all experiences, including disempowerments, have the potential to reshape relational power, and, accordingly, the state and other institutions.

In each of the next two sections, I elaborate on one element of tetherings, relational power and openness, further relating tetherings to vulnerability theory, law and society, and other literature, where relevant. I also illustrate the two elements by tracing the tetherings of individual-family-state in Taiwanese troubled parental maintenance—based on fieldwork that includes interviews with experts, litigants, and nonlitigant laypeople; courtroom observations; media reports; historical documents; courts decisions; laws and regulations; and legislative and administrative records (Appendix). Because “tetherings” is empirical and normative, my tracings aim to uncover the workings of and contestations over the relational power of familism; foreground dis/empowerments; and highlight the formidability as well as potential fragility of the state.

RELATIONAL POWER OF TETHERINGS

“Families should bear the main responsibility for caring for elderly parents …. If the elderly have no children, that would be a different matter” (Mediator Ting, February 26, 2019). Mediator Ting’s words capture a taken-for-granted tenet of Taiwanese state and lived familisms that I discovered in my fieldwork: children should carry the primary responsibility of caring for their elderly parents.

In this section, I use familism to explain the first element of tetherings: relational power, which is the mutual dependency between the capacities of interconnected humans and institutions to act on one another. My goals are twofold: (i) to highlight familism as the source of relational power animating individual-family-state tetherings in Taiwanese parental maintenance litigation; and (ii) to bring attention to the state’s role in exerting familism through legal means and, consequently, generating hardships most frequently borne by a certain group of people, who are troublous parents and their children in my study. I begin by examining the features of familism and its influence on Taiwanese welfare and parental maintenance laws, followed by the partial correspondence between state and lived familisms. Then, to further explain the workings of relational power, I analyze troubled parental maintenance before the enactment of CC-1118-1, setting the stage for the next section’s analysis of CC-1118-1.

Familism, Social Welfare, and Parental Maintenance Laws

Familism comprises the force behind the relational power of individual-family-state tetherings in Taiwanese parental maintenance litigation. As an ideology, familism is constructed through social interactions (Levitsky 2014) among humans and institutions. Because everyone who practices familism possesses diverse interests and positions, they produce different iterations of the ideology. In Taiwan, I found multiple renditions, which include state familism and variations of lived familism. Although their details vary, they share the fundamental parameters that families, first and foremost children, bear the primary responsibility of caring for the elderly.

Studies on familism diverge in emphases and contexts, but they converge around three features that help us understand familism in the Taiwanese story. First, governments, social groups, and individuals fight over interpretations of familism to protect or achieve political, social, or economic ends. For example, white nationalists in the United States campaign for their vision of families founded on Christian, heterosexual, cisgender marriage to “safeguard” their society from the rise of immigration, sexual and gender equality, or other perceived threats (Bjork-James 2020). Across the Taiwan Strait in the PRC, the Communist government has repurposed and coopted Confucian familism for nationalistic aims, most recently by constructing “filial nationalism” (Fong 2004) to channel filial piety owed to one’s parents toward one’s nation (Yan 2021). In Taiwan, as I illustrate with troubled parental maintenance litigation, the government struggles to preserve state familism in a form that protects its economic interests while keeping up with lived familisms in order to retain its political legitimacy to regulate families.

Second, no matter its variation or purpose, familism usually contains a moral requirement of placing family over the interests of some people, ordinarily those lower in the social hierarchy. For instance, scholars writing about US or Western European contexts criticize familism for not only holding family members responsible for one another, but also making them feel that it is inherently right and natural to do so (Walker 1991; Levitsky 2014), therefore convincing them to willingly make sacrifices to fulfill the obligation (Finch 1989). This feminist perspective aligns with my finding on the indubitable duty to care for one’s parents in Taiwan; moreover, it resonates with a key criticism lodged by vulnerability theorists, that is, that neoliberalism’s moralization of self-responsibility diverts attention away from state accountability. ⁷ As another example, Confucian familism, which strongly influences Taiwanese society, contains the moral expectation that children obey, respect, and (when grown up) look after their parents (Liang 2021).

Third, governments and others who strive to enforce their vision of familism usually employ the law to do their bidding. For example, officials of late imperial China implemented harsh penalties to protect parents’ supremacy over children, instrumentalizing “filial piety” laws to buttress the parallel ideology that subjects should unquestioningly obey their “father-mother,” the emperor (Du 2022). In the United States, pro- and anti-abortion activists contend about the regulation of abortion to control women’s societal roles (Luker 1984) and thus their preferred form of familism. Additionally, twenty-four US states still have parental maintenance legislation, which is largely based on England’s Elizabethan Poor Laws mandating that household members support one another financially (Sheng 2021). A wide range of other jurisdictions, including Germany, France, Vietnam, PRC, Singapore, and India, also keep parental maintenance legislation on the books.

Understood through these three features of familism, the existence of parental maintenance laws in Taiwan is far from unique. State familism permeates Taiwanese civil and administrative laws regulating parental maintenance and welfare. Among them, the Civil Code (“the Code” 民法) lays the foundation for other laws by requiring children to be the first providers of maintenance to their parents. The Kuomintang (KMT) government of the Republic of China (ROC) enacted the Code in 1929–30 when it was based on the mainland, drawing influences from Qing dynastic codes as well as Japanese and European laws (Lee 2016). Following its retreat from the mainland, the KMT government implemented the Code in Taiwan, where Japan had just ended fifty years of colonial rule in 1945. Largely unchanged since the Code’s enactment, CC-1114 to CC-1116 set out the maintenance rights and obligations among parents and other direct lineal relatives, spouses, and siblings. ⁸

From the Code’s foundational provisions, state familism extends to the Senior Citizens’ Welfare Act (SCWA 老人福利法), the Public Assistance Act (PAA 社會救助法), municipalities’ implementation principles and procedures, as well as administrative law concerned with debt recovery and review of executive actions in the area of welfare implementation. ⁹ These welfare laws and policies are the trigger for troubled parental maintenance. Against the backdrop of rapidly aging populations, governments like Taiwan practice the aforementioned tenet of state familism by offering limited welfare and putting the primary burden on family members, a strategy that minimizes public expenditure and the tax responsibility of wealthier classes (Montgomery 1999; Fineman 2012). Only when family members fall short does the government conduct means-testing to provide the most minimal of assistance (Shee 2007). In other words, Taiwan’s tripartite tetherings keep individuals and their families together in a manner that impels children to support their parents and eases their financial strain on the state, and concomitantly ensures that the state can police their compliance.

We see the relational power of state familism in action when a parent applies for welfare benefits at a municipal government office. This is the first of two typical opening scenes for troubled parental maintenance litigation. To assess the parent’s eligibility, the social worker would count their children’s income as part of “total family income” (PAA-5), regardless of the relationship between parent and child in reality. ¹⁰ If the inclusion of their children’s income takes the parent over the eligibility threshold, the parent would be disqualified from public assistance.

In the second typical opening scene for troubled parental maintenance litigation, a social worker places a needy elderly person in a care facility according to SCWA-25 (SCWA-41 since 2007). ¹¹ In Wan-Yi’s story, hospitalizing Mr. Ma and contacting her were preludes to such a placement. Subsequently, invoking their authority under the same law, the municipality would sue the children to recover expenses incurred by that placement, also regardless of their relationship. ¹²

State and Lived Familisms

Whether they are speaking of lived or state familism, nearly all experts and laypeople in my study bring up the tenet expressed by Mediator Ting: children ought to look after their parents, and the state should step in only if they are unable to do so. Such overlapping with lived familisms is why Taiwanese state familism enjoys some legitimacy and how the relational power of individual-family-state tetherings prevails (though not entirely nor always, as we will see further below).

In spite of the government’s claim and widespread perception among expert interviewees that parental maintenance litigation has increased sharply since 2010, the several thousands of cases per year is arguably an insignificant number in a jurisdiction of almost 24 million, out of which 4 million are aged sixty-five or older. ¹³ Most people, including nonlitigant lay interviewees in my study, perform their duties to elderly parents. When children of troublous parents litigate or when nonprofit organizations question parental maintenance laws, they are disagreeing that troublous parents fall within the scope of parental maintenance, not disputing the duty’s existence. For example, Wan-Yi and her mother told me that children should care for their parents—but just not somebody like Mr. Ma.

The lack of apparent dissent against this core tenet of lived and state familisms is not peculiar to Taiwan. Americans who struggle to provide long-term care to family members also accept their moral obligations and their government’s limited welfare policies (Levitsky 2014). We can understand the seeming lack of dissent by apprehending the myriad ways through which relational power exerts itself. Think of power as assuming a variety of social controls along a spectrum (Digeser 1992; Chua 2022). At one end are explicit controls that constrain behavior with direct punishments and rewards. Children who carry out their parental maintenance duties grudgingly, such as Wan-Yi, might harbor unhappiness but perform the obligation to avoid legal sanctions. Moving along the spectrum to the other end, controls become increasingly elusive by disciplining or naturalizing thoughts, feelings, and behavior such that people under those controls accept and no longer question the ideology (Nonet and Selznick 1978; Foucault 1979). Hence, children who willingly adhere to parental maintenance obligations are perhaps operating under the influence of largely taken-for-granted norms (Fei 1992; Huang 2001) in a predominantly Han Chinese society.

Nonetheless, to be clear, state and lived familisms in Taiwan do not fully support but depart in some respects from each other. The Code only entitles elderly parents who are not self-sufficient (CC-1117) to a limited amount of monetary support. These legal requirements were already in the original version of the Code enacted by the ROC almost a century ago and did not replicate lived familisms of the time. Founded after a crumbling Qing dynasty, the ROC wanted to eliminate parents’ traditional lifelong domination over their children’s autonomy, labor, and property, so that it could control citizens directly to help save a nation weakened by invasion and internal dysfunction; the Code’s maintenance provisions originated from such a political agenda to create rights-bearing citizens (Du 2022) while trying to prevent the needy from becoming a state burden (Huang 2001).

I pointed out earlier that familism is subject to contestations, adaptations, and other interactions among individuals, their families, and the state. Since the early days of the Code, the varieties of lived familism have not stopped evolving. Moreover, the practices of familism in Taiwan, just as they are elsewhere (for example, Liu 2021; Yan 2021), have always been plural. As Taiwanese people experience economic, political, or other macro-level developments—which I discuss further in the next section—they modify their sense of self and relate differently to others and to institutions. Gradually, with their new composition of relational power, they may practice lived familism(s) differently, question state familism, and remake the institution of family. In response to these changes, the Taiwanese government tries to balance two competing concerns: a modernization vision that includes keeping state familism at pace with evolving lived familisms and tending to the rights and needs of elderly citizens; ¹⁴ and the preservation of traditional “morality” in aid of its economic interests. ¹⁵

Taiwanese troubled parental maintenance litigation, therefore, belongs to an ongoing story about individual-family-state tetherings. To better understand this phenomenon, I now home in on the workings of relational power before CC-1118-1. The analysis will set up the next section, where I focus on CC-1118-1 and its aftermath.

Monies, Morals, and Mandates: Before CC-1118-1

On the grounds of a temple forty minutes outside a southern Taiwanese town stand a row of twenty-four life-size statutes, each representing a story from the classic, The Twenty-Four Filial Exemplars (二十四孝). The first statute portrays mythical Chinese leader Shun (舜). According to legend, even though Shun was abused by his father and stepmother, he still took care of them in their old age (Field notes, December 5, 2020).

The legend of Shun epitomizes the Taiwanese individual-family-state relationship before the 2010 passage of CC-1118-1. Back then, the Code required adult children to provide financial maintenance to their parents no matter their parents’ past behavior so long as they had no means of supporting themselves (CC-1117). State familism in this regard reflected one interpretation of the ideology associated with “family in ideals” (Chen and Li 2014) and described by expert interviewees as “parents do no wrong” (天下無不是的父母). The saying supposes that parents, by virtue of their status as parents, deserve their children’s care and respect, irrespective of their treatment of the children.

In other words, tetherings before CC-1118-1 embodied relational power that strongly favored parents and minimized the state’s responsibility. However, this state interpretation of familism was removed from reality. Its enforcement stirred up tension with troublous parents and their children, demonstrating incongruences between state and lived familisms where troublous parents were concerned.

In the subsection “Familism, Social Welfare, and Parental Maintenance Laws,” I explained that parents confront the force of state familism in the first typical opening scene for troubled parental maintenance litigation—when they apply for welfare, and social workers count their children’s income in “total family income” to determine their eligibility. If the inclusion disqualifies a parent from welfare, they would be stuck with their offspring for monetary support, whereas the state would avoid granting assistance except where their children are financially weak (CC-1118). Such enforcement of state familism most frequently caused suffering to one kind of elderly citizens, troublous parents, who were “in a bad state and have no independent means” (Social Worker Hui, February 27, 2019). Troublous parents were estranged from their children, who would be unwilling to support them. ¹⁶ Otherwise, these parents probably would not have wound up at a municipal welfare office. To make their children provide maintenance, they would have to sue. However, they were usually reluctant to do so.

“To ask their children for maintenance is to lose face. And parents would also rather suffer on their own than cause suffering to their own children. They only sue if they really have no other way” (Lawyer Ling, November 28, 2019). Troublous parents who were ineligible for public assistance and who also rejected social workers’ advice to sue their children might turn to charitable organizations, muddling along hand to mouth.

Correspondingly, such enforcement of state familism most frequently brought hardships to one kind of children, those of troublous parents. Because of the “parents do no wrong” nature of their legal duty, when the children of troublous parents were sued for maintenance, they could not escape their obligation unless they lacked financial ability (CC-1118). ¹⁷ For example, in a 2006 case, the judge noted the children’s allegations and described their father as remorseless but went on to order parental maintenance. ¹⁸ According to expert interviewees, some judges might implicitly account for the parent’s alleged troublous conduct and reduce the amount based on the civil law principle of honesty and trust (CC-148). However, judges’ rulings seldom explained any such approach.

The lawsuits not only triggered financial worries but also tore open old wounds. One of my interviewees, Lawyer Hong, still remembers years later what her two clients said to their mother, who sued them for maintenance: “‘Do you know when I got my first period?’ Their mother could not answer” (May 15, 2019). Other interviewees recall similar stories:

The child is usually very angry. Even if they can afford [the maintenance], they would rather donate the money to charity. (Judge Teng, May 22, 2019)

The child would say the parent did not raise them for many years. “I won’t do it! No way!” (Mediator Ting, February 26, 2019). ¹⁹

To persuade these children to accept an unpleasant reality, social workers, court-appointed mediators, and judges often would say to them, “He is still your father” (他還是你的父親) or, “The parent is still family,” phrases that support the notion of “parents do no wrong.” ²⁰

Troublous parents and their children are also the most frequent casualties of state familism in the other typical scenario, where social workers placed the elderly in a care facility and municipalities demanded that their children pay back the expenses under SCWA-25/41. Shocked to receive a bill for hundreds of thousands of Taiwanese dollars for their troublous parents (TWD100,000 equals approximately US$3,200), these children usually repudiated municipalities’ claims. The municipalities then issued administrative sanctions (行政處分), which the children objected to with administrative appeal reviews (行政訴願) followed by litigation in administrative law courts. Like civil law courts, administrative appeal review committees and administrative law courts failed to give explicit consideration to children’s counterclaims of troublous parental behavior, reiterated children’s obligations under the Code and SCWA-25/41, and upheld municipalities’ debt claims. Some children even made a detour to civil court, hoping to obtain a reduction or exemption under the financial exception or somehow convince a judge to let them off the hook. If the children failed in their civil or administrative litigation, the municipal governments would then exercise discretion to keep chasing them for the money owed.

Making matters worse, children of troublous parents usually refused to fetch their parents from the placement facility, either to admit them to a facility of their choice or to take them home. Required to fulfill their public duty under SCWA, social workers could not remove parents from the placement facility simply because their children did not want to take over or pay up. Therefore, so long as a municipality kept a parent under SCWA-25/41 placement and so long as it continued to pursue the accrued debt, the children’s financial troubles would not abate but would rack up as they continuously litigated fresh administrative sanctions for new periods of debt. ²¹ Placements under SCWA-25/41 are supposed to be “short-term” based on the municipality’s discretion. However, for the majority of SCWA-25/41 debt recovery cases that I analyzed, the duration of such placements averaged two to three years, with the longest dragging on as many as nine years.

To sum up, Taiwan’s relational power of familism, including the core tenet shared by state and lived familisms, was already operating through the Code and welfare laws prior to CC-1118-1’s enactment. Put in practice, these laws singled out troublous parents and their children, rendering them exceptionally vulnerable to the force of familism. Yet, some of these children resisted, indicating that state and lived familisms were not totally in sync, particularly with respect to troublous parents. In the next section, I concentrate on the openness of tetherings and analyze more closely the contentions against state familism in Taiwan, the potentiality for relational power to succumb to change, and the misfortunes of troubled parental maintenance litigants.

OPENNESS OF TETHERINGS

“Human relationships are evolving along with social change. Laws founded on moral standards are destabilising due to precipitous changes to social ethics and humanitarian concepts. Therefore, we should reform the law in order to defend and protect the rights of the public” (Legislator Nancy Chao, Legislative Yuan Second Reading of Proposed Bill for CC-1118-1, January 5, 2010).

Before CC-1118-1, children of troublous parents routinely lost whenever they litigated their legal duty in civil or administrative law fora. Nevertheless, their defiance demonstrated inconsistencies between state familism and lived familisms in Taiwan. Such tense engagements of individual-family-state tetherings eventually motivated Taiwanese legislators, such as Nancy Chao, to reform the law by passing CC-1118-1. Legal reform on parental maintenance led to intended and unintended results that affected all parties in the tripartite relationship and prompted more legal amendments.

The contentions, potentiality for change, and difficult experiences illustrate openness, the second element of tetherings. The relational power among tethered humans and institutions opens them up to changing one another and to being changed. As they interact in different times and spaces, such as the home, welfare office, and courtroom, their mutually dependent capacities may expand or diminish, and alter whether and how they enable, impair, or otherwise influence the other parties.

I begin with an overview of the openness of familism, the source of relational power fueling the individual-family-state tetherings of Taiwanese troubled parental maintenance. Then I analyze the passage of CC-1118-1 and its effects, tracing the ways in which the vulnerability of humans as well as institutions manifests. My analysis contains three aims: (i) to continue drawing attention to the state’s role in applying familism through the law, which leads to adverse consequences distinctly felt by one type of people, troublous parents and their children; (ii) to highlight the multifarious nature of openness by showing how troublous parents and their children felt empowered by the law when the state recalibrated their tetherings with the passage of CC-1118-1 and how they concurrently experienced disempowerments when mobilizing the new legal provision; (iii) to emphasize that the state, too, is open to transformation by human/institutional engagements with the relational power of familism, including those of dis/empowerments. As I trace the relational processes of troubled parental maintenance litigation with these three aims in mind, I highlight law’s centrality as well as unpredictable tendencies in the power dynamics of individual-family-state. These empirical findings suggest cultivating a circumspect optimism about legal power: a sense of caution about law’s production of unfavorable, unintended results coupled with hopefulness that law can help achieve better arrangements of individual-family-state tetherings over a long horizon.

Familism and Openness

“I still have the ability to work. So I don’t need [my children] to give me money when they start working …. These days, we also need to care for our next generation, so we can only try our best to keep the older generation company” (Madam Tseng, teacher, February 28, 2019).

“My generation has different experiences. We know what else is going on in different cultures …. Young people like me want to be more independent … and parents also tell us not to worry about them because they have their own money for retirement” (Ni-Ni, graduate student, May 13, 2019).

In “Relational Power of Tetherings,” I discussed the foundational tenet of familism that expects children to shoulder the main responsibility of looking after their parents. Although this tenet exists across state and lived familisms, Taiwanese actually practice it variously. Madam Tseng’s and Ni-Ni’s views are common among forty- and twenty-year-olds, respectively, in my study. They agree about children being the primary provider of parental maintenance, but they do not consistently prioritize this duty over other responsibilities, interests, or needs. In other words, Madam Tseng and Ni-Ni’s views illustrate tetherings’ openness. Despite familism’s might and reach, tetherings of individual-family-state can and do alter. Transformations occur when parties in the relationship interact with different resources, such as law, money, and people, or reinterpret their available resources, modifying their capacities and thus their relational power and the ways they engage with one another. These transformations include their interpretations of law and decisions on whether and how to use it, that is, changes to their legal consciousness. ²²

In the previous section, I also pointed out that state and lived familisms differ from each other in some respects. Madam Tseng’s and Ni-Ni’s practices of lived familism exemplify another divergence from state familism due to the openness of tetherings over time. The Code prioritizes the maintenance of senior direct lineal relatives (CC-1116), a requirement that perhaps conforms to an idealized or traditional form of lived familism in which parents’ needs and well-being rank above everyone else’s. However, in contemporary Taiwan, young and old interviewees in my study channel their best resources and attention toward their children or grandchildren, or agree that this should be the practice.

Such changing practices reflect how generation after generation reshapes lived familisms. Taiwanese society will turn “super-aged” by 2025, when the number of people aged sixty-five or above will reach 21 percent of the total population. Taiwanese are bearing fewer offspring, children are enjoying more autonomy from parents, and women are growing in economic independence. Responding to these social changes, the Taiwanese government since democratization in the late 1980s has continuously tried to realign state familism with the ever-diversifying forms of lived familism. It has reformed state pension, health care, and insurance, and repeatedly amended laws that regulate familial relations and welfare (Kuo 2007). The ongoing efforts at realignment aim to balance modernization goals that bolster the government’s political legitimacy with the conservation of traditional “morality” that helps fortify its economic interests. In the next four subsections, I refer to the relevant legal and welfare developments as I continue to draw out the openness of tetherings and their effects on individuals, their families, and the state.

Changing Familism and the Enactment of CC-1118-1

By signifying how tetherings are open to and transformed by individual-family-state interactions, the enactment of CC-1118-1 substantiates speculations of vulnerability theory that the state is susceptible to change. Before CC-1118-1, social workers and other state agents implemented a version of state familism that epitomized “parents do no wrong” (see the previous section). Children, save for the indigent, had to provide maintenance to their troublous parents, regardless of their behavior as parents. Confronted with their troublous parents’ legal demands or the state’s debt claims for their care expenses, these children endured financial anxieties and emotional pain.

Eventually, the near-absolute duty of parental maintenance could no longer withstand the pressures of evolving lived familisms, which made state familism appear inhumane and out of touch. “Taiwanese people in my generation are liberal and individualistic. We go by the logic that ‘you reap what you sow.’ … We won’t necessarily obey you just because you are the elder” (Kai-Ling, sole proprietor, May 16, 2019). Although Kai-Ling expressed this view a decade after CC-1118-1’s passage, the thirty-something echoed public sentiments of the late 2000s. By then, the wounds to which state familism exposed the children of troublous parents had grown less acceptable to the Taiwanese public. The media dramatically publicized the injustice of troubled parental maintenance with headlines such as: “Refuse to maintain father who abandoned their family; four siblings sued” and “Abandoned as a child by mother; sued by mother 33 years later.” ²³

Nonprofit organizations and Legal Aid campaigned the Legislative Yuan to reform the Code, arguing that it would be egregious for victims of domestic violence to be legally responsible for their troublous parents’ maintenance. Although the Taiwanese government refers to traditional interpretations of Confucian familism to construct state familism, this position sometimes runs counter to that of building a modern Taiwan, a society that keeps up internationally with social and legal developments, which include protection from domestic violence. ²⁴ In 2009, the tension between these two interests played out in the Legislative Yuan, when 71 out of 114 legislators across political parties tabled four proposals to amend the Code’s parental maintenance provisions. The legislators bemoaned the decline of “traditional morality” and expressed worry that the proposed amendment would erode it further. Nonetheless, like Legislator Chao, quoted at the beginning of this section, they acknowledged that Taiwanese law had to stay relevant to protect their citizens and voted unanimously for the amendment. ²⁵

On January 7, 2010, CC-1118-1 came into effect. When tabling the bill, legislators were most concerned about shielding children of domestic violence from their parents’ claims for maintenance. However, they ended up with a law that encompasses a broad range of conduct that troublous parents are regularly accused of (“Introduction”), which led to far-reaching ramifications for individuals, their families, and the state. The new provision enables children to reduce their maintenance obligation if their parents had “intentionally maltreated, insulted, or committed severe misconduct, physically and spiritually against them, their spouse, or their close relative” (CC-1118-1-1) or had “without justifiable reason … not fulfil[ed] their obligation” to the children (CC-1118-1-2); and to be exempted if any such action amounted to “gross seriousness.” ²⁶

Empowering Litigants while Taxing the Government

With CC-1118-1, the Taiwanese government adapted state familism in reaction to the changes of lived familisms, thereby adjusting the tetherings of individual-family-state and their relational power dynamics. CC-1118-1 expanded the state’s responsibility, increasing the likelihood that it would have to provide welfare to elderly parents. As intended, it empowered children’s capacity to counter their troublous parents’ claims, displaying how the openness of parent and child shifted between the pre- and post-CC-1118-1 periods.

However, CC-1118-1 unexpectedly generated two additional sets of consequences that cost the state money and legitimacy. Also illustrating openness, the unintended outcomes signify, once more, the state’s susceptibility to threats and harms created by persistent engagements with its laws and policies. These outcomes also address a key criticism against vulnerability theorists for neglecting the workings of agency (“Tetherings, Vulnerability, and Law”). Faced with the direct enforcement of state familism, troublous parents and their children demonstrate resourcefulness at using the law to reap advantages vis-à-vis each other and the state. Their clever courses of action often grew out of interactions with social workers and friends who brought their attention to CC-1118-1 and its possibilities. ²⁷

In the first set of unintended consequences, CC-1118-1 presents a solution to troublous parents disqualified from welfare because the inclusion of their children took their “total family income” over the eligibility threshold:

When the elderly hear that suing their children will help them waive the children’s duty and reduce the income calculations, they’d often scold my staff aloud, “Who in the world tells parents to sue their children? What are you doing as public servants?” … Then I’d explain to them how calculations are made and that suing their children is an opportunistic workaround. (Social Worker Lien, March 18, 2020)

Before CC-1118-1, troublous parents sued their children to get money. After the passage of CC-1118-1, troubled parental maintenance lawsuits become what is known to lawyers, mediators, and social workers as “crossing water” (過水)—going through the steps to complete the process. “The goal of the lawsuit is to lose … on the basis that the children have no duty under 1118-1” (Lawyer Hsia, May 21, 2019). As Lawyer Hsia points out, troublous parents’ ultimate purpose is to qualify for welfare by forcing their children to mount a CC-1118-1 defense and obtain an exemption from their maintenance obligation. Municipalities consider CC-1118-1 rulings to be a type of “special circumstances” (PAA-5-3-9), which allows them to exclude exempted children from “total family income” and approve troublous parents for public assistance. This is why troublous parents now sue all of their children whose income affects their eligibility, contrary to popular belief that elderly Taiwanese are more likely to adopt a traditional form of lived familism and target their sons for maintenance (despite the Code’s stipulation of equal responsibility among all children). In a variation of “crossing water,” children initiate the lawsuit against their troublous parents to seek a CC1118-1 ruling. These children usually would have spoken with the troublous parent’s social worker and decided to take the initiative so that both sides could move on from each other. ²⁸

In the second set of unexpected outcomes, CC-1118-1 gives children a way out from being saddled with expenses incurred by their troublous parent’s placement in a care facility under SCWA-41. Before CC-1118-1, children could not ward off municipalities’ debt claims in front of administrative appeal review committees and administrative law courts. With CC-1118-1, they could go to civil court and successfully invoke CC-1118-1, and then turn to administrative fora to seek a reduction or exemption based on the CC-1118-1 ruling—prospectively for debts incurred from the date of the ruling and, since May 2020, possibly retrospectively for debts incurred before the ruling (more on the 2020 amendments below). ²⁹

Both sets of unintended consequences are costly and embarrassing for the government. “Prove parents are scoundrels, lawsuits to waive parental maintenance soaring,” one newspaper announced ten years after the enactment of CC-1118-1. ³⁰ From 2011 to 2019, CC-1118-1 litigation rose steadily to make up 10 percent of all family law cases in Taiwan. ³¹ Although practices vary across municipalities, expert interviewees in my study attribute the spike to municipalities’ shrinking welfare budgets and the stringency with which they increasingly assess welfare eligibility and pursue SCWA-41 debts.

To exacerbate the situation, it turns out that social workers are reluctant to exercise discretion under PAA-5-3-9, ³² which they have enjoyed since 2007, to exclude children of troublous parents directly from the calculation of “total family income.” Troublous parents’ history could possibly meet “special circumstances,” but social workers usually prefer to apply CC-1118-1 rulings to PAA-5-3-9. “Few social workers want to bear this responsibility—make the call and put it in their report” (Social Worker Wei, May 19, 2019). Unlike judges, social workers lack authority and resources to investigate the parties’ claims, and their determination is valid only for a short period, such as twelve months. Furthermore, my interviewees explain, they worry about erroneously disbursing the state’s money.

The more strictly the government enforces state familism and conserves its coffers, the more CC-1118-1 litigation surfaces to tax its resources. Social workers, mediators, judges, and other court officials have to process and investigate litigants’ claims. Lawyers funded by government Legal Aid contribute time and expertise to represent troublous parents and their children. In 2019, the Control Yuan ordered an investigation and concluded that municipalities encouraged litigiousness by relying on CC-1118-1 rulings to exclude children with “special circumstances” from the “total family income” calculation. The strains of CC-1118-1 litigation would come to a head for the government, leading to more adjustments of tetherings, which I examine later.

Dis/empowerments and Tolling the People

In short, as analyzed in the preceding subsection, CC-1118-1 empowers both parent and child in ways anticipated and unanticipated by legislators, and they learn to handle each other and state familism in a novel manner. Unfortunately, troubled parental maintenance litigants’ new engagements with the modified version of state familism produce disempowerments alongside such empowerment. The recalibrated tetherings of individual-family-state simultaneously open up troublous parents, their children, and their allies to physical, emotional, and psychological strains when they use CC-1118-1 to secure financial relief.

Therefore, post-CC-1118-1 tetherings further demonstrate the multifarious nature of openness, as well as the state’s persistent role in exacerbating the sufferings of troublous parents and their children. In “Relational Power of Tetherings,” I explained that the imposition of state familism tends to disadvantage people with lower social status, for instance, impoverished fathers in US child support cases (Brito 2012; Haney 2018) and mothers who receive welfare benefits in the United Kingdom (Gillies 2007) and the United States (Gilliom 2001). Similarly, by enforcing state familism, the Taiwanese government compounds the marginalization of troublous parents and their children. Troublous parents are financially and physically weak by the time they attract the attention of social workers, whereas their children are often victims of domestic violence committed by them or have suffered economic and other difficulties as a result of their behavior. In the rest of this subsection, I detail how the process of troubled parental maintenance litigation is the “punishment” (Feeley 1979) for such litigants—by inflicting upon them corporeal-emotional and moral hardships.

The corporeal-emotional toll

• “Did you raise them?” Judge Yang asked Mr. Lu.

• “Yes.”

• “For how many years did you raise them?”

• Mr. Lu did not reply.

• “Have you forgotten?”

• Mr. Lu kept quiet….

• “Did you work and bring money home?”

• “Yes.”

• “How much?”

• Mr. Lu did not answer. (Field notes, May 14, 2019) ³³

When their children invoke CC-1118-1, troublous parents have to answer the court’s questions about their alleged misconduct. Usually in poor health, these parents may suffer aggravated physical strain during the litigation process. Some, like Mr. Lu, came to court in wheelchairs accompanied by a social worker or professional caregiver. Others, like Mr. Ma, were too immobile to attend, so the judge dispatched officers to interrogate them at the care facility.

The physically strenuous process can also be emotionally confusing. Even if troublous parents filed the lawsuit intending to “cross water” and not to contest CC-1118-1 allegations, they usually would have done so as a last resort. They might be ashamed of their past, reluctant to hurt their children, or afraid they would “sever the last thread” with their estranged children (Social Worker Hui, February 27, 2019). No matter their true purpose, under intense probing, they might experience a mix of emotions when forced to confront their past and a future of which they are perhaps terrified. Some, like Mr. Lu, hung their heads and looked away from the judge and their children. Others, like Mr. Tang, rebuffed CC-1118-1 allegations angrily. Mr. Tang’s son had raised CC-1118-1, and his ex-wife had testified on the son’s behalf. When I interviewed Mr. Tang, who had become wheelchair-bound after sustaining a stroke, he burst out: “I did bring money home to my wife and children. [My wife] was talking nonsense. She totally turned on me, going to court to say such things. She has no conscience! … I felt bad hearing those accusations in court, saying that I abandoned my children. I won’t collapse! I will stand up again!” (Mr. Tang, troublous parent litigant, May 19, 2019).

Troublous fathers like Mr. Tang compose 60–80 percent of litigants (depending on the district and court level). For troublous mothers, who are the remaining 20–40 percent, the emotional toll is perhaps worse. Some had fled violent husbands when awareness about domestic violence and legal protection against it used to be weaker; decades on, they cannot produce sufficient evidence to convince the court they had justifiable reasons for abandoning their children. Others are women whose ex-husbands had taken child custody and cut them off from their children, a practice previously prevalent in Taiwan (Social Worker Mong, November 28, 2019); years later, they would face children who accuse them of neglect in CC-1118-1 hearings. ³⁴ In other cases, they were girls whose parents had sent them to live as a “child daughter-in-law” (童養媳) with a wealthier family, perform household chores, and then wed the son when the two reached marriageable age (Lawyer Hong, May 15, 2019); young and alone, they struggled with marriage and motherhood, and sought refuge in extramarital affairs or alcohol, gambling, and other addictive outlets. ³⁵ The actions of such mothers could meet CC-1118-1 criteria for reduction or exemption, but they stemmed from living under the patriarchal power of family of bygone days, which had forcibly reduced these women’s options.

Although the children of troublous parent litigants are generally in better health than their parents, the financial worries and attempts to adjust their tetherings in civil court or administrative fora can put their bodies under stress. Mr. Lu’s daughter, for instance, took time off from work, traveled four hours by train to attend the court hearing, and then rushed back. Moreover, children who contest SCWA-41 debt claims fight on multiple fronts. From administrative law fora, they venture to civil court, expend time, money, and energy to win a CC-1118-1 ruling, and then return to the former to resume battle. For Wan-Yi, coming to grips with news of Mr. Ma and eventually litigating CC-1118-1 claims took so much out of her that she fell ill and had to see a counselor to cope with the pressure.

The physical stresses meld into emotional beleaguerment. During the litigation process, the children and their allies, such as the other parent, grandparents, uncles, or aunts, dredge up a jumble of negative emotions when they recollect their painful pasts with troublous parents. The following excerpt from a court ruling represents a typically disturbing account that children of troublous parents narrate to judges, law clerks, and bureaucrats, in hopes of gaining relief from their legal duty of parental maintenance:

After the applicant finished drinking past midnight, he would wake up the respondent (child) and B (respondent’s mother), beat them, scold them, and lock them out in the cold …. The applicant would stuff frozen food into the respondent’s mouth and force him to crawl on the ground like a dog …. At night, the respondent would lock his bedroom door from the inside, but the applicant would climb in from the window and whip the respondent with his belt. ³⁶

Even for those who no longer remembered or tried to forget their pasts, reencounters with troublous parents compelled them to relive the hurt. At the beginning of this article, I described Wan-Yi’s frightened reaction when she saw Mr. Ma for the first time in twenty years: she cowered whenever he raised his hand, a gesture that reminded her of his cruel behavior, which she later recounted to the judge.

Together with fear, children commonly feel rage against their troublous parents: “At mediation, the two children and their mother were very angry. ‘He did not raise us. How dare he? How dare he?’ … [In another case, they] picked up the mediator’s wooden plaque and threw it at me. So now there is no wooden plaque in the room! … Others used to fling water, so we do not distribute water anymore” (Mediator Chou, November 28, 2019). The children are angry at their troublous parents for causing them adversities that they believed hampered their educational and career prospects. For instance, they dropped out of school or worked part-time to help the other parent make ends meet. Although exceptional ones did overcome their disadvantaged childhood, most encountered economic difficulties through adulthood.

Upon learning that the troublous parent’s true purpose is to “cross water” and secure welfare benefits, and realizing they should counter with CC-1118-1, children and their allies might calm down. Nevertheless, they still have to dig up their horrible past to substantiate CC-1118-1 claims. To support Wan-Yi’s case against Mr. Ma, Madam Liao repeated her story about Mr. Ma pummeling her in the stomach and breaking her nose. In another case involving a troublous parent I call Mr. Ou, his brothers, sister, and parents all expressed anger, telling the court about Mr. Ou’s alcoholism and abuse of his then wife and daughters: “He got drunk and owed money everywhere. The creditors came knocking, and the family had to clean up his mess…. He hasn’t been home for more than ten years …. We don’t know what he’s up to, and we don’t care! … All these years, [the ex-wife] raised the children with our help.” ³⁷

The moral toll

On top of corporeal-emotional tolls, troublous parents and children pay moral penalties for litigating parental maintenance obligations. By making (state) familism the first, if not the only, available economic and moral option, Taiwanese parental maintenance and welfare laws limit choices and negatively stereotype children and troublous parents for failing to realize their embodied ideals of familism (Montgomery 1999; Koch 2018). Troublous parent litigants are, by the state’s institutional design, incapable of being self-sufficient. ³⁸ When they exploit CC-1118-1 in “cross water” lawsuits to gain public assistance, they assume the role of “deviant” parents, a move that, ironically, devalues their needs and interests as a consequence of invoking the law to protect themselves (Abrams 2009). In addition, for not “naturally” feeling affection and care for one another, troublous parents and children contravene the “feeling rules” (Hochschild 1979) of lived familism as understood by judges, social workers, and court-appointed mediators. To them, these litigants fall into the morally deficient classification of “dysfunctional” families (Abrams 2009), people who do not feel for one another as family members ought to and who do unto one another what families ought not to—sue.

In my fieldwork, I notice that judges, lawyers, and social workers cannot help but vilify troublous parents. Calling them “hooligans,” one lawyer remarked: “These elderly did not take care of their family or had extra marital affairs when they were younger. So, when social workers handle cases involving such elderly people, they feel uncomfortable. It is hard for these elderly people to receive pity. They are seen as deserving their plight” (Lawyer Ning, February 25, 2019). In court, as illustrated by the earlier scene of Mr. Lu’s hearing, judges’ repetitive questions about whether the troublous parent had raised their children carry morally reproachful undertones. Their CC-1118-1 rulings also occasionally contain admonishments, such as so-and-so parent did not fulfill their responsibility “as a father/mother should” (為人父/母). One judge said to me: “They don’t know how to be a father, how to be a spouse. They are a mess. Fundamentally, it is the morals of the parents … gone wrong” (Judge Chi, February 26, 2019).

Neither are children excused. Although they can mobilize CC-1118-1 to adjust their tetherings to the state and their troublous parents, they hear familiar moral refrains from the days prior to its enactment: “he is still your father.” Judges, mediators, and social workers in my study follow the law to perform their professional duties and exempt these children from legal responsibility according to CC-1118-1. However, some of them still believe and insist that children should nevertheless mend their relationships with their troublous parents and act according to lived familism (as interpreted by the judge, mediator, or social worker in question). One mediator said, “If the matter is resolved and the parent gets public assistance, I would still tell the children that they are ‘still your parent’ and that they should still visit” (Mediator Koo, November 28, 2019).

Similarly, judges sometimes reprove and instruct children of troublous parents of their duties outside their legal obligations. For example, after granting a CC-1118-1 exemption to the man whose mother left him when he was a small boy, the judge urged: “I hope you will still wish your mother well and think of her every day and still thank her for giving birth to you” (Field notes, June 4, 2019). In another instance, when the child insisted that their troublous father had contributed only a sperm and nothing else to their life, the judge told me she ordered the child to stand up in court and she said to the child: “‘How did you come into this world? If not for his sperm, you wouldn’t be here, no matter how capable your mother was …. You may not be required to give him money, but you should visit him and go to his funeral, send him off when he dies’ …. These children were not raised with the right ideas” (Judge Chi, February 26, 2019).

Further Exposures and Amendments to SCWA-41

At the same time that recalibrated tetherings lay open troublous parents, their children, and their allies to corporeal-emotional stress and moral disapprobation, they expose the state to new problems. In the subsection “Empowering Litigants while Taxing the Government,” I highlighted that troublous parents and their children taxed government resources when they took advantage of CC-1118-1. But this was not quite the entire problem. CC-1118-1’s implementation by courts and administrative fora did not completely address the children’s sense of injustice triggered by the enforcement of state familism in the first place. These inadequacies additionally tested the government’s resources and provoked questions about its legitimacy to regulate familial relations. By the end of the first decade of CC-1118-1, the Taiwanese government was again feeling the strains of troubled parental maintenance, so much so that it passed major amendments to the SCWA in May 2020. This further adjustment of tetherings evinces yet again that the state is changeable by human/institutional engagements with the relational power of familism, which include not only empowering but also disempowering forms of engagement such as those experienced by troubled parental maintenance litigants.

The additional inadequacies of CC-1118-1 concerned SCWA-41 placement expenses, which municipalities try to recover from children after admitting their troublous parents to a care facility. As it turned out, in SCWA-41 debt litigation, municipalities, administrative appeal review committees, and administrative law courts applied CC-1118-1 rulings prospectively, from the date of the civil court ruling. This meant that despite obtaining a CC-1118-1 exemption, children could not use the ruling against the recovery of debt for their troublous parents’ expenses incurred before the CC-1118-1 ruling. Most children who get sued for SCWA-41 debt usually find out about their troublous parents’ situation after a social worker has placed them in a facility. In other words, expenses related to SCWA-41 placements usually start to run before the children ever have a chance to consider seeking a CC-1118-1 ruling. Therefore, the government’s debt claims usually prevailed, at least for the portion incurred before the CC-1118-1 ruling.

Digging in their heels, some of these children refused to pay the old debts. Their refusal and municipalities’ pursuit of them accumulated more pressure on government resources. Municipalities could exercise discretion to write off the debt, promptly adding to the state’s financial burden. Or, to keep alive their right to the debt, they could expend more time, money, and labor to continuously enforce the outstanding obligation. In the latter scenario, they would send a notification followed by administrative sanction, which would set off a series of appeals by the children, first to an administrative appeal review committee and then to administrative courts. The agencies could also obtain compulsory enforcement. However, it is unclear if they did so in the cases that I located or if, for whatever reason, they exercised discretion not to and ultimately absorbed the debts.

Besides taxing government resources, the inadequacies of CC-1118-1’s implementation and its provocation of litigation exacted more physical, emotional, and psychological tolls on troublous parents and their children. One year after the enactment of CC-1118-1, Taiwanese newspapers were already criticizing the government for these deficiencies. One newspaper headline exclaimed, “Sham judgment? Exempted from maintaining father who abandoned the family but still have to pay up?” ³⁹ Ten years on, politicians had to acknowledge the implementation problems and the embarrassing cost of CC-1118-1 litigation:

The inadequacies of debt recovery procedures (of SCWA) have pushed parents and children to sue each other in court and produced social tragedies. We need to construct a kinder, more effective debt recovery process and ensure that nursing facilities can provide better care to the elderly. ⁴⁰

On May 12, 2020, the Legislative Yuan passed a lengthy bill to amend SCWA. The key amendments to SCWA-41 explicitly authorize municipalities to reduce or cancel accrued debt if the duty bearer has “special circumstances” (SCWA-41-4-1 to 41-4-2), that is, they do not need a CC-1118-1 ruling, and to invite experts, scholars, and civil society groups to assist with the assessment of special circumstances (SCWA-41-5). In addition, the official legislative reasons state that the amendments are meant to allow the retrospective application of CC-1118-1 decisions to debt incurred prior to the ruling date. ⁴¹

Can the 2020 amendments reduce what Taiwanese legislators described as “social tragedies,” the result of dis/empowering engagements with the state regarding troubled parental maintenance duties? Can the revised welfare laws stem the tide of litigation and better safeguard government resources? The crux may lie with whether officials will exercise their discretion under SCWA-41-4-1 and 41-4-2. The two provisions bear shades of PAA-5-3-9, which enables social workers to directly exclude children in “special circumstances,” for instance, those who have troublous parents fitting CC-1118-1-like scenarios. But, as discussed above, social workers seldom apply PAA-5-3-9 directly and rely instead on CC-1118-1 rulings.

In conversations with social workers at different municipalities in 2022, some disclosed that they still referred to CC-1118-1 rulings to determine whether to ease the SCWA-41 debt of children of troublous parents. Others insisted that their offices no longer did so; however, my analysis of administrative review appeal decisions after the 2020 amendments originating from those municipalities suggests otherwise: these agencies still put immense weight on CC-1118-1 rulings, more often than not dismissing appeals by children who did not submit such rulings as evidence. As for the retrospective application of CC-1118-1 rulings, the impact of the SCWA amendments may be limited. To date, it seems that municipalities want to exercise discretion by allowing retrospective application only in certain circumstances, such as when the children’s basic livelihood would be severely compromised. ⁴²

Therefore, my analysis indicates that recalibrated tetherings after the 2020 amendments continue to keep parents, children, their families, and the state open to similar threats and harms as before. In November 2021, when I followed up with a judge, without any suggestion on my part about CC-1118-1 litigation, she messaged, “There are more and more cases!” (Judge Yang, November 9, 2021). Although Judge Yang did not provide any statistics, her perception as an experienced judge was publicly confirmed nine months later by the Judicial Yuan:

To reduce people’s litigation burden, and avoid reopening or aggravating kinship wounds, when SCWA was amended in 2020, a provision was added to invite experts and scholars to help determine whether to reduce or exempt [the payment of elderly’s placement expenses]. However, after the amendments, litigation has not decreased but increased, and the burden of litigation on ordinary citizens has not reduced. (Judiciary News Release, July 30, 2022)

It remains to be seen whether the Taiwanese government will tweak the tetherings of individual-family-state once more. When passing the 2020 SCWA amendments, the Legislative Yuan called on the Ministry of Health and Welfare to conduct a review one year later. However, the COVID-19 pandemic has probably delayed any review plans for now.

CONCLUSION: LEGAL POWER, TETHERINGS, AND CIRCUMSPECT OPTIMISM

As the judge brought Wan-Yi, Madam Liao, and me to the room where I would interview the mother and daughter, she said to them: “When you went out of the courtroom, you saw the other family (from another troubled parental maintenance lawsuit). Think about it. I have to protect you and protect them. If I reduce your obligation, they’ll have to pay (for Mr. Ma). If I reduce their obligation, you’ll have to pay (for their father)” (Field notes, May 17, 2019).

The judge’s remarks, like many other observations from my fieldwork, once again instantiate the tetherings of individual-family-state. If the judge grants a CC-1118-1 exemption to Wan-Yi, she would alter the relational power among Wan-Yi, Mr. Ma, and the state by transferring the financial responsibility for Mr. Ma to the state. In the judge’s view, this move necessitates drawing on tax dollars and shifting the burden to taxpayers—hence, her point that the other family (taxpayers) would “pay” for Mr. Ma, and vice versa. Moreover, the judge’s words remind us that the capacities of individuals and their families are not only connected to the state but also to everyone else’s in their society.

Given my Taiwanese findings on relational power and openness, we may wonder if parental maintenance laws help to address the challenges posed by rapidly aging societies. At this juncture, we arrive at the final takeaway, which pertains to the power of law. As part of their critical approach, proponents of vulnerability theory advocate for stronger state support or intervention in people’s lives to improve them (“Tetherings, Vulnerability, and Law”). Whether through rights protection, financial assistance, or other means, any interposition or reform probably cannot escape the law, and may ignite competing views about its interpretations and usage. The normative and empirical concept of “tetherings” places the state front and center in family law and disputes (also see Li 2022) to advance understandings of legal power in vulnerability theory. By tracing the workings of tetherings, I showed how parties in a relationship (re)define themselves to one another with law (Yngvesson 1985) in varying combinations of state and lived familisms. Significantly, I highlighted how children like Wan-Yi and troublous parents like Mr. Ma, by mobilizing the law to contend with state enforcement of familism, experience both empowerments and disempowerments in different ways, times, and places.

These findings resonate with lessons found across law and society studies. No matter the best of intentions, legal mobilization can produce unfavorable, unintended consequences for the parties involved. One reaction is to caution against the dark side of law (Albiston 2011). Du (2022, 15) aptly summarizes such insidious consequences in her book about state and family relations in late imperial China and the early ROC: “Law had an effect on society not primarily through oppressing people’s agency but by circumventing people’s ability to choose and by limiting their options. When people used the dominant system to forward their perceived interests, they consolidated the very hierarchies that subjugated them, and they allowed the system to mold their behavior and beliefs.”

Another response, which is my position, is to treat the malleable, unstable qualities of law (Chua 2019; McCann 2020) with circumspect optimism. Perhaps progressive changes to deeply entrenched institutions, such as family, will be incremental and never radically break from their underlying ideologies (Levitsky 2014), most notably when they are imbricated with the state and institutions such as welfare and law. Nonetheless, the Taiwanese case demonstrates that all parties, including the state, are susceptible to change. The cumulation of dis/empowerments, ever-evolving lived familisms, and ever-present economic, political, and moral anxieties can persuade the state to reckon with the consequences of implementing an ideology as formidable and yet as diversely practiced as familism.

Circumspect optimism thus requires holding on to the belief that law possesses the capacity to achieve progressive change and staying patient about this potential. Such prospects may need extensive periods to materialize, as the state, individuals, and their social groups interact with law and other ideologies such as familism, and continuously adapt their relational power and agency. On some occasions, law’s progressive potential comes to the fore; on other occasions, it may retreat and lose ground. Therefore, circumspect optimism also entails being mindful of law’s unexpected, debilitating outcomes.

In my future writings on parental maintenance litigation, where I examine Taiwan together with Vietnam, PRC, and Singapore, I will be able to theorize more extensively on the role of law in the relational dynamics of individual-family-state across societies with dissimilar political, legal, and welfare institutions. Nonetheless, this article’s analysis of the Taiwanese case has demonstrated how all kinds of encounters in the push and pull of tetherings matter to legal and social change. Its outlook of circumspect optimism encourages scholars not only to value the impact of resistance, which receives significant attention from law and society researchers, but also to appreciate the experiences of nonheroes, the likes of troubled parental maintenance litigants. Their defeats and disempowerments, and the unintended consequences of their legal entanglements can also help pave the collective long journey of rearranging our relationships—to the state and to one another.

APPENDIX: FIELDWORK AND DATA

This Taiwanese study is part of my larger project (2016 to the present) on parental maintenance in PRC, Taiwan, Vietnam, and Singapore. Data collection for the project includes interviews with ordinary people, both litigants and nonlitigants, and experts; courtroom observations; court and administrative decisions; and documentary sources. Therefore, even though this article focuses on troubled parental maintenance litigation, my analysis takes into consideration situations and people outside of litigation.

Interviews

I interviewed eighty-eight people in Taiwan. ⁴³ I used Mandarin Chinese in the majority of these interviews and Taiwanese, a variety of the Minnanese dialect, in interviews with elderly residents in southern towns and villages. The bulk of these interviews took place between 2019 and March 2020, before the COVID-19 pandemic made travel to Taiwan too restrictive and unsafe. Since April 2020, I have kept in touch with key informants on messaging apps and email, and my Taiwan-based assistant has conducted thirteen in-person and telephone interviews.

The interviewees come from urban and rural areas. Fifty-five are experts: judges, judicial officers, law clerks, court-appointed mediators, lawyers, social workers, nursing home operators, and borough chiefs (里長), the lowest-level elected official. Out of the thirty-three lay interviewees, sixteen are litigants and their family members. The others come from diverse backgrounds in terms of age, place of residence, economic status, occupation, religion, sexuality, gender, and education, and they are people who have not given much thought to parental maintenance laws, much less mobilized them.

The majority of interviewees identify as Han Chinese, Taiwan’s dominant ethnic group. A minority are Indigenous peoples, whom I sampled for tacit comparison. My professional and personal friends provided the initial contacts. Subsequently, I asked interviewees to connect me with other people, and specified certain characteristics, trying my best to interview the range of abovementioned experts in the same province, district, or city, and laypeople from the same families, neighborhoods, and villages. This combination of snowball and purposive sampling helped maintain some consistency among interviewees while achieving diversity across demographic indicators.

I asked experts about the cases they handled, the formal legal processes, and their views on parental maintenance laws and familism. I talked to lay interviewees about their family history and living and care arrangements to elicit discussions organically about the elderly. I also asked if they knew about parental maintenance laws and for their views on these laws and the social practices of looking after parents.

Courtroom Observations

Two district judges allowed me to conduct observations of court proceedings on parental maintenance. I observed the proceedings at a district court whose jurisdiction encompasses suburban and rural areas, while my assistant attended the proceedings at a courthouse in a metropolis in the summer of 2019. These two courts are part of the twenty-one district courts in Taiwan. The Judicial Yuan, the highest judicial organ of Taiwan, consists of Constitutional Court, Administrative Court, and Ordinary Courts (criminal, civil, and specialized). Civil and criminal courts operate on a three-tier system, with district courts being the lowest, followed by the High Court and Supreme Court. Administrative courts function on a two-level system of High and Supreme Court.

Court and Administrative Decisions

I located relevant decisions from district courts, high courts, and supreme courts from the Judicial Yuan’s database and randomly sampled 20 percent from the 1,608 civil court rulings and 64 administrative court rulings. I also found and analyzed 145 relevant administrative review appeals from municipal governments’ websites and research databases. The civil court rulings pertain to parental maintenance provisions in the Code. The administrative court rulings concern children’s SCWA-25/41 debt litigation against municipal agencies; they arise from appeals against administrative appeal reviews, which are decisions by municipal governments on challenges against administrative sanctions. ⁴⁴ The majority of litigants are probably Han Chinese, though I generally cannot discern litigants’ ethnicity from court records. Indigenous peoples do adopt Han Chinese surnames for official records, and only in a few instances do court rulings contain information that allowed me to draw inferences, for example, a statement referring to the litigant’s residential area known to be populated by Indigenous peoples.

The court rulings available online are predominantly those issued after 1999. Hard copies of pre-2000 rulings are archived at the Judicial Yuan, which I did not access, at least partly due to the onset of the pandemic. Because CC-1118-1 cases appeared from 2010 onward, they would not have been included in the pre-2000 rulings anyway. Nonetheless, I supplemented post-1999 rulings with compilations of older Supreme Court cases. My expert interviewees provided additional insights into parental maintenance litigation that took place before 2010.

Court rulings and other official decisions are the tip of the iceberg of relevant grievances. Many more disputes do not enter the formal system or reach a formal decision. Besides, courts and municipalities do not uniformly upload their decisions or keep them online after they are uploaded. Therefore, the universes of parental maintenance rulings and administrative decisions are undetermined, and I do not know what percentage the cases available online represent. At any rate, I analyzed court and administrative decisions not to assess their correctness, compile statistics, or confirm hypotheses. Rather, I used the records to triangulate the data from interviews and other sources and construct a composite picture of the issues and facts for qualitative analysis and theory generation.

Other Sources

I reviewed records of judges’ conferences and, with the presiding judges’ and litigants’ consent, six court dossiers of troubled parental maintenance litigation. Additionally, I examined documents from three of the other four branches of Taiwanese government, the Legislative, Executive, and Control Yuan, which are, respectively, the state organs of lawmaking, of administration, and of supervision, audit, and censure. ⁴⁵ These documents include current and outdated legislation, amendment bills, legislative debates, and annotations from the late Qing dynasty and founding years of the ROC; ministries’ circulars, directives, and reviews of amendment bills; municipal rules and regulations; and investigation reports. I also analyzed newspaper articles and writings by Taiwanese academia and lawyers.