Indentured Prostitution in Imperial Japan: Credible Commitments in th…
J. Mark Ramseyer
University of California, Los Angeles
---
In 12th century Toulouse, the public brothels split their profits with the local university (Shadwell). Not so in Japan. Japanese brothels never tried to buy academic support, and never had it.
Instead, academics have consistently criticized the brothels for "enslaving" peasant women. Indenture contracts were an important part of the tales they told: poor and unsophisticated, peas ants unwittingly accepted indenture contracts that the brothel owners used to reduce prostitutes to sexual slaves.
These tales cheat the prostitutes of their due-for they drastically under- state the resourcefulness that they could show, even in the direst situations.
Although prostitution was harsh work, most brothel owners were not able to manipulate indenture contracts to keep prostitutes at work indefinitely, and most prostitutes did not become slaves. Instead, licensed prostitutes generally enlisted under six-year indenture contracts.
They earned (what were for them) very high incomes. Many repaid their debts in three or four years and quit early. Most of the rest quit when their contracts expired.
Within this world, the indentures helped make the employment market itself possible for despite the promises of high incomes, a woman entering the industry for the first time could never be sure.
She knew she and her family suffered a loss in social status if she took the job, knew some brothel owners had an incentive to lie about the money she would make, and knew most owners would be able to invoke the courts more easily than she.
Pre- cisely because she could never be sure of the money, she found the indenture contract advantageous. Through the contract, the brothel owners could promise her total earnings large enough to offset a substantial part of her lost status, could make that promise credible by paying her in advance, and could shoulder the costs of invoking the legal system themselves.
The point is not that licensed prostitution and indentured servitude were necessarily "good for Japan"; neither is the point that, overall, peasant women benefited from the availability of a legal market in prostitution. As noted earlier, both issues are beyond the scope of this essay.
Instead, the point is more limited: Given the substantial stigma women incurred in entering the industry, many women hesitated to take jobs at brothels (and many parents hesitated to send their daughters to brothels) without some assurance that they would earn much higher wages than they could earn elsewhere. The indentured contracts offered that assurance.
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Indentured Prostitution in Imperial Japan: Credible Commitments in the Commercial Sex Industry
Sex Industry
1991), pp. 89-116 Published by: Oxford University Press
Indentured Prostitution in Imperial Japan: Credible Commitments in the Commercial Sex Industry
Author(s): J. Mark Ramseyer
Source: Journal of Law,
Economics, & Organization, Spring, 1991, Vol. 7, No. 1 (Spring, 1991),
pp. 89-116
Published by: Oxford University Press
Indentured
Prostitution in Imperial Japan: Credible Commitments in the Commercial Sex
Industry
J. Mark Ramseyer
University of California. Los Angeles
I'm glad we won
a flower for a dollar I'm mad we lost
a flower for a dollar ---Japanese
children's song
1. Introduction
So interpreted,
the song makes no more sense in Japanese' than in English. But in its first two
lines are two puns: "win" also means "buy," and
"flower" can mean "girl." Thus the song can also mean
"I'm glad we bought a girl for a dollar." As in Mother Goose, the
macabre is historical: Peasant families in pre-20th-century Japan [like
peasants in medieval Europe (Engerman, 1973:44)] bought and sold children.
"I'm glad my parents bought for me," the child sings, "a sister
for a dollar."
I received helpful suggestions from far more than the usual
number of generous readers: N. Abrams, W. Alford, P. Arenella, H. Baerwald, T.
Bryant, W. Comanor, K. Crabb, R. Fretz, M. Fruin, S. Garon, C.
Goldberg-Ambrose, W. Klein, L. Lynn, H. Motomura, M. Nakazato, G. Noble, H.
Ooms, H. Patrick, I. Pug, M. Polinsky, R. Posner, A. and R. Ramseyer, B.
Rasmusen, R. Romano, F. Rosenbiuth, A. Rosefl, R. Sander, G. Schwartz, H.
Scogin, R. Smethurst, F. Upham, J. Wiley, 0. Williamson, N. Wyse, S. Yeazell,
two anonymous referees, and participants in the UC Berkeley Workshop in
Institutional Analysis, the UCLA Political Economy Workshop, the Yale Law,
Economics, & Organization Workshop, the SSRC—UCLA Japanese Legal History
Workshop, and the Pacific Roundtable on Industry, Society, and Management. I
received financial assistance from the UCLA School of Law Dean's Fund and the
UCLA Japan—U.S. Research and Exchange Program. In conducting the research, I
received help from the library staffs at UC Berkeley, UCLA, Harvard—Yenching
Institute, Hiroshima University, Hitotsubashi University, University of
Michigan, Tohoku University, and Tokyo University. The views expressed in this
paper are mine; I know for a fact that many people gracious enough to comment
on earlier drafts of the article disagree with the approach.
I. "Katte
ureshii/hana ichimonme/makete kuyashii/hana ichimonme."
C 1991 by Oxford University Press. All rights reserved. ISSN 8756-6222
If
some premodern Japanese peasants sold their children, some are said to have
indentured their daughters to brothels. At the same time, many women contracted
to become prostitutes independently, and did so through long-term employment
contracts. In this article, I examine a more modem version of these various
contracts of the macabre: the employment arrangements among parents,
prostitutes, and brothels in the commercial market for sexual services in early
20th-century Japan. More specifically, I examine the use of indentured
prostitution agreements—contracts in which a prostitute agreed to work at a
brothel for several years in exchange for a large advance on her future
earnings. Prostitutes and brothels have used these indenture contracts in a
variety of societies, and I use data from Japan to ask why.
Prostitution
in pre-World War II Japan was a regulated industry, and it was a controversial
industry. For precisely those reasons, government records and independent
studies together yield an astonishingly candid set of empirical records.
Accordingly, I first use those records to recover and reconstruct the
contractual arrangements themselves. In doing so, I describe both the deals the
parties cut and the way they enforced those deals.
Second,
I study the most common hypothesis about these indentures—that the brothel
owners offered the contracts because they could manipulate them in a way that
tied the prostitutes to the brothel beyond the stated contractual term
(because, in short, the owners could transform indentured servitude into debt
peonage). I find no evidence for the hypothesis. Instead, I find that many
prostitutes repaid their advance substantially before the end of their terms and quit early. Indentured
prostitution was a harsh job, but it was a job women took for only a few years.
Third,
I examine two additional hypotheses about the contracts: (i) that they enabled
the brothels to control prostitutes, and (ii) that they (like the indenture
contracts that brought thousands of Europeans to North America) provided credit
to destitute peasants. Although these hypotheses may capture some facets of the
Japanese prostitute indentures, I explain why they do not suffice.
Instead,
I contend that prostitutes and brothels used the indenture contracts for a
different set of reasons. First, the contracts enabled brothel owners to make
credible their promises about future earnings to the women involved (and,
sometimes, their parents) (Williamson, 1983, 1985). The owners found it advantageous to make these promises
because the recruits were entering an industry where they would suffer a
certain and substantial reputational loss, but where they would earn a wage
about which they had little reliable information. Second, the contracts
enabled the owners and prostitutes to allocate the costs of invoking the legal
system to the party able to do so most cheaply. That brothels and prostitutes
would create such arrangements suggests, ultimately, that scholars would do
well not to let the brutality of prostitution blind them to the effective ways
peasant women and men make the most of bad situations .2
2. See the books by Judith Walkowitz and Barbara Hobson (Chapter
4) for evidence of rational self-assertion by prostitutes in 19th-century
England and the United States.
Given
the politically charged nature of prostitution and indentured servitude, more
than the usual disclaimers may be in order. First, and most obviously, this
article is a study in the history of the organization of an industry, and not a normative essay. I take no
position in this article on whether societies should legalize prostitution.3
Second,
for lack of data, I also leave unanswered one basic empirical question: How
often did Japanese women choose to become prostitutes on their own, and how
often did they do so under family pressure? On the one hand, prostitutes earned
reasonably high incomes, and many women were poor. Some women independently
chose the job simply because it paid so much. On the other, some women took the
job under parental pressure. Although I find evidence that such pressure mattered
less than often alleged, the evidence is too tentative to justify any
conclusion.4 Other research does suggest that some peasant families
share risk by pooling incomes (Popkin: 1822, Rosenzweig and Stark), and some
daughters probably joined the brothels as part—albeit a bitter part—of such a
family insurance scheme. Parents or wealthy neighbors often did guarantee the
prostitute's debt (though they could well have done so even when the woman
chose to become a prostitute on her own).5 For expositional
simplicity—but only for that purpose—I describe the employment arrangement as
though the women involved consistently chose it themselves.
Third,
I deliberately ignore most contemporaneous narrative accounts of Japanese
prostitution. To date, almost all histories of the industry have relied on
firsthand accounts of reformist journalists, abolitionists, and ex-prostitutes
rescued by those abolitionists. Necessarily, the prostitutes who approached
1.
Compare, for
example, Shrage and Pateman (prostitution should be banned) with 0km and Radin
(some forms of prostitution should be allowed).
2.
Note that even
though prostitutes could legally quit whenever they pleased (Section 3.2, infra), most worked until they had
either repaid their debt or served their full term. From 1927 to 1929, for
example, only about I percent of all licensed prostitutes quit their work
without the brothel owner's consent (It6:21 3-4). Yet if their parents had
signed the indenture contract (as they generally had), then the only cost of
quitting was that they and their parents became liable on the note. And if the
parents had forced them into prostitution, their parents would have taken the
advance and the prostitutes themselves would have been left judgment proof.
Effectively, then, the prostitutes' only real
risk was that the brothel owner would seize their parents' assets. As a
result, women forced into prostitution by abusive parents could have walked
away from their jobs, left their parents to repay the debt, and faded into the
anonymity of metropolitan Tokyo. Admittedly, often it may have been a
dauntingly grim prospect. Yet if large numbers of parents coerced their
daughters into prostitution against their will, one would expect a significant
number of women regularly to abandon the job—and opt for that cold anonymity
over the job they had learned to despise and their parents who had sold them
into it. Almost none, however, ever did SO.
According to the
Salvation Army, 31 percent of the women it "rescued" from jobs as
indentured prostitutes in 1930 reported that they had been induced to take the
jobs by their parents (Kakusei, 1931b).
3. Note that under the prewar Civil Code, men
and unmarried women could contract on their own if age 20 or older. [Mimpö
(Civil Code):l 31. Men and women under the age of 20 could not contract without
the Consent of their guardian (Mimpo: 4).
the abolitionists
were among the most dissatisfied, while the women who uneventfully fulfilled
their indenture terms wrote few books, articles, or even diaries about their
experience. As a result, the extant narratives present enormous problems of
sample bias. Issues of balance also plague quantitative records, to be sure.
Yet because prewar Japanese prostitution was both regulated and controversial,
both government agencies and abolitionists spent massive resources counting the
people and money in the industry. Surprisingly, perhaps, these quantitative
records corroborate each other on most critical points. I use those records
where they converge; where they do not, I note that divergence.
The
article proceeds as follows. In Section 2, I outline both the conventional
accounts of prewar Japanese prostitution and the basic contours of the
industry. In Section 3, I trace the evolution of the regulatory scheme
involved. In Sections 4.1-4.3, 1 ask how the indenture contracts actually
worked, and, in Sections 4.4 and 4.5, I
explore why the contracts were so common. The regulatory scheme did not survive
the 1950s, however, and I trace its
collapse in Section 5.
2. Scholars and Prostitutes
Most scholars
explain prewar Japanese prostitution through what they consider
"exploitative" economic growth. Consider social historian Mikiso
Hane. Relying heavily on journalistic reports, Hane claims a "growing
chasm" separated rich and poor in prewar Japan (34): "[T]he condition
of the peasants remained pathetic in contrast with the growing well-being of
bourgeois capitalists," and peasants thus found themselves waging "a
bitter struggle for survival" (31, 27). Within this impoverished world,
some of "the most pitiful victims . . . were the young farm girls who were
sold to brothels" (207).
Anthropologist
Liza Dalby studied the licensed entertainer—prostitutes known as "geisha,"
and tells a similar story. The geisha, she writes, lived decent lives only
compared with the lives ordinary licensed prostitutes (shogi) lived: "Dreadful as life was for [the geisha,} they
were yet better off than the girls who were sent not to geisha houses but to
brothels" (222). In part, that dreadfulness resulted from the way the
geisha house used indenture contracts to tie the women to it. Like many
scholars of prostitution elsewhere,6 Dalby suggests that the
Japanese house owners manipulated the contracts to turn prostitution into debt
peonage—and keep the women working beyond the original term. Trapped with
"unscrupulous owners who charged the inmates exorbitant rates for room and
board, intentionally keeping them in a state of dependence," the geisha
worked in "virtual captivity" (221).
Fact or fiction,
the stories sold newspapers and magazines, and contempo‑
1.
See,
for example, Corbin (78) (France), Harsin (293) (France), O'Callaghan (13)
(China), and Rosen (130) (United States).
2.
Note,
however, that most women apparently received room and board free. See Section
4, infra.
rary reporters
made the most of them. Journalists told of naive women tricked by usurious
brothel owners into a life of vice, tied by a debt that increased by the month.
It was thinly disguised slavery, they argued, and the government should ban it.
Most modem scholars merely repeat these accounts. Even Japan's eminent legal
sociologist Takeyoshi Kawashima concludes that the prostitutes were caught,
through "the power of the patriarchal family system," in
"slavery" (1950:89, 1955).
It
was not all fiction. Many families were poor in prewar Japan. The international
depression hit the country early and hard, and may have hit the countryside
hardest of all.8 Given the alternatives, some peasant women did
become prostitutes. Those who did so often contracted to stay at a brothel for
several years. In exchange, they received much of their salary in advance.
Whatever
virtues it lacked, the vice was a major industry. In 1924, Japan had 550 licensed red-light districts, 50,100
licensed prostitutes, and 11,500 licensed brothels. These brothels were
substantial businesses, not street-corner pimps. Most typically, they served
food and drink besides sex, and were large 15- to 16-room establishments that
carried 4 to 7 prostitutes and 6 to 10 additional employees on staff. In
addition, Japan had 77,100 licensed geisha. The number of unlicensed (and hence
illegal) prostitutes is less clear, but one otherwise reliable observer placed
the figure at about 50,000. With a population of 59.7 million, Japan apparently
had I prostitute for every 350 people.
In the city of Kyoto, the figure was 1 for every 150.9 By contrast,
in the modern United States, scholars estimate the figure at 1 for every 650 to
900 (Symanski:10).
As
harsh as prostitution was, the women who became prostitutes were not women with
many attractive alternatives. Most licensed prostitutes were badly educated.
Notwithstanding that all were at least 18 years old, half had fewer than five
years education and 16 percent had not been to school at all'°—this at a time
when 99 percent of all Japanese primary-school-age students (grades 1-6) were
in school (Minami:19). Such unskilled and uneducated workers had few attractive
choices in prewar Japan, for the country was poor. Consider one survey of 12-
to 18-year-old night-school students: Among those with factory jobs, the modal
student worked 10 hours a day; among those with commercial jobs, the modal
student worked 12 hours (and that they found time for school suggests they
worked shorter hours than most). Of all students, only 13 percent worked fewer
than 28
1.
See
the trend in farm household income in Table 1, infra. Scholars have often exaggerated this poverty, however, as
Smethurst rightly points out in his excellent book.
2.
The
figures are from Fukurni (26-28, 32, 50-56,
178). Fukutni estimates the total number of licensed and unlicensed
prostitutes at 174,000 in the mid-1920s. Nakamura (222-23) places the total at
276,000. See also Kusama (14-26).
3.
See
Fukumi (66-68) (Tokyo data), ItO (204), and Kusama (100-03). Licensed
prostitutes were required by law to be at least 18 years old [Naimu shO rei
(Home Ministry Order) No. 44, Oct. 2, 1990, § 11.
days per
month." Prostitutes on average had 2.54
customers per night in 1924,12 and likewise worked about 28
nights per month. 13 Prostitution was sordid work. But the
alternatives were not easy.
And
prostitution did pay well. Consider Table 1: Rom 1926 to 1932, prostitute
earnings averaged 179 percent of the mean female factory worker's wage,14
and 53 percent of the total mean income of farm households (an
average of both landlords and tenants). 15 Oliver Williamson
(1985:35-8) and Price Fishback (1986a, 1986b, 1989) recently discussed how
American miners received higher wages when coal companies provided unsanitary
or unsafe conditions; Clark Nardinelli showed how British parents received
higher wages for their children when a factory used corporal punishment. Much
of the same logic applied in Japan. Japanese peasant women faced an array of
options, among which a job as a prostitute was one of the most squalid and
stigmatizing. In exchange for taking the job, they demanded—and received—high
pay. According to one 1934 sample of female workers from a northern prefecture,
young women who left home to work earned room and board plus a mean 884 yen per
year as a licensed prostitute, 575 yen as a geisha, 518 yen
1.
Only
13 percent had more than two days off per month (Shakai, 1936:23-25). This is
roughly consistent with Ohsato's data for the country as a whole: in 1926,
workers in manufacturing industries worked 10.32 hours per day, 27.1 days per
month. See Ohsato (58-61); see also
Naikaku tOkei (109, 122) (similar figures).
2.
From
1922 to 1932, the mean ranged from a low of 1.71 customers per night in 1930 to
a high of 3.04 in 1923 (when some of the records were lost in the great Tokyo
earthquake). The 11-year running average was 2.10 [Keishi cho (1933:96)]. Other
estimates confirm these figures [see Maeda
v. Yanadani. 841 1-l6ritsu shimbun 21, 22 (Tokyo Ct. App. Nov. 14, 1912)
(70-100 customers per month); Uemura (1929:492-501) (similar figures for urban
prostitutes); and Kusa-ma (220-1) (2.54 customers
per night in Tokyo, 1924)1. On the other hand, the figures for the city of
Osaka for 1913-15 ranged from 0.72 customers per night to 0.78 [see Uernura
(1918:334)]. By contrast, Corbin (81) cites studies of the French licensed
quarters indicating four to eight or more clients per night; see Harsin (283)
(even higher figure for France).
3.
In
1924, customers made 4.20 million visits to 4989 licensed prostitutes in Tokyo.
At 2.54 customers per prostitute per
working night in 1924, that leads to 331 working days per prostitute [Keishi
chfl (1933:96-8)].
4.
During
this period, mean annual wages for all factory
workers were 1926, 554 yen; 1927, 632
yen; 1928, 657 yen; 1929, 666 yen; 1930, 650
yen; 1931, 605 yen; and 1932, 580 yen (see Ohsato:60, 69). Female factory
workers made 30 to 40 percent of the male wage, though observers argued that
much of that difference disappeared when adjustments were made for age, work
experience, and tenure on the job [ROdflsho (1952:14-7)].
The Table I figures on prostitute income are based on data the
government required brothel owners to submit, and reliability is an obvious
issue. Nonetheless, although the data were widely reported in the prewar
studies of the industry, I know of no abolitionists who complained that the
figures were inaccurate. To the contrary, abolitionists themselves used income
figures that were quite close. See, for example, Ito (229-30). Their quarrel
was not with the amount of income, but with whether, given that income,
prostitutes could live within it. See Section 4.4, infra. These figures represent prostitute income before any repayment of the indenture
principal.
11. Most prostitutes, of course, came from households with
below-average incomes. Note that in 1926-27, farm households had a mean monthly
income of 96.2 yen, land-owning households had income of 112.5 yen, and tenant
families had an income of 79.2 yen. See Naikaku tOkei (352).
Table 1. Mean Income of Female Factory Workers, Farm Households, and
Licensed Tokyo Prostitutes
A B C
Factory Farm Licensed
Workers-, Householdsb Prostitutes
c
Year (yen) (yen) (yen) C/A C/B
|
1926 |
312 |
1433 |
641 |
2.05 |
0.447 |
|
1927 |
320 |
1183 |
658 |
2.06 |
0.556 |
|
1928 |
322 |
1361 |
660 |
205 |
0.484 |
|
1929 |
320 |
1201 |
554 |
173 |
0.461 |
|
1930 |
289 |
810 |
430 |
1.49 |
0.531 |
|
1931 |
260 |
552 |
406 |
1.56 |
0.736 |
|
1932 |
245 |
644 |
388 |
1.58 |
0.602 |
Note: Prostitutes also received tree room and board; many factory
workers did not.
aDaity wages from RadOshO fupn shönen kyoku, 1952. Fujin fodrl no fitsolO frhe Reality of
Female Labor], p. 14. Tokyo: RociOshO; number of work days per
month from Ohsato. Katsuma. 1966. Meiji
i/cO honpO sluqo keizai tOkei (Principal Economic Statistics for our Nation
since the Meiji Period], p. 60. Tokyo: Bank of Japan. b5Omu chO tOkei kyoku. 1987. Nihon diSki tOkei sOran [General Long-term
Statistics for Japan], Vol. 4, Table 18-5-a. Tokyo: SOmu chO.
c(KeiShi chS)
sSkan kanbS bunsho ka. 1933. S/iOwa nana nen
keishi chO tOkel iChi ippan (An Outline of Police Agency Statistics for /9321, p. 96. Tokyo:
(Keishi chol sOkan kanbO bunsho ka.
as a bar maid (a
job that often involved prostitution), 210 yen as a waitress (also often
involving some sex), and 130 yen in other jobs. 16 Ultimately, many more women
looked for a position as a licensed prostitute than located one: from 1920 to
1927, only 62 percent of the women applying for work as licensed prostitutes in
Tokyo found jobs (ChUO shokugy6:381-2, Kusama:27-30, 36).
Through
its licensing scheme, the government effectively created three overlapping
hierarchical tiers in the industry: licensed geisha, licensed prostitutes, and
unlicensed prostitutes. The geisha were licensed as entertainers, and could not
legally market their sexual services. They entered the industry with better
educational backgrounds than the licensed prostitutes, and (in theory) took
extensive training in singing, dancing, and witty repartee. 17 Although they
sang, danced, and chatted for money, most (by one 1930 study,
1.
Akita
prefecture. The figures for Miyagi prefecture were 315 yen for a licensed
prostitute, 337 yen for a geisha, 187 for a bar maid, 132 for a waitress, 107
for a factory worker, and 78 yen for a maid or child-care worker. Most of these
employers probably provided room and board in addition to these wages [Shakai
(1935:160-1)). As the sampling techniques are not clear from these documents,
these data should be treated with more caution than the aggregate amounts
reported in Table 1—a point confirmed by the divergence between the figures for
Akita and Miyagi prefectures. For evidence of high prostitute incomes in the
West, see Rosen (147-8) and Mustang.
2.
See
Dalby. By one study, 92 percent of the geisha had completed at least primary
school. Of the licensed prostitutes, only 42 percent had completed at least 5 of the 6 primary school years, and 16
percent had had no schooling at all [see Fukumi (66-8; 216-7)].
about 80 percent)
also traded sexual services for money (Kusama:5, 20; Fukumi:234).
Much
below the highest grade geisha came the licensed and unlicensed prostitutes,
women with few pretenses about any extrasexual skills. For several reasons,
customers preferred the licensed prostitutes to the unlicensed. First, the licensed
women probably invested in a reputation for providing high-quality service.
They could sell sex legally, and worked for a finn that could market their
services legally. As a result, they could safely make such investments. By
contrast, unlicensed prostitutes worked under the constant threat that the
police would interrupt their careers and close their employer. 18
Second,
the licensed prostitutes were healthier. Licensed brothels at least screened
their recruits for contagious diseases, had weekly medical inspections, and
maintained special arrangements with designated clinics. Although the medical
records are problematic, contemporary studies did consistently show a much
lower incidence of venereal disease among the licensed prostitutes than among
the unlicensed. 19
Finally,
customers apparently considered the licensed prostitutes physically more
attractive. First, many of the unlicensed prostitutes were women no licensed
brothel would hire (Kusama:37). Second, many unlicensed prostitutes were
older. Although customers seem to have preferred women in their late teens and
early 20s, the unlicensed sector included a larger percentage of women in their
late 20s and early 30s than did the licensed sector (Fukumi:59, 144).
Whatever
the reasons, prices reflected this consumer preference for the licensed
prostitutes over the unlicensed. In the late 1920s, the "special"
(highest) grade licensed prostitute in the Yoshiwara district of Tokyo charged
14-17 yen for a full night's assignation, and the fifth (lowest) grade licensed
prostitute charged 6 yen for a full night. By contrast, the unlicensed
prostitutes in the Tamanoi and Kameido areas charged 3-5 yen for a night
(Kusama:230-1, 242).
1.
See
Klein and Leffler. On the prohibition of unlicensed prostitution, see Gyosei
shikkö ho (Administrative Enforcement Act), Law No. 84 of June 1, 1900, § 3;
Naimu shö rd (Home Ministry Order) No. 16 of Sept. 29, 1908, § 1.
2.
See
Keishi chO (1933:143) and Uemura (1918:47). In 1932, these inspections of
licensed prostitutes in Tokyo resulted in findings of disease in 3.22 percent
of the cases [Keishi chO (1933:143)]. Of the positive diagnoses, 41.7 percent
were of gonorrhea, 26.2 percent of chan-croid, and 7.6 percent of syphilis
[Keishi chO (1933:144)]. Inspections of unlicensed prostitutes resulted in
findings of disease in 9.7 percent of the cases [Keishi chO (1933:144)). Other
statistics confirm this difference between licensed and unlicensed infection
rates. In a 1927 government study, for example, 32 percent of the unlicensed
prostitutes had venereal disease, but only 2.1 percent of the licensed
prostitutes did (Kusama:288, 291). A third study found an even larger
difference: 2.8 percent of the licensed prostitutes had a venereal or other
communicable disease (in 1924), compared to over 40 percent of the unlicensed
prostitutes (in 1925-26) (Fukumi:93, 168-9). See also ChUO shokugyo (433-35)
(similar statistics). Note that the abolitionists also reported these low
venereal disease rates for licensed prostitutes. See Kakusei (193] a)
(infection rate of 1.82 percent).
3. The Regulation of Sex
3.1 The Decrees
Prostitutes used
indenture arrangements that were subject to a 19th-century regulatory scheme.
The American commodore Matthew Perry had forced open Japanese ports in 1853, and the Western nations had soon
imposed on a confused Japanese government various "unequal" treaties.
Determined to eliminate these agreements, government leaders set out to adopt
at least the trappings of Western culture and law.
In
1872, their chance arrived. A Peruvian ship named the Maria Luz sailed into Yokohama harbor for repairs with 231 Chinese
coolies hired under eight-year indenture contracts.20 One jumped
overboard and swam to a nearby English gunship. Unsure what to do, the English
captain sent him to the local English consulate. The consulate in turn
contacted the Japanese Foreign Ministry, and the Ministry called a local
judge.
The
time seemed perfect to prove Japanese sophistication. The judge did his best,
and declared that international trafficking in human beings violated public
international law. When Peru objected, the imperial Russian court intervened as
arbitrator and backed the Japanese. But the ploy backfired. In the middle of
the proceedings, the lawyer for the Peruvian ship declared that the Japanese
kept their own slaves. Japanese brothels were full, he insisted, of indentured
women who were no freer than the coolies.
Embarrassed,
the Japanese government immediately liberated all indentured prostitutes. The women
could return home, and courts would entertain no suits on their debt.2'
To implement the decree, the Ministry of Justice issued its own regulation:
Indenture
contracts rob people of their rights and reduce them to horses and cattle. As
one cannot demand that horses and cattle repay their debts, neither can one
demand that prostitutes and geisha repay their indenture amounts [Shihdshö
tatsu (Justice Ministry Circular) No. 22, § 2, Oct. 9, 1872].
The regulation
became infamous for its metaphor, but the point at least was clear: women could
leave the brothels and keep the money the brothel owners had advanced them.
Newspapers reported prostitutes loading their effects on carts and rickshaws,
and leaving the brothels in droves (Nakamura:174).
But
the 1872 decree did not ban prostitution. It merely voided the indenture
contracts. By the end of the year, the city of Osaka had adopted a "room
rental" licensing scheme to make clear that prostitution was still legal,
and other cities soon followed suit. The prostitute was a licensed
"independent contractor" under this system, and the brothel was a
"room rental service."
1.
For
more elaborate accounts, as well as complete versions of the court and
arbitration decisions, see ItO (107-32); see also Stewart (Chapters 7 and 8) and Gardiner (Chapter 1).
2.
DajOkan
fukoku (Cabinet Proclamation) No. 295, §
4, Oct. 2, 1872. The principal
national decrees and regulations relating to prostitution are reproduced as a
legal appendix in Yamamoto (747-67).
By 1875, the
national government even decided to permit indentures again. Sales of human
beings were illegal, it explained, and mortgages of humans were no better. Yet
it followed those bans with a cryptic distinction—arrange-ments where a debtor
repaid a debt through a fixed-period labor contract were legal.22
Once again, indenture contracts were valid.
3.2 The Courts
For all this
earlier confusion, by the turn of the century the courts made clear the legal
status of the indenture contracts.23 In 1896, the Supreme Court
announced part of that legal status—the personal service contract itself was
void. Iki Kushi had apparently agreed to work as a prostitute for several
years, but now wanted to quit. The Court let her do so. No matter what the
financial relations between the parties might be, it held, the personal service
contract is an independent agreement. It cited the 1872 decree banning
indentures (but not the 1875 decree
allowing them) and held:
We see no
evidence that the promisor [prostitute] intended to abandon her personal
freedom. Even had she so intended, she had no capacity to make such a binding
agreement. Hence, the promisee [brothel] can enforce this contract only in
ways it can enforce any other contract—in ways that do not bind the person of
the promisor. [Musashino v. Kushi, 2-3
Daihan minroku 50, 52 (S. Cf. Mar.
It, 1896)]
Four
years later, the Supreme Court explained how
a disgruntled prostitute could quit—although she could not leave the
brothel unless the owner added the brothel's seal to her petition to
de-register herself as a licensed prostitute, she could force the owner to do
so. 24 Rita Itai had agreed to work for 30 months, but wanted to
quit early. The court cited the 1872 law, and noted its 1896 opinion. It had
already held such long-term service contracts unenforceable, it declared. If
the woman needed the brothel owner's seal to quit, she could compel the owner
to affix it (Itai v. Yamada, 6-2
Daihan minroku at 83-84).
In
refusing to enforce the personal service agreement, the Supreme Court
distinguished the accompanying loan agreement. Never mind that it voided the
personal service agreement by citing the 1872 decree—which explicitly declared
the loan unenforceable. The Court
effectively transformed the indenture contract into two severable contracts:
an employment contract and a loan contract. The former it held void, and the
latter valid.
1.
DajOkan
fukoku (Cabinet Proclamation) No. 128, Aug. 14, 1875; see Nakamura (171-8) and Yamamoto. In 1900, the government
adopted the "room rental" licensing scheme on a national scale. See
Naimu shö rei (Home Ministry Order) No. 44, Oct. 2, 1900; Keishi chö rd (Police
Office Order) No. 37, Sept. 6 1900, discussed in Yamamoto (372-80).
2.
On
the case law governing the indentures, see Nishimura, Nömi, Kawashima (1955), Wagatsuma (1923, 1955), and Yonekura (1985); on the
turn-of-the-century court system, see
Ramseyer.
1.
Itai v. Yamada, 6-2 Daihan minroku 81 (S. Cf. Feb. 23, 1900); accord Fujiwara v. Kondo,
translated and reprinted in Murphy (140) (Nagoya D.C.
May 21, 1900); Ohashi v. Suzuki, translated
and reprinted in Murphy (143) (Nagoya D.C. June 11, 1900).
For
example, on an advance of 300 yen, Raku Uchiumi apprenticed herself as a geisha
in a hot-springs town. When the restaurant transferred her to another
restaurant for 660 yen, she apparently decided she had negotiated a bad deal
and tried to quit. The Court of Appeals held her five-year, five-month service
contract void, but suggested that her loan contract was still valid [Uchiumi v. Takeda, 29 Höritsu shimbun 12 (Hiroshima Ct. App., Oct. 30, 1900)]. The Supreme Court affirmed:
If a person
contracts to live with another and perform services, the contract is not
necessarily void as a restriction on personal freedom. After all, those who
agree to work always incur some restraints. Yet a contract of the sort at bar,
that restricts the promisor for five years and five months, violates the public
order and good morals. By contrast, the promise [to repay the advance] is not
invalid. It is not invalid even though the promisee cannot enforce it directly
either under law or in fact, since to do so would bodily restrict the promisor.
[Uchiumi v. Takeda, 59 Horitsu
shimbun 9, 10 (S. Ct. Oct. 10, 1901)]
The
Supreme Court repeated the distinction two years later. Prostitution is not
work blessed "in the sutras," it explained, but it is work licensed
by law. 25 Accordingly, a
prostitute may quit her job if she likes, but that which she has borrowed she
is bound by law to return.
Courts
occasionally held to the contrary. On the one hand, some courts enforced the
personal service contract. For example, a district court refused to allow one
16 year old who had enlisted at a geisha house for six years to quit. "For
a sixteen-year-old who must learn the arts of the geisha," it wrote,
"six years is not necessarily long." As the length and other terms
were reasonable, the house could enforce the contract [ItO v. Yoshida, 2115 HOritsu shimbun 5, 6 (Yokohama D.C. Feb. 7, 1923)].
On
the other hand, some courts held even the loan contract void. Although they
generally held the loan and service agreements severable, they did not always
do so. At root, severability was a question of fact. For example, Yoshie
Murakami entered a geisha house on a 10-year contract. Part way through her
term she quit, apparently because the house would not train her. When the house
sued her on the note, the court sided with her. Her loan and personal service
agreements were inseparable, it explained. As the service agreement was void,
so was the loan: she could quit and keep the money.26 And when a lower court held (as it did here) that the
two agreements were not severable, the Supreme Court often deferred.27
1.
Okuma v. Watanabe, 8-2 Daihan minroku 18, 21 (S. Ct. Feb. 6, 1902); see also Hama v. Watanabe, 116 Hflritsu shimbun
10 (Tokyo Ct. App. Nov. 21, 1902).
2.
Murakami v. Izumi, 1986 Höritsu shimbun 7 (Miyagi Ct. App. Apr. 22, 1922). Loan
contracts
were also held void in Ito v. Ito, 21
Daihan minroku 1718, 1726 (S. Ct. Oct. 18, 1915);
SanjO v. Oki, 852 HOritsu shimbun 19 (Tokyo Ct. App. Oct. 11, 1912); Yamashita v. R45/ca, 947 Hflritsu
shimbun 26, 27 (Osaka D.C., no date, journal issue of June 30, 1914); and Ono v. Ueda, 408 Hontsu shimbun 7, 8
(Osaka D.C. Oct. 20, 1906).
25. Yamashita v. Ma, 21 Daihan minroku 905 (S. Ct. June 7, 1915); Murakami v. Izumi, 27 Daihan minroku
1774 (S. Ct. Sept. 29, 1921).
Nonetheless,
the drafters of the time apparently knew which loan agreements courts would
enforce and which agreements they would not, for most indenture contracts seem
to have contained loan agreements the courts enforced. Consider the case of
Osumi Umezu.28 She had contracted to work as a licensed prostitute
and received a 650 yen advance.
Before repaying the advance, she decided to leave. The Court let her go.
Long-term personal service contracts were void, and if Osumi wanted to quit,
she could quit. Her loan, though, remained valid. If she quit, she and her
guarantors still owed the amount she had borrowed.
Similarly,
Hani Kiyomizu had agreed to work as a geisha and received 2300 yen in advance,
but had died part way through the contract. When the house sued her father as
guarantor, the court held for the house: "When Kiyomizu Ham dies, the debt
is no longer repayable through her earnings. Nonetheless, the contractual
liability continues." The agreements were severable, and even if she were
gone, the note and guarantee were still valid [Kiyomizu v. Takeuchi, 3336 Höritsu shimbun 10, 10 (S. Ct. Oct. 23,
1931)].
4. The Indenture Contracts
In large part,
modem scholars misunderstand prewar Japanese prostitution because they
mischaracterize the prewar indenture contracts.29 Most scholars
describe the contracts as debt peonage: Under the indenture agreements,
prostitutes worked at a brothel until they repaid their loans. Brothel owners
and recruiters enticed them into the industry by claiming that repayment would
be fast. In fact, they lied. Once a woman enlisted, they charged her usurious
rates on the loan and exorbitant prices for necessities. Through the scam, they
kept her perpetually in debt, and trapped at the brothel for as long as she
would sell. Effectively, as one historian put it, "the licensed prostitute
ended her life as a sexual slave.1130
No
doubt some brothel owners did manipulate contractual terms, and no doubt some
did tie prostitutes to the brothel for as long as customers would buy their
services.31 Yet the industry-wide records instead show that cases
1.
Umezu v. Abe, 2884 HOritsu shimbun 5,6 (S.
Ct. May 12, 1928). Other cases reaching the same result include Shibuya v. Yokoyama, 4355 Höritsu
shimbun 7, 9 (S. Cc. Nov. 22, 1938); Haneda
v. Matsumoto, 2272 Höritsu shimbun 19 (S. Ct. Apr. 1, 1924); Mon v. Oshita. 1808 HOiitsu shimbun 11
(S. Ct. Oct. 30, 1920); Wazamaki v.
Haneda, 10 Daihan minroku 1687, 1691 (S. Ct. Dec. 26, 1904); and Maeda v. Yanadani, 841 HOritsu shimbun
21 (Tokyo Ct. App. Nov. 14, 1912).
2.
For
examples of actual contracts, see Ito (221-8), SaicO, Kusaina (170-204); and
ChOO shokugyo (392-400).
3.
See
Murakami (50); similar accounts appear in, for example, Yamamoto (391-2),
Yonekura (59:41), and Yoshijni
(31-36). To "prove" this account, abolitionists relied on surveys of
those prostitutes who quite in violation of their contracts—not a random
sample. See, for example, ItO (301-7).
4.
For
examples of contracts where the women did
work until they had fully repaid the loan, see ItO (227) and Kusama
(170-78). See also, for example, Okuma v.
Watanabe, 8-2 Daihan minroku 18, 20 (S. Cc. Feb. 6, 1902); Ito (230-1)
(earnings and expenses of one insolvent
where the brothel
owner kept the prostitute tied to the brothel were the exception. Consider
first the geisha indentures, then the licensed prostitutes.
4.1 Geisha
Indentures
Indentured geisha
generally contracted to work only for a set number of years—the mode being
three.32 Because they were often young when they apprenticed
themselves [a quarter were under 18 (Fukumi:208-9)], their parents routinely
demanded their net expected earnings at the outset—a mean amount in 1925 of 959
yen.33 In exchange, the house trained the women to sing and dance,
paid their expenses, gave them a small allowance (generally 10 to 20 percent of
their earnings), but kept all other revenues they generated.
As
a result, the economics of geisha indentures were simple: if a woman raised
less than her advance payment plus room and board and any pocket money over the
indenture term, the house bore the loss; if she raised more, the house kept the
extra. In effect, the contract ensured (a) that no one (including the geisha
house) would defraud the woman of her earnings, (b) that she would receive food
and shelter, however modest, and (c) that she would be free to leave when the
initial term expired .34 To parents sending their children to the
city alone for several years, such security mattered.
4.2 Prostitute
Indentures
Because licensed
prostitutes were older (by law they were at least 18 [Naimu shö rei (Home
Ministry Order) No. 44 of Oct 2. 1900, § 1], they negotiated different
contracts. They agreed to work for a maximum
number of years, but kept track of their earnings and retained the right to
quit early if they were successful. In the mid-1920s, the maximum time for
which they agreed to work was usually six years.35 In exchange, they
too received an advance of
prostitute
over a four-month period); Ito (301-7) (abolitionist data finding that various
samples of prostitutes had an increase in debt); and ChuO shokugyo (428-32)
(high expenses).
1.
Of
6603 indentured geisha studied in 1925, 1.5 percent had one-year contracts, 4.6
percent had two-year contracts, 29.0 percent had three-year contracts, 28.5 percent had four-year contracts,
13.9 percent had five-year contracts, and 22.5 percent had contracts of six
years or more. See ChflO shokugyo (414) and Kusama (214-5).
2.
See
ChUO shokugyo (412-3) (note, too, that a second study found a mean of 955 yen);
see also Kusama (205-6). The mode was 1000 to 1200 yen [Kusama (215)].
3.
This
contract was known as "rnarukakae," and was the contract most common
among geisha who sold sex (Kusama:5). Approximately 60 percent of all Tokyo
geisha used this type of contract (Kusama:5). For descriptions of these and
other types of geisha contracts, see Fukumi (237-43), Higuchi (45-50), and
Kusama (2-5).
Occasionally, a girl was "adopted" into the geisha
house in exchange for a payment to the parents. Courts routinely declared such
adoptions void. See, for example, Thkayama
v. Taka-yama, 907 HOritsu shimbun 24 (Tokyo Ct. App. Oct. 9, 1913); Kato v. Katô, 514 HOritsu shimbun 11
(Tokyo Ct. App. July 7, 1908); and Ito v.
ItO, 802 HOritsu shimbun 17 (Tokyo D.C. July 5, 1912).
32. See ChuO shokugyo
(414-15) (79.4 percent of licensed prostitutes had six-year indentures) and
Kusama (211) (73.0 percent of licensed prostitutes had six-year indentures).
This was apparently the longest contract allowed them. See Ito (220).
their net
earnings—with the women who signed the longer-term contracts receiving the
larger advances (Kusama:208-9). In the mid-1920s, the mean advance was 1194
yen.36
In
calculating the prostitute's pay, the brothel first deducted its own fee. Generally, that fee varied from 67
to 75 percent of the prostitute's
gross billings. The prostitute received the remaining 25 to 33 percent of the
gross. She usually applied 60 percent of this amount toward the principal on
her loan, and kept the rest for current expenses. In most cases, she did not explicitly pay interest, for most
contracts did not contain an interest charge. Instead, the brothels apparently
applied an implicit interest rate to her advance in calculating her share of
the gross earnings.
Under
the standard contract for licensed prostitutes, the prostitute could fulfill
her part of the bargain either by
repaying the principal or by serving
the maximum contractual term. If (through the 60 percent she applied toward the
loan) she repaid the loan principal before the end of her term, she could quit.
If at the end of her term she had not yet repaid the amount, she could still
quit. In the meantime, most brothels did not charge her additional room and
board.37
4.3 Contractual Enforcement
Such was not just
the way the parties usually drafted the contracts, it was also the way they
usually implemented them. With assumptions drawn from modem illegal sex markets, scholars generally
assume that brothel owners in legal sex
markets use violence and coercion and ignore contractual niceties. And some
abolitionists did recount anecdotes of hooligans and corrupt owners.38
Yet the industry-wide data instead suggest that the owners regularly kept their
part of the bargains.
Consider first some simple finances.39
In 1925, consumers made 3.74 million visits to the 5159 licensed prostitutes in
Tokyo. Aside from charges
1.
See
Fukumi (70). The mode was 1000-1200 yen. See also ChüO shokugyo (412-5) (citing
two studies: one with a mean of 1222 yen for 1925, one with a mean of 1018 yen) and Kusama (206) (same). Where
it had been customary to deduct 200-300 yen for clothing, bedding,
miscellaneous household effects, and the placement fee,
the industry eventually shifted to a system in which the parent or prostitute
received the entire indenture amount, but then borrowed
an
additional amount to cover those expenses (Kusama:213). On typical charges for
these materials, see Kusama (260-3). The mean charge by placement agencies in
1926 was 8.5 percent of the advance
[ChOfl shokugyo (400)].
36. See Keishi chfl
(1933:96) (aggregate earnings data), Fukumi (97-9, 220) (contractual terms),
Okubo (246-7) (same), Kusama (283) (same), Ito (229) (allocation of earnings),
and Fukumi (115-6) (expenses).
See, for example, Murphy; see also de Becker (186-8) (fraudulent
bookkeeping). Note, however, that by 1928 even some abolitionists were writing that
it had become quite simple for licensed prostitutes to quit with both unserved
time and unpaid debts. They noted the risk of hooligans only in the case of unlicensed brothels. See Ishijima.
All figures are from Keishi chO (1933:96, 98); see Kusama (227-8)
(same).
for food and drink, they spent 11.1 million yen. Of this amount, the
prostitutes kept 31 percent, or 3.4 million yen-655 yen per prostitute. Under the usual arrangement, each
prostitute would have paid 60 percent of this amount (393 yen) toward the loan
principal and kept the rest (262 yen) for personal expenses. With an initial
loan of 1194 yen, the average prostitute would have repaid her principal in
3.03 years. Nor should she have found it hard to live on 262 yen-21.8 yen per
month. After all, she received room and board free. Young industrial workers
earned modal monthly wages of less than 2
yen if they also received room and board, and 15-16 yen per month if not;40
adult factory workers (generally not receiving
room and board) received a mean monthly wage in 1925 of 47 yen.4'
Second,
consider the incidence of after-acquired debt among prostitutes.42
Modem scholars routinely claim that brothel owners kept their prostitutes tied
to the brothel by increasing their debts. And as of 1925, 92 percent of the
5000-odd Tokyo licensed prostitutes did have some outstanding debt to the brothel besides their initial advance.
Yet 37 percent had less than 200 yen outstanding, and an additional 19 percent
had only 200-400 yen outstanding. Recall that the prostitutes had initially
borrowed about 1200 yen. Only half of them had outstanding additional debts of
at least one-third that amount, and only 5
percent had outstanding debts of at least an additional 1000.
More
to the point, the longer a prostitute had worked at a brothel, the smaller the
chance she had after-acquired debt outstanding. Consider again the 5000-odd
Tokyo licensed prostitutes. Among those in the first year of their contract,
1484 had some after-acquired debt.
Among those in their third year, only 703 had such debt, and among those in
their sixth, only 84. In other words, once they had adjusted to their new job,
they learned to save and repaid their debts. Most did borrow money beyond their
original advance, but they borrowed it early in their career and repaid it
fast.
Third,
consider Table 2, the age distribution of licensed prostitutes in Tokyo. By
law, a woman could not become a licensed prostitute until age 18, and most
(though not all) prostitutes began work at a brothel between the ages
1.
See
Shakai (1936:53). The figures are for
12-18 year olds, and date from 1935. For
purposes of comparison, note that the average daily factory wage (adults, both
sexes) in 1925 was 1.75 yen, and in 1935 was 1.88 yen. See Ohsato (68).
2.
See
Ohsato (60,68) (27 days at 1.746 yen per day; 1925). In 1926-27, working class Japanese families spent 40 percent
of their expenses on food and 16 percent on housing. See Naikaku tökei (353);
see also Seiji keizai (7) (similar data for mid-1930s). In 1926, men earned 2.35 yen per day at factory work, while
women earned 0.96 yen per day. See Rödöshd (1952:14); see also Naikaku tökei
(130) (2.10 yen for men, 0.88 yen for women; 1924).
3.
The
data are from Fukunii (122-3); see also ChUO shokugyo (433) and Kusania (280).
Much the same is true of the geisha. According to one 1926 study of 2554 Tokyo geisha with after-acquired
debt, 63 percent had borrowed less than 200 yen, and an additional 22 percent
had borrowed 200-400 yen. Only 7 percent had borrowed at least an additional 1000
yen. See Kusama (258-9).
104 The Journal
of Law, Economics. & Organization, V7 Ni Table 2. Licensed Prostitutes in
Tokyo, 1925
|
Age |
Number |
Age |
Number |
|
18-20 |
1104 |
26 |
330 |
|
21 |
737 |
27 |
254 |
|
22 |
632 |
28-29 |
306 |
|
23 |
631 |
30-34 |
185 |
|
24 |
515 |
35-39 |
29 |
|
25 |
423 |
40— |
6 |
Source: Fukumi, Takao, 1926.
Ta/to ni okew ba/in no kenkyU [A Study of Prostitution in the Capital), pp.
58-9. Tokyo: 1-fakubunkan.
of 18 and 21.43
Yet beyond age 21, the number of prostitutes working falls steadily. Were
brothels manipulating debts to keep their prostitutes employed beyond their
initial six-year terms, the number of licensed prostitutes working in each age
bracket should have held constant into the late 20s. Instead, Table 2 shows a
steady decline.44 The table does show different age cohorts of women
in 1925, rather than a history of one
cohort. Because the number of licensed prostitutes in Tokyo stayed relatively
stable (5188 in 1916, 5144 in 1925), however,
these figures should approximate the attrition in a given age cohort over time
(Fukumi:45).
Other
data make the point more directly. In the early 1920s, of 42,400 licensed
prostitutes studied, 11,400 (27 percent) had worked less than one year, 16,200
(38 percent) were in their second or third year, 10,400 (25 percent) were in their fourth or fifth year, 3100 (7 percent)
were in their sixth or seventh year, and 1300 (3 percent) had worked more than
seven years. The mean number of prostitutes in their fourth or fifth year (5200), in other words, was less than
half those in their first year (11,400).45 Similarly, consider the
entry and exit from the industry. During 1922, 18,800 women registered as
1.
See
Naimu shfl rei (Home Ministry Order) No. 44 of Oct. 2, 1900, § 1 (minimum age).
Fukumi, the source for Table 2, does not break out the age distribution of the
18-20 year olds. During one 10-month period in 1925-26, however, 494 women
registered as licensed prostitutes in the Shin-Yoshiwara district of Tokyo. Of
these women, 24 percent were 18 years old, 17 percent were 19, 13 percent were
20, 14 percent were 21, 7 percent were 22, 6 percent were 23, 5 percent were 24, 5 percent were 25, and 10
percent were over 25 [Uemura (1929:545-6); see Kusama:122-3]. Using these
enlistment rates and assuming no retirements before age 20, we can (very
roughly) estimate the composition of the 1104 women of ages 18-20 in Table 2 as
age 18, 223; age 19, 380; and age 20, 501.
2.
Other
sources confirm this data. See Kusama (136-8). The notion that prostitution was
a transitional job women took for only a few years in their early 20s is
consistent with studies of prostitution in other societies. See Walkowitz (19)
and Hobson (86-7). It is also Consistent with the experience of Japanese women
in other jobs. Saxonhouse (98), for example, writes that women in prewar
Japanese textile factories stayed on the job only an average of two years.
3.
See
Ito (208-11). In another study of 5734 licensed prostitutes, 29 percent were in
their first year, 36 percent were in their second or third year, 26 percent in
their fourth or fifth year, 8 percent were in their sixth or seventh year, and
2 percent had been there longer than 7 years (Kusama:281).
prostitutes and 18,300
women deregistered. Of the work force of some 50,000, about one-third turned
over each year.46
The
basic point, therefore, is that the brothel owners did not, on any wide scale, manipulate the indenture contracts to keep
prostitutes tied to the brothel significantly beyond the term of the initial
contract.47 Women enlisted for a limited number of years with the
understanding that they could quit early if they worked hard. Many did. Most of
the rest apparently quit when their term expired.48
To
be sure, because prostitutes incurred a fixed cost (a reputational loss) in
entering the industry, one might have expected many to reenlist. Once they had
worked as a prostitute, their fixed cost was sunk. If their earnings stayed
constant, many should have found it profitable to stay in the industry.
Prostitute revenues, however, fell with age (Kusama:207). As a result,
apparently only those few who earned the most money and found the job least
offensive considered it worthwhile to reenlist. Most of the rest seem to have
considered the work not worth the new lower
wages—for most seem to have quit.
4.4 Control and
Credit
In addition to
debt peonage, modern scholars raise two hypotheses to explain why brothel
owners and prostitutes used multiyear indenture contracts: that the contracts
enabled the brothels to control the prostitutes, and that they enabled peasants
without credit to borrow. Nonetheless, although the contracts did provide
credit and often did constrain the prostitutes, neither thesis very adequately
explains why licensed brothels and prostitutes used them so pervasively.
4.4.1 Control. if
brothel owners used the indenture contracts to control prostitutes (e.g.,
Kawashima, 1951), they did not choose
a very straightforward way of doing so—or even the most effective. Suppose A
deposits a large sum
1.
See
Yamamoto (388). Ito (211-3) uses data primarily from 1923, but the data is less
reliable because of the way he haphazardly includes some data from other years.
He finds that 13,500 registered in one year and 11,000 deregistered. Uemura
(62, 184-7) finds that, in Osaka, one-third of the new registrations were not
genuinely new recruits but rather, inter
alia, prostitutes moving from one city to another or reenlisting with a new
indenture contract. If, following Uemura, one assumes that 1/3 of Yamamoto's
18,800 registrants were not genuinely new registrants, then the annual industry
turnover rate would be about ¼. In general, only about 1 percent of the
licensed prostitutes quit their jobs with outstanding debt (11:6:213-4).
2.
We
should not be entirely surprised that the brothels appear to have exploited
prostitutes less than generally alleged. After all, brothels were repeat
players in a competitive market. They could more cheaply recruit if they developed
a reputation for treating their prostitutes relatively fairly. Some even worked
to reassure their recruits by using standard form contracts approved by the
local police station. See Shibatani v.
Yokoyama, 4355 HOritsu shimbun 7, 8 IS. Ct. Nov. 22, 1938).
3.
In
a study of licensed Osaka prostitutes, Uemura (62, 184-7) found that less than
½ of the 18,800 annual registrants were reenlistments—but how much less than ½
is unclear from his data. Other studies suggest that a very few licensed
prostitutes did work as unlicensed prostitutes
when they had fulfilled their contractual terms (Fukumi:147).
of money with B.
B can now constrain A, for B has A's
cash. By paying the bond, A makes
itself vulnerable to B; A does not
thereby gain control over B. Consider
banks. Banks concurrently lend money to borrowers and exercise control over the
borrower's business. They bargain for the control, though, because they have lent the money and become vulnerable. They do not
lend the money because they thereby gain control. Likewise, when a brothel paid
a prostitute several years' wages in advance, it put itself in a position where
she could force it to keep its part of the bargain—not vice versa .49
More
basically, if the brothel owners had wanted to control the prostitutes, they
had other far more straightforward and powerful ways of doing so. Most
obviously, they could have forced the prostitute to deposit money (e.g., part
of her earnings) with the brothel, rather than do what they did—deposit their
own money with the prostitute. In demanding that the prostitute post such a
bond, they would have had plenty of precedents. For example, some textile
factories of the period routinely withheld a portion of their employees' wages.
If and when the employee fulfilled the terms of her contract, she received the
withheld amount. If she reneged, she forfeited it (Murakarni:135). Similarly, American indentured servants often
received a large lump-sum payment called "freedom dues" at the end of
their indenture term (Engerman, 1986:268-9). By paying the servant those dues
only if he or she satisfactorily completed the contract, the employer gave the
servant an incentive not to quit or shirk. Were Japanese brothel owners
determined to control their employees, they could easily have used such a
system. In fact, they did not.
4.4.2 Credit. The
notion that prostitutes would use the indenture contracts to obtain credit
makes more sense. Because of the international depression, the bad harvests,
and the collapse of the textile market, perhaps prewar Japanese peasants had
little to eat. With no assets to transfer, they had nothing to sell. With no
assets to pledge, they had no way to borrow. Unable to raise cash otherwise,
women sold themselves and parents sold their daughters. In other words, perhaps
peasants used the indenture contracts to overcome failures in the credit
market. On its face, the hypothesis works. Moreover, if true, it would explain
the contracts in a way consistent with indenture contracts outside of
prostitution.50
Although the
brothels no doubt did give credit to many peasants who
1.
Some
contracts provided penalties that applied when the prostitute quit early, but
courts often refused to enforce the penalty clauses. In some cases, the courts
even considered the clauses reason to invalidate the entire debt contract. See,
for example, Murakami v. Izumi, 28
Saihan minroku 1774, 1780-81 (S. Ct. Sept. 29, 1921).
2.
See,
for example, Cloud and Galenson, Emer, Fèeny, Galenson. Grubb (1985, 1988), and Popkin (54). Note, however, that the need for
credible commitments (Section 4.5, infra)
could also help explain the use of indenture contracts in international
migration. The worker incurred a high fixed cost in relocating to a new
country, and the recruiter had much better information (and an incentive to
lie) about the opportunities available there. As a result, the recruiter could
have been paying the worker a large part of his or her wages in advance in
order to make the promises about the benefits of emigration credible.
wanted it,5'
failures in the credit market cannot explain why brothels and prostitutes used
multiyear indenture contracts so pervasively. First, as noted above, courts
refused to enforce long-term personal service agreements. As a result, the
indenture contract could not substitute for other ways (e.g., collateral,
guarantees) of enforcing loans, and thus could not have alleviated any basic
credit-market failure. Suppose a brothel recruited a woman through a 1200 yen
indenture, and two months later found that she wanted to quit. Although it
could sue on the note, it could not legally force her to work. Because of the
judicial refusal to enforce personal service contracts, in other words,
prostitute indentures were little safer than unsecured loans. Consequently, brothel
owners tried to recruit only women from families with assets they could seize
(Murphy: 119, 132); families without the assets necessary to obtain a loan from
other sources had little reason to expect that their daughters could find work
as indentured prostitutes. When (in 1896) the Supreme Court voided the personal
service contracts, it apparently prevented the very poorest women from using
the indentures to raise cash.52
Second,
were peasants demanding the long-term contracts because they needed large
loans, they would have demanded them of other employers besides the licensed
brothels and geisha houses. Notwithstanding this, the multiyear indentures were
rare outside of the brothels and houses. Take, for example, some of the largest
employers of women in prewar Japan---the textile companies. Textile firms
employed a total of 751,000 women in 1925, and each factory employed a mean of
69 workers (Fukuoka:55). By contrast,
the modal brothel had only six prostitutes on staff, and the modal geisha house
had only one geisha.53 As a result, a textile firm should have been
able to
1.
When registering
as prostitutes at the local police office, women were required to give their
reasons for doing so, and almost all wrote poverty. The point is meaningless,
however, for if they wrote anything else, the police refused their application
to register. See ChOö shokugyo (390) and Kusama (32-3). Nonetheless, most
prostitutes apparently did come from lower-class backgrounds (see Kusama:47-75).
2.
To be sure,
abolitionist writers occasionally claimed that hooligans and corrupt police
used violence to prevent women from quitting in violation of their contracts.
See, for example, ltd (308). Yet note several points. First, the evidence suggests
that brothel owners did not manipulate the indenture contracts to keep women at
the brothel for the full six years, but instead let many women quit after two
or three years. At least when women had repaid their initial debt, the brothel
owners seem to have followed the letter of the law. See Section 4.3, supra. Second, if brothel owners could successfully enforce indenture
contracts through these illegal means, then unlicensed brothels (with dubious
access to the judicial system) should have been offering them as well. However,
in fact, unlicensed brothels often did not offer indentures, and generally
offered much smaller amounts than the licensed brothels when they offered any
at all. See ChUd shokugyo (413), Keishi chd (1935:509-10),
and Kusama (216-7). Third, other abolitionists reported that by the 1920s
it had become quite simple for licensed prostitutes to quit in violation of
their contractual terms. These abolitionists noted the risk of hooligans only
in the case of unlicensed (and hence illegal) prostitutes. See Jshijima.
3.
See Fukumi (50-1, 203-4) (Tokyo data). Four Tokyo
brothels had one prostitute; the two largest had 21 each; 66 percent of the
brothels had from four to eight prostitutes (Fukumi:50— 1). Only two Tokyo
geisha houses had more than 10 geisha (Fukumi:203-4).
diversify credit
risks more effectively than a brothel or geisha house. In turn, peasants
interested in exchanging several years' worth of labor for credit should have
found textile factories more receptive than brothels. Yet such was not the
case. Instead, to the extent that the factories offered indentures, they
apparently offered only relatively short contractual terms and relatively small
advances—enough money to pay the workers' travel and readjustment costs,
perhaps, but probably not much more.
True,
a woman indentured at a brothel should have received a larger advance than a
woman indentured elsewhere for the same length of time, if only because sex
paid better than most other manual labor. Yet that fact alone does not explain
why the multiyear indentures were so common at the brothels and so rare
elsewhere. High wages in the sex
industry did not induce most poor women to become prostitutes; neither,
therefore, should large loans have
induced most credit-short women to become prostitutes. In other words, if
credit had been driving the multiyear indentures, a broad range of employers
should have offered them. Some credit-short women would then have chosen
prostitution because of the large advances. But many others would have opted
for smaller loans from employers with less demeaning jobs, just as most poor
women avoided prostitution despite the high wages. Notwithstanding all this,
multiyear indenture contracts were nearly universal among licensed prostitutes
and common among geisha; among factory workers, they were not.54
4.5 Credible
Commitments
Apparently,
neither the hypothesis that brothels wanted power over prostitutes nor the
hypothesis that many peasants needed credit satisfactorily explains why
brothels aid prostitutes so often used multiyear indenture contracts. Consider
instead, therefore, the possibility that they negotiated the contracts for
reasons relating to (a) the need for "credible commitments"
[Williamson (1983, 1985:Chapters 7 and 8); see Lee and Png], and (b)
the efficient allocation of legal costs.
4.5.1 The
Contracting Problem. A woman entering the sexual services industry faced
several problems relevant here. First, in entering the industry, she
54. Hane (175), Nishimura (1026), and Sievers (63) suggest that some
factories did use some indentures. Yet other empirical data suggest that
multiyear indenture contracts were uncommon among industrial workers. First, of
1077 12- to 18-year-old workers (in a cross section of industries) surveyed in 1935, only 59 were aware of any
indentures, and only one (the highest) had an indenture of 400-500 yen. The
male indentures were all for under 100 yen. See Shakai (1936:45, 49), Fukuoka (40), and Suehiro (4). Second, Tamura (38-9)
reports that of all workers working under indenture contracts in 1951-52,63
percent went into pure prostitution; 8.1 percent became maids at hotels,
brothels, bars, and geisha houses; 8 percent went into agriculture; 3.8 percent
became factory workers; 3 percent became geisha; 3 percent became waitresses or
bar maids; and 2.9 percent became child-care workers. See also Kanzaki (99) and
Rodöshö (1953:74, Appendix 74). Third, one early-1930s survey of indentured
women found that the mean indenture for licensed prostitutes was 900 yen; for geisha,
800 yen; for bar maids, 400 yen; and for factory workers, 130 yen [Shakai
(1935:159)]. Fourth, Fruin carefully documents a steady shortening in contracts
for indentured labor for several denturies up to the Meiji period.
brought substantial stigma upon herself and her family. Because of
this stig‑
ma, she would
take the job only if she could expect to earn a total amount that at least compensated her for this
"reputational loss." To be sure, one can
exaggerate the
loss. All else equal, the women for whom the loss was least
severe should
have chosen the job most often. And one study (of 300 licensed prostitutes who
quit in violation of their employment contracts—not a random
sample) did
suggest that ex-prostitutes were not necessarily social outcasts: 29 percent
returned to their parents, 12 percent took factor jobs, 5 percent found office work, and most of the rest took other
"respectable" jobs like nurses' aid positions.55
Nonetheless, most contemporaneous sources suggest instead that prostitutes skirted
the margins of respectability if licensed geisha, and abandoned all claims to
it if not. Quoting a Japanese source, one astute (and otherwise relatively
nonmoralistic) turn-of-the-century Tokyo observer captures what seems the
general consensus: an ex-prostitute "has violated the virtue of chastity,
wasted the flower of her youth in vicious living, and as she is unaccustomed to
attend to the proper duties of women her future prospects are anything but
cheerful and reassuring" (de Becker:248).
Second,
the would-be prostitute had little reliable information about how much money
she would earn in the industry. Given that the stigma attached when she entered
the industry, moreover, she had no cheap way to discover her market
"price." And given the uncertainty of the aging process, even if she
knew her current price she had no way of knowing how rapidly it would decline
over time.
Third,
the would-be prostitute could not diversify her human capital. She was her own
most valuable asset, yet that asset was not one whose risks she could easily
diversify.
The
brothel owners faced very different problems. Theirs were not problems of
information or diversification. First, they had much better information about
the sexual services market than a recruit. In most cases, therefore, they could
estimate what a recruit would earn more accurately than the recruit herself
could. Second, they could diversify their investments. When they invested in a
prostitute's human capital (by buying her services for several years), they
could eliminate much of the associated risk by simultaneously contracting with
several prostitutes.
Instead,
the brothel owners' problem was one of credibility. Although they hoped to
recruit young women by promising them money, they could not easily make their
promises about future earnings credible. For although they had better
information about the potential recruit's earning capacity than the recruit
herself, they also had an incentive to lie. They were asking her to suffer a
certain and significant reputational loss, in exchange for income that was
risky at best and about which they had considerable incentive to exaggerate. To
be sure, her investments were not specific to the brothel—but neither does
55.
Ito (494-5). In his fine study, Garon (19) discusses evidence finding
that large numbers
(42 percent) of ex-prostitutes returned home to their
parents and that large numbers (7h) eventually married.
the point matter: once a brothel owner had enticed a recruit into the
industry by exaggerating her market earning potential, she could not improve
her position by switching to another brothel.
4.5.2 Piece-Rate
and Flat-Rate Contracts. These problems of
informational asymmetry and promissory credibility foreclosed a piece-rate
(productivity-based) contract between the brothel owner and the recruit. The
contract would have solved one basic problem in the industry: how to motivate a
recruit to work hard at what was a fundamentally squalid job. Unfortunately, it
did not give the recruit the assurance she needed. She needed to know—before she entered the
industry—that her earning as a prostitute would exceed her earnings elsewhere
by an amount large enough to offset the stigma and squalor involved. That,
however, was something the piece-rate contract could not assure her.
A
flat daily wage did little to improve matters. Most obviously, it gave the
prostitute an incentive to work less hard. But it also gave the brothel owner
an incentive to fire workers who generated revenues less than their contractual
daily wage, and to discharge even relatively productive workers during low
demand periods (or to threaten to discharge them unless they agreed to a wage
cut). Given that a prostitute could expect the revenue she generated to decline
over time (Kusama:207), the problem was particularly acute—for she had to worry
that the owner might fire her before she had had a chance to recoup her initial
reputational loss.
4.5.3 Fixed-Term
Contracts and Sign-on Bonuses. Because prostitutes incurred a high initial
fixed cost, brothel owners could recruit them effectively only if they credibly
promised to employ them long enough for the prostitutes to recoup a significant
part of that fixed cost. The owners could recruit effectively, in short, only
if they promised the prostitutes not just a minimum daily wage, but also a minimum total
wage. To do so, they had to promise the prostitutes a minimum employment term besides a minimum wage. Even with
such a guaranteed term, though, the problem of credibility remained. To promise
credibly that the owner would employ a recruit for a given period of time, the
owner had to be able to promise that he or she would keep the recruit employed
even if her revenues fell permanently below her contractual wage. Such a
promise is not one most owners would have found easy to make credible.
A
sign-on bonus could have alleviated some of the problems of credibility. The
brothel owner might have paid the prostitute enough money up-front to offset a
substantial portion of her reputational loss. That ploy, however, would now
have given the prostitute an incentive to pocket the money, quit, and move to a
rival brothel.56 What the brothel and prostitute needed was a
56. Note, however, that the geisha houses did organize a central
clearinghouse through which they enforced on each other an agreement not to
hire any geisha who reneged on her contract with
another geisha house (ChM shokugy6:392).
contract that credibly
promised a minimum total compensation package—but did so without simultaneously
giving the prostitute an incentive to quit.
4,5.4 Indenture
Contracts. The indenture contract (described in Section 4.2) mitigated many of
these problems. Under the contract, the owners gave the prostitute a minimum
daily wage: the indenture advance plus room and board, divided by the maximum
indenture term. They gave her an incentive to work hard: the chance to quit
early. They gave her a minimum total compensation package: the indenture amount
plus room and board. And they gave her a disincentive to quit or move
elsewhere: the requirement that she repay that part of her advance she had not
yet earned.
That
much the parties could have accomplished with an unindentured contract that combined a minimum daily wage with a
performance-based bonus and a minimum contractual term. Yet the indenture
contract differed from such a hypothetical contract in one critical way: under
the indenture contract, the brothel owners paid the prostitute a substantial
portion of her earnings up front, and thereby allocated the burden of invoking
the legal system in a dispute to themselves.
And
in agreeing to bear the cost of invoking the legal system in a dispute, the
brothel owners helped make their promises credible. For credibility can derive
from the assignment of legal costs. If a dispute arose under the hypothetical
minimum-wage—bonus—minimum-term contract (e.g., if the brothel owner reneged on
the promised wage), the prostitute had
to invoke the legal apparatus to recover her promised wages—for the brothel
owner had not yet paid her the total promised compensation. By contrast, if a
dispute arose under the indenture contract, the brothel owner had to invoke the legal sys-tem—for the owner had
already paid her three- to six-years' wages. Effectively, the brothel owner's
willingness to advance the prostitute her promised earnings made the promise to
pay those earnings credible. Were the legal system free, such a loan would not
add credibility. But legal systems are not free. In Japan as here, possession
is nine parts of the law. Because most peasants would have found the legal
system foreign and intimidating, the most straightforward way to make them a
credible promise was to advance them cash on the barrel.
Note
that the indenture contract not only helped make the brothel owner's promises
credible, it also allocated the cost of invoking the legal system efficiently.
Recall that parties generally bargain in the shadow of the law.57 As
a result, if a dispute occurred, either the owner or the prostitute would have
invoked (or threatened to invoke) the legal system. Hence, the efficient deal
was the one that placed that burden on the party able to invoke the system most
57. See Mnookin and Kornhauser, and Ramseyer and Nakazato (1989).
Note that prostitutes would have received information about their legal rights
not just by word of mouth from other prostitutes, but also from the
abolitionists. During most of the period from 1890 to 1940, a wide variety of
abolitionists worked hard to encourage prostitutes to quit. One detailed
description of the process appears in Murphy; accounts also regularly appeared
in such abolitionist journals as Kakncei.
cheaply. 58
As a repeat player, most brothel owners could afford to invest in the
information and legal talent necessary to manipulate the judicial apparatus. By
contrast, most prostitutes and their parents had little education or
sophistication, and as one-shot players were less likely to find it
cost-effective to learn how to use the legal system. Given these cost
asymmetries, the parties did what Coase predicts: they placed the transactions
costs (here, the cost of marshaling the legal system) on the party that could
bear them most cheaply. Under the contracts, if the prostitute tried to renege,
the owner had to recover his or her money. If the owner tried to renege, the
prostitute already had the cash.59
1.
Coda
By 1957, this
long-standing legal market for
commercial sex was gone. Douglas MacArthur and his advisers had begun the
change in 1945, when they ordered the Japanese government to cancel the prewar
licensing sys-tem.60 Ten years later, the Japanese Supreme Court
continued the process by declaring the loans accompanying indentured
prostitution contracts void [Fujita v.
Okazaki, 9 Saihan minshU 1616 (S. Ct. Oct. 7, 1955)]. Since 1896, indentured prostitutes had legally been able to
abandon their job whenever they pleased. Under the prewar cases, however, they
and their guarantors were liable on the debt if they did. Now, indentured
prostitutes could abandon their debts as well. The final blow followed quickly.
Within a year of the Supreme Court decision, the abolitionists convinced the
Japanese Diet to ban prostitution [Baishun bOshi hO (Prostitution Prevention
Act), Law No. 118 of May 24, 1956]. Prostitution still continues, but only in
illegal form.
1.
Conclusion
In 12th-century
Toulouse, the public brothels split their profits with the local university
(Shadwell). Not so in Japan. Japanese brothels never tried to buy academic
support, and never had it. Instead, academics have consistently criticized the
brothels for "enslaving" peasant women. Indenture contracts were an
important part of the tales they told: poor and unsophisticated, peasants
unwittingly accepted indenture contracts that the brothel owners used to reduce
prostitutes to sexual slaves.
These tales cheat
the prostitutes of their due—for they drastically under‑
1.
Even
if litigation rarely ensued, imposing the litigation burden on the party able
to invoke the courts most cheaply was still
efficient, because it lessened the possible scope of ex post opportunism in
the negotiations over a dispute.
2.
1
located only three suits by prostitutes (all geisha) against their houses for
nonpayment of earnings. I found seven cases in which parents or guarantors
complained about the house's (or brothel's) seizure of their assets (based on
claims that the prostitute had quit in violation of her contract), and another
12 cases where a house or brothel sued the prostitute or her parents or
guardians for nonpayment on her debt. Reported cases are not, of course, a
representative sample.
3.
See
Oppler (158). Naimu shö rei (Home
Ministry Order) No. 3, Feb. 2, 1946; Naimu shö keiho kyokucho köanhatsu kö
(Home Ministry Police Office Chief Public Safety Promulgation) No. 9, Feb. 2,
1946; Choku rei (Imperial Order) No. 9, Jan. 15, 1947.
state the
resourcefulness that they could show, even in the direst situations. Although
prostitution was harsh work, most brothel owners were not able to manipulate indenture contracts to keep prostitutes at
work indefinitely, and most prostitutes did not
become slaves. Instead, licensed prostitutes generally enlisted under
six-year indenture contracts. They earned (what were for them) very high
incomes. Many repaid their debts in three or four years and quit early. Most of
the rest quit when their contracts expired.
Within
this world, the indentures helped make the employment market itself
possible—for despite the promises of high incomes, a woman entering the
industry for the first time could never be sure. She knew she and her family
suffered a loss in social status if she took the job, knew some brothel owners
had an incentive to lie about the money she would make, and knew most owners
would be able to invoke the courts more easily than she. Precisely because she
could never be sure of the money, she found the indenture contract advantageous.
Through the contract, the brothel owners could promise her total earnings
large enough to offset a substantial part of her lost status, could make that
promise credible by paying her in advance, and could shoulder the costs of
invoking the legal system themselves.
The
point is not that licensed prostitution and indentured servitude were
necessarily "good for Japan"; neither is the point that, overall,
peasant women benefited from the availability of a legal market in
prostitution. As noted earlier, both issues are beyond the scope of this essay.
Instead, the point is more limited: Given the substantial stigma women incurred
in entering the industry, many women hesitated to take jobs at brothels (and
many parents hesitated to send their daughters to brothels) without some
assurance that they would earn much higher wages than they could earn
elsewhere. The indentured contracts offered that assurance.
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