Legal Analysis In A Perspective Of Gender

The concept of gender is the theoretical condense of western feminism movement. Using the concept of gender to differentiate biological sex is the key to the development of western feminism theory. Reviewing law from the gender perspective is to analyze the construction role of law during shaping gender relations, and study whether law have the universal justice from the gender perspective. With the background of feminism theory, the paper sorts out the development history of gender theory, generally describes and evaluates western gender theory. After that, the paper thinks, as a mechanism of gender construction, law actually enhances inequality between the genders through gender-based legal knowledge, building the legal gender order based on the logic of male priority, and neglecting and objectification of female. At last, the paper studies establishing citizenship which includes feminine factor, integrating the concept into legal norms, and making use of both absolute equality protection principle and differential equality protection principle, as the ways to achieve gender equality in legal area.Including conclusion, the paper contains six parts.The first chapter is introduction. It describes the topic the paper studies, and defines the scope of the paper. It also semantically analyzes the key word of the paper– gender, and briefly tells the ideas and organization of the paper.Chapter two focuses on the analysis of the theoretical source of gender. First of all, the chapter defines the role of gender in feminism theory. Gender is the key area of feminism theory. After analyzing the academic status of gender concept, the paper describes the background and content of the two feminism movements. Then the paper lists and comments on the opinions of major factions, which include liberal feminism, radical feminism, socialist feminism, post-modern feminism and third world feminism.The third chapter describes the process of the generation, development and enrichment of gender. The paper introduces and analyzes the opinions of De Beauvoir, Robert Stoller, Kate Millett, Ann Oakley, Gail Rubin, Joan W. Scott and Shura Meath Firestone, and then evaluates the development of gender theory before the 1980s. The paper believes, the 1960s and 1970s research on gender focused on gender in the conceptualization and theoretical aspects, the feminist challenged biological sex as a start, denied the decisive role of biological sex on the gender development. Based on this, the researchers extracted the concept of gender, explained the constructed gender enhanced the gender inequality. After that, the paper analyzes scholars'reflection on gender theory after 1980s. The reflection was mainly from the aspects of raising the difference issues, review of gender logic itself, and exploring the possibility of beyond gender. The paper also evaluates scholars'questioning and reflecting on gender theory. I believe, the questioning on gender theory doesn't mean to deny and abandon all theories. On the contrary, gender theory is enriched through the process of confrontation and discussion of various ideas. Gender is still the key area of feminism theory.In the fourth chapter, the paper studies and evaluates the western gender theory thoroughly. Different from chapter three, chapter four is more from the subject and others perspective. Throughout the history of the development of western gender theory, the paper summarizes feminist gender theory as gender theory based on subjectivity, gender theory emphasizing on objective experiences, and gender theory which deconstructs subjectivity and reinterprets objectivity. The paper analyzes, evaluates on these three gender theories and concludes, the appropriate approach to the subject is not to be against it, but to keep the subject concept open, to allow the subject being elaborated by terms which are not well accepted by epistemology.Chapter five, from the gender perspective, analyzes the relation between law and gender and concludes that law actually strengthens the inequality between genders. The strengthening is through the following ways: firstly, the gender related knowledge, including religion, philosophy and law, participates in constructing gender relation. These knowledge determines and justifies the relative superiority of male in the traditional western gender relationship. Secondly, the logic base of constructing gender relation is on male priority. Thirdly, law damages women's legal rights by neglecting female. And lastly, law enforces the weak position of female by objectification.In chapter six the paper discusses the two possible ways to promote gender equality in the law. The first approach is to re-construct citizenship concept and includes the enriched citizenship subject concept into legal norms. The second approach is to make use of both absolute equality protection principle and differential equality protection principle taken in law. First of all, the re-constructed and enriched citizenship concept should contain feminine factor. Secondly, the paper evaluates absolute equality protection principle and differential equality protection principle in law. At last, the paper concludes both principles should be used comprehensively in law to protect female rights.