Jurisprudence Thinking On The Ban Of Consanguineous Marriage

The consanguineous marriage was thought to be immoral and disobey ethics in ancient times. So it is prohibited by law, and cast aside by the people of the world. In modern people's minds, consanguineous marriage is usually accompanied by those negative words like remnants of feudalism, ignorance, mental retardation and so on. Through long life practice human found there are many disadvantages of consanguineous marriage, such as the affects on quality of future generations, so the laws all over the world are expressly prohibited marriages between close relatives. In China's Marriage Law, the prohibition of marriage "consanguineous" is defined as: direct blood relatives and collateral consanguinity within three generations. The rule in marriage law is reasonable, and after several years of implementation, it achieved a lot on the legal effect, the conception of forbidden consanguineous marriage is acceptable to society and individuals nowadays. This paper argues that with the social development and change, the definition of "consanguineous marriage" will have new meaning; its scope can be reduced to some extent to reflect the people-oriented in law.To Analysis the ban of consanguineous marriage, the first thing to do is to examine the historical evolution and legal status of consanguineous marriage ban. China was already aware of the disadvantage of consanguineous marriages 2000years ago as the old saying told us. Since then, all ages prohibition on consanguineous marriage legally. By looking through the literature, we also find the forbidden of consanguineous marriage in foreign laws is very common, the difference only lies with the definition of "consanguineous". The United States, Germany, Russia prohibits marriage between immediate family members, while Belgium and other countries also include a range of collateral relatives.By contrasting the laws all over the world, it is necessary to analysis the theoretical basis of the ban on consanguineous marriage. It can be found from the study of the origin and the history of human marriage that the ban on consanguineous marriage in not a coincidence, it reflects the requirements in biological genetics and ethics. Genetic studies explain the disadvantages in human reproduction from a scientific point of view. Half chromosomes of human cells are from the father and the rest from the mother. As consanguineous share more same gene, the descendants may be ill only when their parents have the same "disease genes". These opportunities of "encounter" are few in general marriage while more in consanguineous marriage. Consanguineous marriage will confuse the marriage ethics and family status. So the ban on consanguineous marriage conforms to ethical and moral requirements and self-interest of biological principles.The substance of the ban on consanguineous marriage in Chinese marriage law is the ban on Cross-cousin marriage. In Chinese traditional feudal patriarchal society, patriarchal ideology is deeply rooted in. Women are men's accessories and they have no independent social status. Women's role in marriage mainly lies on family meaning. So the function of marriage is to fertility. That is the reason why marriages between parallel cousins were thought to be immoral while marriages between maternal cousins were advocated in ancient China. Because of Chinese thousands of year's tradition, the substance of the ban on consanguineous marriage is to prohibit Cross-cousin marriage. After the theory and essence analysis, we also found that in modern society, the legitimacy and rationality of the ban was questioned in some degree. We have doubts that whether the ban is a sensible legal regulation or an interference of human rights. This paper argues that modern marriage is different from the past. First of all, marriage means more about love; it is not just the satisfaction of population growth. Love is the emotional nature of people. Marriage is the result of love while equality and freedom is the primary value of marriage. In ancient China, the function of marriage is generation, so the health of offspring is important in marriage. But now the proportion of DINK families increased steadily especially in cities. At the same time, the advancements in medicine make generate a choice and birth control a simple matter of safety; Adoption System provide the system and legal protection for the couples who prefer the traditional parents and children family; the advancements in biotechnology and genetic science made IVF a reality. We have reasons to believe that one day in the future, the question of abnormal child will ultimately be resolved, the era of human control their own genes will come sooner or later. Therefore, unhealthy offspring of consanguineous marriage should be considered as a medical problem, such as AIDS, cancer, hypertension and so on, which are not needed ban by law. Also, in practice, as it is hard to identify whether the applicants are cousins under the marriage registration system in china, the ban on consanguineous marriage is lack of monitoring and it is also not good for the marriage order and the protection of the people rights.On the view of rationality and legitimacy and ethics law, the paper argues that cousin marriage should be allowed. On this basis, we put forward some institutions to govern cousin marriages. We believe that these institutions reflect the meaning of freedom in marriage, gender equality and the importance of people-oriented.