The Study On The Legalization Of Family Planning Policy

The formal approach to rule of law focus on the formal legitimacy. Building anefficiency, clear, autonomous system of rules will help realizing the rule of law byrestraining the misuse of power and providing anticipations to people’s behaviors.With the process of the achievement of the rule of law, the conflicts between thediverse society and its steady rules, the collides of growing powers and the people’srights, and the differences between divergent of universal or specific welfare,gradually cause the law to surrender its nature of formal closure, and to consider thevalue of the human rights, the fairness and just, in order to realize the substantivejustice.Since the definitions of the human rights, democracy, fair, constitutionalismare still controversial, there is hardly a criterion for distinguishing the evil law, whichis important to make the fully achievement of sustentative justice no longer anunrealistic goal.Sustentative justice is merely an amendment or a revise to the formaljustice, whose realization still depend on every actual rules. But the sustentativejustice is more likely to be activated in the process of law-ruling.Family planning, a population controlling policy starting from the late60s, hasinitially established a central-to-local legal system after a more than four decades oflegislation and legal practice.In some extend, the family planning policy had built awhole level legal system and reached the minimum standard of formal justice. Butthose long time of practice of family planning was driven by administrativeinstructions, the priority of the administrative orders is to restrict the reproductionbehavior by the power. To preserve the rights of citizens from the misuse ofauthorities, it is a necessity to take the fundamental human rights and fairness intoconsider in the after practice of family planning policy, in order to reach a union placebetween the formal rules and the essence of sustentative justice. In order to find out apossible adjustment approach or tack, a criterion considering the sustentative justicevalue like human rights and the social fairness should be used to measure and objectively evaluate the present situation of the family planning policy practiceIncluding the One Child policy and the Conditional Two Child policy, theexisting family planning policy restraints the right of citizens’ child-bearing rightrigidly by stipulating the punishments such as the administrative disposals, or moresocial expenditure.In the practice of the family planning policy, it exists a great dealof infringements of civil child-bearing rights. In addition, the citizen not only repelthis policy, but also mistrust the family planning department, which lead to thedifficulty in practicing the policy.The policy has many violations of social fairness,for example, the privilege generated by the standard disunity, which ignores thepersonality equality in pregnant right. Also, the different standards in posing thesocial expenditure go against the chase of sustentative social justice. The familyplanning policy needs to change its shipping line to the protection of human rightsand social fairness.Aiming to bring the family planning policy into the domain of sustentativejustice, what needs to be done is to change the former politic pattern, which reducesthe power that compulsively restraint of the civil child-bearing right, so the cavils’willing of bearing could be fully respected, and the civil dominant position could beguaranteed. Secondly, punishment-oriented family planning policy needs to bechanged and a universal welfare system and a specific mechanism in rewarding&supporting should be built up.Leading the civil to follow the family policyresponsibly spontaneously by assisting the civil to solve the difficulties by practicingthe family planning policy, and rise up the interests generated by following thepolicy.Gradually cancel the regulation system what betray the social fairness, thefamily policy could facing the demand of reason, democracy and unity, so as thedemand of protect the human rights and the value of social sustentative justice.