A Study On The Conception Of Gender In Chinese Statute Law

Since the founding of the People’s Republic of China,gender equality has always been a goal of Chinese law,and it is also a dream that the Chinese legal community has been striving to achieve.Traditionally,the research approach to gender equality is based on the binary structure of gender,which is the basis of traditional conceptions of gender.This approach is reflected in the definition of male and female and the use of gender concepts such as “man” and “woman,” which are quite common in Chinese statute law.They are aimed at clarifying the legal roles of men and women through gender classification,and providing conceptual convenience for special protection of women to promote gender equality.However,with the awakening of gender consciousness and the development of gender theories,these gender concepts are beginning to pose obstacles to gender equality.The excessive protection of women solidifies the view that “women are the underprivileged,” thus strengthening their disadvantaged position and the expectation of their role in the family.Meanwhile,the neglect of men’s rights also brings reverse gender discrimination.The complete distinction between men and women deviates from the original intention of the law to pursue gender equality.In addition,new issues of gender equality are emerging.For example,it is difficult for the traditional binary classification of gender to respond to the rights of sexual minorities.Therefore,it is necessary to reflect on traditional conceptions of gender which the law relies on.In order to explore a new approach to gender equality,it is essential to deconstruct gender concepts in the law and form a new gender conception.This idea of gender deconstruction has the meaning of postmodernism and indeed comes from Judith Butler,a postmodern feminist.Her theory of gender deconstruction provides a theoretical basis for the deconstruction of gender in the legal field.At the same time,from a post-disciplinary and interdisciplinary perspective,we can see that this theory has spread to medicine and psychology.The results of gender research in these two fields have largely broken the cognitive standards of normal and abnormal,normative and non-normative,which were constructed by the traditional gender conceptions.They provide further theoretical support for the deconstruction of gender in the field of law.Accordingly,law should also change its conservative attitude and reflect on the gender concepts in legislative language and the traditional gender view behind them.Based on this,this paper puts forward the concept of “gender conception of postmodern jurisprudence,” combines postmodern theories of gender deconstruction with law,and impugns the traditional binary structure of gender from the conceptual level.By deconstructing gender concepts in Chinese law,it pursues equality for all regardless of sex or gender.This new gender conception breaks away from the discussion limited to equality between men and women.It tries to realize equality between both sexes,“the other” and all individuals.It has far-reaching significance in legal philosophy,and shows special contribution of law to gender deconstruction.Of course,the gender conception of postmodern jurisprudence is not only a theoretical framework,but also a practical plan.Its practicality is embodied in the realization of gender equality in legal language by deconstructing gender concepts and their implication in the statute law.The “deconstruction” of gender concepts is embodied in two ways: replacement and explanation.The former is aimed at the gender concepts which have obvious gender meaning and can be replaced.The latter is a supplementary approach to the former,aimed at the gender concepts that cannot or should not be replaced.So they can only be explained academically according to the legislative purpose.The legislative application of the gender conception of postmodern jurisprudence in family law,criminal law and law on the protection of women’s rights and interests proves its feasibility.By replacing or explaining gender concepts in family law,it responds to the right of “the other” to ask for marriage.By deconstructing gender concepts in criminal law,it pays more attention to the rights of men and sexual minorities.By avoiding using gender concepts in the law on the protection of women’s rights and interests,it has changed from providing legal protection based on “gender” to based on “rights” in a specific situation.It dropped the discourse of gender and adopts the discourse of rights,which is a new perspective on the realization of gender equality.It emphasizes special protection for individuals whose rights are neglected or damaged in a specific situation,so it gives equal protection to the rights of all the underprivileged,regardless of their gender.The new gender conception rethinks equality,rights and human dignity from the perspective of humanitarianism rather than gender.What it pursues is not the equality between“men” and “women,” but the equality between “individual” and “individual.”...