Jurisprudential Analysis Of Anti - Sex Discrimination

What sort of philosophy should be accepted by a society to look at the issue of equality and redistribution of justice? What kind of value orientation should be established by public policy-decision mechanisms to promote the construction of social justice? In what sense of equality and inequality or fairness and unfairness should the common people of a society declare for or against the public-decisions made by legislators for the sake of social justice? With fairness and justice being preset as the basic value orientation of the construction of social order, how to explain the connotations of equality and how to practice the principle of equality would have largely determined the ideology of entire social members and the evaluation criteria of social anti-discrimination policies and laws, thus further determined the possible practical effects of public policies to stimulate social equality, including the policies aimed at the elimination of gender discrimination, which would have influenced the development of whole society in the end. Therefore, the issue of equality and non-discrimination has become a meta-question that we must take seriously. The paper tries to make a legal analysis on gender discrimination, so as to find out reliable theoretical support for the legal practice of eliminating gender discrimination.The legal analysis on the elimination of gender discrimination is dedicated to explore the legitimacy basis of the policies and laws opposing of discrimination based on gender identity, which depends on answering three key questions: Firstly, what kind of value guidance should be followed by a society to make policies and laws to eliminate gender discrimination. Secondly, what kind of standard would be right to evaluate the policies and laws against the phenomenon. And thirdly, what about the practical effects of the actions to reduce gender discrimination under the value guidance and evaluation standard proved to be right as above. The conclusions about the value guidance, the evaluation standard and the practical effects would in turn constitute the legitimacy basis of all actions against gender discrimination.This article is intended to take a jurisprudential analysis on gender discrimination, to find out the answers about which kind of gender equality philosophy should be accepted by people’s society in the course of eliminating gender discrimination, and to make a thorough inquiry for which one is more important between freedom and equality, fairness and welfare as well as people’s differences and dignity when they come to a conflict in a specific discriminating circumstance under the guidance of such kind of gender equality philosophy, which serve as basic value parameters for collective decision-making, thus to further reveal the right value guidelines of actions against gender discrimination to stimulate gender equality in value as well as in the real level which is exactly the fundamental objectives of all actions against gender discrimination. On the basis of the analysis on the possible limitations that may exist in the traditional value theories along with the social changes in China, this article carries on reviews and combs on several kinds of equality philosophy popularized in the western society, and tries to do a careful investigation, analysis and cross-comparative study on the logic of equality and the methods to practice equality contained by these important philosophies, so as to find out the right value guidelines that fit our society the best in the course of anti-gender discrimination. The paper comes up with a final conclusion, which is anti-gender discrimination laws and policies should observe the principle of freedom based on equality, the principle of maximize social welfare based on fairness and the principle of securing human rights based on the differences of human beings. The three basic principles constitute the legal kernel of anti-gender discrimination, which are of great significance to promote a social gender construction of justice.This article consists of five chapters.Chapter one gives a clear explanation on the connotations of the key concepts including "discrimination", "gender discrimination" and "anti-gender discrimination" discussed in the paper. Based on the relevant theoretical research on discrimination that scholars have accumulated in this field, the essential connotation of anti-gender discrimination is clearly defined. Besides, in this chapter, the limitations that may exist in traditional anti-gender discrimination theories along with social transitions are proposed as a cause for the following analyses, and the relations between the elimination of gender discrimination and the promotion of gender equality are pre-defined, so that it would be rational for the main part of the paper in the following to discuss about the philosophical demonstrations on equality when the paper is aimed at the elimination of gender discrimination.Chapter two expounds the equality thoughts of Liberalism, by researching on the main equality ideas of the three representative figures of liberalism, namely John Rawls, Dworkin and Nozick, which are involved with the philosophical demonstrations on equality and relative policies to promote gender equality proposed by them. Besides, it is worth mentioning that the reason for why Liberalism and the other sorts of equality philosophy including Feminism, Utilitarianism, Marxism, Multiculturalism and Communitarianism are separately divided into two chapters is because that on one hand, liberalism plays a dominant role in the field of western political philosophy for a long time with a wide and far-reaching impact on the emergence and development of other sorts of equality philosophy within the huge system of equality ideology in the west, and on the other hand the author tends to agree that especially the equality ideas of John Rawls who belongs to contemporary liberalism are enlightening to solve China’s problems of gender discrimination under the new social circumstances. This chapter also lays the foundation of the cross comparisons between liberalism and the other sorts of equality philosophy carried out by the following chapter.Chapter three focuses on the other several sorts of equality philosophy besides liberal philosophy, which are mainly involved with Utilitarianism, Feminism, Marxism, Multiculturalism and Communitarianism. Based on the reviews and combs of respective philosophical demonstration on the issue of equality and the cross comparisons with liberal philosophy, the roots of divergence among these sorts of equality philosophy were found out in that different philosophy holds different opinions on which one is more important between freedom and equality, fairness and welfare as well as difference and dignity when they are exactly in conflicts, therefore resulting in different policies to reduce social inequality. Through the careful analyses carried out by the last two chapters, a better understanding of the pluralistic political philosophy of western societies in social construction would be formed.After the theoretical discussions on the issue of social inequality carried out by the above two chapters, Chapter Four deals with the discussions on the real practice for the elimination of gender discrimination, by looking into the associations and conflicts between freedom and equality, fairness and welfare, as well as difference and dignity in a particular discriminating environment. Based on the enlightenment of those kinds of equality philosophy mentioned above in dealing with the conflicts ofvalues, the analyses on the relationship between freedom and equality, fairness and welfare, as well as difference and dignity are expanded in details. In conclusion of the legal analysis, three basic principles to guide the practice for the elimination of gender discrimination are proposed, which is the principle of equal liberty, the principle of maximizing social welfare and the principle of protecting human rights.In the final chapter, the paper reconsiders the actions and institutional practice opposing of gender discrimination in China as an extension of the jurisprudential analysis on this phenomenon. Based on the summarization of the legal practice of developed countries and China in this area as well as the existing problems in China’s current legal system, several suggestions are put forward to perfect China’s legal practice for the elimination of gender discrimination.