Law And Identity

This thesis is based on the elaboration of the identity and reflection of the equality. The development of human being can also be regarded as one of striving for, realizing and developing the equality. During this period, identity always plays an important role. The "contractual" identity is no longer synonymous with privilege, but an inevitable factor to the realization of substantial equality. Starting from reflecting the identity out of "equality before the law", the essence of identity to the legal adjustment and social control may be further disclosed. What accompany the identity are the rights, duties and their legitimacy. In case of any change to the legitimacy, the rights and duties entrusted by the identity will be re-defined as well as the institutional change. Therefore, this thesis aims to explore the interaction between the identity and the laws to clarify the role of the principle that the law influences the identity, which is as the base to provide a new perspective for the reflection of status system and equality theory. Structurally speaking, this thesis consists of three parts and five chapters.The first chapter is the first part. The author regards the legal identity is a system composed of one's status, qualifications, relations and other elements, which thus displays the identity of the specific comparison, passiveness and multiplicity. It discloses the meaning of modern identity to the political equality, economic assignment and legal norms. Further, based on different standards, the classification of innate identity and legal identity, formal identity and substantive identity, positive identity and negative identity, fixed identity and variant identity, are further elaboration of the characteristics and essence of the identity. Seen from the vertical perspective, identity and equality can not be separated. The overall trend of social development lies in that from the inequality with identity-conscious privilege to the formal equity with diluted identity, then to the substantive equality with highlighted identity. It is also under this historical track, the Classical School of Natural Law more focused on the identity equality and equal rights, while the School of Legal Positivism excluded all non-legal elements in order to ensure equality to be the inevitable trait of law. The legal and social movement after World War ? and the rise of post-modern deconstruction of law is to promote more attention to the protection of the special identities, thereby Feminist Jurisprudence, criticism racism, the disabled and other critical legal theory has begun to enter specific identity-based legal research jurisprudence, and promote the realization of substantive equality.The second part consists of Chapter 2,3 and 4. The author separately analyzed private law, public law and social law adjustment and control to the identity. Before this transition "from status to contract" occurred, the identity of law plays an important role in the whole legal system. Under the market economy, on the basis of equal personality, the contractual identities, the commercial identities and the marketizationed-identities were separately formed, which essentially means the modern identity an equal personality and membership, which some time decides the ownership of property as well. The private law adjustment mechanism is actually the integration of interests, value systems, distinguishing mechanism, rules of conduct, external sign, which makes the identity order of private law to exhibit resistance, ethics, independence and national modesty. Specifically, the study of identity in the civil law mainly starts from three aspects:the property law, the personal law and family law, while the identity in the commercial law is focused on the merchant identity, the identity of the corporate governance structure and capital markets investors identity.The third chapter analyzes the public law adjustment of the identity. The identity in the modern public law has two significant features:one is to dilute the identity and highlight the equality; the other one is the identity and status inequality between the main parties in public law (state and citizens). The former one points to the equally respect and care of the civil rights, while the latter one extends to the strict limit and division of the public power. Based on the evolution of the relationship between the society and the state, the public law control mechanism of the identity can actually be split into two parts:one is the unequal treatment between the identity body of public authority and citizens in order to weaken the individual dominant position of the state; the other one is the equal adjustment to the relationship between citizens in order to eliminate all kinds of identity-based differences. Specific to the various public law departments, constitutional law focuses on the equality and anti-discrimination, while the criminal law takes the identity as important element to the conviction and sentencing.In the fourth chapter, the author analyzes the social law adjustment of the identity. The emergence of social law, to some extent, means that people tends to highlight the identity instead of diluting the identity. Based on the classification of social law, the identity mainly includes those in Social Security Law, Social Preferential Treatment Law as well as Social Public Interest Law. In addition, the social law identity adjustment mechanism, integrated with the equality and diversity, is formed on the grounds of the "collective of the people".Chapter five is of the third part, which is the reflection of the author for the real identity phenomenon and its theory in China. In the legislation area, the relativity, the virtualization and integration of the identity shall be clearly put forward. The economic poverty and right poverty shall be the main criteria of the decision, and economic rights of the poor and poverty as the main criteria for the right to life as the core, through empowerment of rights and capabilities to achieve a reasonable protection for the weak. In the administration area, due to the ability differences triggered by identity difference, emotional tendencies and litigation opinion are the main forms of identity's affecting judicial decisions. How to tell the distinction between the legal identity and social identity is the basic principle of justice to handle identity-related elements correctly. In terms of administrative law enforcement, on the one hand there is discrimination based on region, family, gender identity; on the other hand, the identity is also a factor to influence the administrative discretion. The response lies in the gradual improvement of discretion-benchmarks system.