Gender Justice: The Capabilities Approach Of Feminist Jurisprudence

Feminist jurisprudence as a branch of jurisprudence,which benefits from the feminist movement and takes feminist theory as its source,there are different schools of theory in which there are different views on women.To a great extent,China's feminist jurisprudence is developed on the basis of introducing western theories.From this point of view,the division of feminist jurisprudence schools in China should be the same as that in the West.However,the actual situation is that it presents different Chinese characteristics.In fact,any discussion about "schools" tends to discuss the theoretical status quo of a certain discipline.Therefore,if we can change our perspective and observe the development of feminist jurisprudence from a "vertical" perspective,it seems that it is more helpful to clarify the core proposition of feminist jurisprudence— gender equality.At the same time,this vertical perspective can avoid the theoretical gap between Chinese and western feminist jurisprudence studies,and focus more on the issues that need to be faced together.Putting aside justice and talking about equality,this is impossible in itself.In addition,feminist jurisprudence is different from other discussions on equality: gender legal issues usually involve gender subjects —men and women —they are both the same but also different.This means that both formal equality and substantive equality are needed.When and which kind of equality is needed is the difficult part of equality proposition.At this time,we need to seek another value judgment.The ideal of equality is more like a trap,and gender justice is more feasible.This kind of gender justice should respect the diversity of the human world and cultural pluralism,be a path of comparative justice focusing on social reality,and be a worldwide Public Reason that people reach consensus on the values of basic rights and freedom through public discussion.The physiological differences between men and women are innate.These biological differences do affect the group characteristics and sexual behavior patterns in social life to a certain extent.But this difference is limited to this.It is difficult to conclude that men are more rational,strong,independent and adventurous,while women are more emotional,weak,dependent and submissive.Even if such a conclusion has not been strongly supported by natural sciences such as biological sciences so far,it is still called "science" and should be applied in all aspects of social life.Social issues related to public decision and legal practice are considered to be more competent for men.Because this kind of things need to be based on human rationality,and the female is considered to be irrational.In this regard,we can reshape the rational category in the law: we can integrate the habits and emotions which are considered as "feminization",so that the legal subject has the dual connotation of rationality and irrationality in theory.If such a rational natural subject hypothesis can be established,the legal division of public domain and private domain will break through itself,the relationship between sex and gender will no longer be tense,the individual characteristics of human beings and the group characteristics of women will be retained within the scope of legal subject,the asexual justice of legal subject can be realized,and the difficulty of women's legal subject status has also been fundamentally solved.Since the theory of the legal subject has been reshaped,the justice value of the evaluation standard of the subject's behavior should be adjusted accordingly.The subject will no longer rely on the only rational motivation when making behavior choice.The diversity of motivation will inevitably lead to the diversity of behavior choice.Furthermore,only a diversified value evaluation system can meet the needs of gender justice subject and legal system.The capabilities approach provides us with this pluralistic value evaluation system.The capabilities approach not only has the function of evaluating specific social values and social conditions at the same time,but also considering the diversity of people's behavior choices.It maximizes the combination of justice theory and human subjectivity.The reason why the capabilities approach can combine the justice theory and human subjectivity is that it inherits Aristotle's definition of human being as political animal,and also absorbs Marx's understanding of human's all-round development.The definition of Aristotle and Marx on human beings and ideal society constitute the theoretical origin of the threshold level of the capability.The capabilities approach contains ten core capabilities.According to the theory,the formation and development of individual capabilities cannot be separated from specific social,political,economic and family conditions.This social reality,at least determines the threshold level of each capability.Therefore,this "capability list" is a criterion to determine whether a society has reached the threshold level of justice.Nussbaum proposed the standard of "adequacy or sufficiency" for the "threshold".Then,who should undertake the cultivation of personal capabilities,and how to realize a decent and dignified social life become the problems that need to be considered next.Nussbaum believes that the state has a certain positive obligation to provide people living in it with adequacy or sufficiency conditions for capabilities development.The legitimacy of this obligation mainly comes from the moral character of the state and the dependence of capabilities development on material conditions.Meanwhile,the best way for the state to fulfill this kind of positive obligation is to allocate the obligation with the help of a certain system,especially the political system related to the basic social structure.Therefore,the constitutional system and legal system that determines a country's "basic structure" must also take the "capability list" as the threshold level of justice.Therefore,those "basic structure" systems that fail to reach the threshold level are unjust.In the context of capabilities approach,human rights actually mean a kind of combined capability.Therefore,the protection of capabilities and rights must be based on the positive behavior of the state.Only when some effective measures are taken to enable people to carry out activities in the essence of rights,can they really be endowed with such rights.In this sense,capability can not exist before the law,it needs to be supported by certain institutional conditions.If we push our discussion forward,it is not hard to draw such a conclusion: the desirability of the capabilities approach relative to the right theory also confirms the limitation of "equality".Perhaps,in the basic capabilities related to "human dignity",the capabilities approach can recognize the value of equality.But it's also because the basic capabilities are adequacy or sufficiency only under the condition of equality.Therefore,fundamentally speaking,the threshold of individual capabilities is still adequacy or sufficiency.This basic principle of justice,corresponding to a country's internal legal system,means that the capabilities approach recognizes the appropriateness of equality in those constitutional rights for the purpose of protecting individual's basic capabilities;but in other cases,the capabilities approach believes that the adequacy or sufficiency of rights is the threshold level of justice.In addition to paying attention to what "ought to be" in the legal system,the social reality is also very important for our discussion.In traditional Chinese society,the unjust gender system,based on feudal etiquette and law,established women's inferior position in marriage,family and inheritance relations.At the same time,on this basis,it further clarifies the subordinate status of women relative to men in the fields of politics,property and criminal legislation.But the history passed,we should also see that the traditional marriage,family and inheritance relations have basically no trace in the contemporary legal system.Political and property rights of contemporary Chinese women are also protected by law.But,the status quo of gender relations in contemporary Chinese society shows that women's social treatment is still generally lower than that of men in marriage,family life,cultural education and economic status.The Communist Party of China has always regarded the protection of women's rights and interests as a very important part of the overall development of the country and society.Especially since the founding of the People's Republic of China,the party and the government have made many positive progress in promoting gender equality and women's development.The former imperial rule has long since ceased to exist,the farming economy is no longer the most important economic form of society,the natural growth of population is basically maintained at a stable level;and the basic needs of human development only illustrate the necessity of the existence of marriage relationship and family system in human society,which can not be explained the rationality and legitimacy of the gender relationship of "men are superior to women".Then,after excluding the influence of political,economic,social and natural factors,the reason for the remaining unjust gender tradition in contemporary Chinese society is only could be cultural tradition.Among them,the traditional gender consciousness is the most concentrated presentation of this cultural tradition.Therefore,if we want to change the gender inequality in the current social reality,it is obvious that we can not ignore this gender consciousness,but must carry out corresponding transformation.The top priority is to realize that gender awareness needs to be changed.In other words,in the context of gender equality,there must be "inequality" between the two sexes.Otherwise,gender equality will not come true.This seemingly contradictory proposition of equality,in fact,expresses two related justice propositions: only the "inequality" between the two sexes is in line with gender justice;at the same time,only this kind of gender justice is in line with the value of gender equality.This is exactly the starting point and the end result of the value of gender justice that equality may not be just,but justice must be equal.In addition,we also need to adjust the social system which contains unjust gender consciousness.This adjustment process can be realized through the mainstream of gender consciousness.The mainstream of gender consciousness in China has begun to move from "norm" to "reality".However,at national level,the gender evaluation mechanism in legislation and decision-making is still in a state of vacancy.The establishment of a national gender evaluation mechanism is a feasible and effective way to reform the gender injustice social system.At the same time,the controversial gender legal system has to be revised for a long time.Among them,it includes not only the perfection of the victim protection system of violence against women,but also the legal regulation of the tort of discrimination against women,as well as the social welfare system of women's "motherhood" identity behavior.