1. Introduction
Between 2007 and 2009, the Legislative Council in Hong Kong had passed a series of amendments in relation to law controlling domestic violence. The two most controversial provisions include (1) introduction of court mandated counseling; and (2) extension of protection to In Chinese, ‘TongZhi’’ includes two words – ‘Tong’ (同) means the ‘same’ and ‘Zhi’ (志) connotes ‘beliefs (of anti-heterosexism)’; ‘TongZhi’ therefore signifies all people who share and stand up for the problematization of heterosexism. See Chiu, Man-chung (2001b).
Let us start with discussing the details of amendments.
2. Hong Kong anti domestic violence law reform in 2008 and 2009
Before 2008, a victim of domestic violence can apply for injunction orders under Domestic Violence Ordinance Cap 189, LHK. Matrimonial home means ‘a home in which the parties to a marriage ordinarily reside together whether or not it is occupied at the same time by other persons.’ (Section 2(1)) The order has no relation with the property rights. In other words, a cohabitant, who has no proprietary right, can also apply to exclude her/his partner, who is the owner of the place. Before the amendment introduced in 2008 and 2009, the orders which an abused party can apply included: ‘1(a) a provision restraining that other party from molesting the applicant; (b) a provision restraining that other party from molesting any child living with the applicant; (c) a provision excluding that other party from the matrimonial home, or from a specified part of the matrimonial home, or from a specified area whether or not the matrimonial home is included in that area; (d) a provision requiring that other party to permit the applicant to enter and remain in the matrimonial home or in a specified part of the matrimonial home, whether or not any other relief is being sought in the proceedings.’ After the amendments, the order available include ‘(a) a provision restraining the respondent from molesting the applicant; (b) a provision restraining the respondent from molesting any specified minor; (c) a provision prohibiting the respondent (i) (where the applicant has been molested by the respondent) from entering or remaining in— (A) the residence of the applicant; (B) a specified part of the residence of the applicant; or (C) a specified area whether or not the residence of the applicant is in that area, whether or not the residence is the common residence or matrimonial home of the applicant and the respondent; (ii) (where the specified minor has been molested by the respondent) from entering or remaining in— (A) the residence of the specified minor; (B) a specified part of the residence of the minor; or (C) a specified area whether or not the residence of the minor is in that area, whether or not the residence is the common residence of the minor and the respondent; (d) a provision requiring the respondent to permit— (i) (where the applicant resides with the respondent) the applicant to enter and remain in the common residence or matrimonial home of the applicant and the respondent or in a specified part of such common residence or matrimonial home; or (ii) (where the specified minor resides with the respondent) the minor to enter and remain in the common residence of the minor and the respondent or in a specified part of such common residence, whether or not any other relief is being sought in the proceedings. (1A) A court may in an injunction containing a provision mentioned in subsection (1)(a) or (b) include a provision requiring the respondent to participate in any programme, approved by the Director of Social Welfare, that is aimed at changing the attitude and behaviour that lead to the granting of such injunction.’ Before the amendment introduced in 2008 and 2009, only parties to marriage and their children can apply for injunction order under the Ordinance. (Section 3) Under the amended Ordinance, the following person can apply for injunction: ‘(a) the applicant’s father, mother, grandfather or grandmother (whether natural or adoptive); (b) the applicant’s step-father, step-mother, step-grandfather or step-grandmother; (c) the applicant’s father-in-law or mother-in-law who is the natural parent, adoptive parent or step-parent of the applicant’s spouse; (d) the applicant’s grandfather-in-law or grandmother-in-law who is the natural grandparent, adoptive grandparent or step-grandparent of the applicant’s spouse; (e) the applicant’s son, daughter, grandson or granddaughter (whether natural or adoptive); (f) the applicant’s step-son, step-daughter, step-grandson or step-granddaughter; (g) the applicant’s son-in-law or daughter-in-law who is the spouse of the applicant’s natural child, adoptive child or step-child; (h) the applicant’s grandson-in-law or granddaughter-in-law who is the spouse of the applicant’s natural grandchild, adoptive grandchild or step-grandchild; (i) the applicant’s brother or sister (whether of full or half blood or by virtue of adoption); (j) the brother or sister (whether of full or half blood or by virtue of adoption) of the applicant’s spouse; (k) the applicant’s step-brother or step-sister; (l) the step-brother or step-sister of the applicant’s spouse; (m) the applicant’s uncle, aunt, nephew, niece or cousin (whether of full or half blood or by virtue of adoption); (n) the uncle, aunt, nephew, niece or cousin (whether of full or half blood or by virtue of adoption) of the applicant’s spouse; or (o) the spouse of any person mentioned in paragraph (i), (j), (k), (l), (m) or (n). Whether a couple who have not married are qualified to apply injunction are determined with regard to the following criteria: (a) whether the parties are living together in the same household; (b) whether the parties share the tasks and duties of their daily lives; (c) whether there is stability and permanence in the relationship; (d) the arrangement of sharing of expenses or financial support, and the degree of financial dependence or interdependence, between the parties; (e) whether there is a sexual relationship between the parties; (f) whether the parties share the care and support of a specified minor; (g) the parties’ reasons for living together, and the degree of mutual commitment to a shared life; (h) whether the parties conduct themselves towards friends, relatives or other persons as parties to a cohabitation relationship, and whether the parties are so treated by their friends and relatives or other persons.’ (Section 3B)
3. Time is always out of joint: Is the past always with us?
I support the amendments, not only because they can effectively control the wrongdoing, but also because they can effectively engage with Han Chinese traditional culture. However, in 2007, during a conference ‘21st Century Sex and Gender in Greater China: A Roundtable’, Professor Angela Wong of Chinese University of Hong Kong posed me a question: Is Han-Chinese tradition still relevant in Hong Kong nowadays? Why? I at that time put forward numerous pieces of evidence (for example: Chinese traditional medical practice and FengShui (風水) – Han Chinese traditional environmental science – are still widely referred today in Hong Kong) showing how important and vital Han Chinese tradition is in contemporary Hong Kong society. In the following section, adopting the Deleuzean philosophical paradigm, I will construct a more sophisticated philosophical framework in creating the relevance of traditional culture.
When the academics question the significance of Han Chinese traditional culture in contemporary Hong Kong Society, they assume that heritage is a contextual product and since Hong Kong today is obviously very different from Han Chinese traditional society, Han Chinese traditional culture is no longer applicable in current society. Underlying their argument is a linear model of time: time is a join up of numerous ‘instants’ -- it links or glues distinct moments of experience in fixed uni-direction, i.e. the model of ‘past May, Todd (2005: 41).
The Deleuzean school argues that it is not the movement or moment which produces and derives time, but vice versa – time creates and invents movements, since time is a ‘becoming’ which is made up of ‘durations’. ‘Duration’ is different from ‘instant’: the former, as it is constituted by mental activities (perception and memory), can be divided. Whenever ‘duration’ is divided, it changes, because how it is divided can be both a cause and effect of mental activities, which never stop and can never be forever consistent or totally predictable. Gilles Deleuze writes:
Duration divides up and does so constantly…but it does not divide up without changing in kind, it changes in kind in the process of dividing up: this is why it is a nonnumerical multiciplicty.
Deleuze, Gilles (1991: 42).
Duration, being a product of mental activities, contains both continuity and differences. Cliff Stagoll gives the best illustration: ‘[m]ental states flow together as if parts of a melody, with previous notes lingering and future ones anticipated in the unity of a piece…To try and grasp this flow as a complete set of notes is pointless, because the music is always on the verge of ending and always altered by the addition of a new note.’ Sagoll, Cliff ‘Duration (Duree)’ in Parr, Adrian (ed) (2005: 79).
Bryant, Levi (2008: 114).
…if the present can pass away, it is because, in some sense, it is already past or has a past element to it. In other words, every present must have a past aspect in order for it to pass away.
Williams, James (2003: 94).
When a present, together with a past, passes away, it becomes a past event for forthcoming present (ie. the new present / future). The difference between past and present, however, must exist; otherwise, the passing cannot occur. So what is the difference? Deleuze argues that past is virtuality, and present actuality, as we are experiencing it. Please note: it is not a dichotomy of past / virtuality vs. present / actuality; in fact, when present passes into past, past also engages (not mixes) with present at the same duration -- past actualizes and becomes part of the present.
The present and former present are not, therefore, like two successive instants on the line of time; rather, the present one necessarily contains an extra dimension in which it represents the former and also represents itself.
Deleuze, Gilles (1994: 80).
History, a concept produced by past, as argued by Elizabeth Grosz, is thus still influential contemporaneously through ‘its capacity to link to and thus to inform the present.’
Grosz, Elizabeth (2005: 102).
Due, Reidar (2007: 31).
Fu, Zi-tang (2008: 297)
Bryant, Levi (2008: 118). Quoted in Fu, Zi-tang (2008: 360). For more discussion in relation to Yi / justice, please see below.
Time is, put simply, according to Deleuze, not only an objective and transcendental scale that exists outside human life, May, Todd (2005: 41).
Using this perspective, then Han Chinese traditional culture (past) in fact has never left us; it always exists with contemporary Hong Kong society (present), who is predominantly Han Chinese. The traditional culture could become the force of social control in our current society, but it does not forbid the current society from changing. In other words, whether the mechanism of court mandated counseling and acceptance of Tongzhi couple, originated from overseas jurisdiction, can engage with Han Chinese traditional culture and function in Hong Kong, a predominately Chinese society, must be considered in order to ensure or evaluate the effectiveness of the amendments.
Another problem is: although we have to take into account the Han Chinese traditional culture, another aim of reforming law is to maintain and produce justice. If harmony, as argued by some of academics and lawmakers, is the core value of Han Chinese traditional culture,
4. Imagine there will be no powerless: Can the reforms produce justice?
In this section, I will investigate Han Chinese traditional cultural perspective on justice and examine if the newly introduced sections of law controlling domestic violence (ie. court mandated counseling and inclusion of same sex couples) is just. First, we have to define ‘justice’.
In his groundbreaking monograph, A Theory of Justice, John Rawls argues that ‘justice’ starts with ‘fairness’, which means equal distribution of primary goods (i.e. rights, freedom, resources and self-respect) among multitude.
Rawls, John (1971: 62, 95); see also Jiang, Shan (2002: 31).
Zhao, Dun-hua (1988: 151).
Drucilla Cornell, in The Imaginary Domain: Abortion, Pornography and Sexual Harassment, further substantiates Rawlsian theory of justice, and relates the theory with the Lacanian ‘imaginary domain’: According to Lacanian philosophy, imaginary relates to self projection / introjection of (erotic) desire, which is vital in the re-construction of individual human subjectivity. In imaginary domain, one can fantasize oneself having indefinite and multiple identities.
Grosz, Elizabeth (2005: 73).
Cornell , Drucilla (1995: 7-8).
Hu, Shui-jun (2005: 9).
Within the Rawlsian theory, there always exists a problem: if ‘Veil of Ignorance’ According to John Rawls, in ‘Original Position’, people are covered by the ‘Veil of Ignorance’; hence they only have the ordinary economic and political knowledge, they know nothing about ‘real’ social positions, resources under control and life plans of themselves and the others (Rawls, John 1993: 23). Cornell, Drucilla (2008: 136).
Applying the above principles in analysing the introduction of court mandated counselling and the inclusion of same sex couples in the sphere of protection, the first step is: we put ourselves into the shoes of victims of domestic violence and / or Tongzhi. Then we have to ask: are we (becoming the victims of domestic abuse and Tongzhi) the marginalized powerless in contemporary Hong Kong? Where the victims’ rights to body and freedom and self-respect are neglected by the abusers when domestic violence happens, are they not oppressed and dehumanized? In Hong Kong, where the anti sexual orientation discrimination law and Tongzhi’s rights to marry are absent, the Tongzhi’s self-respect is peripherized. The recent reforms, which can provide increasing and effective legal protection, are of course welcomed and accepted by them and are thus just and fair.
5. Engaging foreign concepts with Hong Kong culture: Where are the simularities?
In order to transplant the Deleuzean perspective on time / history and Rawlsian theory of justice, philosophical products reproduced in Euro-American socio-political-social matrix, into Hong Kong, we need to develop a machine / a mechanism by which the import can carry out smoothly. Any transplantation of law without being sensitive towards the possible conflict of cultures can lead to failure and / or postcolonial violence. That is why I argue that a very in-depth investigation of the cultural contexts need to be carried out before any transplantation of law. Chiu Man-chung (2010).
Chang, in Fake Globalization, adopting Deleuzean theory of simulacrum, challenges the dichotomy of real / origin and fake / replica. Chang, in short, argues that an authentic original culture does not exist, and we can put the effort in locating the zones of possible similarities between cultures, i.e. simulacra. Chang goes on and advocates that dialogue between cultures can be viewed as the simularity between cultures – there are similarities, and simulations can occur between cultures.
Chang, in this context, produces the machine of transcultural similarity.
Chang, Hsiao-hung (2007: 20, 68, 73)
If we have to locate and construct the matching points, we have to understand how Han Chinese traditional culture engineers its perspectives on time / history and justice. Han Chinese traditional concept is a hybridity of different schools of thought, and we are going to put the focus on (Orthodox) Confucianism, (Orthodox) Daoism and Buddhism – which are considered as the mainstream of Han Chinese traditional culture.
5.1. Daoist and Confucian perspective on history: Medium of promotion?
According to Lao Zi, the philosopher believed to be the founder of (Orthodox) Daoism, Dao is the source and reference of everything, including nature and human society.
Wang, Ze-ying (2003: 98); Wang, Qing-jie (2004: 149). Ng, Yu-kwan (1998: 2). Koller, John (2002: 288).
(Orthodox) Confucianism, produced and advocated by Confucius and Mencius during Zhou (周) Dynasty (BC 1066 – BC 221), advocates the importance of Ren -- good being / benevolence, which is derived and considered as the most important guideline of Confucian interpersonal politics, since harmonious interpersonal relationship enjoys a very high status in Confucianism. Please note that ren was not invented by Confucians, it is said to have existed before Confucius’ time. However, it was Confucius who transformed it into a virtue achievable by man (i.e. human being), broadened it to become a comprehensive virtue covering all individual Confucian virtues, and finally elevated it to become the centre of his philosophy.’ (Ling, D W 1995: 73). Tang, Kai-lin & Zhang, Huai-cheng (2003: 76).
Analyzing tradition and history from the perspective (Orthodox) Daoism and (Orthodox) Confucianism, philosophical historians always use the historic facts and issues as the tools or media to promote and market their philosophical ideals – for instance, Daoist would also praise Emperor Wen (漢文帝) of the West Han Dynasty (206 BC- 9 AD) as he adopted Daoist principle of action-less as his state policy: Book of Han writes: ‘During his 23 year reign, there had been no further construction of palace, palace garden, vehicle and uniform…Emperor Wen also instructed that when he passed away…no royal burial chamber was allowed to be built.’ ‘Annals of Emperor Wen’, Book of Han (http://www.guoxue.com/shibu/24shi/hansu/hsuml.htm 22 March 2011). Chapter 8, The Analects of Confucius (
5.2. Buddhist perspective on time / history: Beyond past / present dichotomy
One of the thematic principles of Buddhism is Karma, which indicates the mechanism by which what a human did and / or thought would determine her / his future action and / or status.
Hu, Xiao-guang (1999: 9). Tom Sun (1998: 3).
Song, Dao-fa (2009: 203).
The interaction between human and the common sense world constitutes the Karmic seeds -- bija, which are stored in alaya-vijnana, the storehouse-consciousness which is a timeless concept, determines the forthcoming interaction between human and the common sense world. The mechanism will be further elaborated below. Koller, John (2002: 222).
Yang, Wai-zhong (2007: 298-299).
Buddhist theory of Karma offers a philosophical perspective which describes how past (action / thought) and present (forthcoming action / thought) intermingle in detail, although it mainly aims at elaborating and reconstructing the interaction between human action / thought and the constitution of her / his subjectivity. Put simply, the concept goes beyond the binarism of past vs. present. Karma also offers a perspective explaining how past can be actualized in present via bija activities – Buddhism thus is able to offer another model in understanding how past can become the social control force in Han-Chinese traditional culture. This Buddhist mechanism, in short, is very similar to and can simulate interactively with Deleuzean concepts of time, i.e. fission of time into past and present and past folding with present. Buddhist Karma hence can be used as a matching platform for the successful and smooth transplantation of Deleuzean concept.
5.3. Absence and presence of equality: Is there any justice in Han-Chinese culture?
In contemporary Han Chinese language, justice is translated as Yi (義). However, Yi, does not start with equality but harmony.
Hu, Shui-jun (2005: 12); Jiang, Shan (2002: 38).
Lin, Duan (2007: 437).
We can again start with (Orthodox) Daoism. (Orthodox) Daoists are generally believed that they will view Yi, as a human product, violates the principle of action-less and thus Dao.
Wang, Ze-ying (2003: 23, 43). According to Lao Zi, the philosopher who is widely believed to be the founder of the school, Dao is the origin and reference of everything, including human, society and culture. Thus, Dao consumes the status of ultimate and transcendental metaphysics. For details, please see Wang, Ze-ying (2003: 98) and Wang, Qing-jie (2004: 149). However, Guu-ying Chen has another interpretation, he points out that, Lao Zi does not object Yi, provided that it is derived from Dao. Please see Chen, Guu-ying (2001). Chapter 17, The Analects of Confucius ( Book 2, Tso Commentary to Spring and Autumn Annals Pan, Li-ping (2006: 45). Chapter 6, The Analects of Confucius ( Chapter 12, The Analects of Confucius ( Zhu Zi Zhu Zi’s Explanation to Zhong Yong (中庸章句集注) Wang, Qing-jie (2004: 246).
People all have things that they will not bear. To extend this reaction to that which they will bear is benevolence. People all have things that they will not do. To extend this reaction to that which they will do is righteousness [i.e. Yi]. Chapter 14, Mencius (
Mencius further elaborates Confucius’s perspective on Yi; he takes Yi as the ultimate standard of human performance: ‘Yi is people’s correct road.’ Chapter 4A, Mencius ( Chapter 6A, Mencius ( Chapter 6A, Mencius (
Juxtaposing Rawlsian / Cornell’s theory of justice and Han Chinese traditional cultural concept of Yi, we can locate the transcultural simularities, i.e. an effective transplantation platform, between two ideologies: both are using Yi / justice as the standard of human behaviour evaluation. The second matching point is self-respect: both Rawlsian / Cornell’s theory and Mencius’s perspective stress the nurture, protection and promotion of individual self-respect. Cornell’s respect of individual desire also echoes with (Orthodox) Confucian concept of ‘putting oneself into others’ shoes’: ‘If you don’t want others to impose their choice on you, should you not do the same to others?’ Also, Cornell’s interpretation of imaginary domain supplements Confucius’s concept of Shu: only if one can imagine what may happen to others (for example, the marginalized powerless), s/he can understand and feel the vitality of respect and accepting (not simply tolerating) differences; this attitude and technique can certainly assist a person to avoid (unconsciously and / or unintentionally) imposing her / his agenda and value judgement on others within the interpersonal politics network.
The problem, however, is: Yi, which is developed in imperial China, is used to restrengthen and reconstruct the social hierarchy and hence inequality. In other words, equality, an essential element in producing Rawlsian / Cornell’s theory, is not a factor in the formation of Yi in Han-Chinese traditional culture. Again, it seems Buddhism can fill the gap.
According to Vasubandhu, a significant Buddhist philosopher, there are eight vijnana / consciousnesses: the five consciousnesses respond respectively to visual perception, auditory perception, olfactory perception, gustatory perception, tactile perception (the five senses), mano-vijnana (mind-consciousness), mana-vijnana (ego-consciousness) and alaya-vijnana. Samdhinirmocana-sutra states that the first five vijnana are indeed the consciousnesses of the senses which create the biological human body, and mano-vijnana is responsible for individual moral determination and connection between a person and the common sense world.
Yang, Wai-zhong (2007: 288).
The interaction among the performances of the eight vijnana is a loop of production and constitutes the (virtual) subjectivity of human. The interactive production of body and the world -- the Karma mechanism – continuously produces / consumes bija and maintains alaya-vijnana, as discussed above. Please note: Karma cannot totally predetermine what is going to happen in the forthcoming duration, as Karma always creates new bija, thus new and unpredictable interaction between human; and unforeseeable interaction human and common sense world are allowed and encouraged. According to this analysis, enactment of new law (for example: the amendment of anti domestic violence law and introduction of court mandated counseling) would ‘perfume’ (薰習), or affect, the nature of existing and forthcoming set of bija. Karma hence leads to one of the most important Buddhist ideologies, ‘Dependant-arising thus Emptiness of Self Nature’ (緣起性空). It describes the mental constitutive reception of every activity and phenomenon that can never be a fixed and universal essentiality, but a virtuality re-created and re-newed by the non-stop Karma machine and bija exercise (for example, consequences of perfume) under a milieu -- a forever changing set of connections between desire (needs and request of justice) and social force (for example, enactment of new law), which itself can be a (new) product of bija activity.
This line of argument devises and formulates another two important Buddhist principles: (1) ‘Non-Insistence’ (諸法無我) or ‘Self-less-ness (Anātman)’, ‘self’ in this context does not only mean ‘I’, but over-insistence of any philosophical perspective; Chan, Stephen (2005: 25).
The two principles, ‘Non-Insistence’ and ‘Non-Permanence’, are part of the Buddhist ‘Correct Law’ (Prāvaccana), i.e. the most important beliefs in Buddhist philosophy. Quoted in Li Cun-shan (2009: 440).
Within my Dhamma, the 4 clans (1) priestly, (2) military and ruling, (3) farmers and traders, and (4) serfs…would all drop their original titles and are called ‘Shih’ students of Buddha.
Buddhist emphasis on equality becomes a platform for the exercise of transcultural simularity, and can be utilized as a matching point for the import and transplantation of Rawlsian / Cornell’s conception of justice. However, I have to emphasize that there are a number of very discriminatory practices within Buddhism, for example: transgender are not allowed to practise fully Buddhism, and Buddhist nuns (bhilsunī) cannot enjoy same status with male monks (bhiksu). The practices nonetheless are now under serious challenges in Taiwan. Please see Shih Chao Hui (2002) and Yang, Hui-nan (2002). For discussion on perfume and Buddhist jurisprudence, please see Chiu Man-chung (2007, 2009).
6. Conclusion: Implication for mainland Chinese legal development
I always emphasize that it is not my intention to propose that ‘Hong Kong Culture = traditional Han Chinese culture = Orthodox Confucianism + Orthodox Daoism + Buddhism’: if a traditional cultural concept is a virtuality, and becoming, as argued by Deleuze, then an authentic original notion of culture simply does not exist. Please also note: even if transcultural simularity is proactively created and / or located, and transplantation can be carried out, whether the new concept / law can reach its scheduled and planned effect and outcome cannot be predicted or guaranteed – transcultural simularity only promises the possibility of successful transplantation; it cannot guarantee the effect and outcome.
However, one question remains: If Buddhism can be used as a philosophical paradigm for analyzing the effect and status of Han Chinese tradition in contemporary Hong Kong and producing justice, why do we still need to import the foreign support? Why don’t we simply utilize the materials we already have? The answer is: In the case of interpreting and understanding tradition at present, Buddhist theories of Karma and bija are mainly used to understand how human subjectivity is reconstructed and problematized – in the example I quote above, the parable was used to demonstrate how Karma can work on a person: even when the Emperor, who was usually called ‘Son of Heaven’, had done something against Buddhism, he would be punished by his own decision and action – Buddhism has not frequently used the Karma machine to investigate how culture and tradition work contemporarily. We therefore need the Deleuzean perspective to sensitize Buddhist theory towards how it can be used in deterritorializing the connections between time and history. And, in relation to justice, as Guu-ying Chen sharply points out, there is a lack of critical perspective within Han Chinese traditional culture. Chen, Guu-ying (1988: 1). Chen, Ying-xun (2004: 215).
In this article, I have developed a line of argument, according to which, when making new policy and enacting new law, the stakeholders have to take into account the Han Chinese traditional culture when considering if the law controlling domestic violence in Hong Kong should adopt court mandated counseling as a device to reform the behavior of the perpetrator and include Tongzhi couples as part of the protection targets: as I argued elsewhere, since (Orthodox) Confucianism puts so much effort on maintaining and reproducing interpersonal harmony in the context of social hierarchy as Confucius said: ‘For judging law suits I share the same position with others. What I insist upon is to make it impossible for all law suits to arise ’ Chapter 8, Great Learning (
Putting the focus on the possible legal device controlling domestic violence in Mainland China – like Hong Kong, Mainland China is dominated by race of Han According to the Consensus conducted in 2007, the population of Han in Mainland China is 1,182,950,000, 90.56% of the total population. Art 260 of PRC Criminal Law (刑法); which writes that vicious abuse of family members amounts to a criminal offence, the offender may be subjected to 2 – 7-year imprisonment. It is the so called ‘offence of (domestic) maltreatment’ (虐待罪). Art 182 of the PRC Marriage Law (婚姻法) also includes the same stipulation. ‘Vicious’ in this context means that the maltreatment (1) has an immoral intention; or (2) is conducted in a grave manner; or (3) continues for a long period of time; or (4) is imposed on a minor, elderly, pregnant woman. ‘Maltreatment’ refers to physical abuse and psychological abuse. It, therefore, seems that spousal abuse would not be considered as a vicious maltreatment. For details, please see Chiu, Man-Chung (2006).
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Yang, Hui-nan (楊惠南) ( 2002 ) ‘Tong Xin Fan Xing: Taiwan Buddhist Tongzhi Equal Rights Movement (trans., 童心梵行: 台灣佛教徒同志平權運動)’ 173 30-51. - 37.
Yang, Wai-zhong (楊維中) ( 2007 ) Beijing: Religious Culture (宗教文化). - 38.
Zhao, Dun-hua (trans., 趙敦華) ( 1988 ) Hong Kong: Joint Publication.
Notes
- In Chinese, ‘TongZhi’’ includes two words – ‘Tong’ (同) means the ‘same’ and ‘Zhi’ (志) connotes ‘beliefs (of anti-heterosexism)’; ‘TongZhi’ therefore signifies all people who share and stand up for the problematization of heterosexism. See Chiu, Man-chung (2001b).
- Chiu, Man-Chung (2001a).
- Chiu, Man-Chung (2001b).
- Cap 189, LHK.
- Matrimonial home means ‘a home in which the parties to a marriage ordinarily reside together whether or not it is occupied at the same time by other persons.’ (Section 2(1)) The order has no relation with the property rights. In other words, a cohabitant, who has no proprietary right, can also apply to exclude her/his partner, who is the owner of the place. Before the amendment introduced in 2008 and 2009, the orders which an abused party can apply included: ‘1(a) a provision restraining that other party from molesting the applicant; (b) a provision restraining that other party from molesting any child living with the applicant; (c) a provision excluding that other party from the matrimonial home, or from a specified part of the matrimonial home, or from a specified area whether or not the matrimonial home is included in that area; (d) a provision requiring that other party to permit the applicant to enter and remain in the matrimonial home or in a specified part of the matrimonial home, whether or not any other relief is being sought in the proceedings.’ After the amendments, the order available include ‘(a) a provision restraining the respondent from molesting the applicant; (b) a provision restraining the respondent from molesting any specified minor; (c) a provision prohibiting the respondent (i) (where the applicant has been molested by the respondent) from entering or remaining in— (A) the residence of the applicant; (B) a specified part of the residence of the applicant; or (C) a specified area whether or not the residence of the applicant is in that area, whether or not the residence is the common residence or matrimonial home of the applicant and the respondent; (ii) (where the specified minor has been molested by the respondent) from entering or remaining in— (A) the residence of the specified minor; (B) a specified part of the residence of the minor; or (C) a specified area whether or not the residence of the minor is in that area, whether or not the residence is the common residence of the minor and the respondent; (d) a provision requiring the respondent to permit— (i) (where the applicant resides with the respondent) the applicant to enter and remain in the common residence or matrimonial home of the applicant and the respondent or in a specified part of such common residence or matrimonial home; or (ii) (where the specified minor resides with the respondent) the minor to enter and remain in the common residence of the minor and the respondent or in a specified part of such common residence, whether or not any other relief is being sought in the proceedings. (1A) A court may in an injunction containing a provision mentioned in subsection (1)(a) or (b) include a provision requiring the respondent to participate in any programme, approved by the Director of Social Welfare, that is aimed at changing the attitude and behaviour that lead to the granting of such injunction.’
- Before the amendment introduced in 2008 and 2009, only parties to marriage and their children can apply for injunction order under the Ordinance. (Section 3) Under the amended Ordinance, the following person can apply for injunction: ‘(a) the applicant’s father, mother, grandfather or grandmother (whether natural or adoptive); (b) the applicant’s step-father, step-mother, step-grandfather or step-grandmother; (c) the applicant’s father-in-law or mother-in-law who is the natural parent, adoptive parent or step-parent of the applicant’s spouse; (d) the applicant’s grandfather-in-law or grandmother-in-law who is the natural grandparent, adoptive grandparent or step-grandparent of the applicant’s spouse; (e) the applicant’s son, daughter, grandson or granddaughter (whether natural or adoptive); (f) the applicant’s step-son, step-daughter, step-grandson or step-granddaughter; (g) the applicant’s son-in-law or daughter-in-law who is the spouse of the applicant’s natural child, adoptive child or step-child; (h) the applicant’s grandson-in-law or granddaughter-in-law who is the spouse of the applicant’s natural grandchild, adoptive grandchild or step-grandchild; (i) the applicant’s brother or sister (whether of full or half blood or by virtue of adoption); (j) the brother or sister (whether of full or half blood or by virtue of adoption) of the applicant’s spouse; (k) the applicant’s step-brother or step-sister; (l) the step-brother or step-sister of the applicant’s spouse; (m) the applicant’s uncle, aunt, nephew, niece or cousin (whether of full or half blood or by virtue of adoption); (n) the uncle, aunt, nephew, niece or cousin (whether of full or half blood or by virtue of adoption) of the applicant’s spouse; or (o) the spouse of any person mentioned in paragraph (i), (j), (k), (l), (m) or (n). Whether a couple who have not married are qualified to apply injunction are determined with regard to the following criteria: (a) whether the parties are living together in the same household; (b) whether the parties share the tasks and duties of their daily lives; (c) whether there is stability and permanence in the relationship; (d) the arrangement of sharing of expenses or financial support, and the degree of financial dependence or interdependence, between the parties; (e) whether there is a sexual relationship between the parties; (f) whether the parties share the care and support of a specified minor; (g) the parties’ reasons for living together, and the degree of mutual commitment to a shared life; (h) whether the parties conduct themselves towards friends, relatives or other persons as parties to a cohabitation relationship, and whether the parties are so treated by their friends and relatives or other persons.’ (Section 3B)
- May, Todd (2005: 41).
- Deleuze, Gilles (1991: 42).
- Sagoll, Cliff ‘Duration (Duree)’ in Parr, Adrian (ed) (2005: 79).
- Bryant, Levi (2008: 114).
- Williams, James (2003: 94).
- Deleuze, Gilles (1994: 80).
- Grosz, Elizabeth (2005: 102).
- Due, Reidar (2007: 31).
- Fu, Zi-tang (2008: 297)
- Bryant, Levi (2008: 118).
- Quoted in Fu, Zi-tang (2008: 360). For more discussion in relation to Yi / justice, please see below.
- May, Todd (2005: 41).
- Chiu, Man-chung (2001a, 2001b).
- Rawls, John (1971: 62, 95); see also Jiang, Shan (2002: 31).
- Zhao, Dun-hua (1988: 151).
- Grosz, Elizabeth (2005: 73).
- Cornell , Drucilla (1995: 7-8).
- Hu, Shui-jun (2005: 9).
- According to John Rawls, in ‘Original Position’, people are covered by the ‘Veil of Ignorance’; hence they only have the ordinary economic and political knowledge, they know nothing about ‘real’ social positions, resources under control and life plans of themselves and the others (Rawls, John 1993: 23).
- Cornell, Drucilla (2008: 136).
- Any transplantation of law without being sensitive towards the possible conflict of cultures can lead to failure and / or postcolonial violence. That is why I argue that a very in-depth investigation of the cultural contexts need to be carried out before any transplantation of law. Chiu Man-chung (2010).
- Chang, Hsiao-hung (2007: 20, 68, 73)
- Chiu, Man-chung (2008).
- Chiu, Man-chung (2010).
- Chiu, Man-chung (2008).
- Wang, Ze-ying (2003: 98); Wang, Qing-jie (2004: 149).
- Ng, Yu-kwan (1998: 2).
- Koller, John (2002: 288).
- Please note that ren was not invented by Confucians, it is said to have existed before Confucius’ time. However, it was Confucius who transformed it into a virtue achievable by man (i.e. human being), broadened it to become a comprehensive virtue covering all individual Confucian virtues, and finally elevated it to become the centre of his philosophy.’ (Ling, D W 1995: 73).
- Tang, Kai-lin & Zhang, Huai-cheng (2003: 76).
- ‘Annals of Emperor Wen’, Book of Han (http://www.guoxue.com/shibu/24shi/hansu/hsuml.htm 22 March 2011).
- Chapter 8, The Analects of Confucius (http://www.yellowbridge.com/onlinelit/analects08.php accessed 22 March 2011).
- Hu, Xiao-guang (1999: 9).
- Tom Sun (1998: 3).
- Song, Dao-fa (2009: 203).
- The mechanism will be further elaborated below.
- Koller, John (2002: 222).
- Yang, Wai-zhong (2007: 298-299).
- Hu, Shui-jun (2005: 12); Jiang, Shan (2002: 38).
- Lin, Duan (2007: 437).
- Wang, Ze-ying (2003: 23, 43). According to Lao Zi, the philosopher who is widely believed to be the founder of the school, Dao is the origin and reference of everything, including human, society and culture. Thus, Dao consumes the status of ultimate and transcendental metaphysics. For details, please see Wang, Ze-ying (2003: 98) and Wang, Qing-jie (2004: 149). However, Guu-ying Chen has another interpretation, he points out that, Lao Zi does not object Yi, provided that it is derived from Dao. Please see Chen, Guu-ying (2001).
- Chapter 17, The Analects of Confucius (http://www.ccnt.com.cn/wisdom/rujia/lunyu/lunyu3.html accessed 22 March 2011).
- Book 2, Tso Commentary to Spring and Autumn Annals
- Pan, Li-ping (2006: 45).
- Chapter 6, The Analects of Confucius (http://www.wfu.edu/~moran/zhexuejialu/Analects_PEM.html accessed 22 March 2011).
- Chapter 12, The Analects of Confucius (http://plato.stanford.edu/entries/confucius/ accessed 22 March 2011).
- Zhu Zi Zhu Zi’s Explanation to Zhong Yong (中庸章句集注)
- Wang, Qing-jie (2004: 246).
- Chapter 14, Mencius (http://faculty.vassar.edu/brvannor/mengzi.html accessed 22 March 2011).
- Chapter 4A, Mencius (http://www.tianyabook.com/gudian/mengzi.html accessed 22 March 2011).
- Chapter 6A, Mencius (http://www.tianyabook.com/gudian/mengzi.html accessed 22 March 2011).
- Chapter 6A, Mencius (http://fsrcenter.blogspot.com/2009/02/fish-and-bears-palm_14.html accessed 22 March 2011)
- Powers, John (1995
- Yang, Wai-zhong (2007: 288).
- Chan, Stephen (2005: 25).
- Quoted in Li Cun-shan (2009: 440).
- Taisho Tripitaka Editorial Committee (1985) Vol. 22.
- However, I have to emphasize that there are a number of very discriminatory practices within Buddhism, for example: transgender are not allowed to practise fully Buddhism, and Buddhist nuns (bhilsunī) cannot enjoy same status with male monks (bhiksu). The practices nonetheless are now under serious challenges in Taiwan. Please see Shih Chao Hui (2002) and Yang, Hui-nan (2002).
- For discussion on perfume and Buddhist jurisprudence, please see Chiu Man-chung (2007, 2009).
- Chiu, Man-chung (2010).
- Chen, Guu-ying (1988: 1).
- Chen, Ying-xun (2004: 215).
- Chapter 8, Great Learning (http://www.en84.com/article-4277-1.html accessed 22 March 2011).
- Chiu, Man-chung (2001a, 2001b).
- According to the Consensus conducted in 2007, the population of Han in Mainland China is 1,182,950,000, 90.56% of the total population.
- Art 260 of PRC Criminal Law (刑法); which writes that vicious abuse of family members amounts to a criminal offence, the offender may be subjected to 2 – 7-year imprisonment. It is the so called ‘offence of (domestic) maltreatment’ (虐待罪). Art 182 of the PRC Marriage Law (婚姻法) also includes the same stipulation. ‘Vicious’ in this context means that the maltreatment (1) has an immoral intention; or (2) is conducted in a grave manner; or (3) continues for a long period of time; or (4) is imposed on a minor, elderly, pregnant woman. ‘Maltreatment’ refers to physical abuse and psychological abuse. It, therefore, seems that spousal abuse would not be considered as a vicious maltreatment. For details, please see Chiu, Man-Chung (2006).