When Law speaks “Equality” (in Chinese)
After studying “Transforming the Hong Kong Legal System” (Springer 2022), Alfred Chan, the former Chairperson of Hong Kong Equal Opportunities Commission, discusses the co-relation between Equality and Law in Hong Kong with MC Chiu, the author of the book.
Alfred Chan: Studying the book from a layman’s perspective. I wonder if the book has indeed successfully revealed the origin of the Hong Kong family law system. Though you have assumed that the readers have a basic understanding of Hong Kong Family Law which the general public may not have, making the ‘transforming’ rather difficult.
MC Chiu: The book, as indicated in the “Introduction: Re/Conceptualizing Transformation”, aims at constructing a theoretical framework by which justice can be manufactured and engineered in Hong Kong via the legal system. Knowing the origin and the development of law (including family law) can certainly help us understand how society and the legal system work; the book tries to offer a thorough examination of how a matrix, formed by the dis/re/connection of different machines (e.g., the medical profession and the legislature), can be transformed. But that is not the key point of the book. The gist of my argument is that only through the non-stop problematization of current concepts and the continual generation of new laws, can justice (in different socio-legal contexts, including sexual orientation discrimination) be re-created.
Alfred Chan: Concepts of gender and family essentially are based on western notions which, arguably, lack parallel concepts of Chinese origin! Nonetheless it would be useful if a more detailed analysis was made of the origin of these concepts. The author seems to offer a simplistic version of these concepts in the possible solutions section, but an explanation should be offered for how these are related to the legal machine.
MC Chiu: I wonder if, in this post-globalization era, we can still understand the ideas of gender and family from an either-or perspective (for example, Eastern vs. Western, Aboriginal vs. Overseas). The book does not advocate using traditional concepts as solutions (e.g., during the Qin Dynasty, height was used to define adulthood) to all sorts of problems, but quoting what happened in the past as examples, can effectively show that what seemed to be a universal and natural view of life (using age also as a natural reference measure of human maturity) is just a contextual invention. Also, if law is part of a social matrix that constructs humanhood, then changing the values underlying law can certainly change the social environment and hence public perceptions of the law.
Alfred Chan: It seems that you branched off to focus on ‘reconstruction of the so-called Han-Chinese legal tradition’; as if the conceptualization of a socio-legal culture started with the Han period. This notion is of course controversial in the sense that the ‘legal’ mind of the Chinese started as early as in pre-historic periods where an early emperor was said to follow the folk law not to enter his home when he was on duty (but was a long time away from home) even if it was within a short distance. There were other traditions like ‘when the emperor asked for an official’s life, he just had to give it without asking why!’ ( referred to as ‘loyalty’) These I suggest were the earlier foundations of the Chinese justice system which should have been incorporated into the chapters of these book.
Andy Chiu: The term (Han-)Chinese culture, in the book, signifies the ethnic particularity of law, which is more relevant to Hong Kong, a predominately Han-Chinese society. Please understand that there are nearly 56 ethnicities in China, and each of them has its own concept of law and taboo – according to a documentary released in 2021, a matriarchal familial system is still accepted by Mosuo, a small ethnic group living in SiChuan and YuNan provinces.
Alfred Chan: The book is divided into two parts: Part I and II. You made a very interesting discussion in both parts, attempting to integrate Western notions of justice by John Rawls and the fundamental concepts of human behaviour advanced from author’s interpretations of several key Chinese philosophers e.g. Confucius, Mencius, Xun Zi, Han Fei Zi etc. However, I do not understand the connection to colonialism or how this was transplanted (and since when?). Readers should note that ‘transplant’ was used instead of ‘transform’? What you referred to as a Confucian-centric harmonious Han-Chinese socio-legal culture, has made a rather bold and successful (in my opinion) integration of all ‘cross-times concepts’ including those from Confucius, Xun Zi and Han Fei Zi. Though how these ancient ideas were maintained or transcended to our modern times need a more detailed elaboration.
The use of a simplistic Buddhist (and Daoist) thought was both ingenious and mythological. On one hand it allows one to think of a natural solution, while not violating anybody’s interests, and on the other to keep a balance between two opposing parties. However, again arguably, the legal traditions of present Hong Kong Law have sprung from both the legal remains of the Ching Dynasty and the laws enacted in Hong Kong after the British rule in the eighteenth century. This was not discussed in the contents.
MC Chiu: In Chapter 5 of the book, “Simularizing Vijnana and Desire, Reproducing yi and Justice”, two concepts of time, developed respectively by Deleuze and Buddhism, are used to problematize the linear model of time (i.e., past 🡪 present 🡪 future). If time is a mental and subjective creation (as argued by Deleuze), or a spiral reincarnation (according to Buddhism), can history simply be an objective model of one-way traffic (i.e. Past 🡪 Present 🡪 Future). In other words, if history is reinterpreted and re-discovered by one’s contemporaries, or the folds (or inter-relations) of facts that have occurred in different periods of time, does history (and its related ripple effect) ever disappear, or does it always permeate our manufacture of the current present?
The book, unfortunately, does not have the luxury to discuss in detail postcolonialism and law. However, provided that the common law system in Hong Kong is seen as a hybrid of cultural products imposed by the British Empire and the (marginalized) (Han-)Chinese tradition (say, the Small House policy in New Territories), re-emphasizing conventional socio-legal perspectives (including Confucianism and Fa-ism) can invariably politicize the hegemony constituted by the colonizers.
Nonetheless, while the colonial hegemony is challenged, I am not saying the importing of overseas concepts of justice / equality and related models of law should be prohibited. In the age of post-globalization, intercultural infiltration is becoming a norm. Transplantation (or Importing) of law, questioning existing phenomena, is thus a very effective starting point for legal transformation. That is why constructing a “new” theoretical framework is necessary, as this, being a channel of transplantation and a drive for change, can help smooth the localization of overseas concepts (and laws), which can be painful, and direct the legal machine to operate in a different way.
Perhaps to you, devising a Buddhist-centric socio-legal theory, that engages Buddhist ontological psychology (vijanamatra), School of Vinaya-Discipline and Madhyamaka School of Philosophy (the so-called Buddhist Postmodernism) and re-interpretating the Daoist view on law in post-globalization era, are simplistic. Producing a theoretical framework which is built upon the concept of equality, is becoming vital, especially when it can be used to challenge conservative understandings of the Han-Chinese tradition (i.e., Chinese tradition must be misogynist and homophobic). In other words, equality is not essentially a product solely constituted by overseas socio-legal philosophy.
Alfred Chan: In all I have found the book offers a totally new insight into the development of the socio-legal foundations for Chinese society in Hong Kong. The later part on child sexual crimes is interesting but again how this has helped to generate the shapes of the present gender and familial laws needs to be carefully analysed and elaborated.
This book forms a good reference for those interested in gender and familial laws in Hong Kong.
MC Chiu: I certainly hope so.
Alfred Chan (Former Chairperson of Hong Kong Equal Opportunities Commission)
MC Chiu (Tony Yen Professor, Law School, Beijing Normal University)
（本網歡迎各界投稿，文章內容為作者個人意見，並不代表本網立場。）