社会性别的法律建构及其批判

The Legal Construction of Social Sex and It' s Critique

性别等级是在人类社会进化的过程中,主要由男权文化不断解释与不断塑造的结果,社会性别这一概念是探求这一原因最好的分析工具。原初社会"男耕女织"的性别分工成为家庭关系与公共关系的分野。在公共关系中,男人在自利心的驱使下渐生平等的要求,并在平等诉求下形成法律;而在家庭关系中因为亲情而使平等与公正成为多余。由于女性并未参与公共关系中的法律建设,致使性别平等既不能在公共领域中得以表达,也不能在家庭关系中得以体现。最终,法律认同了公共领域与私人领域的划分,并在这一基础上建构起了性别等级的社会模式。而代表男权文化的法律理论也极尽"科学"之能,不断地掩盖和强化性别社会化的实质,尤以社会契约论为最。社会契约论以法律为公民同意之结果而使法律披上了公正的面纱,却因为无视女性没有成为契约主体的事实而沦为掩盖社会性别的帮凶。即便是罗尔斯的"无知之幕"理论也因为无法排除性别的先天知晓而成为法律平等与公正的神话。虽然,实证主义法学与自然法学在许多理论问题上存在着针锋相对的观点,但在制造并掩盖社会性别上也成了同盟军。法律与法律理论的紧密联系与有机配合终于迫使社会性别及其等级模式在法律中立的旗帜下不断地得以演绎、建构和强化。

The sex classes results from the continuous interpretation and construction by the male supremacy culture in the course of human evolution, and gender is the best tool to probe the cause of it. The sex division of labor in the primitive society of men tilling the land and women weaving formed the demarcation line between the family relations and public relations. In the public relations, men demanded more and more equality out of their selfish nature, for which finally legislated. In the family relations, equality and justice seems unnecessary because of intimacy, but since the females haven't participated in the legislation for public relations, sex equality has been reflected neither in public realm nor in family relation. In the end the delimitation between the public and private realm was accepted in laws, on the base of which build up the social model of sex classes, and the law theory representing the male supremacy culture has continuously been trying its best to conceal and strengthen the essence of socialized gender, especially the contract social theory. It puts the law under the veil of justice on the pretext of that the laws are favored by all citizens, and becomes the accomplice of concealing the gender, disregarding the fact that females are excluded from the contracts. Even Rawls' s theory of the veil of ignorance ignored the sex equality and just as they are taken for granted. Although the positive law put forward much contradictory idea against the natural law, they allied in concealing social gender. The relation and cooperation of law and its theory make the social gender and the class model constantly deduced, constructed and strengthened under the banner of neutrality.