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Judging the Chinese Marriage Law by Ethics

Author: LinZuoXian
Tutor: WangYing
School: Hebei Normal
Course: Marxist Theory and Ideological and Political Education
Keywords: marriage and family marriage law ethics concept of human-first marching with the times
CLC: D923.9
Type: PhD thesis
Year: 2007
Downloads: 1448
Quote: 4
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Abstract


Marriage law refers to all the principles as well as laws and regulations which aim to adjust the marriage and family relations. Due to the unique features of its objects marriage law has been heavily tinged with ethic elements. So far, in China’s theoretical field, there still no research results on marriage law from the ethic perspective. This dissertation, adhering to Marxists’ethic concepts on marriage and family, attempts to conduct a thorough examination of the marriage law from the ethic perspective by combining law with ethics and sociology, and theoretical approaches with empirical ones. The purpose is to examine the marriage law at various stages, rationally disclose the relationship between marriage law and ethic, and explore the moral positioning of marriage law in order to provide a theoretical foundation on which China can scientifically construct its marriage law and promote the building of harmonious families.In retrospect, the marriage law has evolved from the mixed use of ethics and law to the parallel use of the two. In China’s ancient integrated legal system, the major feature of marriage law is the mixed use of ethics and law. For example, before the marriage law was legislated, ethics had been used as law. Since Han dynasty there arose some stipulations concerning marriage and family in the law of household or the disputes were settled by following the spirit of ethics or used the ethics as law. Therefore, the“law”at this time was nothing but ethics. Besides, the ancient rulers tend to use legal punishment to maintain the family rule in accordance with ethics (e.g. to punish impiety). That is to say the call for punishment is just the call from ethics. The core of the ancient marriage law is the integration of ethics and law as well as family-oriented concept. Under such legal system, the individual interests shall subject to family interests. As a result,“parent’s instruction and matchmakers’words”is the legal form of establishing a marriage; parents autocratic rule and father’s power is the rational form of family rule; the“treatment of females as inferiors to males”is the basic principle of family and marriage relations. The mixed use of ethics and law in ancient China mainly results from the patriarchal clan system, under which the nation and family are closely integrated, and the family, as the basic unit or entity of a nation, shoulders the sacred responsibilities of both offering sacrifice to ancestors and carrying on the ancestral line. The mixed use of ethics and law has run through the whole period of ancient China until modern times. Although under the impact of foreign cultures at the end of Qing Dynasty, there emerged the arguments between ethics and law in addition to those between family orientation and individual orientation, which have laid some foundation for the enlightenment movement and progress of law, the influence of“mixed use of ethics and law”and“family orientation”still remained, whether in the law of late Qing Dynasty or that of national government by Kuomintang. Since the founding of the People’s Republic of China, the three-time legislating of marriage law shows that the marriage law and family ethics are in parallel positions, each of which belongs to a different system. But at the same time, instead of being isolated from each other, they are working with each other to maintain the stability of family and marriage. The legal features at certain times mainly depend on the characteristics of the social relations adjusted by laws and regulations. The patriarchal clan system has become a past and the traditional mixed use of ethics and law in marriage law is certainly not fit for today’s China. The main purpose of looking back on the history of marriage law is to draw some lessons from the history.At present, the marriage law reflects some elements of ethics and establishes a rational relationship between them, though there are still some problems. With the parallel role of law and ethics, there is the shadow of ethics in the law. Just as Marx put it,“If any legislation fails to issue a law to compel the citizen to act in conformity with ethics, it can not recognize that anything against ethics is illegal.”Then the first question for marriage law is how to position the role of ethics in law. First, reasonably position the role of ethics in marriage law. The coordination of the scope of the two shall be in line with their respective features. It is not right to hold that all the issues shall be handled with the compelling force of marriage law (the concept of the supremacy of law). Similarly, it is ridiculous to believe that all the marital and family problems shall be solved through the self-discipline of the parties concerned and the restriction of public opinion (the concept of the supremacy of ethics). The existing marriage law has scientifically resolved this question. Horizontally, the marriage law adjusts the relationship between husband and wife, parents and children, grandparents and grandchildren, brothers and sisters according to the distance of the blood relationship and the actual status of such relationship and its role in social relations. Except for that, ethics can cover all kinship relationship. Vertically, concerning the occurrence, continuation and termination of family and marital relationships, the marriage law, based on the degree of importance of such behaviors, only adjust those behaviors since the beginning of marriage while those prior to marriage rest with ethics. Secondly, the existing marriage law also attaches importance to the modern value of traditional ethics. Bearing the features of various age and class, the ethics based on different economic foundation will be essentially different. Meanwhile, ethics possesses national and successive features and the change of social system has never disrupted or rebuilt (and will not) social life. The historical development of ideology demonstrates that a new society is bound to critically inherit or develop and reform the spiritual wealth, including ethics, belonging to human civilization. The marriage law while reflecting the family virtues in modern times, has not ignored the modern value of such traditional ethics as“piety”of the Chinese Nation. Law can not exist without certain foundation of ethics. Otherwise, the law will conflict with social values and thus become meaningless and useless. The laws with reasonable ethic connotation will strengthen the public’s belief in law. On the contrary, the laws without ethic consideration will result in the disordered rule of law due to belief crisis. The existing marriage law has rationally embodied the ethic principles, such as equality, freedom, humanity, and honesty. Compared with its precedents, the existing marriage law has its unique features in terms of the wide adjustment scope, the strictness of marriage taboos, and equal emphasis on human and property, the rationality of divorce. In summary, there is a basically harmonious relationship in the existing marriage law between law and ethics, though there are certain contradictions between the two in some aspects. A clear understanding of the strength and weakness of the existing marriage law will enable us in legislating future laws to exploit the strength while avoid the weakness.Looking into the future, marriage law shall be of the moderate law, whose ultimate goal is to construct harmonious families, which in turn call for moderate law. From ethic perspective, there are at least three criterions for a moderate marriage law: first, it is the prerequisite of a moderate law to scientifically reflect the objective rules of family and marriage. Compared with other laws, the family and marital relationships adjusted by marriage law have both natural and social features. The difference between male and female and natural relationship are the biological foundation for marriage. The multiplication through breeding and blood relationship between family members are the biological features of families. Consequently, during the legislation process adequate attention shall be paid to the natural qualities of marriage and family. Since some of the natural rules in the field of biology and physiology play a major role in human family and marriage, the violation of the natural rule by a marriage law will also result in punishment. Meanwhile the marriage and family is one social not natural product, which comes into existence out of the need from social production and life and which is determined by economic foundation in the given society and is restricted by such social factors as ethics, religion and law. The natural qualities are the biological foundation for marriage and family while social qualities are its essence. Therefore, the legislation of marriage law shall be based on such objective fact. Secondly, to properly handle the ethic aspect of marriage law is another standard of a moderate marriage law. Ethics has various aspects, only some of which can be elevated into the concept of law. In perspective of synchronic order, the communist ethics concerning marriage and family shall be taken as a guideline and the socialist ethics shall be regarded as the subject, dismissing the feudal, bourgeois and old-fashioned ethics. From the level of categories, law, as the basic ethic requirement, shall be the fundamental ethic standards for marriage and family, which shall be generally obeyed by the public. Thirdly, to make a moderate marriage law, the concept of human-first shall be the guideline of legislation. That is to say human shall be taken as the ultimate value and goal of legislation. In legislating the law concerning marriage and family, the rights and obligations shall be stressed and therefore a complete system of rights and obligations together with a sound marriage and family system has to be established. As a result, the marriage law shall make some revisions in rights and obligations, and the right of breeding in the co-habited couple, as well as in kinship system, parental power and custody system. Just as everything in nature, no law is static.“Marching with the times”is the spirit of legislation. During the social transformation and in the technological age, as far as marriage and family is concerned, there are some ethic issues, like non-marital cohabitation, children born out of wedlock, and artificial breeding. The marriage law has to face and properly handle such issues. Currently, the preparations have started for the legislation of Civil Code of People’s Republic of China, in which the marriage law shall be one of the major sections. Therefore, in the near future, a new marriage law will come out. We expect the coming marriage law to be a moderate one, for only a moderate marriage law can realize the harmonious relationship or status between the family members of various sex and generations, a precondition for harmonious families.

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