This volume seeks to engage the discourses and matrices of law in Greater China (including mainland China, Taiwan, Macau and Hong Kong)Footnote 1 and Singapore with gender/sexual politics. The key question that underlines all articles in this volume is: Can we produce gender/sexual justice in Greater China and Singapore?

Law in Greater China and Singapore are always used as the machines to produce/defend rights, including the sexual rights; and it seems substantial improvement in related law has been made in the last few decades:Footnote 2 Women’s Charter in Singapore was passed in 1961, and in 2007, Prime Minister Hsien-loong Lee decided that oral and anal sex conducted between opposite sex would be decriminalized;Footnote 3 in mainland China, the criminal offence of hooliganism, which was used to arrest and prosecute males practicing anal sex, was repealed in 1997; in Taiwan, Gender Equality Education Act and Children and Youth Welfare Law was enacted in 2004 and 2010 respectively; and in Hong Kong, in Leung William v. Secretary for Justice,Footnote 4 the law prohibiting anal sex, was held unconstitutional in 2006, and same sex couples have been under the protection of Domestic and Cohabitation Relationships Violence OrdinanceFootnote 5 since 2010.

However, we can still see law malfunctions and fails to respect differences and deny equality very often in this part of the world: In mainland China, besides the fact that there is an absence of legislation controlling domestic violence, Zhang, in ‘Progresses, Challenges and Suggestions on Legislative Efforts of Combating Sexual Violence against Children in Mainland China’, contends and points out that there are still many loopholes of the current mainland Chinese legislations in controlling child sexual abuse. Lesbians, gays and transgenders in Taiwan, who do not enjoy any legal protection, are still banned from donating blood and joining the military police.Footnote 6 In Hong Kong, transgenders/transsexuals/LBGs cannot get married.Footnote 7 Further, as Leong points out in his article, oral sex that happen between same sex is still prohibited in Singapore. In Macao, a special administrative region in Mainland China, a law protecting the rights of lesbians, gays and transgenders and law controlling domestic violence (See Hsieh in this volume) is still absent.

Gender/Sexual Justice and Globalization

If we are going to introduce legal reform so as to produce a legal discourse/machine capable of upholding justice, it is inevitable that a framework should be set up to examine the societal cultures and subjects in the age of globalization. In ‘The Socio-Cultural Exclusion and The Regulation of Sexuality in Taiwan’, Ning notes that while globalization has undermined ‘the cohesive power’ of the society, the recent change of the culture and legal regulations have signaled significant transformations in the interaction between Taiwanese civil society and its nation-state. He argues that as a consequence of the development of the exclusive society and the new regulatory state, a ‘culture war’ between socio-cultural exclusion and social freedom (especially in the area of sexuality) is now being waged in Taiwan’s civil society. One of the outcomes is that it has become more difficult for the gays to get access to resources which are available to the straights; also, their culture is less valued.

If on one hand, globalization means the production of a common world,Footnote 8 a single capitalism with multiple expressions and articulations,Footnote 9 and a world where nations are only longer the naturally vital,Footnote 10 then on the other, according to Sun, it is not a hegemonization of a particular civilization, but a development and hybridization of cultures, globalization therefore is always a becoming and never denies the power differences between nations/cultures.Footnote 11 Globalization also signifies the birth of a new order which is marked by the undermining of state power (see Ning’s article), diasporic identities and fluid communities.Footnote 12 Singapore perhaps is one of the best examples of this theoretical perspective: Leong’s article points out that Singapore is mostly a diasporic society and ‘[d]iasporic communities tend to be obsessed with their roots’; however, ‘they are highly selective in what they choose to be nostalgic about’.

The transplantation of international human rights law can best elaborate the dynamics of globalization and localization, and, as Hsieh writes in ‘The Right to be free from Domestic Violence in Macau’, the process itself can also illustrate how legal development can go beyond such a dichotomy.

In the age of globalization, where there exist multiple modernities or hybridization of global modernities, Asia is ‘cleaver even more strongly to its tradition’.Footnote 13 Local culture, especially tradition, is usually considered as the source of resistance against globalization.Footnote 14 Then, would cultural tradition produce justice?

Take Han Chinese traditional culture, which is one of the three dominant elements in forming the Asian culture (see Leong in this volume; the rest are Japanese culture and Indian culture), as an example: Han Chinese law was patronizing and patriarchal (See Hsieh in this volume). According to Qing Code, senior members of a family (for example, grandparents and parents) can assault, or even kill, junior members (like grandchildren and daughters, sons), in name of teaching, and it was never considered a crime. In other words, issue of equality was totally ignored in the machine of domestic violence. And, women never had any right to divorce before 1911, when the Republic of China was established.Footnote 15 Even though nowadays, laws related to gender equality and protection for the powerless (for example, abused children) are enacted in most of the jurisdictions influenced by Han-Chinese traditional culture (except for Macau),Footnote 16 discriminatory traditions (like misogynist attitude in relation to one child policy which causes low survival of female babies in rural areas of mainland ChinaFootnote 17 and the ‘small house policy’ which can only be enjoyed by the male indigenous residents in New Territories, Hong KongFootnote 18) still exist and energize/format the gender/sexuality machine/discourse.Footnote 19

While I am arguing that tradition is still influential nowadays, an authentic notion of tradition does not exist—as Deleuze points out: past is only a virtuality; so, ‘tradition’ is also contested in its own terms,Footnote 20 as people can have different and multiple understandings and interpretations of tradition/past. That is why there was once a law against male same sex activities in mainland China and in Hong Kong in the 20th Century; although there is evidence showing the otherwise, people nowadays still argue that Han Chinese are homophobic.Footnote 21 Tradition becomes part of the social control force which allows changes when tradition actualizes. In other words, tradition and modernities do not always ‘constitute two clearly distinguishable moments’.Footnote 22 That explains why, when Chiu, in ‘Confession of Law? A critical perspective on production of child subject in Hong Kong law controlling child sexual abuse’, argues that deageization can be a legal reform strategy, he refers to the moments and instances in Han Chinese history where age was not an element constituting and producing a subject, and argues that those moments can be the platform for the transplantation of strategy and related concepts.

Tradition cannot be static as the subject can change the discourse/machine (including tradition and legal institutions) where it is produced, i.e. there is an interactive constitution between subjectivity and discourse/machine.Footnote 23 So, while Povinelli writes that the meaning of subjectivity depends on the social context,Footnote 24 it is not a one way traffic; social context is also reproduced by (the activities of) subjects. In other words, it also provides the possibilities and spaces for social change, initiated by individual subjects. While the process of interactive constitution never ends, discourse/machine and subjects are always becoming.Footnote 25

If the subject is always becoming and discursive, then is it possible to use age and gender to fixate a person’s identity? This is the question raised by the author of ‘Confession of Law’. While people always claim that children need legal protection as they are weak and powerless (see Leong, Ning and Zhang of this volume), Chiu argues that with the impossible territorialization, conducted (partly) by law machine, there is no essential and natural connection between age and formation of subject; the binary of child and adult can be very meaningless in the context of legal regulation of human sexual activities.

Go Beyond a Binary Paradigm

Comparative research is a very common approach investigating issues of regional interest. A comparative study can be very productive: when comparing the machines and discourses of different cultures, countries and jurisdictions, for example, we know that protection of rights are not universal and are not all rounded in mainland China.Footnote 26 We can also learn from other cultures and jurisdictions how comprehensive respect and defense of sex rights can be achieved and created (by law).

Engaging perspectives of comparative studies with re-production of gender/sexual justice, scholars and activists in parts of Asia advocate not only the subversion of heterosexist patriarchal structure but also the challenge of imperialism.Footnote 27 Although postcolonial studies can sensitize comparative gender/sexuality research and politics towards the power difference between cultures, a (orientalist) binary of, or a scale with (masculinized) Western civilization and (femininized) Eastern/Chinese culture on both ends, is always reproduced.Footnote 28 Comparative studies thus always easily fall into a dichotomous examination, for example: when investigating masculinities, analysis like ‘In contrast to Western “real men” who always get the girl, the wu hero must contain his sexual and romantic desire.’Footnote 29 This world view permeates the development of socio-legal policy suggestion and analysis: in order to create gender/sexual justice, Taiwan society should switch from a ‘patriarchal’ capitalist market economic structure to a ‘matriarchal’ social welfare system.Footnote 30

The binary paradigms (feminine vs. masculine, Asian/Eastern vs. Western, Capitalism vs. Social Welfare, matriarchy vs. patriarchy, localization vs. globalization), however, easily neglect or ignore the differences and multiplicities: For instance, globalization and transplantation of overseas concept may instantaneously introduce both the socio-legal interdiction and acceptance of same sex erotic desire/activities.Footnote 31 This ignorance may lead to the fact that one of the perspectives will be adopted as a universal and exclusive standard: when comparing the Eastern philosophy, and Western philosophy, Sheng, the Chief Advisor to the China Banking Regulatory Commission, writes:

What eastern philosophers have failed to do in the modern world is explain using western science and technology terms what the values of ‘man and nature are one’ mean in daily practice.Footnote 32

What Sheng means, in short, is: unless Eastern philosophy adopts Western philosophical language and jargon in elaborating and explaining their ideas, the former is doomed to be a failure. It is the opposite in Singapore, where Asian Sexuality (an Eastern concept) is adopted as the legal standard there (see Leong in this volume). The key question is not which perspective should be used as the standard, but why should there be ‘a’ standard. Leong’s article says that a standard is only a virtuality and how important particularities are and why singularities are significant in analysis: it is not only because each society is different, but also because individual desire and the past of each culture that activate the machine varies and is fluid, a binary paradigm cannot effectively and efficient carry exhaustively the changing differences. In his article, Leong challenges the concept of ‘Asian sexuality’ and questions the dichotomy of ‘West versus the East (Asian)’. This subversion is vital, according to Leong, as the ideologies have been the rationale for the repressive sexual policies constructed by the Singaporean authorities. Leong also argues that the Singaporean state authority prefer Asian Culture to Asian contemporary, because, as I put in the above section, tradition is partly a product of the present, so ‘it is easier to invert the past than present’. Then why would the Singaporean version of ‘Asian (traditional) culture’ is so restrictive? Leong seems to implicitly suggest that it is due to the ruling party’s interpretation of Christianity. Besides Leong, Ning also notes the significant influence of Christian groups in formatting the state policy in Taiwan.Footnote 33

Religion and Law: Can Buddhism be a Platform of Theory/Law Transplantation?

When discussing the influence of Christianity on the development of state policy and law, we cannot ignore the possible effect of Buddhism and Daoism (or Taoism).Footnote 34 There are always doubts in relation to the interaction between Asian religions and Law—questions like ‘do Buddhism and Daoism, like Christianity, have any effect on the development of law?’ are always asked—this is not only a vacuum of this special issue, but also a topic which lacks in-depth investigation.

Chen makes it clear that Buddhism does not only influence the development of state law, but also affects folk law in Greater China.Footnote 35 That is not surprising especially when we know that Buddhism puts a lot of emphasis on the obedience of rules and regulations.Footnote 36 When discussing the effect brought by Daoism, Liu rightly points out that religions, including Buddhism, can be the major force which promotes social change and evolution; and the religions do so by permeating their respect of rules and regulations through social customs, and state law.Footnote 37

The influence of Asian religions on law can be illustrated by Buddhism: in Tang Dynasty (618–907) and Qing Dynasty (1644–1911), there were particular laws controlling Buddhist nuns and monks, like law against murder and sexual activities (for example: sex between nuns and monks).Footnote 38 Buddhism also affects the development of law in Burma: it was stated that wife was the husband’s servant, wife could be divorced if she always brought forth female children.Footnote 39 It therefore seems that Buddhism and related laws are in fact very discriminatory. The most mysterious contradiction is—one of the key Buddhist principles is equality:

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.Footnote 40

In response to this dilemma, Shih Chao Hwei argues that Buddhist rules and regulations are also discursive products, and they are neither fixed nor universal.Footnote 41 According to the Buddhist perspective, the interactive formation of body and the world thus (re)produces karma, which literally means ‘action’ and indicates the mechanism by which what a human did and/or thought in one point of time would determine her/his future action and/or status.Footnote 42 Karma is not a kind of destiny pre-determination, but a mechanism of choice and responsibility.Footnote 43 Although according to karma, the action a human has to take is pre-determined, the manner of the action can still be decided, though not fully and completely, by her/him. Karma exercises through the production and depletion of bija, which is not a static concept—it grows with the changes of context—the mechanism is called ‘Perfume (薰習)’. Every decision and action of human subject will influence the ever-changing nature of bija. This line of argument leads to the development of an important Buddhist teaching: ‘Non-Insistence’ (諸法無我), which means nothing is essential, natural and monolithic; the teaching forms the foundation of Buddhist equality principle. So, it is not surprising that, according to the interpretation of Engel and Engel, Buddhist justice is equality.Footnote 44

Discussion of Buddhism is thus vital in relation to the development of law in Greater China and Singapore, because it can be used as the platform to facilitate the transplantation of theories originated and developed overseas, including justice, concepts and legal reform to produce justice.

The question is: if Buddhism can be the cultural matrix and machine for equality, justice and antidiscrimination law to grow, why do we have to transplant overseas cultural concepts and related law reform? As I have argued elsewhere, justice does not necessarily mean equality in every culture. In Han-Chinese culture, justice is always translated as (Confucian) Yi, which means righteousness that works appropriately and properly in harmonious hierarchical interrelationship, where equality is not emphasized. And then even where there is a paradigm of equality—like Buddhism, there may be no philosophical perspective to facilitate and produce resistance against the traditional discriminatory paradigm and related practices: in the discourse of harmony, where conflicts and resistance are devalued, how can Daoism and Confucianism—two very dominant cultural forces in Greater China and Singapore—develop an effective strategy of subversive resistance?Footnote 45 Under Buddhist discourse, changes and reforms are allowed and accepted, but again, where is the motivation and what are the policies? That explains why Hsieh refers to international human rights law as a standard of law development in Macao, and Chiu has to adopt Deleuzean deterritorialization as the philosophical framework of reform policy. That can also demonstrate that resisting a binary understanding of world does not mean resisting the understanding of other cultures or transplantation of theories and related legal reform which originates from foreign jurisdictions.

We also need a standard to evaluate if the transplanted legal reform is successful and bring about legal reforms, we have to ask if the discriminated would accept them, and if the reforms would be successful. I advocated elsewhere that Rawlsian notion of justice can be the standard because it does not only stress the importance of equality,Footnote 46 (see also Ning’s article in this volume) it also emphasizes that only when the least advantaged in the society accepts the inequality, different distribution of resources is allowed.Footnote 47 In short, Rawlsian theory of justice respects individual freedom and differences among human in the discourse of democracy and individualism.Footnote 48 When adopting Rawlsian perspective when discussing the proposed deageization of law in Hong Kong, where elections are held (though to a limited degree) and rule of law is already part of the tradition, we have to ask if the current non-adults (the targets of protection provided by current law) would accept the possible change brought by the reform. But, since Rawlsian theory can only be fully utilized in the democratic political system, then can it be used in mainland China, where democratic election seems to have a very different meaning? If so, which notion of justice should we adopt as the evaluation standard? And in a society where rule of law does not have a long history, can justice be produced by law? While Cornell believes that law can be a site where justice is constructed,Footnote 49 Derrida argues that justice always exists out of law as justice is always deferred.Footnote 50 The interconnection and interaction between justice and law is also at the same time full of questions: Is juridical justice something out of law? Can juridical justice (only) be achieved by law?Footnote 51 Is justice a repetitive product of contingency? These are the questions that are worth further discussions.