Gender in Civil Law
Cao Xianfeng
Abstract
Over a long time in their study of civil law, scholars have usually focused their
attention on the abstract aspect of people in the civil law by viewing people as the
subject of civil act. They have, more or less, neglected the existence of gender related
issues in the civil law. Taking the historical process of handling gender related
problems by the civil law as its main theme, this article points out the historical
background and reasons behind this. It also points out that the gender related
problems can only be solved ultimately by other means instead of law and that what
can be done by the civil law is to reflect the effective combination of gender equality
and gender distinctions.
1.Gender in Ancient Civil Law
The civil laws of the countries which belong to the continental-law system originates
from the Roman Law. The attitude shown by the Roman law toward human being has
greatly influenced civil laws made by the later generation. In the Roman Law there
are three terms to describe human being. “homo” refers to human being in a
biological sense, e.g. slaves belong to homo, but they can only be the object of the
rights of the free people.
Caput originally means the head of a person or a chapter
of a book. Later it was borrowed and referred to the subject of right and obligation,
showing the personality of people in law.
“persona” originally means the false face
worn by an actor in the play. Later it refers to the various identities of the subjects of
rights and obligations. Gayus once said :“ undoubtedly the word ‘people’ includes
both men and women. However, at that time this concept of people was only applied
in the sense of “homo” while the status of men and women were completely different
in the sense of social gender. Under the Roman Law, to become the complete subject
of rights and obligations,(caput refers to people in the sense of law)one should have
the right to freedom, citizenship and paterfamilias. The right to freedom was the basic
right of a free person and those without this right were slaves. Similar to the right of
citizenship or nationality at present, the right to citizenship is enjoyed exclusively by

Lecturer of Institute of Law, Jilin University
Roman citizens. The right of paterfamilias concerned the division of rights and
obligations within a Roman family. Those who enjoyed this right was called
“ paterfamilias” referring to people with the identity of free person and Roman
citizenship but without any superior male lineal relatives alive. The “paterfamilias” is
not only the subject of rights under the civil law of the city who has social freedom,
but also not dominated by any authorities from the family while fully enjoying the
various rights related to the family’s properties and personal rights. Max once said:”
The head of a Roman family enjoys the absolute right to everything within the scope
of family finance.” As alieni juris, women were directly dominated by paternal power.
Although the wife of the paterfamilias or the women independent of paternal power
could be sui juris, the wife of the paterfamilias was still under the authority of the
father, only with “materfamilias” as an honor. As to women breaking away from the
paternal power, the law should not grant to them any rights to free people. 1As for
marital relations, the laws in earlier times adopted the doctrine of conjugal integration,
providing that the wife’s dignity should be absorbed by her husband and the wife’s
estate should be possessed by her husband or the head of the family. From this we can
see that although the early Ius Privatum enjoys the reputation of “ the first worldwide
law in the commodity society”, its attitude toward women is typically unfair and
unequal.
What are in-depth reaosns behind this inequality? In my opinion, the Roman society is
a typical identity-oriented society, granting the right to freedom and citizenship to all
of its residents and granting family right to all the internal organizations within the
family. The former one is macro and related to public law, the latter is a micro and
related to private law. The interaction of the two factors formed the following
situation:
Clearly-defined classes(a division
between slaves
and
masters),
well-maintained order within the family(a clear division between the paterfamilias
and
), different attitudes toward people within and outside the city(division
between foreigners and Roman citizens), protection for children and women(the
father’s function in safeguarding children and women) and life support for the young
and the weak(guardianship and guarantee) 2By distinguishing the legal person from
the natural person, the Roman Law established a legal system aiming to maintain the
rule of slave-holders.
In this legal system, the female citizen is put under the
domination of the male(her male lineal relatives in particular) including the identity
relations, property relations and the possession of the status of a subject , etc. without
any exceptions. At the same time, by distributing power within family and taking
account of the requirement for other identities, the Roman Law not only identified
the order in the private law but also the order in the public law.
From then on, despite the church law period, the development of civil law on the
whole followed the Roman Law provisions so as to consolidate the relevant orders in
both the public and private laws through the domination of male over female within
families.
2.Gender in Modern Civil Laws
With the historical progress “from identities to contracts”, the views on gender in civil
laws has witnessed dramatic changes which haven’t taken place overnight. Instead of
taking place simultaneously in both property and personal field, these changes first
took place in the property field. The great changes in personal field
have become
very important in distinguishing modern civil law from the neoteric one.
The subject system of the ancient Roman society was designed to maintain the
authority of the paterfamilias and the order of communities. Therefore the
super-individualism took the dominant role in the society. However, as trade was
started, individuals contacted frequently one another and began to ask for individual
independence. This made the lawmakers to think more about individual independence
and lead to the appearance of individualism. As a result, the civil laws shifted the
consideration from family as a basic unit to individual as a basic unit. This demand
for changes has developed into a great force behind the legal and social reforms.
The revolution of the western world from 1776 resulted in tremendous social changes
with the bourgeoisie coming to power. The Napoleonic Code is the watershed
between the ancient and neoteric civil laws. “The series of Napoleon’s legislations
show economic liberalism and philosophical individualism and take reason of the
natural law as the principle of legislation.”
3
In the 17th century, proceeding from
the supposed individual in natural state, Hobbes and Locke proposed two social
contracts forming the social basis and put the theory of individual right onto the stage
of thoughts, facilitating the transition of European political and legal structures in the
18th century. At the same time, this supposed theory of individual right , together with
the bourgeois activities formed the thought of individual freedom in political
economics.
In the 18th century, Aden Smith imagined a free economic lifestyle for
individuals, holding that everybody enjoys the freedom of properly pursuing
happiness in his own way and may compete with other people or organizations with
his own hard-work and asset. The individualism found its economic purpose and
promoted the economic prosperity. Therefore going hand in hand with individual free
economy and taking market as the core concept, the individualism embraced the 19th
century --- its most prosperous period. Meanwhile, the rationalism generated by the
principle of natural law became the leading thought in the revolution period and was
employed to implement the theory of personal freedom generated by stressing the
human right in the revolution period. Responding to the identity dependence of the
feudal system, people felt urgent to put an emphasis on their right to property. 4The
revolution realized the historical change “from identity to contract” which was set by
the Napoleonic Code and the relevant legislations. The three principles of the
bourgeoisie ---the sacred right of ownership, self-governance of thought and liability
for fault—formulated by the French Civil Law just reflected the essential need of
human being. Following the establishment of these principles, the competitive
environment required by economic freedom in the economic field changed the
dominating role of the family in the ancient times and help the individuals step out of
their families, giving great impetus to the development of the capitalist economy.
However, unlike in the property field, gender discrimination was not
eliminated in
the family field. In Napoleon Law, “Although the hierarchical privilege disappeared,
sex privilege which some French revolutionaries want to eliminate was still preserved.
5
The Civil Law of Napoleon provided that:” the husband should protect his wife while
the wife should obey her husband.” It also provided that without her husband’s
permission, the wife should not file an action, grant, transfer and impawn the property.
The 1900 German Civil Code was much more improved than the early French Civil
Law, however, it still provided:” the husband is entitled to decide all the marriage
affairs, if the wife disposes her personal marital property without the permission of
her husband, her behavior of this kind will be considered invalid.
With the development of the commodity economy in capitalist society and the
readjustment to capitalist system, especially under the great pressure of the
ever-increasing women’s movement, the laws on conjugal relations in western
capitalist countries showed a development tendency toward equality between husband
and wife. In fighting against the feudal system, the bourgoisie put forward “theory of
marriage contract” which acknowledged the equality between husband and wife in
marriage. In terms of conjugal relations, they advocated the doctrine of conjugal
separation, which is a historical progress. Take Britain as an example, its 1882 Law
Of Property of Married Women recognized the right of personal property for husband
and wife by providing that women could enjoy a series of property rights. The law in
1907 further provided that the wife could transfer her personal property without
permission of her husband. The 1935 Law On Marriage Reform identified women’s
ability to acquire, possess and dispose any property, the ability to assume the
accountability for all the infringement act, contract obligations and debt payment and
the ability to file an action and responding to an action. The other countries share the
same process despite their different pace of development.
The vigorous development of women’s movement and the rise of feminism aroused
worldwide attention to gender discrimination, hence the demand for gender equality
was gradually reflected in civil laws, in marriage law, in particular. For example, the
law approved in July13, 1965 in France revised the whole chapter named the Mutual
rights and Obligations of Husband and Wife in the civil code. It provided: “both
husband and wife are entitled to complete legal right”, “both sides may open an
account in banks and stock exchanges without permission from the other side” and
“ the wife has the right to engage in a job without the permission of her husband”. In
the conservative Britain, 80 family laws and decrees have been issued since the end of
1940s in order to practicing the principle of equality between husband and wife. In the
Japanese Civil Code, a second clause was added to article 1 of the Law 222, which
says:“ this law should be interpreted in accordance with the principle of individual
personality and gender equality”. In December 18, 1979, the General Assembly of the
U.N. approved Convention on the Elimination of All Forms of Discrimination against
Women which requires all the contracting parties to grant equality before the law to
both men and women. It stresses :“ various measures should be taken to eliminate the
discriminations against women in all the affairs related to marriage and family
relation”. All these show that modern civil law’s awareness of gender discrimination
has developed into a high degree.
From the practice of bourgeoisie legislation in history we can see that it adopts
different attitudes toward property field and personal field. It at least shows that the
legislation identifies personal freedom and equality before the law for everybody from
the economic perspective, which was the basic need of the capitalist economic
development. ---“from identity to contract” is a brief summary of the legislative
demand of the bourgeoisie in the competition. However, in the marriage and family
field relatively far from the property field, people’s demand for equality can only be
met through women’s movement instead of by seeking help from the economic
foundation.
Perspectives of feminism
The provisions about gender equality in the modern civil law were much more
advanced than those in the past. But they still can’t provide satisfactory solutions to
the problem of gender discrimination. In his article named Family in Transition,
Saridven Robots, head of the British Family Policy Research Center, points out that
although the employment situation of married women has been getting better in the
past two decades, in only 22% of the families with children, both husband and wife
have full-time jobs. Therefore, “today women in three fourths of the families are still
engaged in most of the household chores.” Against this background, it is not
surprising that today one fourth of women are subject to physical or mental
maltreatment and over 45000 women and children seek refuge so as to avoid domestic
violence.
We can borrow ideas from the western feminism in terms of the legal understanding
and settlement of the problem of gender discrimination. The western feminism’s
understanding of and pursuit for gender equality has experienced three stages: first,
pursue gender discrimination regardless of gender differences. The major
representative school of this period was feminism of liberalism. Second, pursue the
different treatments on the basis of gender differences. The major representative
school of this period was feminism of activism. Third, put an emphasis on
understanding gender differences in a dynamic way. The post-modern feminism was
the major school of this period. The concepts in the first two stages are more or less
reflected by laws. For example, the first one is reflected by equality between husband
and wife in exercising parental power and disposing property while the second is
reflected by the restrictions on the husband’s right to matrimonial action in the
Marriage Law of China. Meanwhile, the idea of post- modern feminism deserves
more reflection in that it can help us to explain why both the interpretation of taking
gender equality as regardless of gender difference and the interpretation of taking
gender equality as valuing gender difference are not adequate in a dynamic manner.
This dynamic way can not only shows us why the negligence of gender difference
may be unjust and may lead to further inequality in reality but also points out the
importance of social factors resulting in gender difference. However, it also points out
the potential dangers in putting too much emphasis on gender difference.
It
makes us aware that the ever-increasing equality between husband and wife before the
law is no doubt a progress, however this kind of equality will only an equality in
name if the political and economic status of men and women are not changed and if
the people’s ideology is not altered.
As for civil law, how to draw a clear line between equality of men and women while
recognizing gender differences deserves a brown study. In my opinion, the conjugal
right provided by the marriage law of China may be taken as a successful example in
this regard.