Qian, Xiangyang.

2018-01-31T11:35:21Z

2018-01-31T11:35:21Z

2005

This thesis was inspired by a current problem of Chinese law. The problem, in brief, is the inconsistency between the legislation, which criminalizes marital rape, and the judicial practices, which decriminalize marital rape, along with the controversy about whether or not marital rape should be criminalized. The problem of the criminalization of marital rape has been at the center of attention in Chinese society during the last three or four years. Unlike in the UK, where an agreement has been r eached o n t he criminalization o f m arital r ape i n b oth 1 egislation a nd j udicial practices, whether or not a husband can rape his wife is still a matter of discussion and debate i n C hina, and remains c ontroversial at the time o f t he writing o f t he thesis. While the present Chinese Criminal Code prescribes that a husband can rape his wife, the legislation is not followed by the judges in judicial practices and is also rejected by many legal scholars. The thesis thus aims firstly to explore this question, trying to answer problem of Chinese marital rape law with a solution based on empirical researches in the specific Chinese context and the comparative studies of the UK.

As a result of addressing the practical problem of Chinese marital law, the thesis also tries to reflect on the theoretical problems involved, such as the methodologies of current comparative law and approaches to law and culture studies. The thesis will argue that the dilemma of current Chinese marital rape law has its roots in the law's status as a legal transplant. Transplanted from the West, it is not surprising that marital rape law is incoherent with traditional Chinese ethics and other cultural presuppositions. However, it is the widespread misunderstandings of the concept of culture, as well as the mechanism through which culture exerts influences on law, that has bedevilled the academic and political analysis of this issue. The misunderstandings concerning culture and law in turn result from insufficiencies in the methodology of comparative law to incorporate culture and law studies. Therefore, the other crucial goal of the thesis is to propose a new approach of culture and law studies for the solution of the Chinese marital rape law problem.

So, in Chapter 1, before the concrete discussions of Chinese marital rape law, I will first give a brief review of comparative law as discipline. I will suggest that the present approaches a re iiiadequate b oth for t he st udies o f c ultural i mpacts o n 1 egal transplants as well as the prevalent understandings of the concept of culture. Then in the third part of Chapter 1, I will give a brief review of the writings about marital rape in China.

In Chapter 2, I will give fairly thorough introduction to the background of marital rape in China, including the relevant legislation, judicial practices, law people's debates and lay people's attitudes. I demonstrate a historical evolution of rape law in Chinese legislation from the feudalist China to the current criminal code, which now covers the crime of marital rape. As readers can see from the legislative history, the crime of marital rape in the current Chinese code is the result not of the gradual evolution of native Chinese legal tradition but of the abrupt legal borrowing from the West. For judicial practices, I have collected all the marital rape cases available in China from various sources. By studying the decisions made by the courts in all the cases collected, I find that the marital exemption of rape is still the major principle followed b y C hinese j udges. I t hen introduce t he r eader t o t he major opinions and 3 debates of legal scholars and lawyers about marital rape. Readers are pointed to the present approaches to culture and law studies that are employed by these writers. Finally I introduce the attitudes of the public, the common people, towards the problem of marital rape. Lay attitudes are the most fundamental cultural elements affecting law. These attitudes are based on the empirical data collected from the 800 questionnaires in surveys I conducted in one middle -sized city and, especially, three villages and one small rural town. With the surveys focusing on rural areas, the results should be representatives of the attitudes of the rural population, which make up the largest portion of Chinese population. Overall, I aim in Chapter Two to offer a pure descriptive picture of marital rape problem in China, which will later on work as the empirical foundation for my theoretical analyses in the next chapter.

Chapter 3 will analyze the empirical data obtained in Chapter Two. I will examine the same data with two different approaches and try to make comparison between them. First I will analyze them with the current culture approach. I then construct my alternative account based on the theory of memetics, which will be introduced in detail as the preparation for my theoretical construction. The core of my new approach is to offer a different way of understanding what culture is and to depict a concrete mechanism through which cultural elements exert their influence on law. After the new methodology is constructed, I will úse it to analyze again the empirical data in Chapter One. Arriving at different conclusions, I will try to show how the new approach can make up the insufficiencies of current approach and provide better solutions to the Chinese marital rape law problem.

After addressing the problem of Chinese marital rape law, I will turn to the west in Chapter 4, taking the UK as an example to gather more support for the validity of the new approach. In this chapter, I will review the evolution of marital rape law in England, together with Scotland, and examine how cultural elements worked in the evolutionary process of law. Finding my new approach also applicable here in a cultural environment so different from China, the new approach may make itself better established.

The final Chapter 5 is a revisit to the theoretical context of marital rape. In this chapter, I hope to provide, on a theoretical level, possible solutions to the problems found in Chapter 1. I will try to argue that the memetic approach is the remedy for the comparative law's methodological inefficiency concerning marital rape, and it can also overcome the conceptual deficiency of culture.

http://hdl.handle.net/1842/27223

The University of Edinburgh

Annexe Thesis Digitisation Project 2017 Block 16

Already catalogued

Marital rape in China and the UK: problems in the current approach to culture and law

Thesis or Dissertation

PhD Doctor of Philosophy