Care in Theory, Law and Context: A Critique of Chinese Care Policy

Abstract

The thesis aims to expose, explain and critique Chinese care policy, as well as construct an argumentative framework regarding the potential reform of Chinese care policy. I construct my thesis as follows:

I review Western feminist theories, exploring how they conceptualise unpaid care work in different ways and how they address the gendered division of labour in different approaches. I argue that the ethic of care theory should be preferred as it directly calls into question the deontological personhood presumption in justice-based ethics, thus it possesses a greater transformative potential. I adopt the ethic of care as my theoretical foundation in assessing Chinese care policy, and so, my assessment of Chinese care policy is to question whether the policy is sufficiently caring, as opposed to whether it achieves various senses of justice.

I outline the development of Chinese care policy and its current state. I demonstrate that in the socialist period (1949-1978) care was collectivised, while in the post-socialist period (1978-present) care is privatised, thus carers' experiences are marginalised in the legal-political discourse, especially after the recent neo-liberal turn. I also demonstrate that in the post-socialist period, Chinese care policy is shaped by the population and family planning framework, where care policy is instrumentalised for political utility in pursuit of economic sustainability. I show that the relevant law in which care policy is embedded clearly declares that the legislative purpose is to promote a long-term balanced development of population, which ultimately leads to a sustainable economy.

I argue that the Chinese approach to care policy shows little disposition to caring, thus largely marginalises care and carers in China. I offer a doctrinal critique of Chinese care policy, adopting Khaitan and Steel's analytical framework of special jurisprudence, where they argue that to offer an optimal account of jurisprudence to a specialised area of law, one should investigate the law's normative functions and aims, as opposed to the agents' (lawmaker and enforcer) subjectivity regarding the law's functions and aims. In applying this analytical framework, I argue that care policy's normative functions and aims should be to address carers' work-family conflict and the gendered division of labour, as opposed to promoting a nation's sustainability as contemplated by Chinese policymakers.

For reform strategy, I contend that any surface-level reform within the area of care policy cannot fundamentally address Chinese carers' struggle. I read in four liberal-conservative sensibilities of Chinese law that underpin the 'uncaring' Chinese care policy, namely: (1) the image of the repro-normative family and women's body; (2) the image of the married, heterosexual, and co-resident family organisation; (3) the assumption about the privatised responsibility of care; and (4) the favourable attitude towards the standard, unencumbered model worker. I contend that issues surrounding the marginalisation of care and the gendered division of labour in China cannot be fundamentally addressed unless and until these liberal-conservative sensibilities of Chinese law are sloughed off while positioning care at the centre of contemporary China's legal-political landscape.

I claim that the prospect of such a proposal is promising, as Chinese traditional philosophy is largely compatible with feminist care ethics. I invoke various analogical frameworks in comparative philosophy to establish that Chinese traditional values, such as Confucian ren (benevolence, compassion, love, and care for others), co-humanity, relational moral virtue, correlative thinking, and relational-constituted personhood deeply resemble the emotional and relational dispositions of the ethic of care. I conclude that if the feminist care ethics in the West possesses a transformative potential, so does Chinese traditional philosophy. Show more