News and Commentaries, Feb. 5, 2015

The "Creating Disturbances" crime extended to the cyber sphere

by Professor Zhang Qianfan from Beida Law School

Published on FT Chinese

1, In the past year, citizen's opinions on the Internet has increasingly become a focus by the legal and judiciary institutions. In 2013 China's  "two supremes" (The supreme court and supreme inspection) have released their regulation on expressions on the Internet. This was undoubtedly widely applied and even extended. The crime of "creating disturbances" written on article 293 of the Constitution has been used more frequently to describe people's expressions on the Internet. The law circle is very concerned that this crime could be easily used as a kind of "pocket crime" (A fluid term of crime that could be applied widely). Therefore, not only it will be against the principle of "rule of law" and "rule of constitution", but it will also lead to abuse of public power. It will also hugely constrain people's freedom of speech, which is protected by Article No. 35 in the Constitution. 

1, 在过去一年里，公民在网上的言论成了更多司法机关注的领域。2013年中国“两高”（最高法和最高检）有关网络言论的司法解释出台后，其运用不可谓不充分，甚至还做了更多的延伸。《刑法》第293条规定的“寻衅滋事”罪越来越多被适用于公民发表的言论。法学界普遍担心，这项罪名业已成为边界可以随意延伸的“口袋罪”。如此则不仅背离了中共十八届四中全会提倡的“依法治国”与“依宪治国”原则，而且必然造成公权力的严重滥用，并极大压缩公民受宪法第35条保护的言论自由。

2, For a rational person, their bodies must be controlled by their brain. If the brain loses its control, the body will move restlessly, and this person will be dangerous. This is the same for a country. 

2,对于一个理性的人来说，肢体必须受到大脑的控制。如果大脑失去控制，肢体任性乱动，这个人无疑是危险的。国家也是如此。

3, What is the brain of a country? In terms of law the “brain” of a country is public intellect. In a healthy and normal country, the law serves for everyone's public interests. What are “public interests”? What kind of policy, law or even system is most beneficial to people's happiness? This question will lead to different answers for different people. Everyone has their freedom to think for themselves and express themselves. No one is justified to claim that they hold the ultimate truth.

3, 国家的“大脑”为何？国家的“大脑”就是法律所体现的公共理性。在一个健康正常的国家，法律是为了所有人的公共利益服务的，但是究竟何为“公共利益”？什么样的政策、法律乃至制度最利于人民的幸福？这些问题必然见仁见智，因而人人都有思考与表达的自由，任何人都没有资格宣称真理掌握在自己手里。

4, As long as the “brain” of a country could think normally, they won't use their arms to control their brain. Because it is very simple, arms will never be as good as thinking compared to the brain. The police are not necessarily more qualified to make the more correct judgment, compared with ordinary people. Controlling the brain with arms is replacing reason with power.

只要国家的“大脑”还能正常思考，就不能用“胳膊”去管“脑袋”，因为很简单，胳膊永远不会比脑袋更擅长思考，警察并不比普通人更有能力做出正确的是非或专业判断。用胳膊管脑袋，就是用强权替代公理。

Sex and gender are not destined social norms

Published by Gongshiwang

Interview with the leader of a NGO Tongyu, helping those who are oppressed by their sexual identity and sexual orientation

性和性别并不是天经地义的社会规范

1, China actually has very rich and multidimensional gender and cultural traditions. For example, handsome men in ancient China mostly are considered to have red lips and white teeth, which are very different from the traditional heroic Western image of masculinity. Eastern culture also has its own interpretation on different gender characteristics and gendered beauty standards. For example, Guanyin is a gender between masculinity and femininity, which is in line with the tradition in Buddhism. A friend of mine who is in gender studies told me that China does not necessarily needs the Western categorization, like we have to differentiate clearly among homosexual, heterosexual, bisexual and transexual. Chinese culture has its own interpretations on gender. What we need is to promote its modern transformation.

1,中国还是有很丰富的多元性别文化传统，举个例子，中国古代的美男子，几乎都是唇红齿白的，跟西方所谓的男性英雄形象差得特别远。东方文化对不同的性别气质和所谓的性别之美也有自己的解读。比如，观音是介于男女之间的性别，佛教中是有这样的传统的。我一个做性别研究的朋友认为，中国不一定非要套用西方的分类，好像同性恋、异性恋、双性恋、跨性恋，分得特别清楚。中国文化对性别有自己的解读，我们需要的是促进它的现代化变迁。

2, I think the key is for us to have the freedom to get to know ourselves and choose for ourselves.

2, 我觉得最关键的是要有认识自己和把握自己的自由。

谁制造了女性回家？

Who created the notion that women should go home?

Published by Gongshiwang

1, Generally when there is a shortage of work, there will be debates about women going back home. The four waves of women going home debates happened in the past were all related to the employment situation. If there are limited amount of employment, who would be laid off? Because of all sorts of reasons, there are always voices about women going back home and giving up their jobs.

1, 一般就业紧张的时期，就会出现女性回家的争论。上述几次争论无一不和就业形势相关。如果就业岗位有限，那么谁来下岗？基于种种理由，女性回家让出饭碗的声音一直不绝如缕。 

2, First of all, the topic of women going back is not only realted to employment. We need to look at its historical development – in the 80s during the market transformation, there was the separation of the public and private spheres in China.

2, 首先，女性回家的话题不仅与就业问题相关，还要看到其历史根源——中国在80年代市场化转型中逐渐形成了公私领域的分离。

3, Scholar Song Shaopeng (lecture at Renmin University's China School of Marxism Studies) points out that the current labor system basically designs a worker as a “labor”. A labor is an abstract person without any gendered roles. They do not need to give birth to children, nurture them or take care of them. So it seems it is an equal design. However, when it is tested in reality, there are problems.

3, 学者宋少鹏指出，现代用工制度的一个基本预设是把人视为“劳动力”。劳动力是无性别的抽象的人，是不会生儿育女和不需要照料别人的独立的存在。这样看上去似乎是从平等出发的设计，但实际上当抽象平等遇到具体差异时，问题就出来了。

4, Labor is genderless, but workers have genders. The Capital needs efficient laborer. In the labor market designed without any gender, women who need to shoulder the responsibility of giving birth to children and taking care of them become unqualified laborer.

4, 劳动力没有性别，但是劳动者是有性别的。资本只需要高效的劳动力，在“无性化”设计的劳动力市场中，需要承担照料责任和养育子女的女性就成了不合格的劳动力。

5, In terms of the issues of women going home, modern feminist waves not only should reflect and clarify traditional gender roles, but they also need to consider if the basic social systems are fair to women and if there are invisible design to make women go home.

5, 在女性回家的问题上，现代女性主义思潮不仅应该反省和清理传统性别角色观念，更应该注重社会基本制度对于女性是否公平，有没有让女性回家的隐性设计。