Reconstruction Vol. 15, No. 2

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'Deterritorializing Sexuality, Act(less)ing Justice': Žižekian / Deleuzean / Lao Zi’s Perspective on Hong Kong Rape Law Reform, / Man-chung Chiu

Proposal made by Hong Kong Law Reform Commission

<1> The ripple effect caused by the landmark case Leung Roy William v. Secretary for Justice (2004) [1] has been far-reaching and significant in its impact: in 2006, the Hong Kong Law Reform Commission set up the Sexual Offences Sub-Committee ('the Sub-Committee' hereafter); in the next 4 years, the Sub-Committee issued a series of reports and consultation papers: (1) Interim Proposals on a Sex Offender Register - Consultation Paper (2008); (2) Sexual Offences Records Checks for Child-related Work: Interim Proposals (2010); and (3) The Common Law Presumption that a Boy under 14 is Incapable of Sexual Intercourse: Report (2010). The most recent outcome is a consultation paper, titled 'Rape and other non-consensual sexual offences' ('Consultation Paper'), which was published in September 2012. Recommendation 1 of the Consultation Paper declares that (1) Respect for sexual autonomy, (2) Protective Principle, (3) Gender Neutrality and (4) Avoidance of distinctions based on sexual orientation are the guiding principles behind other recommendations [2], which include [3]:

(1)

The creation of a statutory definition of 'consent' to sexual activity which reflects the need for 'freely and voluntarily agreement' to the sexual activity and the capacity to consent;

(2)

A newly-defined offence of rape which can be committed against a person of either sex and covers penile penetration of the vagina, anus or mouth;

(3)

A reformed mental element with regard to the issue of 'consent', moving away from a focus simply on the subjective belief of the accused as to whether the complainant consented, to a mixed test of subjectivity and objectivity. Currently, if an accused subjectively holds a genuine belief that the complainant consented, the accused is entitled to be acquitted even if that belief was unreasonable;

(4)

The abolition of the offence of 'non-consensual buggery', so that the conduct which is the subject of such an offence would be covered in future by the gender neutral offence of rape;

(5)

The creation of a new offence of 'sexual assault by penetration' to cater for the more serious forms of conduct, not constituting rape, and currently covered by the offence of 'indecent assault';

(6)

Substituting the offence of 'indecent assault' with a new offence of 'sexual assault" focusing on conduct which is 'sexual' rather than 'indecent', with a proposed definition of 'sexual';

(7)

'Under-the-skirt photography' should, amongst other intentional acts of a sexual nature, constitute 'sexual assault'; and

(8)

The abolition of the offence of procuring another to do an unlawful sexual act by the use of threats or intimidation (Section 119 of the Crimes Ordinance) and the creation of the offence of 'causing a person to engage in sexual activity without consent', emphasizing the protection of one's sexual autonomy.'

<2> In sum, the Sub-Committee proposes to (1) redefine consent in the rape law machine, and (2) replace the current sexual assault offences with a series of new offences. I have discussed the problems related to consent elsewhere, arguing that consent does not simply mean agreement (for example: agreement to sexual intercourse under psychological influence) [4].

<3> The remaining questions are: (1) Why would the Sub-Committee suggest a distinction among 'Rape', 'Sexual assault by penetration' and 'Sexual assault'? The Consultation Paper states:

We take the view that a distinction should continue to be made between rape and other non-penile penetrative acts…We believe the general public (and hence juries) have preconceptions of the meaning of certain words we therefore do not think it desirable to extend the definition of rape in this regard beyond its present meaning of penile penetration. (Para 4.13)

<4> In Para 5.3, the Sub-Committee quoted the UK Home Office Review Group, to justify the proposal to create a new offence:

We recognized that other penetrative assault (i.e. non-penile penetrative assaults) could be as serious in their impact on the victim as rape and they should not be regarded lightly. (quoted in Para. 5.3)

<5> In relation to Recommendation (6) (the creation of the new offence of sexual assault), the Sub-Committee writes:

The new offence shifts the focus from the concept of indecency to whether a reasonable person would consider the conduct to be 'sexual'. Thus the main concern of the new offence is protection of a person's sexual autonomy from unwanted sexual conduct rather than upholding the public's standards. (Para 6.7)

<6> Another question is: Why would the Sub-Committee particularly make 'Under-the-Skirt photography' an offence? For this recommendation, the Sub-Committee put forward the following justification:

The prosecution often has difficulty in finding the right charge for prosecuting the shooting of videos or taking of photographs in a public place up inside a female clothing or skirt (Para 6.22)

As 'Under-the-Skirt' photography (whether in public or private place) is a serious violation of a person's sexual autonomy, we consider that there should be a specific statutory offence dealing with such criminal activity. (Para 6.24)

<7> When meticulously analyzing the reasons and justifications underlying the recommendations meticulously, we can therefore critically ask: Why do we have to distinguish between penetration of the vagina by penis and penetration by object (substance other than penis), if the law, as claimed by the Sub-Committee, seeks to protect the sexual autonomy (or body) of victims and the seriousness of the harm is the same? Also, why is Under-the-Skirt photography (i.e. of women) emphasized and made a particular offence? In short, can the proposal re-create justice? What is justice? And, in the genre / milieu of gender / sexual politics, what is the connection between justice and (sexual) desire? Can desire re-manufacture justice? In this article, I will investigate the above questions from the respective philosophical perspectives of Žižek, Deleuze and Lao Zi (老子), examining how they help construct and elaborate on the dialogue between desire and social order / machines (including law and justice), and whether the first two theories, originated and developed overseas, can be effectively transplanted into the cultural context of Hong Kong, a predominately Han-Chinese society.

<8> Let us start with the Žižekian theorem.

Žižekian Jouissance on Desire and Law: Acting Justice

<9> Desire, according to Žižek, is the big Other of the symbolic order [5] - endless social expectations and customs (for example: the gender roles of woman and man in a patriarchal society) [6], which, together with jouissance (including the non-stop submission to the current socio-legal order and repetitive drive to challenge legal and social expectations with regard to gender / sexual roles) [7], (re)constitutes a subject. Sexual offences, an non-consensual actions violating the autonomy of others' bodies, show how this machine works; the reoccurrence of offence, driven by desire, on one hand, is challenging and breaching the legal structure, however, it is, on the other hand, restrenghtening male domination and derived gender roles, which underlie the development of law and related judgments, and reconstitute human subjectivities.

<10> The dilemma is: When a symbolic self is trying very hard to fulfil the desire, s/he does not know what the big Other exactly desires of her / him - this explains why people can never exhaust and understand completely what a society expects from wo/men). In other words, a person, even after submitting herself / himself totally to the current law in Hong Kong, would still not fully understand the legal definition of 'sexual'. Although the Consultation Paper suggests that the reasonable person test should be adopted in deciding what 'sexual' means, and the law would consider the circumstances in contention, people's purposes and the nature (of the activity) when making its decision, the key question -- 'what is desire?' -- is left unanswered. Is sexuality a kind of desire? Why could the court's decision replace and be more accurate than the perpetrator's subjective motive and intention? In R v. George [8], for instance, although the defendant admitted that removing a shoe from a female's foot gave him sexual gratification, the court still considered that action itself not sexual - (sexual) desire being always becoming and being repetitively created and contended, in the context of the law, by symbolic fantasy.

<11> The machinic (re)constitution of the human is a becoming, which is a result of dis/re/connections of different machines, so humans are always indecisive about what they and the Others' desire, which is never stable and fixed (for example, social expectations regarding gender roles, gender dialogue and the law controlling sexual / assault are always changing and debatable) [9]. The subject (including human, law and justice), like desire, is thus always decentred and unstable:

What I desire is predetermined by the big Other…Even when my desires are transgressive, even when they violate social norms, this very transgression relies on what it transgresses…

Not only does the other address me with enigmatic desire, it also confronts me with the fact I myself do not know what I really desire, with the enigma of my own desire [10].

Is Justice always a Fantasy?

<12> The Žižekian fantasy is the force that drives symbolic order, where the human subject is reproduced. On the one hand, it informs desire of what it wants (whether it is true and genuine does not matter) [11], but then reminds desire that what it gets is not what it exactly wants to enjoy, as desire never knows what Real really wants [12]. Fantasy in short is a cluing lubricant, linking the subject and common sense reality together, and makes sure they (can) exercise together smoothly despite points of friction. In the context of gender / sexual politics, justice can be the fantasy that exercises the legal system - Rawlsian justice, which preambles and tries to attain equality and protection of the powerless, problematizing patriarchal heterosexism. Nonetheless, such a notion of justice, as argued by Rawlsians, can be fulfilled through the machine of law (another area of heterosexist male domination) - in this way, Rawlsian justice can be allowed and accepted by law, but only when it does not challenge the Master Signifier of the machine - the phallus. The Hong Kong rape law reform proposal is one of the best illustrations of this - it seems to provide special protection to female victims (for instance: by establishing the 'Under-the-Skirt' offence). However, providing and offering females special protection nonetheless means they will forever remain the powerless, thus reconstituting the patriarchal misogynist socio-legal structure.

<13> Fantasy facilitates the synchronization between human / subjects and the common sense world, yet it also at the same time helps administering and structuring jouissance, without which the process would not be completed [13]. Jouissance (initially and from time to time) makes us happy with the current situation, but less happy with any (possible) changes [14]. In the contemporary gender-sexuality politics of Hong Kong, jouissance is the strict and absolute obedience of the misogynist script of daily life and law - no matter whether a person really desires to follow it, and whether such obedience can bring pleasure initially (being appraised as a good lady and gentleman), and be transformed into pain in the end (the burden of being lady and man is invariably not easy and too heavy to bear), people are 'instructed' to enjoy being straight [15]. In the context of the rape law reform proposal, what Žižekian philosophy shows us is that the proposal's justice, which starts with equality and aims at protecting the powerless (for example: women) - Rawlsian justice -- would only end up with more pain, as it fails to problematize and challenge the male domination underlying the exercise and development of legal system. For example, in order to maintain fairness in a trial, where the rights of a male defendant have to be respected and observed, the names of the female victim (as a witness in such trials) is not naturally kept confidential from the media, and the victims, when appearing as a court witness, sometimes fail to apply for the usage of a screen, so as to preserve their anonymity, thus submitting themselves to a 'second rape' [16]. The above phenomenon is not mentioned at all in the Consultation Paper.

<14> Certainly, due to the jouissance machine, even though it seems everyone understands that the proposal cannot transform completely the current male-dominating socio-legal culture, the proposal and related recommendations will, very probably, be accepted and followed - not because there is no choice, but because society feels insecure if the Master Signifier of socio-legal structure, i.e. the phallus, is challenged. The proposal and possible acceptance of rape law reform is a natural and essential as law, and rape, are both the products of a misogynist socio-legal structure, a phallic product; a genuine reform, by which heterosexist masculinity and related violence are subverted and politicized, could only take place if there is a new Master Signifer [17].

Žižekian Justice: To Act, Not to be instructed to Enjoy

<15> Law, being part of symbolic order, requires support and needs confirmation from the superego otherwise it cannot inert its influence [18]. Simply put, the superego authorizes and legitimizes law by instructing us not to fulfil our desire but producing jouissance [19]. The superego hence acts as the ultimate enforcer and promoter of society's laws, morals and codes of acceptable behavior and good conduct [20]. Under current gender-sexuality politics, whether a person wants to lead a life of good lady or gentleman does not matter, but laws and customs, with superego, would instruct her / him to enjoy being a straight wo/men, even s/he desires not becoming so.

<16> According to Žižek, 'injustice derives from the problem that everyone has to submit herself / himself to the Big others, and cannot return to herself / himself' [21]. In order to reconstitute justice, humans have to firmly resist the instruction to enjoy; this does not simply mean the repeal of old law and / or enactment of new law (as the Consultation Paper is proposing to do), as that fails to challenge and destabilize the superego and thus can only mark a further entrenchment of the existing symbolic order. In the matrix of the Hong Kong rape law reform proposal, the definition of 'sexual', the re-definition of 'rape', and the introduction of the sexual assault (of different degrees) and 'Under-the-Skirt' offence, as elaborated above, while not subverting the patriarchal order do further submit the constitution of subjectivity to the power of (phallocentric-patriarchal) sexuality. So, the Consultation Paper cannot help us to escape or subvert the patriarchal (socio-legal) system, which not only takes part in provoking sexual assault, but further instructs us to live under a patriarchal society. Žižekians will argue, in the context of the rape law reform proposal, that justice would only be possible only if humans are prepared to give up their existing concepts of ideal and fixed identity, which are the products of the socio-legal superego, and challenge the Master Signifier (i.e. the Phallus) [22].

<17> The abandonment of these concepts of identity could be achieved by an act, initiated, ironically, by jouissance - according to Lacan and Žižek - after humans understand and are controlled by the unconditional patronizing power of symbolic order; s/he will start an act, not willingly or rationally, but naturally. The act, though not being part of the symbolic order, usually starts at the margin of the rhizomic symbolic universe; the act also at the same time returns to the Real and attacks / traverses the fantasy [23]. A Žižekian act is a powerful intervention into, and disturbance of, symbolic order which redefines what is possible and creates the context and machine whereby the possible can be realized [24]. A Žižekian act does not aim at total destruction of the existing symbolic order, it only 'does the impossible within the existing order.' [25] (emphasis original) A relevant and valid strategy is thus Foucaultian desexualization. The ideology of desexualization was proposed by Foucault in History of Sexuality [26]. In History of Sexuality, Foucault describes social and historical discourse as a field of struggle where powers circulate; and sexualities do not exist as a pre-given, but are reproduced by multiple and conflicting interactions of power [27]. Foucault effectively argues that sexuality has been historically deployed throughout White Western society through the operation of power / knowledge networks, including legal mechanism and psychoanalysis [28].

<18> Desexualization not only means anti-discrimination or cancellation of gender / sexuality stereotyping, but acceptance of multiple sexual desires; in other words, the liberation of different desires. The desexualization of law, therefore, 'means sexuality (not sexual action, such as rape) under all circumstances should not be subjected to any legal regulations; i.e. law should accept and tolerate multiplicity of sexuality.' [29] In other words, the phallus should cease to be the essential guiding philosophy of the legal system in Hong Kong.

<19> Looking back to the Consultation Paper, the suggestion to (re)define sexual (Para 5.9) by using the traditional 'reasonable person' test, where a particular subjecthood is manufactured under a heterosexist patriarchy, simply goes against the ideology of desexualization, as does the proposal to establish sexual assault of different degrees. Adopting the standard of the reasonable person when fixing the definition of 'sexual', in the machine of patriarchal heterosexism, would directly make penile penetration prevail, and degrade other sexualities and sexual orientations, hence reinstating the phallus as the Master Signifier. Further, according to Foucault's notion of desexualization, rape or sexual assault would be reduced to mere body assault. Such an offence should not be related to any particular organ (e.g. anus, penis or vagina). Through desexualization, the existing hegemony (male domination) and the status of phallus is problematized and challenged.

<20> An act, in short, rejects or suspends the symbolic order by breaking all the conventions; thus the symbolic instructions and superego orders become ineffective. The act, in the context of rape law reform, means a continual and very painful challenge of definitions such as rape and 'sexual' and a subversion of legal tradition, which is predicated upon a heterosexist script of life:

[I]t is only through an act that I effectively assume the big Other's inexistence, that is, I enact the impossible, namely what appears as impossible within the coordinates of the existing sociosymbolic order [30].

<21> An act creates a breakthrough and a discourse by which a new common sense world and a new Master Signifier [31] can be produced (though an act never proposes any new Master Signifier) [32]. Desexualization of law - i.e. the reduction of sexual offences into common bodily assaults, which I discussed above - would hence make sexuality / products of phallus cease to be the key signifier; and although it does not propose the creation of any new signifier, it creates an opportunity for the production of new signifiers, or even for us to rethink whether a master signifier is essential in the manufacture of subject or justice.

<22> In other words, an act expands the possibility to create an innovative symbolic order and can also recreate history, so that when a new order is created, it looks as if it was already there [33]. Žižek, in Events, summarizes the effect of an act:

This eventual moment [i.e. the act] is the moment when the signifier - a physical form that represents meaning - falls into the signified, into what it means, when the signifier becomes part of the object it designates… [34]

Such a signifying reversal (the imposition of a Master-Signifier) is not simply external to the designated thing: what it does to the thing is to provide it with an additional unknowable feature which appears as the hidden origin of its properties. (emphasis added) [35]

<23> Žižek believes that justice can be temporarily achieved through suspending the big Other, so everyone can be her / his own self. However, the Žižekian act, which does not expect anything, cannot guarantee any success [36].

<24> Žižekian philosophy, in sum, proposes a reflective and constitutive paradigm of justice. If the Rawlsian procedure sets the foundation of creating justice, then the Žižekian framework creates the constant initiative which repetitively challenges the discrimination created by nonstop re/territorialization of identity. This echoes with the Deleuzean definition of 'revolution' (initiated by line of flight): 'Revolution occurs through making additions to the script, bringing in unexpected amendments by borrowing strategies from elsewhere. (emphasis added) [37]

Deleuzean Machine of Justice: Becoming the powerless in the legal-sexual machine

<25> The Deleuzean line of flight always connects with desire. According to Deleuze, desire is the greatest power of life and change [38], which is applicable in all contexts and relations:

When desire is present, however, it exists as a process that changes the connections and social relations of society, transgressing all fixed boundaries. Desire is revolutionary in essence, not because it wants revolution, nor because it may be provocative to express liberated sexuality, but because it affects and changes every established order of society [39].

<26> Deleuzean desire is, in short, always positive and productive [40] - simultaneously different / new types of desire are always formulated and created by different machinic assemblages [41]; multiple desires in turn formulate and create (new) machinic assemblages, which then produce different machines. A machine can connect, disconnect and reconnect with other machines; one machine can never be reduced to any singular connection, i.e. machines are always fluid and dynamic [42]. Deleuzean desire, with this power and energy, hence plays a vital role in the creation of subjects, concepts and identities:

[E]very machine functions as a break in the flow in relation to the machine to which it is connected, but at the same time is also a flow itself, or the production of a flow, in relation to the machine connected to it.'

<27> The creation of subjects, concepts and identities, which come from the desire that fuels deterritorialization (which then creates affect and thus action; i.e. the lines of flight), can easily take place at the weaker margin or edge of a rhizomatic web of social forces [43]. Deterritorialization can be translated and fulfilled in the existing social force machine / assemblages [44].

<28> Deterritorialization, according to Deleuze (and Guattari), can produce a social space where immanent relations, which 'instead of acting out roles given to them by some real or imaginary third party in the role of a transcendent scriptwriter, are capable of shaping, affecting, and changing any mediating factors just as easily as these can shape the relations', are manufactured [45]. Deleuze thus advocates that every concept / identity (including law and justice), especially the powerless (for example: the rape victims), is always a 'becoming', a never-simple one-stop process [46]. Crockett further argues that 'Deleuze rejects internal relations of property because of his critique of identity; if beings lack identity, then they lack proper parts and thus internal relations' [47]. So becoming, as Bryant indicates, always contains contradictions and oppositions [48]; lines of flight always take off at the same time when de/territorialization, with the fuel of different and multiple desires, challenges the existing territorialized and layered domination. Thus, any effort to stablize a subject is doomed to be a failure, and an identity or a concept is always becoming.

<29> Deterritorialization, initiated by desire, can be conducted proactively and strategically. This is where the machine of emergent law, deterritorialization in the legal machine, is developed: as Murray argued, emergent law, initiated and maintained by a molecular line of desire, can certainly overcome the codification and fixation of legal principles which are territorialized by the existing legal machine, and can be accommodated and incorporated with the current socially-dominant structure. Murray believes that only through this machine of emergent law, can new and ground breaking legal principles and court cases be produced, by lawyers who, though trained by the existing legal machine, understand those social conflicts and problems which are not dealt with by the existing legal machine (again, Leung Roy William v. Secretary for Justice [49] is a good and effective illustration). Emergent law, in short, is a channel, which can effectively direct desires to challenge mainstream social forces:

In emergent law, desire, justice and schizo law replace molar law, and emergent law develops as a practice of desire, justice and the creation of concepts of legality. Emergent law is a machine of desire and justice [50].

<30> Applying Murray's interpretation of Deleuzean legal philosophy in analyzing the Hong Kong rape law reform, multiple sexual desires (including SM, homosexuality, etc) could initiate and formulate effective different lines of flight, in terms of new law proposals (e.g. Bills) and court cases (like Leung Roy William v. Secretary for Justice [51]). The existing legal control / territorialization on gender identities, sexual orientation and sexual activities can thus be challenged. As argued by Murray, such changes can only come from lawyers, or legally trained people, including, of course, the Hong Kong Law Reform Commission.

<31> Another good example of deterritorialization is the concept of 'Body without Organs' (BwO hereafter): because of energy brought by lines of desire, the body can never be a rigidly regulated entity, but only a BwO [52]. A BwO is the way by which the body, once territorialized (under the schema of Oedipal complex), can be decoded. The BwO, which is a platform where becoming starts [53], is also a revolution, which aims to challenge any attempt to territorialize the (Fe/Male, trans) body [54]. The BwO can, put simply, help us escape from 'stratified forms of being' [55]. The concept is best summarized by Simone Bignall:

A body is therefore defined not only by shifts in the consistency of its internal relations but more particularly by the affection these relations produce…the body is an extensive entity that is comprised of elemental parts, combined in particular configurations according to the ways in which they affect one another [56].

<32> Body is thus a matrix of assemblages constructed with other bodies in a milieu. Further, using the Deleuzean concepts of deterritorialization, emergent law and BWO as lenses to critically analyze the recommendations made by the Consultation Paper, by which the scope of the rape offence is extended from sole penile penetration of the vagina to penile penetration of vagina (artificially created), anus (both naturally born and artificially created) or mouth (para 4.7, 4.8, 4.9, 4.18, 4.19, 4.20 and 4.21), we can then ask: Is the rape law reform proposal an emergent law, initiated by lawyers who privilege male domination and celebrate the significance of the male sex organ? Why does law have to re-glorify the status of the penis and make penile penetration a more serious offence? Why do we have to prioritize a certain and particular organ (like the vagina and penis) in defining and fixing a sexual / gender identity? Is it a natural result of the heterosexist legal machine where opposite-sex sexual intercourse (and possible natural reproduction) is privileged? Or, is the law reform proposal simply a re/territorialization of gender politics?

<33> As elaborated by Buchanan, Deleuzean desire is the origin of revolution as it always tries to problematize the coding imposed by lines of social forces [57]. The Deleuzean notion of justice hence means the release of multiple desires, through which all 'attempts to ground any reasoning, rationale, or logic on some object measure' would be destroyed and torn off [58]. In other words, Deleuzean justice would only be created when becoming and deterritorialization happen, and where all fixed and territorialized layers and connections are broken by lines of desire; as Goodchild puts it:

...when deterritorialized, a desire leaves behind the constant nature given by its previous strata in order to cross a boundary and becomes something entirely different [59].

<34> Using a Deleuzean perspective, in the machine of the rape reform proposal in Hong Kong, not only sexual desire of heterosexuals, male and female, be respected, but different formats of sexual activities / desires, should and must also be considered by the new rape law proposal. In other words, again we have to ask: Why does the law have to differentiate between rape, sexual assault (penetration by body organs other than penis or other substances, for example: bottle), and touching, as proposed by the Consultation Paper (para 5.37, 6.10, 6.11, 6.12, 6.13 and 6.14)?

Deleuzean Justice = Desexualizing Law?

<35> Justice is a kind of becoming, created by multiple and different desires; in the words of Lefebvre, desire makes law creative [60]. In the case of the Hong Kong rape law reform proposal, a Deleuzean will argue that different desires (for example, different sexualities and multiple sexual orientations) have successfully initiated the drive (another new desire) to revise and improve existing forms of social cooperation between institutions and among people of different gender / sexual identities, for example, through revision of rape law / sexual offences (and perhaps the Sex Discrimination Ordinance [61]). What Deleuzeans are looking and striving for is, as I argued above, a total deterritorialization of sexuality, since sexuality (in law machine) is nowadays imprisoned; as Beckmann argues:

In interpretations of Deleuze, sexuality has tended to be positioned alongside territorialized forms of body, and thereby as a force that closes rather than opens the body to what is capable [62].

<36> Desexualization is the way sexuality can be deterritorialized [63]. Deleuze himself does not use the exact term in this context, but his co-author and comrade, Guattari did insist that: '[d]esire, if allowed to open up to the world rather than repressed by it, is no longer destructive…but creative.' [64] Noys, another Deleuzean, also argues that only when sexuality is not codified, can new formats between self and other exist [65]. It will not be surprising that Deleuze also advocates desexualization. Desexualization of law, where, as argued above, no offences would be linked with a particular organ (vagina, anus or penis), and sexual identities / gender identities / sexuality / sexual orientation / formats of sexual activities would no longer be territorialized with violation of body autonomy. This strategy can therefore create an opportunity where cultural imaginary, in relation to desire and body, is critically cross-examined and the need to devise law which can go beyond normative standards is acknowledged. What desexualization re-manufactures is the right to desire, through which all bodies have the right to 'exercise discretion and preference in forming and transforming the situations and associations that constitute their identity' [66].

Lao Zi's [67] Justice / Yi () [68] beyond Desire: The Actionlessness of Natural Cosmology

<37> Lao Zi, like Žižek and Deleuze, exposes the impossibility of universal metaphysics. According to Lao Zi, a profound scholar of Daoism (a school of philosophy developed in Imperial China), Dao is the origin of universe, including humanity, law and society [69]. To quote Lao Zi:

The Great Tao [Dao] flows everywhere.

It may go left or right.

All things depend on it for life, and it does not turn away from them.

(大道汜,其可左右。萬物恃之以生而不辭。) [70]

<38> Liao (廖咸浩) further elaborates, Dao is 'both an immanence that underlies all beings and the source of all becomings. The relationship between the Tao [Dao] and the world can be summarized as: if people in influencial positions attains to Tao [Dao], the world will become of itself. [71]'

<39> In short, Dao continues to exist through exercise of the material world. Fei (費小兵) writes said, Dao observes and understands universe and life instinctively and objectively, since Dao, as Lao Zi advocates, can go beyond desire and needs [72]. In fact, Daoists argue that humans should aim at engaging with Dao and go beyond all kinds of desire:

He who devotes himself to learning (seeks) from day to day to increase (his knowledge); he who devotes himself to the Tao [ie Dao] (seeks) from day to day to diminish (his doing).He diminishes it and again diminishes it, till he arrives at doing nothing (on purpose). Having arrived at this point of non-action, there is nothing which he does not do. (trans., 為學日益,為道日損,損之又損,以至於無為,無為而無不為。) [73]

<40> Only when that happens can people live with their 'natural instincts' (本性), thus (re)constituting the state of harmony, i.e. the Han-Chinese ideal state of life:

In a little state with a small population, I would so order it, that, though there were individuals with the abilities of ten or a hundred men, there should be no employment of them; I would make the people, while looking on death as a grievous thing, yet not remove elsewhere (to avoid it). Though they had boats and carriages, they should have no occasion to ride in them; though they had buff coats and sharp weapons, they should have no occasion to don or use them. I would make the people return to the use of knotted cords (instead of the written characters). They should think their (coarse) food sweet; their (plain) clothes beautiful; their (poor) dwellings places of rest; and their common (simple) ways sources of enjoyment. There should be a neighbouring state within sight, and the voices of the fowls and dogs should be heard all the way from it to us, but I would make the people to old age, even to death, not have any intercourse with it. (trans., 小國寡民,使有什佰之器而不用,使民重死而不遠徙,雖有舟輿,無所乘之。雖有甲兵,無所陳之。使民復結繩而用之。甘其食,美其服,安其居,樂其俗,鄰國相望,雞,狗之聲相聞,民至老死不相往來。) [74]

<41> That does not mean (Orthodox) Daoism ignores or despises desire, which is the drive for all kinds of movement, progress and innovation. Desire, from a Laozian perspective, has to be controlled before being surpassed [75]. Through the control of desire, the ruling authority (including legislature and judiciary) can, at the end of the day, transcend all self-interest and insistence, and people can enjoy natural freedom and live by natural instinct. Law, in the (Orthodox) Daoist machine, as constructed by Lao Zi, is an assemblage in which desire is controlled. Justice / Yi, to Lao Zi, is therefore a machinic process through which individuals can learn how to regulate all desires. Only when desire is under control, can appropriate balance and harmony in the universe be reached and manufactured (before people can go beyond desire). When discussing how law should work, Lao Zi writes:

Even at the sight of magnificent scenes,

He (i.e. the ruler) remains leisurely and indifferent.

How is it that a lord with ten thousand chariots

Should behave lightheartedly in his empire?

If he is light hearted, the minister will be destroyed.

If he is hasty, the rule is lost [76].

(trans.,重為輕根;靜為躁君。

是以聖人日行不輕重。

雖有榮觀,燕處超然。

奈何萬乘之主而以身輕天下?

輕則失, 本躁則失君。)

<42> What Lao Zi does not state clearly enough is, before we can go beyond desire (by using law) and while our lives still relate to desire, the degree to which we should restrict desire. Zhuang Zi (Chuang Zi, 莊子), another influential (Orthodox) Daoist philosopher, provides a better and clearer guideline: we should displace self-centered desire with the desire to work for the better being of all humankind. Zhuang Zi further argues that such a desire means (1) not being over-insistent; and (2) acceptance of differences and multiple desires [77] - as he writes in Levelling All Things (齊物論):

Heaven, Earth, and I are simultaneously produced, and the myriad creatures and I are one. (trans., 天地與我並生,而萬物與我為一。) [78]

The attempt, with what is not even, to produce what is even will only produce an uneven result; the attempt, with what is uncertain, to make the uncertain certain will leave the uncertainty as it was. (trans., 以不平平,其平也不平;以不徵徵,其徵也不徵。) [79]

<43> In the language and linguistic machine of gender / sexual politics, according to the philosophical perspectives of Lao Zi and Zhuang Zi, no one should exploit or impose any perspective on others, and everyone should respect the differences among people and the singularities of others [80]. Looking at the Hong Kong rape law reform proposal, a Daoist would argue that we should not impose any hegemony (i.e. misogynist or heterosexist socio-legal structure), however implicitly, by privileging the offence of rape (penile penetration) over other new offences and creating the 'Under-the-Skirt' photography offence.

<44> Also, the proposal, if accepted and passed by the legislature, would further re-strenghten the male hegemony, by making the penis / phallus a privileged and more powerful body organ / Master Signifier, and reinstating the patriarchal social machine through the establishment of new offences. Such a proposal does not work for the betterment of the powerless (i.e. the victims of sexual assault).

Reversing Action-lessness ( 無為): Daoist perspective on Law and Justice / Yi

<45> In contemporary Han-Chinese language, justice is usually translated as Yi. However, Yi, does not start with equality (as emphasized by Rawls) but with harmonious hierarchical interpersonal relationships [81]. This is why Lin (林端) says: in ancient Imperial China [82], there was no (Rawlsian) justice (which initiates the concept of equality), but Yi (that emphasizes harmony and appropriateness) [83]. Chen (陳鼓應) further points out that Lao Zi does not object to Yi, provided that it is derived from Dao, the ultimate reference of everything (Chen 2001). As Wang (trans., 王澤應) writes:

They (Lao Zi and Chuang Zi) think…Moralities advocated by Confucians and Mohists [84] (墨者) are only human-made artefacts, and hence, are not the true morality…from Lao Zi 's standpoint, Li developed in Zhou Dynasty…embraced by Confucius, [is] the destruction of natural human characteristics [85]. (trans., 他們認為,儒墨所提倡和鼓吹的仁義道德皆屬人為造作,故不是真正的道德……在老子看來,孔子所信奉的周禮……是對人的自然本性的破壞。)

<46> Daoists therefore suggest that people should work in harmony with Dao, i.e. they should control or surmount desire [86] 'letting things work to their perfection naturally [87]' -- that is the principle of actionlessness, which is what Daoists are always advocating. The aim of law(-making), under this principle, is thus to (re)construct and (re)produce the appropriate/ proper control of desire, or transformation of self-centred desire to work for the better being of all humankind.

<47> The aim of actionlessness can only work by following the rule of 'reversion'. According to The Four Classics of the Yellow Emperor (黄帝內經), 'reversion' has two meanings - opposition and return; when the development (of everything, including law) reaches its limit (say, peak), it would be 'becoming' the opposite (say, lowest point), and vice versa [88]. Lao Zi explains the mechanism of reversion by elaborating how the dialogue of Yin and Yang works: the non-stop connective interaction of Yin and Yang re-constitutes Dao, and through the value-free exercise of Yin and Yang the universe is established. But it is not a once-for-all mechanism; as the exercise of Dao maintains and permeates the common sense world, different combinations of Yin and Yang are created, so the universe cannot stop becoming and changing [89]. He stresses that when Yin (Yang) grows to its limit, the Yang (Yin) inside it will also expand within Yin (Yang) and at some stage, Yin (Yang) will become Yang (Yin) [90]. He depicts in details how the process works:

Tao [Dao] produced the One.

The One produced the two.

The two produced the three.

And the three produced the ten thousand things.

The ten thousand things carry the yin and embrace the yang, and through the blending of the material force they achieve harmony.

(trans., 。) [91]

<48> Since the principle of reversion and the Yin-Yang mechanism can work themselves out, any sort of over-excessive regulations, including Li ((禮, the moral code which is the reference of interpretation of Fa / ancient Law in Imperial China) and Fa / Law, should be opposed. Put simply, law cannot be over-complicated [92], abolish and extinct the natural instincts [93]. Lao Zi strongly advocated that '[t]he more morals and taboos there are in the world, the poorer the people will be' (trans., ) [94]. People therefore, according to Liao, should therefore 'relinquish the goal-oriented or destination-bound mindset…and "settle oneself in one action". For only then can see "the unadorned nature of things"'[95]. Embedding the Daoist theory of actionlessness in investigating the rape law reform proposal, we can then argue that making more and more offences (like sexual offences with penetration, sexual assault and Under-the-Skirt photography) only makes law unnecessarily complicated. Daoists should also agree with the strategy of desexualization, by which law can be made simpler, by not privileging a particular set of ideology and related hegemony, like phallocentric patriarchal socio-legal structure - all sexual offences would be reduced to body assault, where sex, sexuality or either gender (and sexuality) would not be hegemonized.

Engaging Foreign Concepts with Hong Kong culture: Where are the simularities?

<49> The remaining question is: If there is an indigenous platform for re-constructing justice / Yi, why do we still need foreign support? Why do we still need to transplant overseas philosophical perspectives and related legal reforms as or theoretical guideline? Why don't we simply utilize the indigenous materials (Daoism in this case) we already have? The answer is: as Chen sharply observes, there is a lack of critical perspective and related strategies within Han-Chinese culture [96]. In other words, there is no meticulous legal-political strategy of (re)producing justice / Yi. For instance, the principle of actionlessness, though providing a very sophisticated philosophical perspective, does not offer up any tactics which can be deployed in the common sense world, by which desire can be controlled, and justice / Yi can be manufactured and re-constructed [97]. That is why we need the theoretical stances of Deleuze and Žižek, which are capable of engineering a pragmatic machine in (re)producing gender / sexual justice / Yi [98].

<50> In order to transplant the philosophical perspectives of Žižek and Deleuze on law and justice, philosophical products reproduced in the Euro-American socio-political-cultural matrix, into Hong Kong, we need to develop a machine by which such importation can be carried out smoothly [99]. The machine of transcultural simularity, developed by Chang, can offer us an efficient and functional paradigm to conduct such a transplantation.

<51> Chang, in Fake Globalization (假全球化), using the Deleuzean theory of simulacrum, politicizes the binarisms of real / origin and fake / replica. Changargues that a genuine and authentic original culture never exists, and that there are zones of possible similarities between cultures, i.e. simulacra. According to Chang, cultural interaction can be taken as the simularity between cultures - there are similarities, and simulations can occur between cultures. According to Chang, the zone of simularity is a virtual product, where infiltration between cultures can be proactively directed [100].

<52> In Daoism, Dao is also a theoretical space which functions comparably with the zone of simularity where different values can be accommodated. Lao Zi emphasized that Dao can go beyond the unending chain of dichotomies (out / inside, straight / non-straight) which relies on strict mutual exclusiveness and otherization [101]. In Lao Zi's words, while the common sense world is full of different value judgments, Dao is value-free, cannot be fixed and is fluid, multiple and full of energy and possibilities of changing. It is in this context that Ng (吳汝鈞) and Yeh (葉海煙) argue that, as Dao does not have any essential or monolithic nature, it can accommodate different perspectives:

If we are going to adapt the Western ideology of democracy, I am afraid that we need to use the Daoist perspective of relaxation and openness…Daoism is different (from Confucianism), it is a philosophy which does not insist itself or offer (?) any particular perspective…it provides the largest spiritual space for different philosophies to engage; this is its most obvious and precious characteristic. (trans.) [102] (我們要吸納西方的民主思想,恐怕要借助道家的冲虛的、開放的懷抱……道家便不同,它是最沒有主見與成見的一種思想……它能提供最大的精神空間,讓不同的思想能遊息其中,這是它的最大特色。)

<53> Dao therefore constructs and provides the platform / matching points through which Han-Chinese culture can engage with Deleuzean and Žižekian concepts of Justice.

<54> Juxtaposing the theories of Žižek, Deleuze and Lao Zi, a number of commonalities can be located and constituted: (1) The existence of a monolithic transcendence, which certainly suppresses and constitutes peripheral powerlessness, creates and produces injustice; every theory provides its own analysis of why it exists: Žižekians allege that ideology wants to maintain symbolic order (by allowing and controlling fantasy); Deleuzeans argue that social forces always try to sustain complete and ever-lasting territorialization, masking any differences; and (Orthodox) Daoists believes that anything which goes against Dao and fails to accommodate different desires, would allow self-centred desire to grow and over-insistence would result. (2) Monolithic transcendence will be definitely challenged, by either a Žižekian production of a new Master Signifer (i.e. Žižekian acting), Deleuzean deterritorialization, or forever changing Dao, which aims at transforming self-centered desire into desire to work for the better being of humankind. (3) Desire motivates changes and subversion - Žižekian act, which offer an opportunity to construct a new Master Signifier, is ignited by desire, Deleuzean desire is always productive, and the Daoist notion of desire can work for the betterment of humankind.

<55> In the context of the Hong Kong rape law reform proposal, we can then argue that the recommendations made cannot meet the criteria of the justice theories proposed by Žižek, Deleuze or Lao Zi. The recommendations are trying to territorialize gender identities with certain attributes (glorifying the significance of the male penis by setting up the offence of sexual assault by penetration, besides rape), (re)confirming the phallocentric symbolic order by offering a formula of (pseudo) justice (i.e. the reform proposal itself which relegates women to be the powerless - by offering a tailor-made offence for females - the Under-the-Skirt photography offence) and failing to challenge the existing powerful Master Signifier (i.e. the phallus) (again by the setting up of new offence of sexual assault by penetration), and finally, the proposal makes the law unnecessarily complicated (the new offences of sexual assault by penetration and the 'Under-the-Skirt' offences). The solution, as I have consistently advocated, is the desexualization of crime, initiated and motivated by multiple (sexual) desires and the desire to change. Legal Desexualization can revoke any blind attachment to any hegemonic attachment, and re-accommodate multiple and never ending creation of desires into everyday life. It means, in short, reducing rape to bodily assault and accepting different sexualities. This solution problematizes the phallus as the ultimate universal signifer (i.e. Žižekian acting), deterritorializes assault from the politics of sexuality, simplifies the existing law and therefore allows it to accommodate and accept different sexual desires (i.e. no matter whether the unconsented sexual activities in question involve people of same sex, different sex or third sex / transgender / transsexual).

<56> I need to reemphasize that desexualization, like any recommendation or suggestion, is not an once-and-for-all pathways to constructing justice -- for as Deleuzeans argue, re/deterritorialization will always occur, or as Žižekians accept, a new Master Signifer will emerge, or as Daoists believe, Dao is always changing and floating, so new problems will definitely occur, and the definition of a better being is always debatable. The fight against assault and for justice never ends; but as Žižek writes: 'Now the struggle is still going on, and this for me is the true hope… My point is that there's still a lot of hope, but hope is always mixed with danger. [103]'

Notes

[1] HCAL 160/2004. The court in this case decided that the restriction on males with male buggery violated the Basic Law, the mini-constitution of Hong Kong.

[2] The other guiding principles are: Clarity of law and adherence to the International Covenant on Civil and Political Rights (ICCPR) and the Hong Kong Bill of Rights Ordinance (Cap 383 LHK).

[3] 'The Law Reform Commission', Available at:
http://www.hkreform.gov. (1 Nov 2013 last accessed).

[4] For details, please see Chapter 6, Chiu (2006).

[5] As Sharpe and Boucher write: 'Žižek argues that humans' beliefs, like our desires and affects, are shaped to a far greater extent than we consciously recognize by our suppositions about what others believe and enjoy.' (emphasis original). (Sharpe & Boucher 2010: 53)

[6] Sharpe and Boucher further explain the principle: 'Desire of the Other means the 'fatal attraction' humans have 'towards what is prohibited, transgressive, transcendent, off limits…its satisfaction always points the subject "beyond Law" towards what we fantasise has been lost to us as civilized, "castrated" subjects.' (Sharpe & Boucher 2010: 51)

[7] Sharpe & Boucher (2010: 51). Jouissance is the product of following and obeying a dominant ideology (e.g. heterosexist patriarchy), 'where things go too far, where pleasure turns into pain, as an unbearable excessive pleasure'. Parker (2004, 61) Žižek argues that the death drive, the 'blind, indestructible insistence of libido' that makes humans enjoy nonstop repetition of painful experience, forbids them from fully immersing themselves into the common sense world: '[death drive] designates a blind persistence which follows its path with utter disregard for the requirements of our concrete life-world.' (Žižek 2006: 62-63; Žižek 2008a: xvi).

[8] [1956] Crim LR 52.

[9] Vighi & Feldner (2010: 39).

[10] Žižek (2006b, 42).

[11] Žižek puts forward a very interesting example: 'when I desire a strawberry cake and cannot get it in reality, I fantasize about eating it; the problem is rather, how do I know that I desire a strawberry cake in the first place? This is what fantasy tells me.' (Emphasis Original) (Žižek 2014: 26).

[12] Dean (2006: 12).

[13] Rickert (2007: 62).

[14] Rickert (2007: 20).

[15] Ryder accurately describes the difficulties of being a conformative female and male under heterosexism: '…for straight women, social acceptance may often come at the expense of elements of financial, emotional, and physical security in their intimate relationship. Many of the "privileges" enjoyed by straight women may be quite illusory, if, for example, the economic benefits remain in the control and at the disposal of their male partners.' (Ryder 1991: 291) '…the heterosexual privilege of, say, straight black men takes a very different shape in their lives than it does for straight white men. For one, black men have to contend with the fact that the "prevailing Western concept of sexuality already contains racism"; in racist ideology, black men's bodies are made to bear a disproportionate responsibility for the brutality of male sexuality in a sexist society. (Ryder 1991: 292).

[16] 'Being raped and then forced to experience trauma' (trans., 被強姦還要自揭傷疤) http://hk.apple.nextmedia.com/. (1 May 2014 date of last access).

[17] Žižek (2013).

[18] Žižek (1994: 54). For a detailed discussion on how lifestyle interacts with law and creates effective governance of 'deviance', consult Valverde (2003).

[19] Žižek (2006b: 81); Myers (2003: 53). Myers goes on and argues that: 'the authority of the law stems not from some concept of justice, but because it is the law…If the law is to function properly, however, we must experience it as just.' (Myers 2003: 54)

[20] Kul-Wa & Piero (2011: 71).

[21] Chiu (2014).

[22] Kul-Want & Piero (2011: 118).

[23] Butler, Lacalu & Žižek (2000: 123-124).

[24] Žižek (2004c: 121).

[25] Devenney (2007).

[26] Foucault (1978).

[27] Foucault (1978: 157).

[28] Black (1998: 51).

[29] Chiu (2006).

[30] Žižek (2004b, 510).

[31] A Master Signifier 'is an empty signifier which has no signified content, and which unifies a field of meaning precisely through this very lack or inconsistency.' (Wood 2012, 8) Žižek writes: 'Lacan's "Master Signifier" is the "subjective" signifiying feature which sustains the very "objective" symbolic order: if we abstract this subjective excess from the objective symbolic order, the very objectivity of this order disintegrates.' (Butler, Laclau & Žižek 2000, 239)

[32] Kay (2003, 5); Wood (2012, 30).

[33] Wood (2012: 15).

[34] Žižek (2014: 136).

[35] Žižek (2014: 139).

[36] Devenney (2007: 56).

[37] Goodchild (1996: 2). Guattari and Rolnik provide further elaboration of the concept: 'The attempt at social control on a world scale through the production of subjectivity clashes with considerable factors of resistance from processes of permanent differentiation that I would call "molecular revolution".' (Guattari & Rolnik 2008.

[38] De Bolle 'Desire and Schizophrenia' in De Bolle (ed) (2010: 8).

[39] Goodchild (1996: 74).

[40] Goodley (2007, 147). Desire, to Deleuze, means the state of impulses and drives. (Smith 2012: 182).

[41] Winslade (2009, 336, 337); Crockett (2013: 61).

[42] Jun (2009, 351).

[43] Sutton & Martin-Jones (2008: 6); Rizzo (2012). According to Goodchild, 'Lines of flight escape from machinic functioning and social subjection by functioning as cutting edges of deterritorialization that continually change the nature of the entire machine.' (Goodchild 1996: 170)

[44] Murray (2013: 48).

[45] Goodchild (1996: 3).

[46] Deleuze (1995: 173); Lorraine (2011:76); Rizzo (2012: 54). As Faber elaborates: 'the event of becoming is the process by which nothing that happens is, in its subjective / objective moments, a predicate of an underlying substrate; rather, that which becomes repeats and alters patterns, structures, or modes of existence in order to become what it seems to be from the outset, but only is by re-instantiating such patterns in new events.' (Faber 'Introduction: Negotiating Becoming' in Faber & Stephenson (eds) (2011: 13)). Please note that the repetition in this context is not the 'repetition of the Same', but 'repetition of differences', which is hidden under the former (Crockett 2013: 30).

[47] Crockett (2013: 17).

[48] Bryant (2008, 58).

[49] HCAL 160 / 2004.

[50] Murray (2013: 149).

[51] HCAL 160 / 2004.

[52] Rajchman (2000, 153).

[53] Faber 'Introduction: Negotiating Becoming', in Faber & Stephenson (eds) (2011: 13).

[54] Rajchman (2000, 267).

[55] Beckman (2014: 104).

[56] Bignall, Simone 'Affective Assemblages: Ethics beyond Enjoyment' in Bignall and Patton (eds) (2010: 83, 84).

[57] Buchanan (2008a: 45).

[58] Capeheart & Milovanovic (2007: 125).

[59] Goodchild (1996: 146).

[60] Lefebvre (2008).

[61] Cap 480 LHK.

[62] Beckman (2013: 6).

[63] It may be argued that not only do Foucault and Deleuze not share the same understanding of sexuality and desire, but Deleuze also criticizes Foucault for not constructing a meticulous resistance strategy as argued by Beckman (Beckman 2013: 21, 22). However, as pointed out by Beckman, when it comes to the constitution of subjectivity, Foucaultian analysis of desire is 'akin' to the way Deleuze and Guattari see it. (Beckmann 2013: 25).

[64] Beckman (2013: 7).

[65] Noys (2008).

[66] Bignall, Simone 'Affective Assemblages: Ethics beyond Enjoyment' in Bignall and Patton (eds) (2010: 99).

[67] Please note that there is a great difference between Daoism as a school of philosophical thought and Daoism as a religion. The former puts the focus on the theoretical investigation of the dynamics among nature, life, death and freedom, while the latter stresses spiritual practice, with the ultimate goal of achieving immortality. For details, please see Wang (trans., 王澤應) (2003) and Lee (李豐楙) (2002).

[68] Yi is generally used as the interpretation for 'Justice' in a Han-Chinese context. The inter-relationship between Justice and Yi is further elaborated below. Please also note that Han-Chinese is the term for the dominant race in Greater China.

[69] Wang (trans., 王澤應) (2003: 98); Wang (王慶節) (2004: 149); Fei (費小兵) (2013: 4, 75).

[70] Chapter 34, Lao Zi (老子)(see Chan (陳榮捷) 1963: 157).‧

[71] Liao (2014: 3).

[72] Fei (費小兵) (2013: 5, 132).

[73] Chapter 48, Tao De Ching (trans. Legge) Available: http://www.sacred-texts.com/. (8 April 2013 last accessed).

[74] Chapter 80, Tao De Ching (trans. Legge) Available: http://www.sacred-texts.com/. 8 April 2013 last accessed).

[75] Fei (費小兵) (2013: 283).

[76] Chapter 26, Lao Zi (see Chan (陳榮捷) 1963: 153).

[77] Fang (方東美) (2004: 303).

[78] Chuang Zi Available: http://users.wfu.edu/. (18 April 2014 last accessed).

[79] Chapter 32, Chuang Zi (莊子‧列禦寇) Available: http://nothingistic.org/. (14 May 2006 last accessed).

[80] Wang (王慶節) (2004: 144).

[81] Jiang (2002: 38).

[82] In the re-construction of Yi, traditional Han-Chinese culture still plays a very significant role. Even though tradition is part of history, according to Deleuzean philosophy, it is still instrumental in contemporary society. Underlying the process of repetition is the Deleuzean concept of time / history - repetition comes from experiences: it can be a synthesis of experiences in the present and create an expectation of the future. In other words, the present always has an aspect of the 'past' so that it can becomes part of the past / history: 'all of the past coexists with the new present, in relation to which it is now past.' (Deleuze 1994: 111) Deleuzean theory therefore challenges the common thought of time - time is a joining up of movement and a linear summary of action which moves and becomes. But from Deleuze's perspective, history is divergent temporalities and moments by which a macro-worldview can be reproduced. From a Deleuzean philosophical paradigm, we can understand why Tipps stressed that tradition is an integral part and product of modernity. (Fu 2008; 297) History, as argued by Grosz, is still influential through 'its capacity to link to and thus to inform the present.' (Grosz 2005, 102). As Hu puts it: the traditional legal system structures our contemporary concept of Yi / justice. (Quoted in Fu 2008: 360)

[83] Lin (2007: 437). Yu (2014) has a very different view: he insisted that Yi and justice share the exact same meaning; however, he admitted that the Confucian notion of Justice (i.e. Yi) lacks the element of equality.

[84] One of the schools of thought developed in the West Zhou Dynasty (1046-771 BC). It was developed by Mo Zi (墨子), whose theory was based on the concept of Yi, which comes from the will of Heaven.

[85] Wang (trans., 王澤應) (2003: 71).

[86] Wang (trans., 王澤應) (2003: 139).

[87] Koller (2002: 288).

[88] Ng (1998: 9); Wang (王慶節) (2004: 217).

[89] Wang (trans., 王澤應) (2003: 93); Ng (1996: 179-180).

[90] Ng (1998: 35).

[91] Chapter 42, Lao Zi (老子) (see Chan (陳榮捷) 1963: 160).

[92] Fei (2013: 166).

[93] A number of scholars tend to equate the Li-Fa / Law system with a civil law - criminal law binarism (Yu (俞榮根) (1999)); however, the civil law - criminal law dichotomy is not a singular legal structure, and the reduction of Li-Fa / Law only omits the particularly complicated and inter-constitutitve connection between Li and Fa / Law in the Han-Chinese cultural machine, where Li was the moral interpretative reference of Fa / Law. (Chu 1998). That is why I use Fa / Law, instead of 'Law', so as to stress the singularity of the legal system in ancient China.

[94] Chapter 57 Lao Zi (老子) (see Chan (陳榮捷) 1963: 166).‧

[95] Liao (2014: 4).

[96] Chen (1988: 1).

[97] Chen (trans., 陳瑛珣) (2004: 215).

[98] Ho (何信全) (2002).

[99] Any transplantation of law without sensitivity towards a possible conflict of cultures can lead to failure and / or postcolonial violence. That is why I argue that a very in-depth investigation of cultural contexts need to be carried out before engaging in any transplantation of law. Chiu (2010).

[100] Chiu (2008).

[101] Chapter 2, Lao Zi (老子) (see Chan (陳榮捷) 1963: 140). See also Fei (費小兵) (2013: 106).

[102] Ng (1998: 1-2).

[103] Žižek (2013: 92).

Works Cited

English

Beckman, F. (2013). Between Desire and Pleasure: A Deleuzean Theory of Sexuality. Edinburgh: Edinburgh University Press.

Bignall, S. & Patton, P. (Eds.). (2010). Deleuze and the Postcolonial. Edinburgh: Edinburgh University Press.

Black, J. (1988). Taking the sex out of sexuality: Foucault's failed history in Lamour, David et al, eds. Rethinking Sexuality: Foucault and Classical Antiquity. Princeton: Princeton University Press.

Bryant, L. (2008). Difference and Givenness: Deleuze's Transcendental Empiricism and the Ontology of Immanence. United States of America: Northwestern University Press.

Buchanan, I. & Parr, A. (Eds.). (2006). Deleuze and the Contemporary World. Edinburgh: Edinburgh University Press.

Butler, J. & Lacalu, E., Žižek, S. (2000). Contingency, Hegemony, Universality: Contemporary Dialogues on the Left. London: Verso.

Capeheart, L. & Milovanovic, D. (2007). Social Justice: Theories, Issues and Movements. United States of America: Rutgers University Press.

Chan, W. T. (陳榮捷) (1963). A Source Book in Chinese Philosophy. Princeton: Princeton University Press.

Chiu, M. C. (2009). Beyond colonialism: osmotic reconstruction of gender / sexual justice. Inter-Asia Cultural Studies, 10(3), 399-421.

Chiu, M. C. (2014). Desiring Justice, Acting Jnana: Transforming the Transsexual Legal Fantasy from the Perspectives of Žižekian and Mahayana Buddhist Philosophies in Shipley, Heather (Ed.). Globalized Religion and Sexual Identity: Contexts, Contestations, Voices. Boston: Brill.

Crockett, C. (2013). Deleuze Beyond Badiou. New York: Columbia Unversity Press.

De Bolle, L. (Ed.). (2010). Deleuze and Psychoanalysis. Leuven, Belgium: Leuven University Press.

Dean, J. (2006). Žižek's Politics. New York: Routledge.

Deleuze, G. (1994). Differences and Repetition. New York: Columbia University Press.

Deleuze, G. (1995). Negotiations. New York: Columbia University Press.

Deleuze, G. (1997). Essays Critical and Clinical. Minneapolis, Minn: The University of Minnesota Press.

Faber, R. & Stephenson, A. (Eds.). (2011). Secrets of Becoming New York: Ford University Press.

Goodchild, P. (1996). Deleuze and Guattar: An Introduction to the Politics of Desire. London: Sage.

Goodley, D. (2007). Becoming rhizomatic parents: Deleuze, Guattari and disabled babies. Disability and Society, 22(2), 145-160.

Grosz, E. (2005). Time Travels - Feminism, Nature, Power. Durham: Duke University Press.

Guattari, F. & Rolnik, S. (2008). Molecular Revolution in Brazil. New York, USA: Simotext(e).

Jun, N. (2009). Deleuze and Normativity. Philosophy Today, 53(4), 347-358.

Koller, J. (2002). Asian Philosophies (4th ed). New Jersey: Prentice Hall.

Kul-Want, C. & Piero. (2011). Introducing Žižek. Malta: Gutenberg Press.

Lefebvre, A. (2008). The Image of Law: Deleuze, Bergson, Spinoza. Stanford: Stanford University Press.

Liao, H. H. (2014). Becoming Gad, and Dog: Taoist You, Deleuzian Nomadism and God, Man , Do. Paper presented in Conference on Deleuze's Cultural Encounters with the New Humanities, organized by Hong Kong Shue Yan University, Utrecht University (9-12 June 2014).

Linstead, S. & Pullen, A. (2006). Gender as multiplicity: Desire, displacement, difference and dispersion. Human Relations, 59(9), 1287-1311.

Lorraine, T. (2011). Deleuze and Guattari's immanent ethics. New York: State University of New York Press

Murray, J. (2013). Deleuze & Guattari: Emergent Law. New York: Routledge.

Myers, T. (2003). Slavoj Žižek. London and New York: Routledge.

Noys, B. (2008). The End of the Monarchy of Sex: Sexuality and Contemporary Nihilism. Theory, Culture & Society, 25(5), 104-22.

Parker, I. (2004). Slavoj Žižek: A Critical Introduction. London: Pluto.

Parr, A. (Ed.). (2005). The Deleuze Dictionary. United Kingdom: Columbia University Press.

Rajchman, J. (2000). The Deleuze Connections. London: MIT Press.

Rickert, T. (2007). Acts of Enjoyment: Rhetoric, Žižek, and the Return of the Subject. Pittsburgh, PA: University of Pittsburgh Press.

Rizzo, T. (2012). Delezue and Film: A Feminist Introduction. New York: Continuum.

Scuillo, N. (2011). Žižek/Questions/Failing. Willamette Law Review, 47, 286-325.

Sharpe, M. & Boucher, G. (2010). Žižek and Politics: An Critical Introduction. Edinburgh: Edinburgh University Press.

Smith, D. (2012). Essays on Deleuze. Edinburgh: Edinburgh University Press.

Sutton, D., Martin-Jones, D. (2008). Deleuze Reframed. London: I B Tauris.

Vighi, F. & Feldner, H. (2010). From subject to politics: The Žižekian field today. Subjectivity. 3(1), 31-52.

Ryder, B. (1991). Straight Talk: Male Heterosexual Privilege. Queen's LJ, 16, 287-312.

Sharpe, M. & Boucher, G. (2010). Žižek and Politics: An Critical Introduction. Edinburgh: Edinburgh University Press.

Wilhelm, R. (1967). I Ching / Book of Change. Princeton: Princeton University Press.

Winslade, J. (2009). Tracing Lines of flight: Implications of the Work of Gilles Deleuze for Narrative Practice. Family Process, 48(3), 332-346.

Wood, K. (2012). Žižek: A Reader's Guide. UK: Wiley-Blackwell.

Žižek, S. (1994). Metastases of Enjoyment. London: Verso.

Žižek, S. (2004). From Politics to Biolpolics…and Back. The South Atlantic Quarterly, 103 (2/3), 501-521.

Žižek, S. (2004). For They Know Not what They do. London: Verso.

Žižek, S. (2006). How to Read Lacan. New York and London: W. W. Norton & Co.

Žižek, S. (2008). For They Know Not What They Do: Enjoyment as a Political Factor. London: Verso

Žižek, S. (2012). Less than Nothing. London: Verso.

Žižek, S. (2012). Slavoj on Buddhism and Self. Retrieved January 22, 2013, from http://bigthink.com/ (visited 22 Jan 2013).

Zižek, S. (2013). Demanding the Impossible. Cambridge, UK: Indigo.

Zižek, S. (2014). Event. London: Perguin.

Chinese

Chang, H. H. (張小虹) (2007). Fake Globalization (假全球化). Taiwan: Unitas (聯合文學).

Chen, G. Y. (陳鼓應) (2010). Philosophy of Chuang Zi (莊子哲学). Taiwan: Commercial Press.

Chen, G. Y. (陳鼓應) (2001). The Renewal of the Taoist Tradition in Contemporary World. Philosophical Forum, 37 , 136-143.

Chen, G. Y. (陳鼓應) (2003). 道家易学建構. Taiwan: Commercial Press.

Chen, G. Y. (陳鼓應 (2010). (編). 「莊子研究」專號 25道家文化研究.

Chen, Y. X. (陳瑛珣) (2004). Qing judgments and freedom of female desire (清代判牘書寫 與女性情慾自由). Xie, W. L. (謝臥龍) (Ed.). Gender, Power and Knowledge (知 識 型構中性别與權力的思想與辯証). Taipei: TonSan.

Chiu, M. C. (2006). Eros of Law -- Postcolonial Han-Chinese Erotic Politics and Legal Discourse (色 / 法 -- 後殖民漢/華人性慾政治與法律論述). Hong Kong: Xin Hua (2006).

Chiu, M. C. (2008). A Hybrid of Harmony and Resistance at the Margin: Legal Discourse of Gender / Sexual Justice in Hong Kong, PR China (邊緣的和諧反抗混雜-- 香港性/別 公義法律論述). Journal of Social Sciences, 35, 179-201.

Chu, Y. W. (1998). Otherness Machine? Essays on Postcolonial Hong Kong Culture (他性 機器?後殖民香港文化論集). Hong Kong: QingWen (青文).

Fang, D. M. (方東美) (2004). Orthodox Confucianism and Daoism (trans., 原始儒家道家 哲学). Taipei: LiMing (黎明).

Chen, G. Y. (陳鼓應), Feng, D. W. (trans., 馮達文). (Ed.). (2001). Daoism and Dao Religion (trans.,道家與道教). GuangZhou: GuangZhou People.

Fei, X. B. (費小兵) (2013). Research on Legal Perspective of Lao Zi ( trans., <老子>法观 念探微). Beijing: China University of Politics and Law Press.

Fu, P. J. (傅佩榮) (1994). Comparative and Critical Studies of Lao Zi's metaphysics (trans., 從比較的角度反省老子『道』既概念的形上性格). Journal of Philsophy (哲學雜誌), 7, 24-37.

Fu, Z. T. (付子堂) (Ed.). (2008). Lectures on Jurisprudence (法理學講演錄) (Vol. 3) Beijing: Law Press.

He, X. Q. (何信全) (2002). The Future of Confucian Political Philosophy (儒家政治哲學 的前景) in Huang, C. C.(黃俊傑) (Ed.). The Agitation and Engagement of Traditional Chinese Culture and Contemporary Values (trans., 傳統中華文化與現代 價值的激 盪與調融). Taipei: Himalaya Foundation (喜瑪拉雅研發展基金), 208-228.

He, Q. H. (何勤華) (Ed.). (2007). Multiple Legal Culture (trans. 多元的法律文化). Beijing: Law Press.

He, Q. H. (何勤華) (Ed.). (2008). Hybrid Legal Culture (trans. 混合的法律文化). Beijing: Law Press.

Jiang, S. (江山)(2005). Concept of Chinese Law (trans., 中国法理念). Beijing: China University of Political Science and Law

Ng, Y. K. (吳汝鈞) (1998). Contemporary Analysis of Lao-Chuang Philosophy. Taipei: WenJin.

Wang, Q. J. (王慶節) (2004). Heidegger and a Hermeneutical Interpretation of Confucianism and Daoism. Beijing: RenMin University Press

Wang, Z. Y. (王澤應) (2003). ZiRan Yu DaoDe. Changsha: HuNan University Press.

Yu, R. G. (俞榮根) (2014). Confucian Justice and Chinese Legal System (儒学正义論與中 華法系). Research on Rule of Law (法治研究), 1, 3-11.

Zhao, Z. W. (趙中偉) (2004). Dao: Honoured Ancestor of all things (道者:萬物之宗). Taipei: HungYeh (洪葉)。

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