作者 ｜
陳昭如(台灣大學法律學系)
摘要 ｜
近二十年來，婦運的法律改革大幅改寫了法律上的婚姻與家庭關係圖像。長
年以來受到批評挑戰的夫／父權獨大的惡法，多已被男女相同待遇的新法取代。
這是否表示，法律上的婚姻家庭制度已經趨於自由且平等，婚姻家庭已不再是父
權的桎梏，而成為可自由選擇的平等關係？觀諸台灣的社會現實，女性在婚姻家
庭中的處境仍然不平等，這是否證明了法律與社會之間存在重大落差、因此法律
無能改變社會？本文藉由回顧婦運法律改革的軌跡、考察社會現實，來檢討婦運
法律改革的成果與困境，論證法律與社會之間的落差並非此困境的適當解釋，主
張實質平等的轉向才是關鍵所在。本文首先分析民主化之後，婦運改造父權婚姻
家庭的法律改革特色：「中性化」與「私化」，亦即以中性待遇取代男女差別待
遇、以私人的自由協商來取代國家強制，而婚生推定與結婚年齡則是殘存的差別
待遇之例。婚生推定制度與結婚年齡制度的設計，都預設了男性標準：母職的義
務性與婚姻作為義務性母職的機制，並可用以說明「以差別待遇說明性別歧視」
的不足之處。在中性法律之下的不平等現實：多數小孩仍從父姓，多數妻子仍從
夫居，多數外國妻子歸化我國國籍，則顯示「法定從父姓」與「約定從父姓」、
「法定從夫居」與「協議夫妻住所」、「法定從夫之國籍」與「自由選擇歸化」的
結果並無太大不同：女人仍從屬於男人。因此，壓迫並未成為過去式，只是轉
型：不平等變成人們「自由選擇」的結果，「私化」更讓國家得以隱身在維繫不
平等的中性法律背後。法律與社會之間的「落差」並不足以解釋不平等的現象，
反而可能讓我們錯失開展不同法律想像的可能。婦運也面臨對抗多元交織壓迫的
困境，而身障、原住民反歧視法中展現的實質平等精神，則是婦運可汲取養分之
處。最後，本文主張，性別的現狀仍是不平等，而實質平等的轉向將可讓我們更
清楚地揭露形式平等的隱形牢籠，並且撼動多元交織的高牆。
關鍵字 ｜
婦運、法律改革、形式平等、實質平等、多元交織性、婚姻 與家庭
Title ｜
婦運、法律改革、形式平等、實質平等、多元交織性、婚姻 與家庭
Author ｜
Chao-Ju Chen(Department of Law National Taiwan University)
Abstract ｜
In the past twenty years, legal reform has significantly reformulated
the legal regulation of marriage and family, which has long been under
contestation from feminist critics. Gender-neutral laws have replaced
gender-specific laws which privileged sons, husbands and fathers. Does
this suggest that marriage and family are free and equal institutions in law,
that marriage and family have stopped being patriarchal institutions, and
that they begin to be equal relationships that are freely-chosen? In reality,
this does not seem to be the case. Does the fact that women remain unequal
in marriage and family indicate a huge gap between law and society, and
therefore suggest that we cannot change society through law? This article
offers a review of feminist legal reform and a reality check. It argues that
the gap between law and society cannot adequately explain the difficulties
of this reform, and suggests that a turn to substantive equality is the key to
real change. It begins by identifying two trends of feminist legal reform:
neutralization and domesticization, that is, to replace gender-specific
treatments with gender-neutral treatments, and to replace state intervention
with private decisions. Two of the remaining gender-specific legal
treatments are marriage-presumption of paternity and marriageable ages.
Both of these legal treatments presume a male standard, that is, mandatory
motherhood and marriage as an institution of mandatory motherhood.
Aside from this, the reality under neutral laws is an unequal one: most
children adopt their fathers’ surnames, most wives live in their husbands’
domiciles, and most foreign wives naturalize. There is little difference
between legal patronymy and parents’ choice, legal patrilocality and a
couple’s choice, marital expatriation and a wife’s choice. Women are
still subordinate to men. Oppressions have been transformed rather than
abolished: inequality becomes the result of free choice, and privatization
exempts the state from its anti-discrimination responsibility. The gap
between law-in-books and law-in-action does not offer satisfactory
explanations, and it might lead us away from an alternative imagination
of the law. The women’s movement also has difficulties in dealing with
intersectional oppressions. Lessons can be learned from legislations on
disability and aboriginal rights, which embrace substantive equality. It is
concluded that the status quo is unequal, and a turn to substantive equality
will enable us to reveal the invisible cage of formal equality and combat
interlocking oppressions.
Keywords ｜
In the past twenty years, legal reform has significantly reformulated the legal regulation of marriage and family, which has long been under contestation from feminist critics. Gender-neutral laws have replaced gender-specific laws which privileged sons, husbands and fathers. Does this suggest that marriage and family are free and equal institutions in law, that marriage and family have stopped being patriarchal institutions, and that they begin to be equal relationships that are freely-chosen? In reality, this does not seem to be the case. Does the fact that women remain unequal in marriage and family indicate a huge gap between law and society, and therefore suggest that we cannot change society through law? This article offers a review of feminist legal reform and a reality check. It argues that the gap between law and society cannot adequately explain the difficulties of this reform, and suggests that a turn to substantive equality is the key to real change. It begins by identifying two trends of feminist legal reform: neutralization and domesticization, that is, to replace gender-specific treatments with gender-neutral treatments, and to replace state intervention with private decisions. Two of the remaining gender-specific legal treatments are marriage-presumption of paternity and marriageable ages. Both of these legal treatments presume a male standard, that is, mandatory motherhood and marriage as an institution of mandatory motherhood. Aside from this, the reality under neutral laws is an unequal one: most children adopt their fathers’ surnames, most wives live in their husbands’ domiciles, and most foreign wives naturalize. There is little difference between legal patronymy and parents’ choice, legal patrilocality and a couple’s choice, marital expatriation and a wife’s choice. Women are still subordinate to men. Oppressions have been transformed rather than abolished: inequality becomes the result of free choice, and privatization exempts the state from its anti-discrimination responsibility. The gap between law-in-books and law-in-action does not offer satisfactory explanations, and it might lead us away from an alternative imagination of the law. The women’s movement also has difficulties in dealing with intersectional oppressions. Lessons can be learned from legislations on disability and aboriginal rights, which embrace substantive equality. It is concluded that the status quo is unequal, and a turn to substantive equality will enable us to reveal the invisible cage of formal equality and combat interlocking oppressions.