Beijing Law Review, 2012, 3, 92-102 Published Online September 2012 (
Un/Controlling Desire, Becoming Others Negotiating
Justice in the Hong Kong Milieu of Mainland Pregnant
Women Influx*
Man-Chung Chiu
Department of Law and Business, Hong Kong Shue Yan University, Hong Kong, China.
Received May 18th, 2012; revised June 17th, 2012; accepted June 28th, 2012
In the article, I attempt to construct a singular perspective of justice by comparing different paradigms of justice—
Rawlsian philosophy, Buddhist ideology and Deleuzean theory in the context of Hong Kong where there has been in-
creasing resistance among local people against the influx of Mainland pregnant women, who are regarded as outsiders
depriving the local community the much needed local (medical) resources.
Keywords: Justice; Law; Desire; Identity; Fairness; Bija; Becoming
1. Introduction
Since March 2011, the increasing number of Mainland
pregnant women using Hong Kong obstetrics services
has ignited/surfaced the continuing (yet implicit) conflict
between Mainlanders and HongKongers.1 The tension
started with the competition for the medical facilities,
and now extends to many other facets of lives including
social welfare and housing; hence, a binarism of “Main-
landers/Locust vs. HongKongers /Dogs”2 develops fast
and strong in mass media and internet. In this article, I
attempt to construct a philosophical perspective by which
justice can be created and engineered in this context by
comparing and engaging three philosophical paradigms—
Rawlsian justice, Buddhist equality and Deleuzean be-
coming. I argue that the three philosophical perspectives
interact with different views on desire and identity; it is
also through desire and identity, three philosophical per-
spectives engage with each other and are sensitized to-
wards each other’s weak point: while Rawls proposes a
very well structured set of principles in producing pro-
cedure so as to settle conflicts justly, caused by different
life plans, which are the realization of different desires,
both Buddhism and Deleuzean philosophy ask critically
respectively if it is possible to devise a discursive identity
and machine of justice creation. However, then can
Buddhism and Deleuzen theory, which contradicts each
other with respective views on desire, develop a positive
step by step guideline, like what Rawlsian formulae do,
to release the current intensifying tension soonest? In this
article, I will discuss the possibility of developing a way
through which three paradigms can cooperate, in the
context of the Mainlanders vs. HongKongers clichotomy.
Let us start with the introduction of the conflict.
2. Production and Intensification of
Mainlanders vs. HongKongers Binarism
The recent conflict between Mainlanders and HongKon-
gers started in March 2011, when the influx of Mainland
pregnant women (whose husbands can be either residents
or non residents of Hong Kong) seems depriving the
Hong Kong mothers-to-be of the opportunity to enjoy the
medical service provided by Hong Kong local hospitals.3
Hong Kong SAR Government, in order to deal with the
intensifying discontent among locals, formulate a few
policies: 1) Increasing the cost: Raise the obstetrics
3K. Wu, “Great Expectations in Hong Kong,” 2011, China Daily 11
March, H4. According to a report, “A local man, whose mainland wife
is due to give birth in November [2011], still cannot find an obstetric
bed in Hong Kong [in July 2011]…The husband said that in the past
few months he had contacted all 10 local private hospitals with mater-
nity series and more than 30 doctors in a bid to secure a bed. ‘All o
them say they can’t help us, some can only put us on a waiting list, but
they say the chance is slim,’ he said.” (F. Tam and E. Lee, “Mainland
wives rush to book hospital beds,” 2011, South China Morning Post 21
July, CITY3)
*Special thanks go to Professor Lawrence Lau of Fudan University,
Shanghai for his valuable advice for the initial draft of this paper.
1The number of Mainland pregnant women giving birth in Hong Kong
has risen from 27,000 in 2007 to 40,000 in 2010 (HK Liberal Studies,
available at:
2For details of the related debate, please see the “Conclusion”.
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Un/Controlling Desire, Becoming Others Negotiating Justice in the Hong Kong Milieu of Mainland Pregnant Women Influx 93
package fee for non-local pregnant women on 4 March
2011;4 2) Setting a quota: Starting in March 2011, Hong
Kong public hospitals had stopped taking non-local
pregnant women until the end of 2011. In April 2011, the
Hong Kong SAR Government agreed to put a cap on the
number of non local pregnancy cases at 88,000 per year.5
In May, 2011, the government set up a working group to
determine the number of births public hospitals can han-
dle every year; 3) Issuing Booking Confirmation Certifi-
cate: After the government had urged the private hospi-
tals to reject doctors if they were found issuing the
booking confirmation certificate6 to non-local pregnant
women before they came for assessment, the government
then decided to centralize the issue of certificate; and
new guidelines were issued—women whose pregnancies
do not look normal will not be allowed to labor in Hong
Kong;7 and 4) Tighten the border control: Mainland
pregnant women without relevant documents (for in-
stance: Confirmation Certificate) will not be permitted to
enter into Hong Kong. Mainland authority have also dis-
couraged the Mainland pregnant women from using
Hong Kong medical facilities: 1) The Family Planning
Committee of Guangdong Province state that any second
child of a first marriage couple, no matter s/he is born in
Mainland, will be counted as “additional”, i.e. the parents,
should they be the civil servants, shall be dismissed;8 and
2) Xiao-Dan Zhu, the Governor of Guangdong Province,
stated in March 2012 that the agency who arranged the
Mainland pregnant women arriving at Hong Kong would
be cracked down.9
While no one knows if the policies can work effec-
tively, the influx of mainland pregnant women has al-
ready given rise the “anti-locust” campaign—a campaign
initiated by a group of Hong Kong netizens. They raised
fund for a front page advert in newspaper to criticize
Mainlanders who visited Hong Kong, claiming that they,
like locust, are swamping Hong Kong resources.10 Also,
according to Yung Jhon, one of the organizers of the
campaign, Hong Kong residents were also unhappy with
the usage of simplified Chinese characters in Hong Kong
and the way Mainlanders “splash” their cash on the local
property market, leading to record high property price
and rental rates.11 The “anti-locust” advertisement, enti-
tled “HongKongers have had enough”, appeared on 25
January 2012, in Apple Daily, one of the best selling
newspapers in Hong Kong.
In response to the accusation, some Mainlanders argue:
“We are not eating on Hong Kong’s welfare money. To
the contrary, we boost local consumption in Hong Kong
and our children might help solve the aging problem it’s
facing.”12 It seems so true as the private hospitals earn
approximately HK$ 1 billion each year from serving the
Mainland pregnant women.13 The editorial of South
China Morning Post wrote: “Given the birth rate here [i.e.
Hong Kong] is among the world’s lowest, there is a
strong case for better accommodating mainland mothers
by expanding the capacity of our obstetric services in
private hospitals in the longer term.” It also reminded us
that Hong Kong’s medical service was identified by the
Hong Kong SAR Government as one of the six pillars for
the future economic prosperity.14 It is in this context the
following question is asked: “How can Hong Kong, with
such a low birth rate, supported with government policy
to develop the medical industry including a reputable
hospital system, not provide sufficient beds for local
mothers or mainland mothers with local husbands?”15
4Wu, supra note 3. The Hong Kong SAR Government in fact had al-
ready started a booking system for non-local pregnant women in Feb-
ruary 2007: they are required to pay HK$ 39,000 when they made the
appointment; the Hospital Authority would then issue them a booking
confirmation certificate and only with that certificate, the non local
women (including Mainland pregnant women) can cross the
border. For those used the facilities in Hong Kong hospital without
booking—in theory, they could not cross the border—they would
have to pay HK$ 90,000. The court, in Fok Chun-wa v. The Hospital
uthority and The Secretary for Food and Health FACV 10/2011, para
33, held that, although the policy is discriminatory against mainlanders,
since status of residence is not part of the core human right values, such
olicy is legitimate especially in the context where resources are lim-
ited. (para. 77).
5D. Chong, “Border block urged to ease birth pains for hospitals,” 2011
ong Kong Standard 6 April, P7. But the doctors working in public
hospitals suggested a more rigourous measure: all pregnant mainland-
ers whose husbands are not Hong Kong residents, should be banned
from using Hong Kong obstetrics service. (D. Chong, “Hospitals face
birth caps to combat mainland rush,” 2011, Hong Kong Standard 7
April, P6) But, Mr. Chun-ying Leung, the Chief Executive-elect on 16
April 2012 announced that there will be “zero quota’’ for pregnant
mainland women whose husbands are nonresidents’ starting in 2013.
(“Doors shuts on moms,” Hong Kong Standard 17 April 2012).
6Y. H. Ng, “HK to tighten checks on mainland mums,” 2011, South
China Morning Post 29 April, EDT 3.
7See also Fok Chun-wa v. The Hospital Authority and The Secretary
Food and Health FACV 10/2011, para. 33.
8Wu, supra note 4.
9“Hong Kong requests China to halt influx of pregnant women,” avail-
able at:
10A. Lee, “Internet abuzz with ‘anti-locust’ front-page ad drive,” 2012,
South China Morning Post 26 Jan, CITY1.
11V. Chow, “Anger at mainlander visitors escalates with ‘locust’ ad,”
2012, South China Morning Post 1 February, CITY1.
12Wu, supra note 8.
13Chong, supra note 5. The debate with regard to resources becomes
keen when a mock advertisement was uploaded on 26 January 2012 in
the internet forum, saying: “Because you [Hong Kong] are a son, Fa-
ther [Mainland China] gives you 210 billion yuan a year”; in response,
another internet mock advertisement, titled “Reply from your
neighbour”, said: “If the father is giving 210 billion yuan to the son as
ocket money, then the son is paying the father an allowance of 680
billion yuan”. For details, please see Chow, supra note 11.
14“Golden Opportunity for Medical Sector,” South China Morning Post
18 December, EDT12.
15S.C. Song, “Who Causes the Hospital Beds Shortage for Local Moth-
ers?” 2012, China Daily, 19 January, H3.
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Un/Controlling Desire, Becoming Others Negotiating Justice in the Hong Kong Milieu of Mainland Pregnant Women Influx
3. Rawlsian Justice: Rationalizing Desire,
Devising Justice
Should we argue that the tension between Mainlanders
and HongKongers originates from the competition be-
tween Mainland pregnant women and the HongKongers
with regard to the medical resources of Hong Kong, it is
in fact a conflict of desires—the desire to have easier
access to Hong Kong resources available currently? As-
suming the resources are limited, Rawlsian theory, “the
strongest theory of political justice we have” in relation
to resource distribution [1],16 seems to be able to provide
a quick-fix to the question.17
Rarely does the discussion with regard to Rawlsian
justice put the emphasis on desire, but when the concepts
of good and life plan (which are devised to accommodate
different choices and priorities of goods) are put in focus,
we will find that how different individual desires can be
regulated by the procedure is in fact what Rawlsian the-
ory aims at achieving [3]—the key is not what one per-
son chooses, according to her/his desire, but how s/he
chooses [4]. From the Rawlsian point of view, if desire is
not rationalized, it will create problems and intensify
existing conflicts. Desire, after rationalization, becomes
and is termed “good”, as it can improve people’s life qual-
ity [5].18 That also explains why Rawls has to assume
that the human subject’s nature must be free (i.e. no one
owns anyone)19, equal (in terms of power and capacities;
this notion of equality leads to the criticism of hierarchy),
rational (i.e. everyone can seek to maximize one’s self
interest by forming social contract and facilitating social
cooperation) ,20 and reasonable (only if a person is rea-
sonable, s/he can respect each other’s interests, i.e. real-
izing the principles of reciprocity and mutuality);21 be-
cause only with such human nature, desire will and can
be put under control, and individual life plans could be
regulated and accommodated by principles and related
procedures. Put simply, desire would not then disturb the
social co-operations and intensify any existing and pos-
sible conflicts.
Rawls also assumes that everyone can put herself/
himself into the position of others.22 A Rawlsian human
subject also has the capacity for a sense of justice; and a
capacity for a conception of the good;23 in other words,
everyone would 1) accept and understand that the others
also accept Rawlsian justice; and 2) believe that social
institutions can help realize justice.24
Rawlsian principles of justice start with fairness and
are developed with Rawls’s faith in social contract tradi-
tion,25 “with its emphasis on mutual advantage as the
goal of social cooperation”.26 Therefore, to Rawls, soci-
ety is “a cooperative venture for mutual advantage”:27
From this philosophical paradigm, Rawls develops a set
of principles through which desire can be regulated and
thus justice can be created: 1) “[E]ach person is to have
an equal right to the most extensive basic liberty com-
patible with a similar liberty for others”; and 2) Social
and economic inequalities are acceptable if they are ar-
ranged (a) to the greatest benefit to the least advantaged,
and (b) attached to the “offices and positions open to all
under the conditions of equality of opportunity”.28 Ac-
cording to Rawlsian principles and related procedure,
hence, even though inequality is preordained, when it is
accepted by the marginalized powerless in a society, it
becomes positive and productive. In other words, Rawls’s
proposal can prevent inequality from being gross and
extreme, and is able to construct hopes for the socially
marginalized [6]. Please note: The above principles exer-
cise in a lexical order.
Therefore, according to Rawls, if social institutions
(including law and medical services) can formulate sets
of procedures, following his principles, then justice can
be produced even when there are conflicts, created by
different regulated individual desires and related rational
plans of life.29 Hence, an ideal social cooperation (law
making institutions, law enforcement and hospitals), ac-
cording to Rawls, devised to solve the conflicts, should
be conducted by rules and procedures, which are ac-
cepted by the public.30
16Please note: according to Rawls, his theory cannot be applied in pri-
vate zone of life. For details, please see Rawls [2].
17In the context of mainland pregnant women’s influx, it is commonly
believed that there is a limitation of medical services resources in Hong
Kong; for example, Judge Ma, in Fok Chun-wa v. The Hospital Au-
thority and The Secretary for Food and Health FACV 10/2011, writes:
“In the public sphere, financial resources are limited and decisions have
to be made by the Government as to how Hong Kong’s finite resources
are to be utilized…Manpower resources are also finite: there is no
limitless supply of professional or skilled people.” (para. 10).
18See also Yao, supra [4], p. 148.
19Nussbau, supra [1], p. 28.
20Lin, supra [5], p. 6.
21Yao, supra note 18, pp. 5-7. Rawlsian assumption of human subject is
always under criticism—as Martha Nussbaum points out: Rawlsian
notion of human subject excludes people who are mentally and physi-
cal challenged; and Rawlsian version of equality is blind towards the
unequal distribution of authority and opportunity (See Nussbau, supra
note 19, pp. 29, 31).
Rawlsian Perspective on Law and Justice
In sum, what Rawls aims to construct ultimately by de-
vising the principles is a set of “correct” procedures; as
he believes that only through which, a correct outcome—
22Chow, supra [3], p. 193.
23Rawls, supra [2], p. 302.
24Yao, supra note 21, p. 7.
25Nussbau, supra note 21, p. 11.
26Nussbau, supra note 25, p. 58.
27Rawls [7].
28Rawls, supra note 27, pp. 60, 83.
29Chow, supra note 22, p. 188.
30Rawls, supra note 28, pp. 62, 95.
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Un/Controlling Desire, Becoming Others Negotiating Justice in the Hong Kong Milieu of Mainland Pregnant Women Influx 95
justice and fairness—can be guaranteed in a society. If
justice is the most important value for society and social
structures, including law [8],31 it is hence not surprising
when Peter Feng said: it is the duty of law to guarantee the
realization of justice [9].32 Amartya Sen also points out:
John Rawlss right celebrated approach of justice
as fairness yields a unique set of principles of justice
that are exclusively concerned with setting up just insti-
tutions”… while requiring that peoples behavior com-
plies entirely with the demands of proper functioning of
these institutions [10].33
Rawlsian theory is well accepted by Hong Kong Judi-
ciary—Judge Geoffrey Ma, the Chief Justice of Hong
Kong since 2010, offers a very clear definition of justice
in the context of Hong Kong:
Justice requires that no one is above the law; in other
words, equality. Justice also requires that an individuals
rights and liberties must be protected even as against
what may be the views of majority of the public [13].
Analysing the conflict between Mainlanders and
HongKongers from the Rawlsian perspective, we can ask:
Does the influx of Mainland pregnant women really de-
prive Hong Kong pregnant women of the opportunities to
use the local medical services? Would the new law and
regulation negatively affect the opportunity of Mainland
pregnant women using Hong Kong medical facilities?
Would the new law and regulation benefit the least ad-
vantaged group? Would the new law and regulation
guarantee that everyone can enjoy the opportunity in
terms of medical services? However, there are a few
questions that we need to tackle before we can answer
the above questions: Are Mainlanders and HongKongers
coming from the same society? If both groups cannot
share the same view on justice and social institutions
(including law and medical services), then is it possible
for them to form a social contract with mutual advan-
tages? If the answer is no, then another question arises:
can the Rawlsian formulae of justice work between so-
cieties, when there is a (power) difference?34
4. Mahayana Buddhist Schools of
Vijanamatra and Vinaya-Discipline:
Going beyond Desire, Constructing Justice
Justice, under Buddhism, like Rawlsian theory, also starts
with the control of desire and pursuit of equality [14].35
When compared to Rawls, Buddhism provides a more
detailed analysis of desire. In this article, I will use the
classification of desire developed by Shih Chao-Hwei in
“Emotional Connection and Desire: A Buddhist Perspec-
tive”. In the article, Shih Chao-Hwei, agreeing with the
Freudian theory [23], believes that there are five basic
desires [24]: sight, sound, smell, taste and touch. These
desires correspond to five vijnana (consciousness,: visual
perception, auditory perception, olfactory perception,
gustatory perception, tactile perception—they are the five
senses). According to vijnanamatra, the Buddhist psy-
cho-theory [25], besides the five senses, the rest are
mano-vijnana (mind-consciousness,), mana-vijnana (ego-
consciousness) and alaya-vijnana (storehouse-conscious-
ness,). Samdhinirmocana-sutra [26] states that, the first
five elements are the consciousness of the senses which
produce the biological human body, and mano-vijnana is
responsible for moral determination, value distinction
and interconnects body with the external world. Alaya-
vijnana, which always exists and can go beyond the time
constraint,36 is an unstable and forever changing entity. It
“collects and stores the effects or bija (karmic seeds) of
experience until they mature and give rise to new ex-
periences [28].” Alaya-vijana, with loaded energy, initi-
ates the mechanism and interaction between the other
consciousness and world.
35In a series of articles, Chiu [15-18], I argue that both Buddhism (with
equality as one of the highest principles) and Confucianism (with their
emphasis on “self respect”) offer two good matching points for Rawl-
sian theory to engage with Han-Chinese socio-legal culture. As the
article is illustrating the assemblage between Rawlsian theory and
Buddhist schools of vijnanamatra and vinaya-discipline, I would
elaborate more with regard to the infiltration between Confucianism
and Rawlsian theory. Among all the primary goods, Rawls always puts
the focus on “self respect”: Hu [19]. According to Yao, Da-zhi, Rawl-
sian notion of self respect is (a) self confidence with regard to her / his
ability and competence; and (b) a firm belief that her / his life plan,
which is rational and recognized by people she/he respects, can be
realized and substantiated. (See supra note 30, p.440 and note 31, p.
149.) Also, Rawlsian self respect can only be fully fulfilled in the con-
dition of liberty through one’s sense of justice: Li [20]. 36As Shih
Hong-xue indicated, Buddhism does not believe end of life means end
of everything, and alaya-vijnana works as the linkage between lives:
Shih [27]. In contemporary Han-Chinese language, justice is translated
as Yi. In Mencius’s theory of Yi, Yi comes from human nature [21].
Only through tough and strict training, together with strong will and
right understanding of morality, which means respect and maintenance
of a hierarchical social structure, a person can understand Yi: see Wan
[22] “Life is also something I want, and righteousness is also some-
thing I want. If I cannot get both of them, I am one who will do without
life and choose righteousness.” (Chapter 6A, Mencius) (trans., 生,亦
我所欲也;義,亦我所欲也。二者不可得兼,舍生而取義者也) So
what does one have to learn and be trained in order to understand Yi? It
is the feeling of shame and dislike; i.e. morality: The feeling of shame
and dislike is the principle of righteousness. (Chapter 3A, Mencius)
(trans., 羞惡之心,義之端也) Although Rawlsian theory is a product
of liberalism, and Mencius does not use the term ‘self-respect’ and his
theory is not developed in the condition of liberty, and the requirement
of seeking respect from people is the common point shared by the
theories, and thus self respect can be a matching point to facilitate the
osmosis of Rawlsian theory with Han-Chinese culture.
31Yao, supra note 24, p. 2.
32This view is further elaborated by Brian Barry, he writes: legal insti-
tutions (including law making organization, law enforcement agencies,
law courts, law schools and prisons) “are obviously key to the realiza-
tion of social justice”. Barry, supra [8], p. 17.
33Whether there is any essential and natural relationship between law
and justice always brings keen debate: Costas Douzinas and Ronnie
Warrington always argue: justice always lies in future and there is a
distance between justice and law: Douzinas and Warrington [11].
Jacques Derrida also points out that it is impossible for justice to be
in law: Derrida [12].
34Nussbau, supra note 26, p. 19.
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Un/Controlling Desire, Becoming Others Negotiating Justice in the Hong Kong Milieu of Mainland Pregnant Women Influx
The assemblage of eight vijnana, in short, engineers
the concepts of identity and world.37 The interactive dia-
logue between the eight consciousnesses and the world
also constitutes the karmic bija, which are stored in
alaya-vijnana, determines the upcoming interaction be-
tween the consciousnesses and the world. Since karmic
bija is the carrier of desire [29], desire takes part in the
construction of world and human subject. The assem-
blage between body and the external world then re-create
the karmic bija/desire which would simultaneously re-
load alaya-vijnana. This machine is called alayaprati-
tya-samutpada (Dependant-arising of Alaya-vijnana,),
which means the mental constitutive reception of every
activity and phenomenon can never be a fixed essential-
ity, but a virtual illusion re-created by the interaction of
karmic bija/desire under a particular condition and milieu,
which is also a product of karmic bija exercise and karma.
This line of argument leads to the development of an
important Buddhist principle: anātman (Non-Insistence
or Self-less-ness,). “Self” in this context does not only
mean “I”, but over-insistence of a perspective [30]:38
The Buddhist Path of anātman holds that there is nei-
ther soul nor any essential form that constitutes a human
beingSecondly, anātman is not a denial of self as per-
son but denial of self as self-centrednessthe goal of
anātman is to detach from our egocentricity in order to
realize the interdependence and interconnectedness of all
beings, sentient and insentient [31].
The principle lays the theoretical foundation of another
significant principle in Buddhism, i.e. anitya (Non-Per-
manence,), which means there is no eternality in the
world: Since the composition of karmic bija/desire keeps
on changing, it is impossible to have any monolithic and
universal perspective; and if the world, the related activi-
ties and phenomena are vijnana/psycho products, initi-
ated by a set of karmic bija/desire and end up with the
production of another cluster of karmic bija/desire, then a
metanarrative or grand narrative is also only another vir-
tual illusion. The three principles, “Dependant-arising of
Alaya-vijnana”, “Non-Insistence” and “Non-Permanence”,
inevitably manufacture the Buddhist notion of jus-
Within my Dhamma, the 4 clans—1) priestly, 2) military
and ruling, 3) farmers and traders, and 4) serfs…would
all drop their original titles and are called Sh ih stu-
dents of Buddha.39
Since the differences among people are formatted by
different combinations of karmic bija/desire, subject/
being and value judgments are not any pregiven, precon-
ditional and fixed concepts, but becoming. In other
words, while differences exist, they do not and should
not be any foundation or justification of hierarchical dis-
crimination/inequality, as differences and identities are
only temporary or a stage of becoming. As Li-Tian Fang
points out, going beyond any insistences and related de-
sires, accepting differences and producing equality are
the ultimate goals of Buddhist practice [32].
The Buddhist machine/pursuit of equality is however
hindered by mana-vijnana, which ignores tathata (the
ultimate truth) and keeps on insisting self and self per-
spective.40 Due to the exercise of mana-vijnana, two
kinds of negative desire/attachment emerge: the desire to
grasp an (illusory) “I” (for example: an authentic Hong-
Konger) and the desire to grasp an (illusory) object (for
example: the Hong Kong resources) [34]. With these two
attachments, distinctions/discriminations arise (for ex-
ample: “you are an un-civilized Mainlander, you must
not come and steal Hong Kong resources, created and
contributed by us”). Only when insistence of fixed iden-
tity/subject and the attachments (the desires to grasp) are
gone beyond, would there be a Buddhist world of justice
and equality.41 Buddhism therefore advocates that we
need to start with controlling desire, and at the end of the
day, we have to go beyond all desire.42
Vijnanamatra does not only provide a detailed descrip-
tion on how the psycho-mechanism works, it also por-
trays the picture where justice/equality is achieved. Jus-
tice/equality, advocated by vijnanamatra, has to start with
anātman: it can be achieved by āśraya-paravtt (transmu-
tation of vijnana to jnana (wistom)), where vijnana are
totally free from any negative desires (for instance, greed)
and attachments.
With the rise of wisdoms, people arrive at the stage of
parlinispanna-svabhava from paratantra-svabhaava,43 and
would go over their negative desire and attachments (i.e.
insistences)—their own “(insistent) I” (for example, the
identity of authentic HongKonger) and the iden-
tity-related (insistent) objects (Hong Kong resources only
be used by HongKongers), and start critically reflecting
the social rules developed and advocated by majority and
no longer judge the perceptions with reference to them
solely. They would also stop desiring and insisting on
their worldview as the hegemonic standard (of law)
and/or imposing it on others (Mainlanders). With wis-
dom, human are sensitized to the condition of unjust dis-
crimination where there are less resourceful groups, in-
cluding the pregnant women who cannot fully enjoy the
medical service in Hong Kong (not essentially Mainland/
Hong Kong pregnant women). With the ideological per-
37Shih, supra note 36, p. 70.
38Different schools of Buddhism have different definitions of ‘I’: ‘I’
can mean the subjectivity of samsara, multitude or unchanged self. For
details, please see Chen, supra [30], pp. 785-787.
39Taisho Tripitaka Editorial Committee, 1985, Chapter 22 (大正新修大
40See Zhōu, supra [25], p. 8; Chen, supra [30], pp. 121, 129 and Zhou
41Shih, supra note 37, pp. 314-315.
42Shih, supra [23].
43Zhou, supra [33], p. 303.
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Un/Controlling Desire, Becoming Others Negotiating Justice in the Hong Kong Milieu of Mainland Pregnant Women Influx 97
spective, which refuses to establish an eternal hegemony,
people would start assisting and empowering the power-
less (for example, those pregnant women who cannot
fully enjoy the medical facilities in Hong Kong), for in-
stance, by drafting and enacting new laws and policies.
The rise of wisdom therefore means the gradual dis-
appearance of negative desires and insistent attachments;
i.e., the established layers which come from fixed princi-
ples and subjects:
the contemporary psychoanalytic fascination with
self-multiplicity appears to stem at least in part from a
desire to challenge monolithic views of mental health
that are implicitly conformist in nature. The emphasis in
the Buddhist conception of no-self is on decreasing the
sense of existential isolation, by emphasizing the con-
structed nature of the boundary between self and others
and the interdependence of all living beings [35].
Mahayana Buddhist Perspective on Law and
The problem is: how can the āśraya-paravtt start? Ac-
cording to Mahayana tradition, as Shih Chao-Hwei said,
certainly, law and regulation can help us reach that aim.44
If we apply and engage the School of vinaya-discipline in
developing a jurisprudential perspective, it can definitely
help facilitate the transmutation through karmic machine
—a machine of choice and responsibility—before the
completion of āśraya-paravtt, karma is always a non-stop
machine, and the production of karmic bija/desire never
ends, as every decision and action of human subject will
influence the ever-changing nature of karmic bija. In
other words, karmic bija is not a static concept either; it
grows with the changes and evolution of contexts—this
process is called vāsanā (Fumigation or Perfume) [36].45
In Sifenlu Xingshi Chao,46 Dao-Xuan Shih describes
how vāsanā happens: since making, studying, under-
standing, accepting, following and implementing vinaya
(for example, law and regulation) is a kind of activity
(karma) that happens in the world, activated by
bija/desire, those activities themselves have their influ-
ences tattooed on the bija which already exist via the
exercise of mano-vijnana47—the impact is called the
“dukta-saavara” (vows); i.e. the nature of the bija
affected is changed. The process also creates the new bija
—those bija which are influenced by the vinaya will then
be stored in alaya-vijnana and will re-create and reformat
the human subject through the exercises of the other vi-
jnana.48 Since the vinaya can have substantial effect on
bija, then they can certainly play a vital role in the āś-
raya-paravtt—provided that the vinaya can facilitate
critical investigation of world and introduce the Buddhist
ideologies of justice/equality, then by making and fol-
lowing the vinaya, āśraya-paravtt can start and proceed;
and when the āśraya-paravtt is completed, vinaya can in
turn be enacted, interpreted and implemented by jnana.
And, from that perspective, by following and imple-
menting such vinaya, more people can fulfill and com-
plete the āśraya-paravtt and, through the interaction be-
tween Buddhists and law and regulation, justice/equality
can be further realized.49 Buddhist legal philosophy, de-
veloped by the school of vinaya-discipline, hence pro-
duces a jurisprudential machine by which justice/equality
can be constituted, it also sensitizes us to the multiple
subjects—due to the karmic mechanism of bija, desires
and related insistent attachments are becoming impossi-
ble. Different and ever-changing concepts and formulae
of justice can therefore be accommodated and accepted.
In short, the schools of vijnanamatra and vinaya-dis-
cripline would support and confirm the view of Peter Fen,
Brian Barr and Amartya Sen on the connection between
vinaya/law and justice: law is definitely essential for and
can help enhancing the transmutation of vijnana to jnana
[37] and thus promote the construction of equality and
interpretation of justice.50 Buddhism goes one step fur-
ther than Rawlsian theory when discussing the function
of law: law does not only set up a procedure where con-
flicts can be settled justly, a just law can in fact help hu-
man to change the nature of desire and insistence and
thus eliminate all conflict, possibly forever. The Buddhist
schools of thought also pose a challenge to Rawlsian
theory—there are no fixed principles of justice produc-
tion, since there is a lack of permanence—everything can
be changed—if there is a change of context (for example,
the least advantaged becoming the powerful), would
Rawlsian theory still function perfectly? Also, there is no
natural and monolithic definition of “least advantaged
group” and equality, as the identity is always changing
due to the changing nature of bija combinations; and be-
cause the identity cannot be fixed, there is no ground and
justification for any kind of discrimination and hierar-
chies. When dealing with the conflict of Mainlanders and
HongKongers in the context of medical services, then,
from the perspective of vijnanamatra and vinaya-disci-
pline, we should ask: should any policy and regulations
controlling the influx of Mainland pregnant women treat
Mainland and Hong Kong pregnant women differently
and thus set up a cap on the number of Mainland preg-
nant women?
44See Shih, supra note 42, pp. 86, 88.
45Please note, however: not all karmic bija can be perfumed – if they
are already affected negatively and very insistent, they can’t be refor-
mated; and then some karmic bija can be reformatted by later activities;
i.e. they may be perfumed by positive action, but later by negative
activities. For details, please see Chen, supra note 40, pp. 443-444.
46Taisho Tripitaka Editorial Committee (1985), Chapter 40.
47Chen, supra 45, p. 445.
48Chen, supra 47, p. 112.
49Yang, supra [36], p. 114.
50Shih, supra [37], p. 105.
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5. Deleuzean Machine of Justice: Becomin g
Least Advantaged Group
Deleuze has a very different understanding of desire:
while Buddhists have different and multiple classifica-
tions and definitions of desires, Delezue, like Nietzsche,
believes that desire, being the instinctive, elementary,
original and authentic, is the greatest power of life [38].51
He hence always stresses the “positivity” and “produc-
tivity” of desire [39]: Deleuzean desire, with such power
and energy, plays an important role in the creation of
subjects. A subject (including justice, law and identity) is
always a product of connections, disconnections and re-
connections, which are parts of a machine,52 driven by
different assemblages; and are formulated by two lines of
forces—desire and social force (including law courts,
legislature, NGOs, hospitals and media).53 Deleuze ar-
gues that the social force always wants to capture and
regulate desire, which provides the energy for the exer-
cise of assemblage,54 and fixates a subject, through repe-
tition and codification. As a result, certain procedures
and qualities are read as universal marks55—this process
is territorialization (for example, Mainlanders are labeled
as the robber of Hong Kong limited resources) [44].
Territorialization does not nonetheless signify the end
of subject creation—Deleuzean desire cannot be eter-
nally controlled by molar lines of social force: lines of
desire are multiple and contested—there are always si-
multaneously different/new types of desire (the desire of
giving birth to babies in Hong Kong may not be very
popular among Mainlanders before 1970s) and thus so-
cial force (for example, new laws and new institutions)
[45]; so, (new) machines, driven by different forces, can
connect, disconnect and reconnect with other machines;
one machine can never be reduced to any singular con-
nection, i.e. machines are always fluid and dynamic.56
Deleuze argues that the molar lines of social forces are
rhizomatic and thus lack an origin or a centre, and mo-
lecular lines of desire cannot be predicted, then subject
can only be multiple [46]. Hence, it is not surprising that
deterritorialization initiated by desire and the lines of
flight are always created at the weaker edge of the rhi-
zomatic matrix, where challenges coming from desire
that fuels the lines of flight, can easily take place [47].
Along with the deterritorialization, the process of be-
coming starts and never ends.
Deleuze thus advocates that every concept/identity is
always a “becoming”. But, as Damian Sutton and David
Martin-Jones point out, reterritorialization always hap-
pens, especially when the force of the deterritorialization
and the desire that drives it is not strong enough. So, be-
coming, as Levi Bryant said, would always contain con-
tradictions and oppositions [48]; as lines of flight always
take off after de/territorialization, with the emergence
and influx of different desires.57 In other words, any ef-
fort to fixate a subject (like Hong Kong people as the
victim of the swamp of resources) or develop a universal
and timeless formula for justice (like what John Rawls
did), are doomed to be a failure—this echoes with Bud-
dhism—deterritorialization always produces resistance
which challenges the formula, although such resistance
may not always be strong enough to subvert it.
As elaborated by Ian Buchanan: Deleuzean desire
therefore always sows the seeds of revolution as it al-
ways tries to elude the coding imposed by lines of social
forces.58 Deleuzean notion of justice must be able to re-
lease desire; because only through which, all “attempts to
ground any reasoning, rationale, or logic on some object
measure” would be destroyed and torn off [50]. In other
words, according to Deleuze, justice would only be cre-
ated when becoming and deterritorialization happen,
where all layers and connections are broken by line of
flights, initiated by the liberation of desires. This para-
digm of justice, as Jami Weinstein puts, will evoke better
concepts to resolve the problems to which any attempt of
developing a monolithic formula of justice was originally
linked [51]. But Loretta Capeheart and Dragon Milovano-
vic also warn us: moving away from any monolithic
formula means moving away from an evaluative standard,
which therefore may mean development of unintention-
ally “negative” consequences.59
Deleuzean Perspective on Law and Justice
In other words, as justice is a kind of becoming, created
by different lines of desire and social institutions (social
control and law), it is impossible to develop and devise
an ahistoric notion of subject and an acontextual formula
and procedure of justice construction (like Rawlsian
principles). Further, since Deleuzean desire has a very
different definition, not only does it mean desires cannot
be listed exhaustively, like what Rawlsian list of good
tries to do, Deleuzean would not aim at controlling or
going beyond desire, like what Buddhists and Rawlsians
advocate, but activating desire so as to generate poly-
lithic lines of flight, that can activate deterritorizations,
51L. De Bolle, “Desire and Schizophrenia,” 2010, in [38], p. 8.
52As Claire Colebrook illustrates: a machine is “nothing more than its
connections”. See Colebrook [40].
53According to Deleuze, while the social force are always sementary
and rigid; desire flows freely and preexists human. As Claire Cole-
brook writes: “Life is a flow of desire.” (Colebrook, supra note 52,
142). Jun [41]; Deleuze & Felix [42]. It seems desire is the key drive o
machine: “It is axiomatic for Deleuze and Guattari that no technical
machine can exist without the prior investment of desire.” (Buchanan
54De Bolle, supra note 51, p. 17.
55Colebrook, supra note 53, p. 45.
56Jun, supra note 53, p. 351.
57D. Smith, “Introduction,” 1997, in [49], p. xlv.
58Buchanan, supra [43], p. 45.
59Capeheart and Milovanovic, supra [50], p. 135.
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Un/Controlling Desire, Becoming Others Negotiating Justice in the Hong Kong Milieu of Mainland Pregnant Women Influx 99
through which the existing layers and differences (and
related discrimination) will be destabilized and chal-
lenged. In the case of Mainlanders and HongKongers
conflict, a Deleuzean will argue the existing desire (for
example the request of more medical services, the desire
of having better and more effective Mainland social in-
stitutions, and the mutual discrimination between Hong-
Kongers and Mainlanders) have successfully initiated the
drive (another new desire) to revise, and improve the
existing social cooperations (between institutions and
between Mainlanders and HongKongers), for example,
better possible allocation of medical resources, revision
of birth control policy and Race Discrimination Ordi-
nance.60 In short, the conflict, generated by clash of dif-
ferent desires, itself is not negative, but productive.
However, what Deleuzean theory fails to do is to provide
a possible step by step formula to create positive and
productive changes in the process of destabilization and
constructing a positive strategy, and there may be unde-
sirable and unforeseeable consequences—of course, as
Deleuzeans argue, it is impossible to devise an one for all
solution, because justice is only a becoming, and any
wrong will and can be corrected as desire will keep on
arising and changes/revisions will be brought.
6. Conclusion: Dialogue among Rawlsians,
Mahayana Buddhists and Deleuzeans in
the Milieu of Justice
It seems Mahayana Buddhist philosophy and Deleuzean
theory are not compatible with each other: (Mahayana)
Buddhism assumes that desires could bring negative ef-
fect, i.e. the negative desires, like greed, and thus have to
be put under control; Deleuze believes that it is good to
have new and emerging desire. However, in fact, both
share a number of commonalities, especially when criti-
cally investigating Rawlsian theory: 1) desires are multi-
ple, thus it is impossible to have an exhausted list of de-
sire, for example: the Rawlsian list of good—for Maha-
yana Buddhist, whenever there are bija, there can be de-
sires; and for Deleuzean, desires always exist and keep
on generating; 2) not everyone is totally free, like what
Rawlsians claim—for (Mahayana) Buddhists, no one can
escape from karma machine (before transmutation); and
for Deleuzean, human subjects are always the product of
machines, driven by multiple and diversified lines of
desire and social control. Mahayana Buddhism and Deleu-
zean philosophy also share two views: 1) there are no
eternally fixed social layers and—with Buddhist āś-
raya-paravtt, inequality and discrimination can be
eliminated with the final disappearance of bija/desire;
and with the Deleuzean desires and related lines of flight,
all existing social demarcations can be challenged; 2)
Law is vital—Buddhism believes that law can help go
beyond desire, Deleuzean theory believes that law is a
product of re/territorialization; aiming to fixate desire;
but, of course, this attempt is doomed to be a failure as
new desire will gloom deterritorialization and reterritori-
alization, which means existing laws can be repealed,
and new laws can emerge.
Even though Buddhism and Deleuzen philosophy have
two very contradictory views on desire, their perspec-
tives on desire, which leads to the multiple understanding
of body, expose the major weak point of Rawlsian theory,
i.e. it fails to provide a definition of the least advantaged
group. In the context of Mainland pregnant women influx,
the Hong Kong pregnant women who claimed that their
opportunities of using the medical facilities are deprived
are the least advantaged, but so are the Mainland preg-
nant women who desire to use the service in Hong Kong
—as they have to spend more than HongKongers and
their decisions of coming to Hong Kong is initiated by
different desires, including escape from the birth control
policy, desire to see their offspring enjoying a more effi-
cient medical, social, education and legal system.61 But
then, when the vijnana, which composes body, can be
transmutated, according to Buddhist vijnanamatra, is it
possible to have a fixed identity? This view is echoed by
Deleuzean concept of “Body without Organs” (BwO
hereafter): because of unpredictable momentum, lines of
desire, territorialization and fixation of identities/bodies
is never complete, and body cannot be a rigidly ordered
entity, but BwO [52]. BwO, signifies the resistance to
any notion of territorialized body that comes with a
whole package of organized and hierarchized organs, is a
metaphor for the shifting, interconnected, constantly
moving and constructed body.62 Body therefore keeps on
constructing itself.63 Using BwO as the lens of scrutiny,
we can then ask: Can we naturalize an identity? Why do
we have to prioritize a certain dialect, language, or accent
in defining an identity?
So the Rawlsian theory seems to be subverted by
Buddhist and Deleuzean theories of justice—people are
not free, list of primary goods is not practical and a defi-
nition for the least advantaged group is impossible. But it
does not mean that the Rawlsian theory is completely
60Cap 602 LHK. People once argued that the Ordinance should be used
to stop the publication of anti-locust advertisement as it is obviously a
racial vilification (Section 45), which is illegal. Equal Opportunities
Commission of Hong Kong clearly stated that as Mainlanders and
HongKongers belong to the same Race (Han-Chinese), any conflict
between two groups of people was not racial discrimination. (“It is not
Racial Discrimination, just tension between group,” (trans., 非種族歧
視僅種群緊張) MingPao 4 February 2012, A8).
61As Johnny Mok SC indicates in ‘Legal Measures to Address
Mainland Births in Hong Kong’ Symposium, held by University o
Hong Kong on 9 June 2012, the Mainland pregnant women come to
give birth in Hong Kong because of the better medical facilities in the
social administrative region.
62Rajchman, supra [52], p. 267.
63Smith, supra note 57, p. xxxxvii.
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Un/Controlling Desire, Becoming Others Negotiating Justice in the Hong Kong Milieu of Mainland Pregnant Women Influx
useless—no one can deny that protection of the periph-
eral powerless is a good starting point and in order to fix
a problem quickly, a clear set of step by step guideline,
like Rawlsian theory, especially with its emphasis on
equal opportunity, can be an efficient starting point. Yet
we have to understand a social contract, which assumes
that human subjects are free and there must be mutual
advantages, is not possible. So, we should not aim at
reaching an agreement that is based on everyone’s ac-
ceptance of justice; what we should seek is the accep-
tance and respect of different and changing desires and
related changing life plans. This can be achieved by what
the Rawlsians advocate: everyone should step into the
shoes of the others (especially the least advantaged); but
Buddhists and Deleuzeans go further, the former advo-
cate Samata-jnana/Wisdom of Equality, and the latter ask
everyone becoming others, and negotiate a way by which
the conflict and tension can be settled and solved. In
short, justice is no longer simply a set of procedures, as
argued by Rawls, but an attitude and perspective by
which negotiation between parties can start and continue.
In short, Rawlsian notion of justice fails to address the
ever changing desire and thus is not sensitized towards
the unstable human identities. According to the perspec-
tives of Mahayana Buddhism and Deleuzean philosophy,
justice should be created only when multiple desires are
recognized (not simply controlled), and negative desires
are changed into the positive ones by, for example, be-
coming each others, before making relevant laws and
In the case of the influx of Mainland pregnant women,
we should no longer question whether the desire of la-
bouring in Hong Kong is right or not, but we should be
becoming each other—becoming Mainland pregnant
women and becoming Hong Kong pregnant women; and
negotiate with ourselves by asking the following ques-
tions: Are the resources (in Hong Kong) really limited?
Why can’t the Hong Kong government spend more on
developing medical services as it is one of the pillar in-
dustries and the current medical resources available
could not even cater to all the needs (not only obstetrics
services) of locals?64 If the Mainlanders spend so much
in Hong Kong, are the resources growing? Is there any
way that we can allocate the resources more effectively?
In short, we should ask how we feel and what solution
we can propose, in every singular context, if we are be-
coming the party we challenge. And from that starting
point, we should ask how equal opportunities can be
guaranteed, not only by making laws and regulations, but
by reflecting and reviewing existing laws and regulations
with regard to new situations (raised by new desires).
Recently, the dispute between Mainlanders and Hong-
Kongers is further intensified by three incidents: (a)
Dolce and Gabbana did not allow HongKongers to take
photo outside their Hong Kong flagshop in Harbour City,
Tsim Sha Tsui, while allowing Mainlanders to do so; this
incident provoked more than 1,000 people to gather in
front of the shop for two consecutive Sundays (8 and 15
January 2012);65 (b) Professor Qing-dong Kong titled
HongKongers as “running dogs of British Government”
in a Mainland television programme, “Kong Monk Has
Something to Say”, on 19 January 2012, after footage
showing a Hong Kong passenger and a Mainland family
started quarrelling when the former said the latter should
not allow their child to eat in Mass Transit Railway,
where eating and drinking were forbidden, was widely
shown; (c) A new entry plan for mainland cars, an-
nounced by Hong Kong SAR government on 13 Febru-
ary, also fuels the conflict between Mainlanders and
HongKongers. According to the scheme, 50 Hong
Kong-registered vehicles will be allowed to travel di-
rectly into GuangDong. However, HongKongers fear that
when Mainland-registered cars are allowed to come to
Hong Kong, as the possible phase 2 of the programme, it
will bring chaos on the road, as Mainland drivers are
“famous” for not obeying the rules:
Our own drivers already have some really bad habits,
such as changing lines without signaling, having no re-
spect for pedestrians, and driving aggressively. Such bad
behavour is even worse on the mainland. Can we expect
these mainland drivers magically to improve once they
hit local roads?66
When a protest started in February, 7000 people had
made online pledge to join the demonstration. Also, one
of the major political parties, Democratic Party, have also
collected 1400 signatures protesting the scheme. Ray-
mond Tam, Secretary for Constitutional and Mainland
Affair indicated that there is no timeline for phase 2.67
Using the revised formulae of justice theory, when
dealing with the situations, we will then ask ourselves: 1)
What will we feel if we are becoming labeled as “Lo-
cust”/“Dog”? 2) Will we be happy if someone does not
obey the law and regulations (like eating on trains) in our
respective jurisdictions (Mainland or Hong Kong)? 3) If
HongKongers are allowed to drive directly to the north of
the border, why can’t the same apply to the Mainland
drivers? 4) What can law do in order to solve the possible
problems and conflicts (the desire of making sure every-
65“One thousand protest Dolce & Gabbana Hong Kong store over photo
ban,” The Telegraph 8 January 2012; “There Are Still Protesters Out-
side Dolce & Gabbana’s Hong Kong Boutique,” New York Fashion 16
January 2012.
66A. Lo,“Don’t extend welcome to mainland cars,” 2012, South China
orning Post 13 February, EDT2.
67K. Ip, “Hundreds push to block driving plan,” 2012, Hong
Standard 13 February, P2.
64“Hong Kong: Public Hospital Nibbled by Privatization, Grassroot
Mainland Immigrants being Blamed,” available at:
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Un/Controlling Desire, Becoming Others Negotiating Justice in the Hong Kong Milieu of Mainland Pregnant Women Influx 101
one obey the law and the desire of not following the traf-
fic law in Hong Kong)? However, please note: as what
Buddhist and Deleuzean argue respectively: nothing is
permanent and there is always deterritorialization—āś-
raya-paravtt and becoming are not any once-for-all for-
mulae of justice or acceptance of difference; the only
eternal truth is the non existence of fixation and perma-
nence, and the meaning of justice keeps on evolving.
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Un/Controlling Desire, Becoming Others Negotiating Justice in the Hong Kong Milieu of Mainland Pregnant Women Influx
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