Hostname: page-component-586b7cd67f-r5fsc Total loading time: 0 Render date: 2024-11-26T05:07:38.244Z Has data issue: false hasContentIssue false
  • English
  • Français

The Political Origins of Professional Identity: Lawyers, Judges, and Prosecutors in Taiwan’s State Transformation

Published online by Cambridge University Press:  13 November 2018

Ching-fang HSU
Ching-fang HSU*
Affiliation:
University of Toronto
*
Correspondence to Ching-fang Hsu, Department of Political Science, Sidney Smith Hall, Room 3018, 100 St George Street, Toronto, ON M5S 3G3, Canada. E-mail address: [email protected].
Get access Rights & Permissions [Opens in a new window]

Abstract

Where does the legal profession’s identity originate from? How do we explain the intra-professional variations, as multiple legal professions diverge in their political orientations? This paper argues that the legal profession critically develops their core identity resisting incumbent rule when the state undergoes fundamental power reconfiguration. It is their political position as opposed to power in a critical juncture of state transformation that determines the legal profession’s collective ideal of who they are and what actions they take. Drawing on 133 interviews with Taiwanese judges, lawyers, and prosecutors, extensive fieldwork, and archival data up to the 1990s, this paper demonstrates how democratization shapes professional identity. As respective professions experienced different levels and models of authoritarian containment, they took separate trajectories to challenge the Kuomintang’s party-state and pledge to different normative commitments. Taiwanese judges categorically defend judicial independence, lawyers advocate for people’s rights, and prosecutors marshal under justice to check abuse of power.

Keywords

legal professionjudicial politicsjudicial reformdemocratizationTaiwan
Type
Research Article
Information
Asian Journal of Law and Society , Volume 6 , Issue 2 , November 2019 , pp. 321 - 346
Copyright
© Cambridge University Press and KoGuan Law School, Shanghai Jiao Tong University 2018

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

Doctorate candidate in political science at the University of Toronto. The author thanks Ran Hirschl, Joseph Wong, the two reviewers at AJLS, as well as the faculty workshop participants at the Institutum Iurisprudentiae, Academia Sinica, for their comments and support. The author also thanks the anonymous interviewees in Taiwan, whose actions and insights made the actual contribution to the understanding of the legal profession of our island and beyond.

References

REFERENCES

Abel, Richard L. (1989) American Lawyers, New York: Oxford University Press.Google Scholar
Arrington, Celeste L. (2014) “Leprosy, Legal Mobilization, and the Public Sphere in Japan and South Korea.” 48 Law & Society Review 563–593.CrossRefGoogle Scholar
Bliss, John (2017) “Divided Selves: Professional Role Distancing Among Law Students and New Lawyers in a Period of Market Crisis.” 42 Law & Social Inquiry 855–897.CrossRefGoogle Scholar
Burrage, Michael (2006) Revolution and the Making of the Contemporary Legal Profession: England, France, and the United States, Oxford: Oxford University Press.Google Scholar
Chang, Fu-Chun (2007) “Taiwan Lawyers after World War II—in Support of Human Rights from Individual Action to Collective Action.” LLM diss., College of Law, National Taiwan University.Google Scholar
Chang, Wen-Chen (2011) “Public Interest Litigation in Taiwan: Strategy for Law and Policy Changes in the Course of Democratization,” in P. J. Yap & H. Lau, eds., Public Interest Litigation in Asia, Oxon: Routledge, 137–160.Google Scholar
Chen, Hung-chan, & Wang, Chin-Shou (2013) “The Impact of Taiwan’s First Regime Shift on the Prosecutorial System: Appointment and Transfer of Chief Prosecutors of Taiwan High and District Prosecutors Offices during the Ding-nan Chen Period.” 25 Journal of Social Sciences and Philosophy 599–645.Google Scholar
Chen, Rwei-ren (2014) Thoughts in Law Enforcement: Judicial Reform Notes from Prosecutor Chen Rwei-Ren, Taipei: City Culture.Google Scholar
Chiang, Yuan-chin (1994) “A Very First Petition by Judges!,” United Evening News, 25 May.Google Scholar
Dezalay, Yves, & Garth, Bryant G. (2010) Asian Legal Revivals: Lawyers in the Shadow of Empire, Chicago: University of Chicago Press.CrossRefGoogle Scholar
Fan, Li-da, & Lee, Shiang-zu (2013) Voice Unveiled: Memoir of a Senior Judges, Taipei: Boya.Google Scholar
Feeley, Malcolm, & Miyazawa, Setsuo (2007) “The State, Civil Society, and the Legal Complex in Modern Japan: Continuity and Change,” in T. C. Halliday, L. Karpik, & M. M. Feeley, eds., Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism, Portland: Hart Publishing, 151–192.Google Scholar
Follaw (2016) “Exclusive Interview with Prosecutor Tsai Chi-wen: Challenging the Minister’s Selection, Prerogative, Concerns for the Rule of Law Since Day One,” https://www.follaw.tw/f-comment/f02/10366/ (accessed 9 April 2018).Google Scholar
Fu, Hualing (2018) “The July 9th (709) Crackdown on Human Rights Lawyers: Legal Advocacy in an Authoritarian State.” 112 Journal of Contemporary China 554–568.CrossRefGoogle Scholar
Fu, Hualing, & Cullen, Richard (2008) “Weiquan (Rights Protection) Lawyering in an Authoritarian State: Building a Culture of Public-Interest Lawyering.” 59 The China Journal 111–127.CrossRefGoogle Scholar
Fu, Hualing, & Cullen, Richard (2011) “Climbing the Weiquan Ladder: A Radicalizing Process for Rights-Protection Lawyers.” 205 The China Quarterly 40–59.Google Scholar
Ginsburg, Tom (2007) “Law and the Liberal Transformation of the Northeast Asian Legal Complex in Korea and Taiwan,” in T. C. Halliday, L. Karpik, & M. M. Feeley, eds., Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism, Portland: Hart Publishing, 43–64.Google Scholar
Hagan, John, & Kay, Fiona (1995) Gender in Practice: A Study of Lawyers’ Lives, New York: Oxford University Press.Google Scholar
Halliday, Terence C., Karpik, Lucien, & Feeley, Malcolm M., eds. (2007) Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism, Portland: Hart Publishing.Google Scholar
Heinz, John P., & Laumann, Edward O. (1982) Chicago Lawyers: The Social Structure of the Bar, New York: Russell Sage Foundation and American Bar Foundation.Google Scholar
Helmke, Gretchen (2002) “The Logic of Strategic Defection: Court Executive Relations in Argentina Under Dictatorship and Democracy.” 96 American Political Science Review 291–303.CrossRefGoogle Scholar
Hu, Hui-ning (1994) The Legal Entrepreneur Lin Ming-Sheng, Taipei: The Third Nature.Google Scholar
Huang, Hen-dun (1993) “Some Judges from Taichung District Court Began ‘Judge Self-Rule Movement’,” United Daily News, 17 December.Google Scholar
Jacobs, Alan (2014) “Process Tracing Effects of Ideas,” in A. Bennett & C. T. Jeffery, eds., Process Tracing: From Metaphor to Analytic Tool, Cambridge: Cambridge University Press, 41–73.CrossRefGoogle Scholar
Judicial Reform Foundation (2015) “About Us,” https://www.jrf.org.tw/about (accessed 8 April 2018).Google Scholar
Karpik, Lucien (1988) “Lawyers and Politics in France, 1814–1950: The State, the Market, and the Public.” 13 Law & Social Inquiry 707–736.Google Scholar
Kuo, Grace (2007) “Seniority, Confucianism, and the Training Programs, for Judges and Prosecutors in Taiwan.” 33 Korean Journal of Law and Society 87–108.Google Scholar
Legislative, Yuan (2003) “Conference Minute of Session 5–4.” 92 Legislative Yuan Bulletin 485.Google Scholar
Liberty Times (2008) “Investigation Closed: the Special Investigation Unit Requests the Harshest Punishment on Chen Shui-Bien,” http://news.ltn.com.tw/news/politics/breakingnews/159193 (accessed 26 July 2018).Google Scholar
Liu, Heng-wen (2002) “A Study of Judicial Personnel in Post-War Taiwan: Observations from the Training Institute of Judge and Prosecutor.” 40 Thoughts and Words 125–182.Google Scholar
Liu, Heng-wen (2005) “Transformation of Legal Education in Taiwan: Perspectives of Knowledge Adoption and Disciplinary Positioning.” PhD diss., College of Law, National Taiwan University.Google Scholar
Liu, Sida, & Halliday, Terence C. (2016) Criminal Defense in China: The Politics of Lawyers at Work, Cambridge: Cambridge University Press.Google Scholar
Lu, Hsiao-jan (2017) “Endorsed Prosecutor Tsai Hung-ren Missed the Promotion, Minister of Justice: Perhaps Next Time,” United News, 14 August, https://udn.com/news/story/7321/2641004 (accessed 31 July 2018).Google Scholar
Lydgate, Chris (2003) Lee’s Law: How Singapore Crushes Dissent, Melbourne: Scribe Publications.Google Scholar
Marshall, Anna-Maria, & Hale, Daniel C. (2014) “Cause Lawyering.” 10 Annual Review of Law and Social Science 301–320.CrossRefGoogle Scholar
Mertz, Elizabeth (2007) The Language of Law School: Learning to “Think like a Lawyer,” Oxford: Oxford University Press.CrossRefGoogle Scholar
Munger, Frank W. (2015) “Trafficking in Law: Cause Lawyer, Bureaucratic State and Rights of Human Trafficking Victims in Thailand.” 39 Asian Studies Review 69–87.CrossRefGoogle Scholar
Prosecutors Reform Association (2008) The Sword of Justice: 10th Anniversary of Prosecutors Reform Association Archive Vol. 1, Tainan: Chang-sheng Co.Google Scholar
Rajah, Jothie (2012) Authoritarian Rule of Law: Legislation, Discourse, and Legitimacy in Singapore, New York: Cambridge University Press.CrossRefGoogle Scholar
Ramseyer, J. Markh, & Rasmusen, Eric B. (2001) “Why Are Japanese Judges so Conservative in Politically Charged Cases?” 95 American Political Science Review 331–344.CrossRefGoogle Scholar
Sarat, Austin, & Scheingold, Stuart A., eds. (2001) Cause Lawyering and the State in a Global Era, New York: Oxford University Press.CrossRefGoogle Scholar
Sarat, Austin, & Scheingold, Stuart A., eds. (2006) Cause Lawyers and Social Movements, Stanford: Stanford Law and Politics.Google Scholar
Segal, Jeffrey A., & Cover, Albert D. (1989) “Ideological Values and the Votes of U.S. Supreme Court Justices.” 83 American Political Science Review 557–565.CrossRefGoogle Scholar
Segal, Jeffrey A., Epstein, Lee, Cameron, Charles M., & Spaeth, Harold J. (1995) “Ideological Values and the Votes of U.S. Supreme Court Justices Revisited.” 57 The Journal of Politics 812–823.CrossRefGoogle Scholar
Shafqat, Sahar (2018) “Civil Society and the Lawyers’ Movement of Pakistan.” 43 Law & Social Inquiry 889–914.CrossRefGoogle Scholar
Shi, Chi-yang (2004) Origins: Thirty Years of Service [in Chinese], Taipei: Youth Publisher.Google Scholar
Shiang, Cheng-Jen (2015) “Injunction Rejected: Tsai Will Appeal on the 27th,” Liberty Times, http://news.ltn.com.tw/news/society/breakingnews/1389761 (accessed 9 April 2018).Google Scholar
Somanawat, Kitpatchara (2018) “Constructing the Identity of the Thai Judge: Virtue, Status, and Power.” 5 Asian Journal of Law and Society 91–110.CrossRefGoogle Scholar
Special Investigation Unit (2008) “Indictment: Investigation Number 3, 12, 13, 14, 15, 17, 18, 19, 22, 23, 24, 25, 2008,” http://www.tps.moj.gov.tw/public/Data/8121219507655.PDF (accessed 26 July 2018).Google Scholar
Taipei Bar Association (2005) Taipei Bar Association: The 20th Century History, Taipei: Taiwan Interminds Publishing Inc.Google Scholar
Taipei Bar Association (2015) “Introduction of the Taipei Bar: Reform and Participation in Opposition,” http://www.tba.org.tw/cf8b870d14.html? (accessed 19 February 2018).Google Scholar
Tsai, Jiong-Dun (2013) “Stop Saying KMT Owns the Court,” Judicial Reform Magazine, 31 October.Google Scholar
Wang, Chin-shou (2008a) “Judicial Independence and Democratic Accountability.” 12 Taiwanese Political Science Review 115–164.Google Scholar
Wang, Chin-shou (2008b) “Judicial Reform in Taiwan in the Past Twenty Years: On the Road to Independence.” 46 Thoughts and Words 133–174.Google Scholar
Wang, Tay-sheng (2011) History of the College of Law at National Taiwan University (1928–2000), Taipei: National Taiwan University Press.Google Scholar
Wang, Wen-ling, & Hsiao, Pai-hsueh (2007) The Characters of Officials, Taipei: Business Weekly Publications.Google Scholar
Wu, Pei-ru (2015) “Pushback from Prosecutors! The Minister of Justice Facing Injunction,” Apple Daily, https://tw.appledaily.com/new/realtime/20150713/647202/ (accessed 9 April 2018).Google Scholar