The legal complex fractured: Legal professional coalition and collision in Taiwan's judicial reform

Abstract

Sociolegal studies have identified a collectivity of legal actors—the legal complex—and its association with political liberalism in varying power settings. However, little attention has been paid to how such a collectivity evolves with regime change, or if and when such a collectivity might dissolve. Studying the case of Taiwan, this article demonstrates how various legal professions—lawyers, judges, and prosecutors—unite and divide during and after state transition. Democratization had an unsettling effect that brought out the internal dynamics of the legal professions, which initially aligned with one another to defend judicial autonomy from authoritarian control, but then confronted one another in judicial policy making during democratic times. Each legal profession bases its policy orientations on a normative commitment, which leads to three lines of confrontation: the ways in which the judiciary is held accountable, the extent to which the procuracy enjoys investigative power, and the institutional division between the judiciary and procuracy.

Judges under stress: Legal complexes and a sociology of hope

“…Comparative cases include struggles against the dictatorships in Spain (Hilbink 2007), South Korea (Ginsburg 2007) and Taiwan (Hsu 2021).…”

“…For instance, Ginsburg (Ginsburg 2007) shows that, whereas South Korean prosecutors and activist lawyers were locked in conflict in the early and mid-1980s, by the mid-1990s prosecutors effectively became allies particularly in bringing corruption cases against entrenched elites as they sought to redeem their earlier association with a repressive state. A new and excellent study of Taiwanese legal complexes shows that during the fight for political liberalism a legal complex of closely aligned lawyers, judges and prosecutors fought together in solidarity (Hsu 2021). But once rule of law, democracy or political liberalism was established, a previously unified legal complex began to fracture as each legal occupation focused on its particular interests and thereby came into conflict, or sometimes had disinterest, with those of other legal occupations.…”

“…In 2019, Beijing pressed a National Security Law on Hong Kong, imposing a heavy hand of repression that brought to a near halt the twenty years of remarkable contention by legal complexes and publics for rule of law and independence of the judiciary (Tam 2013, Tai 2019, Liu et al 2019, Ming-sho 2020, Tai et al 2020. By so doing, Beijing sought to preempt a similar startling transition from an illiberal to a liberal political society that had dramatically taken place in Taiwan, a transformation in which legal complexes were manifestly instrumental (Ginsburg 2007, Hsu 2021.…”