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

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.

Cause Lawyering and Movement Tactics: Disability Rights Movements in South Korea and Japan

“…Since sociolegal scholars find that historical and social processes shape lawyering, future research should continue to examine the extent to which legal professionals’ roles in movements reflect their commitments to political liberalism (Halliday and Karpik ). In related research, Liu and Halliday () identify differences among Chinese criminal defense lawyers, while Hsu () traces the distinctive approaches to practicing law among lawyers, prosecutors, and judges in Taiwan back to the polity's democratization. The case studies here provide new empirical evidence for the emerging literature that examines how and why the law is mobilized by social movements in East Asia (e.g., Stern ; Chua ).…”

“…Halliday and coauthors analyzed the circumstances under which political lawyering reinforced civil society efforts to deepen political liberalism . Additionally, Bourdieu () viewed struggles (like regime transitions) and the process of making sense of them as especially formative for lawyers’ practices or “habitus.” Hsu (, 23, emphasis in original) also analyzes the three branches of Taiwan's legal profession to show how “ actions during a period of political uncertainty ” influence legal professionals’ identities. One insight from prior path dependent analyses is that developments at critical junctures condition but do not determine subsequent outcomes.…”

“…Such networks of committed people also crystallize lawyers’ conceptions of their social roles and facilitate later mobilization for other causes. Third, cause lawyers gain reformist credentials from their activism, which inspires younger lawyers (Hsu ). When younger lawyers join seasoned ones in working for a cause, they learn the tactical repertoire, reproducing and reaffirming it.…”

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

“…Firstly, action in Taiwan is norm‐driven but adheres to respective occupational interests. While judicial autonomy is the generic principle that mobilizes cross‐sectional support (Halliday et al, 2007), each profession has developed a core identity in accordance with its own form of resistance to authoritarian control (Hsu, 2019). These identities manifest as specific policy orientations in the post‐transition period.…”

“…Specifically, personnel autonomy and independent practice were two bitter points of contention in the transition era (Wang, 2008a, 2008b). In the 1990s, three networks of reformist judges, prosecutors, and lawyers mobilized to defy authoritarian control in their respective departments (Hsu, 2019). The reformist judges strove to establish an independent decision‐making space, for which they advocated abolishing the system of prescreening judgments and democratizing the process of case assignment.…”