Academic

Peerenboom & Chen on the Rule of Law in Taiwan & China

By Lawrence Solum

Randall Peerenboom and Weitseng Chen (La Trobe University - Faculty of Law and Managemen) have posted Development of Rule of Law: A Comparison of Taiwan and China (POLITICAL CHANGE IN CHINA AND THE TAIWAN EXPERIENCE) on SSRN.  Here is the abstract:

Although Taiwan and China are currently at different stages of development, both have followed a similar path in establishing rule of law, a path that other successful East Asian countries have also followed to a considerable extent. Part I sets out the "East Asian Model" ("EAM"). Part II takes up Taiwan's development in light of the model. Part III looks at China's development. Part IV concludes with a discussion of what the experiences of Taiwan and other Asian states suggest might lie ahead for China, as well as some general observations about what Taiwan, China and the EAM tell us about modernization theory, democratization, the implementation of rule of law and good governance.

This chapter challenges standard views of legal system development in Taiwan and China. Many histories of legal development in Taiwan tend to present a predominantly, if not uniformly, bleak portrait of law during the martial era. This is then contrasted with a predominantly, if not uniformly, sanguine view of law in the post-democratization period. Democratization was no doubt a pivotal event, leading to rapid and dramatic improvements in the legal system. Nevertheless, Taiwan's legal system obviously did not just suddenly leap from the bottom quartile into the top quartile on rule of law indexes upon the start of democratization in 1986. The legal system had developed steadily during the martial law era, albeit subject to restrictions in some areas. At the same time, democratization did not resolve all of the tensions and problems in the legal system or in governance. As in all countries, the legal system remains a work in progress, with rule of law an inspirational ideal to be struggled for if always imperfectly realized.

As with Taiwan prior to democratization, portraits of the legal system in China are often exceedingly bleak, with many commentators questioning China's commitment to rule of law. Much of the popular and scholarly focus is on deficiencies in the handling of politically-sensitive cases. The torrent of reports condemning China for human rights abuses tends to overshadow slow but steady progress in strengthening institutions and building a corps of professional judges, lawyers, prosecutors and police. Yet it is on the basis of these incremental, often politically contested, institutional changes that the rule of law is built.

Full post as published by Legal Theory Blog on November 20, 2008 (boomark / email).