If you ask people in Taiwan what their deepest impression of the current government is, “administration in accordance with the law” or “the rule of law” are likely to be among the top key phrases offered to describe it.
When houses are demolished to make way for urban renewal it is done according to the law. The environmental impact assessment for the Miramar Resort was done in accordance with the law. The Want Want China Times Group’s bid to acquire Next Media’s assets in Taiwan is being handled in accordance with the law.
Victorian British historian Thomas Carlyle used the term “the dismal science” to describe economics, as typified by Thomas Malthus and his “dismal theorem” of population.
In Taiwan today, the notion of “the rule of law” is coming to be seen in a similar light.
Many major social controversies over the last year have revolved around legal questions.
Under the administration of former president Chen Shui-bian (陳水扁), there was a growing tendency for political controversies to be handled in court and since Ma Ying-jeou (馬英九) became president, law courts have become an even more important forum for social movements.
For one thing, given that Ma’s Chinese Nationalist Party (KMT) now controls both the executive and legislative branches of the central government, when political departments stand firm and immovable, the judiciary becomes a social movements’ last line of defense.
For another, challenging defective administrative behavior through the judiciary can strengthen the basis for social mobilization.
The symbolic justice offered by court verdicts can satisfy the parties concerned in a moral sense. However, while we may hope that judges will play a positive role in relation to social issues, we should not forget that judicial verdicts may also result in setbacks.
Over-reliance on law courts may also cause the role of social movements in political and social spheres to whither away, which could cause them to lose their impetus.
More importantly, the experience of the last year or two suggests that even when administrative departments lose court cases, they often use technicalities combined with their administrative discretion to circumvent the results of court judgements. This tendency reveals the extent to which the system of government according to the law in this country has been stripped of its real substance.
If truth be told, it has never been possible to completely disallow discretion in the exercise of political power.
In post-war Germany, the whole ideology of government based on the Rechtsstaat doctrine was designed to prevent unlimited concentration of power and the unbridled autocratic decision making that results from it. So, the original intent of “administration in accordance with the law” is for a democratically legitimate parliament to establish norms by which legal regulations are used to build a framework for political power and reduce the potential for administrative arbitrariness.
However, there remains space for the exercise of political power beyond the constraints of legal regulations. For example, many constitutions provide for emergency decrees as a way of permitting the exercise of special executive powers.
The German-American political scientist Ernst Fraenkel described this coexistence of a “normative state” and a “prerogative state” as a “dual state.”