Different Roads to the Rule of Law: Their Importance for Law Reform in Taiwan
Tunghai University Law Review, No. 19, pp. 159-194, December 2003
21 Pages Posted: 23 Aug 2008 Last revised: 28 Aug 2008
Date Written: November 1, 2003
Talk of law reform is in the air throughout East Asia. Whether in Beijing or Tokyo or here, law reform is spoken of in terms of strengthening the Rule of Law. But what is the Rule of Law? Different legal systems have different roads to reach the Rule of Law. These different roads are noticeable mainly in the different emphases different systems place on two critical elements in the realization of the Rule of Law State, namely rules and the machinery for implementing the rules, i.e., courts and administrative agencies. The Rule of Law makes demands on both the legal rules themselves and on the institutions charged with implementing the law. Fulfillment of the Rule of Law requires both rules and institutions. But among those countries that have the Rule of Law, there are noticeable differences in how their rules and institutions contribute to fulfilling the Rule of Law.
While there is considerable knowledge in Taiwan about western models of the Rule of Law, Taiwanese scholars who look abroad to consider the Rule of Law, should be aware of differences in how the Rule of Law is implemented among the countries they consider as models. The road to the Rule of Law is unique for each state. Thus, after exploring the experiences of the German, American and Japanese systems, Professor Maxeiner points out how infirmities in the Rule of Law necessarily cause you to have to choose among roads to the Rule of Law and to suggest how these choices may affect law reform. He would like to stress that these differences among legal methods demonstrate that there is no one right road to implement the Rule of Law. Taiwanese reformers should not seek for a preferred foreign choice, but to develop their own solution that works best for Taiwan.
Keywords: Rule of Law, Legal Methods, The Subsumption Model, Rechtssatz, Tatbestand, Rechtsfolge, Justice, Public Policy, The Judicial Process, Jury, Judge-Made Law, Fairness of the Process,Flexibility, Legal Certainty, Legal Indeterminacy, Equity
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