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Session C3
How Some Misunderstandings of Comparative Law Delayed State-building: On Taiwan's Court Organization Act Amendments of 1980
吳宗謀 Tzung-Mou Wu
Institutum Iurisprudentiae, Academia Sinica, Taiwan

Taiwan's Court Organization Act (COA) Amendments of 1980 are legendary. The event has long been deemed one of the docile constitutional jurisdiction's rare acts of defiance under the authoritarian regime. The Grand Justice Council's Constitutional Interpretation no. 86 declared the Court Organization Act unconstitutional in 1960 on the ground that the act put all the high courts and district courts under the authority of the Ministry of Judicial Administration (sifa xingzheng bu). According to the amendments, those courts were assigned to the Judicial Yuan, while the public prosecutor's office in each of them remained in the renamed Ministry of Justice (fawu bu).

This legend of belated victory of the rule of law, this paper argues, relies on a simplistic understanding of the U.S. version of the separation of powers doctrine, which is incompatible with the COA's design. Misperceiving the amendments' constitutionality, Taiwan has deviated from a critical path of state-building, namely the institutional arrangements to coordinate the government's rule drafting, rule making, and arguments in litigation, or ``government lawyering'' in a wider sense.

This paper consists of four parts. The first part sketches how the pro-Common-law tendency in the post-war comparative legal scholarship and Taiwan's domestic conditions contributed to the justification of the COA Amendments of 1980. The second part challenges the conventional narrative of legal westernization in Japan and China by shifting from its ``West-East'' framework to an ``East-East'' one available in some recent literature. This part argues that the conventional narrative is wrong because it overstates the judiciary's importance to the state sovereignty during the process of Japan's abolition of extraterritorialities. The third part argues that the ``government lawyering'' is and remains the largest missing piece of Taiwan's state-building roadmap. By comparing French, U.S., and Japanese experience in the 19th century, this part highlights the ``Chineseness'' of Taiwan's state, which runs on the criminal justice and political bargaining. This paper concludes on the need to rewrite the narrative of Taiwan's legal transplant.