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Weberianism in Confucianism: some observations on the relationship between Taiwan's legal culture and economic development

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(2) mrm+-t::M. iI& jd* ~ iff ffill!. W e berianism in Confucianism. --Some Observations. on the Relationship between. Taiwan's. Legal Culture and Economic. Development. has not done even better would be. I. attributed not to the failure of econo­. Economists of the neoclassical. mic planning but to excessive govern­. school would attribute Taiwan's suc­. ment interference and insufficiently. cessful economic development chiefly. rapid and large-scale liberalization. 2). to a refusal to be taken in by post-war. Recently, a number of young econom­. structuralist theory and a bold willing­. ists have even proposed that in order to. ness to rely on market forces and. develop further, Taiwan must "dis­. participate in the international econo­. mantle. mic. 1). system. 1 ). The reason why Taiwan. party-state. capitalist". Ho Chi-ming, "Structuralists, Neo-classicists, and Taiwan's Industrial Upgrading," (Economic papers) 12, no. 2 (September 1984). Ma K'ai, "Changes in Taiwan's Industrial Policy," in ~~~~~----~----~--ed. Ma K'ai (Taipei: Chung-hua Institution for Economic Research, 1991), 115-49.. ~~i::£~I_.!.t:!~~. 2). its. system. 3 ). 3). -. 268.

(3) !\ +=~/\Fl. -~-EJ.1t:.$>C1t.W~m·~~rd]8"Jrmf*. Sociologists,. capitalism, this oversight is mexcus­. course,. consider this to be an oversimplifica­. Weber was careful not to araw a. tion. In particular, sociologists who. cause and effect relationship between rationalization of law and the. emphasize cultural and religious tors would begin their explorations. development of capitalism, but he did. with a Weberian question: What has. 1::>elieve that the formal rationality of. made Taiwan people work so hard and. law and the development of capitalism. achieve such a sustained level of. were complementary.6) This was why. growth (from a per capita GNP. it was possible for Britain, a country. US$120 in 1949 to nearly US$9,OOO. whose legal system had not attained. Is it a kind of secular post­. such a high degree of formal rational-. Confucianism,4). or. the. Chinese. mercantile. --perhaps. combined. traditional spirit5 ). as the continental system, to birth to capitalism. This is what has. some. termed the "England problem" in. other factor, such as American aid or. Weber. 7 ) However, Weber was perfect-. the post-war international economic. aware of this apparent contradiction. recovery--that. enabled Taiwan. and produced a reasonable explanation. to demonstrate such remarkable eco­. for it. B) But how, in this case, cOUlO a. nomic strength?. Confucian,. The role of law and lawyers has. "substantively. rational". society like that of Taiwan attain. been somewhat overlooked. And con­. a high level of capitalist development?. sidering the attention Weber gave to. Might this not. law in explaining the development. problem"?. 4) 5). 6). 7) 8). termed the "Taiwan. R. MacFarquhar, "The Post· Confucian Challenge." The Economist, February 9, 1980, 67-72. Yii Ying-shih. (Religion and ethics and the mercantile spiritin modern Chian) (Taipei: Lien-ching, 1987). While Weber never attempted the type of causal argument he constructed for Protestantism and capitalism, he did indicate that there was a close relationship between modern occidental law and the rise of capitalism. See, for example, (Berkeley, Calif.: 1978), vol. 2, 655, 883. David Trubek, "Max Weber on Law and the Rise of Capitalism," ~~~~~~ 1972: 746. Sally Ewing, "Formal Justice and the Spirit of Capitalism: MaxWeber's Sociology of Law," 21, no. 3 (1987): 487-512.. -. 269 -.

(4) ~[Tq+t;W:l. il&*tE~1WilIi . Here, the author would maintain. attitude may. expected to hinder t.!1e. that the case of Taiwan proves that a. state's handling of such issues as. legal system imported from continental. income. Europe and possessed of a high degree. labor, social order, and the environ­. of formal rationality can be made to. ment which require "rematerialization". work--at least the parts concerning. of the law. 11 ). property rights and contract can--in. differentials,. protection. of. II. an "inwardly Confucian, outwardly legalist" society. That is, of course, if. The Western legal system was. the state can provide other aspects of. introduced to China in the early years. infrastructure required by a market. of this century, and to Taiwan--at. economy, such as a stable currency, a. that time under Japanese colonial rule­. banking system, transportation sys­. twenty years earlier. The Chinese had. tem, etc.. g. The instrumentalist attitude. a codified law for more than 2,000. toward the law exhibited by traditional. years prior to this, but not only did it. Chinese society allowed it to accept a. differ from the Western system in. private law with a high degree of. content, its basic function in society. formal rationality. Confucians tradi­. was also different. Of course, Confu­. tionally regard law as beneath con­. cians realized that law was a necessary. tempt, but this attitude may yet check. evil, just as Legalists recognized that. the trend toward excessive legalization. ethics, too, were indispensable. From a. and. present day point of view, the Con­. ). somehow. avoid. the. tensions. arising from the difference between. fucian-Legalist dispute 12) is just a. the substantive concept of justice and. matter of difference of emphasis, or as. formal legal rationality in Western. the well-known Chinese scholar Wang. countries. 10 ). Po-c h 'i has said, just a difference in. However, this anti-law. John H. Beckstrom, "Handicaps of Legal-Social Engineering in a Developing Nation," 22 (1974): 700. 10) See above all, Richard L. Abel, "Delegalization," in Jahr~uch fur Rechtssgziologie Bd. 6, (Opladen: Westdeutscher Verlag, 1980), 27-46; Marc Galanter, "Legality and its Discontents," ibid., 11-26. 11) Rudiger Voigt, AthenaumVerlag, 1980). (Law and societv in 12) Chu T'ung-chu, traditional China), (Taipei: 1984), 408-36. 9). 270.

(5) J\. + -iF-/,\ J=l. -. ~ ti'1II7*1f>c. ft;W.~~~~ fl,HI¥J1mf?(;. "les regles de droit constructives ou. and Tzu Ch'an were well aware of. techniques."13). emphasize. disputatiousness of the Chinese, and. the objectivity, certainty, predictabil­. believed in the primacy of. and deterrent effect of law, where­. order, it was just that one emphasized. Legalists. as Confucians fear that these aspects. "Jj. of law greatly reduce the effectiveness. order." Unlike the. of ethics. The differences between. phi~osophers,. them can be seen from the debate. to ascertain the meaning of "justice,". between Tzu Ch'an, one of the earliest. so traditional Chinese law had no. codifiers of the law in China, and the. concept of right, only "reflected in­. Confucian scholar Shu Hsiang. As. terests". Hsiang said in a letter to Tzu Ch'an:. order.. "By doing this (promulgating laws). you. WIll. be showing. dispute their rights. people how to. and order," and the other "law and the Legalists did not try. based This. and Roman. on o"Sligations and is. where. traditional. Chinese law differs from Westf'rn law with its "regIes de droit normatives.". fight for their. The. result. of. the. Confucian-. interests. They will certainly turn their backs on propriety. (m and righteous­. Legalist dispute was. doctrine was written into the law, and. and base everything on the. the law was administered by officials. law. They will be unwilling to relin­. who had received Confucian training.. quish the smallest right.". This had the effect of suppressing. CD. ness. Confucian. Tzu Ch'an's reply was straight. development of the legal profession in. forward: "I have only limited wisdom,. China. 15 ) It was therefore with good. there is no way I can take long-term. reason that WeSer categorized tradi­. interests into consideration. I can. tional Chinese law as having "substan­. of the order of thE' present generation."14) It is clear that. 13) 14) 1;,);. 16). 17:. Shu Hsiang. tive rationality."16) This accounts for the widespread ignorance of and lack of regard for law in China. 1?) In. wen·hua (Modern law and China's innate Taken from the , the sixth year of Duke Chao of Chou. ]. Escarre, "Law, Chinese," in (New York: China, 427. Macmillan, 1931) 9:251. quoted in CS.u, Law Max Weber. The Religion of China: Confucianism and Taoism, trans. B. H Gerth 104. Lin Yi.i-tan£!. (Taipei: 1977), 174.. 271 ­.

(6) il7l7d! '" If!S ~ . mp:g+-I:;Mi3. addition to this, the power of the state. equality and equality between man and. made little impression on traditional. wife, met with a high degree of. rural society, which relied mostly on. resistance in society. 20) In this case it is. the clan leadership and the local gentry. not difficult to understand how indi­. maintain order through ethical. vidualistic Western law would conflict. to. mediation. 18 ). It is in­. with traditional, clan-based Chinese. deed interesting how the Western legal. society. But property law and contract. system was able to take root in this. law, based as they are on the auton­. Confucian society.. omy of private law and free contracts,. education and. quickly found acceptance in a country. "'he efforts of reformers to intro­ duce Western law to China at the end. that was already at the early stage of. of the Ch'ing dynasty met with serious. capitalism. The reasons why this lega~. obstacles, and it was only after the. system found acceptance in China are. Revolution of 1911 that Western-style. as follows: SUC~1. 1. Unlike. civil law, commercial law, penal law,. as. and the code of civil and criminal. family and succession !a w, property. procedure. and. were. fully. introduced.. contract law. are. most!y. ius. However, the real conflict with the. dispositivus, having a substantive part. indigenous system occurred in the area. and a procedural pal·t, a 1J of which give. of the "regles de droit normatives,". the parties concerned ample freedom. those areas touching on ethics and. of decision. These kinds of !aw~. status,. merely made up for the deficiencies. in. particular,. the. Western. concept of equality-including equal­. the traditional legal system and pro­. ity before. vided the minority. law, and political and. peop~e. who. social equality.19) For this reason,. engaged in commerce with a means of. those sections of the civil law relating. resolving disputes that cou!d not be. to the family and succession, embocy­. settled satisfactorily throug1:t the traci­. ing as they do the principles of sexual. tiona} channels of mediation.. 18) Fei Hsiao-fung, (Rustic China) (Taipei: 1981), 58-63. 19) Pitman B. Potter, "Law and Culture in Modern Chinewe Society," (Paper presented at the International Conference on Values in C~inese Societies: Retrospect and Prospect, sponsored by the National Central Library, Taipei, ROC, May 23-26, 1991). 20) Yang Hung-lieh, (Taipei: 1981), 366_. shih (History of Chinese legal thought). 272 ­.

(7) J\. + =if7\ 1".1. -. ~ 11 ~ #i W 1J:.ft f;1! ~ 1ff IJt ~ rE1~ 8"1 IUJ {if. 2. Although traditional Chinese. main'and China today,. never developed precise concepts. theorists believe that they can syste­. o£ property rights and contracts, China. maticaHy construct a "socialist legal. did not have the kind of reactionary. system," with Marxism as the "ess·. feudal forces that existed in 17th and. ence" and Western law for "use."12). 18th century Europe and which put up stuSborn resistance to the con­ cept of contracts. 21) What is more, the late Ch'ing idea learning. as. the. of "Chinese. essence,. Western. learning for use," which embodied the traditional. instrumentalist. allowed. conservative officials of. the. not interfere \vith the Confucian ,,'. essence.. 4. There are clearly many ways in which property. ~,. based on. IS. incompatib1e with Confucian society, is based on ethics and tions. But since Confucian chiefly concerned. attitude,. to accept property law w hic h. some. are. family relation-. In ai5uLull. are. mainly. confinec. poperty disputes.. to. inter-clan. IS. where ordinary commercial activities are concerned, and. this reason. 3. The Legalist tradition and the. Confucians did not oppose the intro­. techniques of legal codification which. duction of property law. Even usmg. had been maturing since the Sui and. private litigation as a means of main­. dynasties made the introduction. taining order in a market economy was. the continental civil code, with its. not as difficult as might have been. high degree of positivity, objectivity,. imagined. As Dr. \Vu Ching-hsiung,. and predictabiEty, relatively. who participated in the making. Training. Jega~. professionals and intro­. the legal dogmatics necessary. the. civil law, has pointed out: "If you compare Articles 1 to 1,235. the civil. to put these laws into operation was. law with German civil law and the. more difficult. However, the reformers,. Swiss civil law. and obEgations. who deep down regarded law as purely. are 95 percent the same." Explain­. instrumental, were undaunted bv this. ing how foreign law could be made to. task. A. work in Chinese society, he. 21 22.. situation exists in. Helmut 1971), Chapters. rn. et a!., "The Rise of the System Law School," l::.~_~r:_g~~~}~'1 forum) 19x5, no. :3:1.. '-...lWUlllg. \--'nl1tlf'"j. - 2n­.

(8) ~*#,;~~lftfij. mrm+i:;~. "The Western idea of law is highly. the. compatible with the Chinese national psychology."23). facilities and the establishment of a. The European. concept of autonomy in civi~. law is. construction. of. transportation. currency system and a system of administration, etc. This is a common. completely. problem encountered by many de­. compatible with Chinese disputatious­. veloping countries in their effort to. ness, as Tzu Ch'an and Shu Hsiang. promote development through. recognized more than two thousand years ago. The Japanese rulers of. introduction of a modern legal system, Beckstrom has indicated. 25 ) as. Taiwan began to replace the tradition­. Taiwan, however, was in a very. al Yamen system with Western-style. advantageous position in this regard at. courts at the end of the 19th century,. the end of t1.,e colonial period.. the. and they were surprised to discover. Prior to the Japanese takeover,. that although the court officials were. Taiwan had, under the enterprising. all Japanese and the law was a foreign. governorship. import, Taiwan's small-scale market economy produced plenty of business for the courts. 24 ). become China's most advanced pro­ cluded China's first government-spon­. Besides the formulation of a legal. sored railroad and its first telegraph. code, the introduction of a legal system. system. Liu also set up a postal service. also involves training a body of judges,. and completed a preliminary land. lawyers, and teachers of law and the. survey. This development was con­. establishment of courts and other. tinued by the Japanese, who sought to. related facilities. In addition, the socie­. ma!-{e Taiwan a model colony. They. ty must be technically prepared to. started a land registration system, the. apply the new law and thus bring. first attempt in a Chinese society to. about its engagement with those to. establish legal guarantees for property. whom it is addressed. This involves. rights and what might be termed the. 23). Liu. Ming-ch'uan,. vince. Development under Liu in­. Wu Ching·hsiung, "New Civil Law and Nationalism," ~~'-£~E2~~~~c:Q~ (Studies in legal philosop~y), 27-28.. 24) 25). of. See note 9 above.. 274 -.

(9) J\ +-- if. :f\ f:I. ~ {s J'lUj~ 1£ ~. * ittt 1!t fI"J. ~ fl'l- ~ T5" tE. 1$ 3t {t, W~ 1ff ¥l fPk. Pa~ I¥J fir 1*. first step toward capitalism. 26 ). only limited effect. 2?) As a result, when. colonial currency system and the. Taiwan, where the legal system had to. pervasive administrative system laid a. a certain extent passed from the pre­. good foundation for Taiwan's subse­. engagement to the working stage,28). T~e. was returned to Chinese rule in 1945,. Chinese still had no fondness for law,. the European legal system which had. but no Chinese society in history had. only had a superficial impact on the. been made so deeply aware of the. mainland very quickly began to play. law's existence. Although the judges,. its role in promoting development,. public prosecutors, and lawyers were. particularly. quent economic development.. economic. development.. Japanese--Chinese were not. Only a matter of months after the. permitted to study law--they did set. Japanese surrender, the courts were. an example of legal professionahsm for. staffed. aU. with. native population, as did the courts. fully-trained Chinese judges from the mainland 29 ) and were. which were independent of the execu­. using Chinese law, which differed very. tive branch.. little from Japanese law (the Chinese. The Chinese mainland lagged far. and Japanese civil and penal codes. behind Taiwan in that respect. In the. were based on those of Gerrnany,. early years after the 1911 revolution,. Switzerland, and France). Thus there. the government examination system. was no "culture shock" involved in this. produced large numbers of legal pro­. transfer to Chinese rule, it was in fact. fessionals and a nationwide system of. to the benefit of both. 30 ). courts was set up, but these efforts had. .. 26) '111 ')'7) ~I ,. 2R;. 29). .30). Ti~-hsia. (Common Wealth) (Taipei), ~ovember 1991, 208. The article was the Taiwan history expert, Professor Wu Mi-c-h'a. Wang Chi-pao, (History of the republican judiciary) (Taipei: 19:>4), 9. See note 9 above. J:...UlI!g::Y~la_~~~_n2~a~~~~~~~~~~~~~~~I~~(). (Summary of judicial administration in the period of mobilization for suppression of rebellion) (Taipei: 1972), 21. This may be seen from the fact that during the l:;'ebruary 28th Incident of 1947, the protestors attacked government buildings but left the courts alone_. - 275­.

(10) ill [q -+-t.; Wl. iI&*1t~WfMil. instance increased from 2,270 in 1R97. III. to 6,027 in 1942. 32 ) After the return tu. No one has been able to ascertain. Chinese rule, the number of new cases. whether there is a cause and effect. rose from 11.430 in 1950 to 245,940 in. relationship between a highly formalis­. 1970, a more than t\venty-fold increaSE. tic legal system and capitalist econo­. over two cecades and one which kep1. mic development. One thing is certain,. pace with Taiwan\;; economic growth. however,. However,. formalistic. market. law. growth in litigation. ha~. makes 'arge-scale, rapid transactions. been rather irregular, and in some. much easier, although society must. years it has been negative. In the. pay a price in terms of an increase in. 19701", a decade of rapid economic. litigation.. effect of economic. growth, the litigation rate showec no. development on the amount of litiga­. significant increase, whereas in t!-le. !-las. tion. The. often. been. presumed,. 19ROs, when economic gro\vth slowed. although on!y a limited amount of. down. the annual number of new. research has been carried out on this. cases. subject. 31 ). forty-fold increase over 1950. Howev­. Tai\.van is an obvious case During. Japanese. ~ivi!. 500,000 in some years, a. In. er, generally spec' king, there does seem. col.onia~. to be a connection between judicial and. period, t!-le nurn bel of new civil cases. economic activity.. heard annually by the court of. :)1. 32. Jose ;uan Toharia. "Economic 0evelopment and Litigation: The Case of ;:)pam, m Bd. 4, (Ovladen: Westdeutscher Verlag, 19(6), 39. :\1oser, 2R. -. 276.

(11) J\I =1f. t" R ~{8l:t!~:t£{l~H~~Wrt_1JI¥J~ffl- ~ $jI!f$.:fiI!)(fr,W~~~Jm!"El~(Ygqf*. Tabe 1 Per Capita GNP. Litigation Rate in Taiwan. Der. Year. ~o.. of civil cases**. 1951. 1,407. 20,058. 1956. 3,296. 110,447. 1961. 212,108. 1966. 200,998. 8,848. 1971. 286,516. 1976. 39,559. 245,873. 1981. 89,868. 272,234. 1982. 366,923. 19K~. 439,516. 103,093. 1984. 730. 1985. 119,272. 578,765. 19x6 ly;,7. 137,992. 511,687. 153,773. 1988. ~65,884. 403,504. 195,905. 487,604. 1989 1990. Source:. ~epartment. of Budgets, Accounting & Statistics, ROC ExecutiveYuan;. ROC 1udicia1 Yuan.. *Ca1cu~(1ted. at. year s. no allowance. been made for fluctuations in. currency values.. **Numher of cases closed that year in courts at all levels.. Y>f'lllri",,,. cases that. were setdec by demand for payment without a hearing.. From the litigation rate it appears. for their. ("Kampf urns Rech­. t~at Taiwan society is getting further. t"' --lehring) as Shu Hsiang pre­. and further away from the Confucian. dicted they would. If we compare. ideaL ~ t is dear that if conflicts are. Taiwan's litigation rate with those in. llnavoidab~e. Sarat. and. C'linese people. law is "struggle. -- 277. Grossman's study we find. that in 1970, Taiwan's rate was. ",l;".h-tl".

(12) ml2Y+t;W:/. iJ&*#i:~WJS~ . lower than West Germany, higher than. has approximately 2,000 registered. Japan and Scandinavia, and higher still. lawyers, almost one for every 10,000. than South Korea. 33 ) Of course, these. people, as well as a flourishing unreg­. studies are not quite comparable and. istered. so we should avoid drawing too many. examination body dropped the abso­. conclusions from them. However, one. lute limit on the number of passes and. scholar has calculated that in recent. adopted a proportional system instead,. years, Taiwan's litigation rate has been. the number of candidates increased to. almost as high as that of the United. more than 4,000, compared to 3,000 the. States. 34 ). year before. The pass rate increased to. sector.. In. 1991, after the. The number of Iawyers is also an. 400-500 from 20 or 30 in the past. The. important indicator of judicial activity.. rate is sure to remain high in the next. In some European countries and the. few years to make up for the shortage.. United States the number of lawyers. These facts seem to indicate that. has accurately reflected the degree of. Taiwan society has become thorough­. economic development, despite the. ly "legalized" and make one suspect. fact that these countries have zero. that the Confucian anti-law tradition is. population growth. For example, West. a thing of the past. If that is not the. Germany had 11,818 lawyers in 1950,. case, how does it coexist with the. 18,720 in 1960, 25,851 in 1974, and. "modern" phenomenon?. 46,943 in 1985. In France, the number. IV. rose from 8,035 in 1971, 12,408 in 1976, to 15,389 in 1981. 35 ) In Taiwan, as in. Sociologists have almost com­. Japan and South Korea, the stringent. pletely ignored the question of public. state examination system means that. attitudes toward the law in Taiwan.. the number of lawyers entering the. There have only been a few isolated. market each year falls well below. surveys of public confidence in judicial. market demand. Currently, Taiwan. institutions and most of these have left. See A. Sarat and J Grossman, "Courts and Conflict Resolution: Problems in the Mobilization of Adjudication," Review 69 (1975): 120R 34) Lawrence Shao-liang Liu, "An Examination of Some Problems of Law Enforcement in Taiwan Using Economic Analysis of Law," (Paper presentee at t~e Symposium on Economic Analysis of Law, sponsored by the National Taiwan University Sconomics Department, Taipei, ROC January 19-20, 1991), 24. 35) Pedamon, "Anwaltsberuf in Wandel: Entwicklungen in Frankreich," in in Kiibler ed. (1982), 58. 33') . 278.

(13) J\ + -=:tF: rOg . -. judicial. ~ f:J. $: 1$)z 1t W~ 11f ~. very discour­. aged. In with al. people decide. a Wlde-rangmg. encounter in. of. in. survey. we. sets of. circumstances in which involving anonymous. urbanized areas of Taipei. rela­. tions or instrumental ties,38). were extremely. as. pollution of one's living environment. in that they revealed that Taiwan's "legal culture"36). were. likely to be "legalized": ()) m cases. City and 300 in three. County.. P'tlPr'trrbnr. life are used f"l-.'rlAAn. matters. The survey. involved a random sample of J.CUlLU'",,,. of. legal consciousness from the way in. of to handle. flEl~ Erg rm {:if;. One can usually gauge the. author together I-yen, a hph';"71r.r l"r.ni111l"tpi1. '*. is still. by adjacent factories; (2) in cases. deeply influenced by Confucianism. where other social norms do not exist,. and very different from that of the. such as divorce, for which traditional. W est. Here I will only touch briefly on a our findings. 37 ). ethics and law provide no norms; and. of flln""f"~£vn. (3) in very serious cases. Therefore, although in. whether the mam. of law is social control or the. Taiwan people. rather not have recourse to the. must. into any. the. three categOrIes ::>llVUIU. a certain. have. to be. consclOusness,. rlO,,.,. ..'OA. survey work was more. are confronted with. problems. must either. ,...1""'AhT irnT"luAri. the market economy were more. legal knowledge to. to have legal. and that urban. cope with them themselves or else seek. residents had. assistance from legal professionals.. problems than rural dwellers.. more legal. 36: This article foHows Friedman's definition of legal culture as "values, habits and attitudes toward and about law." See, Lawrence M. "Legal Culture and Social Development," Law and Review 4 (1969): 29. i, Yeong-chin Su and I-yen Ch'en, "Study of Factors People's 'Understand­ 3"'\ ing of and Ability to Handle Legal Matters," (Unpublished manuscript, 1986). ~18~\ Huang Kuang-Kuo, (Confucianism and East Asian Modernization) (Taipei: Chu-liu Book Co., 1988), 207.. 279.

(14) i!&*1ft.lJf~. There is a widespread lack of. 1111ZY+-t;Wj. widespread. Only about 20% of respon­. knowledge of bo6 substantive and. dents had experience of lawyers or. procedural law,. legal. litigation, and fewer had consulted. profession, although in this too there is. lawyers than had experience of the. a. courts. This percentage was very much. and. of the. conspicuous. difference. between. urban and. rural residents. When re­. lower than that of the United States or. spondents were asked about areas of. even most European countries. The. property law which differ from tradi­. reasons given in the survey for this. tional concepts, like "Is a son obliged. unwi!lingness to have recourse to the. to pay his dead father's debts?" more. law are very complicated. They in­. than half of the rural respondents. clude. answered Hyes" in accordance with. cases are too lengthy, or that they are. traditional practice. In contrast, the. incapable of solving problems. The. majority of urban respondents knew. majority of respondents. that the law of succession is centered. lawyers are profit-oriented and judges. on the individual and a son is not. are corrupt. This low level of confi­. obliged to take on the debts of his d.ead. dence cannot entirely be attributed to. father. Another point worthy of atten­. traditional. tion is that although the majority on. experience respondents had of. respondents were. law,the. dissatisfied. with. exuense, the fact that court. prejudice. lower was. that. as. the. their. more. !evd. of. their legal knowledge, when they were. confidence.. asked the question "Has your current. the more experience people had of the. level of legal knowledge ever caused. law, the more willing they were to. you any difficulty?" only 4.6% felt 6at. continue to seek professional legal. it had caused them a great deal of. advice or have recourse to the courts.. difficulty, 9.9% said that the difficulty. Since most of those with experience of. was quite serious, while 66.9% thought. the law were in the higher socio­. the difficulty was not very serious, and 18.7% said it had caused them no. economic groups, this is a sign of an instrumentalist attitude which com­. difficulty whatsoever.. bines lack of confidence with a. Despite. Taiwan's. fairly. ~t. is strange, however. that. high. ness to use the law if necessary. '':his. litigation rate experience of consulting. means that the judicial system is. lawyers or initiating litigation is not. dispensing a kind of. - 280. justice" to a.

(15) J\. +-if.t\ A. ­. ~i=I.ft;,t{,;:st 1t;~~1ff~~rl:-llEt:J~{~. population. 39 ) The. distribution of judicial resources. 41 ). legal profession which forms part of. This may be said to be the advantage. minority of. this Taiwanese class justice is both small. and. expensive.. In. Confucian legal culture.. addition.. Most. social. conflicts are. according to a postal survey of lawyers. resolved through traditional means.. all over Taiwan, most of their cases. For example, in answer to the question:. involve economic activities, such as. "What would you do if you. loans and real estate transactions. And. NTS50,OOO through. it is these problems that they are likely. loan association?"42) 56.1% of respon­. to learn most. in law school.. collapse of a. dents said they would try to resolve the. Generally speaking, where \Vest­. problem through conciliation, as many. ern formalist law conflicts least with. as 19.5% said they would drop the. Confucian "anti-law" culture is in the. matter altogether, and 8.4% said. area of private property law. It is only. would get a. when those people who participate in. The attitudes exhibited here are very. economic activities are involved m. Confucian--only 6.4% of respon­. serious conflicts that they need to. dents considered seeking legal advice. make use of these laws. In this case, it. or taking the matter to court. However,. is only to be expected that raDid. if the sum of money involved was. economic development wiH bring. raised to )JTS250,OOO, the number. out a. people willing to take legal action. litigation rate. However, most people. jumped to 27%. In this case, mediation. have very little to do with these non­. clan members or local leaders. mandatory laws, and this alienation. would be significantly less effective as. does not produce t1:1e anxiety that. a result of changes in the structure of. exists in the West as a result of uneven excessive legalization40 ) or. society.. 40 41. 42. in. member to mediate.. the. :39. large-scale increase. fami~y. !'\ew forms. of. mediation. promoted by the government have not. Jerome E. Carlin and Jan Howard, "Legal Representation and Class Justice:' D.C.L.A. La,v Review 12 (1965): 3~1-431. See note 10 above. See among others, Marc GaJanter, "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change," Law 9 (1974): 95. According to an official survey, approximately ~O% of households in Taiwan belong to one or more of these small-sea 1e. unofficial finance organizations. The participants are mostlv neighbors, colleagues, or friends of the organizer.. 281 -.

(16) i&:*~~li'H~ . proved. an. effective substitute for. fiffe:9+-t;WJ. responsible. for. economic. develop­. traditional mediators owing to their. ment--free enterprise and formalis­. association with officialdom and their. tic private law, or the government and. excessively formalist image. This is. the substantive economic law 44 }. despite the fact that they do not. there is still room for debate.. It would of course be wrong to say. conform with nrocedural justice in the way that court judgements. do. 43 ). that these mandatory and directional. v. ineffective. But we can see from the. The claim that Taiwan's success­. thriving underground economy that. economic laws had been completely. ful economic development is partially. many legal restrictions are not strictly. attributable to the introduction of. enforced, while economists also be­. Western private law with its high. lieve that the Statute for the En­. degree of formal rationality is subject. couragement of Investment, for exam­. to the following reservation: economic. ple, is not very effective. 45 ) For this. activities in Taiwan are not regulated. reason, the author believes that the. by the property law and the contract. motive force behind Taiwan's econo­. law alone, such aspects as business. mic deve1.opment is the invisible hand. registration,. of the market economy, and that. labor. conditions,. and. imports and exports are also regulated. private law, which guarantees transac­. by administrative law and even penal. tions, is an indispensable part of the. law. In addition, economic planning. market. This does. directs investment, savings, and the. insoluble conflict in a society which. adjustment of industry, etc. This is. also relies on Confucian ethical norms. something that the government often. --which are chiefly embodied in the. takes credit for. As to what is most. penal law. Indeed, Confucian attitudes. not create. Because the mediation ':lodies are located in local government offices or courts, and the mediators are not natural leaders of the community, they are not so effective as the traditional mediation system. See, Lin Shu-pu, "Study of the Statute of Community (or County) Mediation, (ROC Judicial Yuan) 5, no. 2(1985): 446-656. 44) Gunther Teubner, "Substantive and Reflexive Elements in Mocern Law," Law and 17 (1983): 239-85. 45) See, Sun Ke-nan, "An Assessment of the Economic Benefits of Taiwan's Statute for the Encouragement of Investment," (Economic monographs) (Chung-hua Institution for Economic Research, Taipei) 71 (June 1985).. 43) . 282 ­. an.

(17) A + =~7\ J=j :J!It:1B!lffifH:{£~*jfr±~l¥J~ffl- ~ t:J.#d$Y1~W~ffif~J!fkrB~ IYJfUl1*. merely serve to discourage exceSSIve. Taiwan's Confucian legal culture IS. reliance on the law.. adjusted it is likely to obstruct further. However, this collaboration be­. capitalist economic development.. tween alien private law and traditional. According to the evolutionary. Confucian ethics has met with a. approach of philippe Nonet and Philip. challenge. Social. Selznick,46) Taiwan may be said to. change and the growth of materialistic. have passed from the repressive law. values has weakened the regulating. stage to the autonomous law stage, and. ability of Confucian ethics. What is. to be about to pass into the responsive. more,. law stage, and, in a somewhat similar. as. in. recent. social. risen--for. years.. consciousness has. example,. there. is. In­. way to the West, to be facing a crisis of. creased concern about the environ­. formal. ment and more attention is being given. differs is that as a basically Confucian. to the protection of laborers and other. society, it will face more problems in. weaker social groups--the govern­. this transitional phase as a result of the. ment has been forced to think of ways. low level of legal consciousness and. to strengthen the legal system and use. legal knowledge and a lack of willing­. mandatory means to redistribute re­. ness to consult legal professionals.. sources. The social conditions required. This is perhaps a Weberian paradox:. for this kind of rematerialization of the. where Western law and Confucian. law are very different from those. society really come into conflict is not. required by private law. Most impor­. in the highly formalistic autonomous. tantly, it requires an even higher public. law stage, but in the responsive law. legal. stage. consciousness,. greater know­. rationality.. when. Where. substantive. Taiwan. rationality. ledge of the law, and greater willing­. once again makes an appearance. This. ness to use it. It is also necessary for. is explained in the figure below.. more legal professionals to specialize in this area and government depart­ ments to take a more determined attitude toward law enforcement. As a result, conflicts betweeen the law and Confucian ethics are likely to increase, and the author predicts that unless 46). Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward. -. 283 ­.

(18) ~QY+-t;Jtg. i&*#i:~WfIDfli ~~igure. 1. The Three Stages of Law in Confucian Society -. consciousness law. jNon -legal. ,­. Behavior norms IAccords with norms. Social. +. ethical norms Autonomous law. ~----------------~~------------------------.~---------'. JLegal iViolates ethical norms ~on-legal. Responsive law. Accords with norms. +. -*. 1. ILegal. *. In the responsive law stage many reformatory laws are "Soth mandatory and. aimed at changing traditional ethical concepts. Therefore, if people are ignorant of the law and follow traditional ethics instead, it is very likely that they will violate the law.. This paper was presentee! at a. tute of East Asian Studies, University. Berkeley Conference on "Culture,. of California, Berkeley, held from. Religion. and Chinese Economic De­. Feb. 26 through 28, 1992.. velopment", organized by the Insti­. 284 ­.

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