Western Legal Traditions for »Laying Down Taiwan’s Indigenous Customs in Writing«
The question of what the law is may preoccupy some legal theorists. Answering it is definitely the legal professionals’ nightmare. Constitutional and statutory requirements now require Taiwan’s officials and lawyers to confront the problem of ascertaining and applying indigenous customs in the...
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| Format: | Article |
| Language: | deu |
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Max Planck Institute for Legal History and Legal Theory
2016-01-01
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| Series: | Rechtsgeschichte - Legal History |
| Subjects: | |
| Online Access: | http://data.rg.mpg.de/rechtsgeschichte/rg24_222wu.pdf |
| _version_ | 1818432812041109504 |
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| author | Tzung-Mou Wu |
| author_facet | Tzung-Mou Wu |
| author_sort | Tzung-Mou Wu |
| collection | DOAJ |
| description | The question of what the law is may preoccupy
some legal theorists. Answering it is definitely
the legal professionals’ nightmare. Constitutional
and statutory requirements now require Taiwan’s
officials and lawyers to confront the problem of
ascertaining and applying indigenous customs in
the exercise of all state powers. Yet, the most widely
accepted juridical concept of custom results in a
choice between two evils, to wit, breaching either
the general duty to uphold law or the concrete
obligation to respect indigenous values. So far,
efforts have only been made to document the
customs, but the documentation thus produced
is too ethnographic to be legally useful. The challenge,
therefore, is one of translation. Values are to
be carried from an indigenous world into the
modern one, and the little-known form of custom
is to be expressed in the language of the science of
law. This paper argues for the translation of indigenous
customs with conceptions available in an
array of examples from European legal history. This
paper explains that, in cases like Taiwan, the solutions
known to the English-speaking literature all
end in the dilemma I call »modern state centralism« (MSC). The solutions are divided into two
types: legal pluralism and Francisco Suárez’s conception
of custom. The former defeats itself in that
its criticism against the state’s monopoly of law
amounts to suggesting that the state tolerate all
kinds of non-state normativity. The latter reduces to
MSC because recent literature ignores Suárez’s
legal historical references and important studies
written in German. The rest of the section shows
how »non-modern« legal techniques may help.
This paper concludes by suggesting that the concept
pair of law and custom be dissociated from
four others, to wit, written and unwritten law,
state and society, law in books and law in action,
and, finally, alien and native law. |
| first_indexed | 2024-12-14T16:11:08Z |
| format | Article |
| id | doaj.art-ef61d78847a545e28878e005d6129ea8 |
| institution | Directory Open Access Journal |
| issn | 1619-4993 2195-9617 |
| language | deu |
| last_indexed | 2024-12-14T16:11:08Z |
| publishDate | 2016-01-01 |
| publisher | Max Planck Institute for Legal History and Legal Theory |
| record_format | Article |
| series | Rechtsgeschichte - Legal History |
| spelling | doaj.art-ef61d78847a545e28878e005d6129ea82022-12-21T22:55:00ZdeuMax Planck Institute for Legal History and Legal TheoryRechtsgeschichte - Legal History1619-49932195-96172016-01-01Rg 2422223310.12946/rg24/222-2331026Western Legal Traditions for »Laying Down Taiwan’s Indigenous Customs in Writing«Tzung-Mou WuThe question of what the law is may preoccupy some legal theorists. Answering it is definitely the legal professionals’ nightmare. Constitutional and statutory requirements now require Taiwan’s officials and lawyers to confront the problem of ascertaining and applying indigenous customs in the exercise of all state powers. Yet, the most widely accepted juridical concept of custom results in a choice between two evils, to wit, breaching either the general duty to uphold law or the concrete obligation to respect indigenous values. So far, efforts have only been made to document the customs, but the documentation thus produced is too ethnographic to be legally useful. The challenge, therefore, is one of translation. Values are to be carried from an indigenous world into the modern one, and the little-known form of custom is to be expressed in the language of the science of law. This paper argues for the translation of indigenous customs with conceptions available in an array of examples from European legal history. This paper explains that, in cases like Taiwan, the solutions known to the English-speaking literature all end in the dilemma I call »modern state centralism« (MSC). The solutions are divided into two types: legal pluralism and Francisco Suárez’s conception of custom. The former defeats itself in that its criticism against the state’s monopoly of law amounts to suggesting that the state tolerate all kinds of non-state normativity. The latter reduces to MSC because recent literature ignores Suárez’s legal historical references and important studies written in German. The rest of the section shows how »non-modern« legal techniques may help. This paper concludes by suggesting that the concept pair of law and custom be dissociated from four others, to wit, written and unwritten law, state and society, law in books and law in action, and, finally, alien and native law.http://data.rg.mpg.de/rechtsgeschichte/rg24_222wu.pdfMPIeR |
| spellingShingle | Tzung-Mou Wu Western Legal Traditions for »Laying Down Taiwan’s Indigenous Customs in Writing« Rechtsgeschichte - Legal History MPIeR |
| title | Western Legal Traditions for »Laying Down Taiwan’s Indigenous Customs in Writing« |
| title_full | Western Legal Traditions for »Laying Down Taiwan’s Indigenous Customs in Writing« |
| title_fullStr | Western Legal Traditions for »Laying Down Taiwan’s Indigenous Customs in Writing« |
| title_full_unstemmed | Western Legal Traditions for »Laying Down Taiwan’s Indigenous Customs in Writing« |
| title_short | Western Legal Traditions for »Laying Down Taiwan’s Indigenous Customs in Writing« |
| title_sort | western legal traditions for laying down taiwan s indigenous customs in writing |
| topic | MPIeR |
| url | http://data.rg.mpg.de/rechtsgeschichte/rg24_222wu.pdf |
| work_keys_str_mv | AT tzungmouwu westernlegaltraditionsforlayingdowntaiwansindigenouscustomsinwriting |