The Dialectial Relationships between the Law system and the Politico-economic Reality: Alienation of the Legal Formalism from the Social Life as the Primary Cause to the Failure of the "Rule by Law"
Resource
政治科學論叢, 4, 107-130
Journal
政治科學論叢
Journal Issue
4
Pages
107-130
Date Issued
1992-12
Date
1992-12
Author(s)
Shiau, C.J.
Abstract
Taking the alienation of the law system from the social life as the primary cause, the writer tries to analyze the failure of the “rule by law” in Taiwan and discusses the ways to restore the legal order. In discussing the relations between the law system (or the legal formalism) and the real social life, the writer first criticizes the traditions of legal positivism, analytical jurisprudence and legal realism from the perspective of methodology and then attempts to integrate the dialectical relationships between the two, based upon a viewpoint of political economy. Moreover, this article anatomizes the causal relations between the changes in the law system and the authoritarian rule in postwar Taiwan. The writer argues that the formation, operation and change of the law system has been attuned and conditioned by the authoritarian rule, although the system developed from many different sources. When the collapse of the authoritarian rule in the mid 1980s led to the disorder of the social life, the law system was also disturbed. The hope to restore the legal order should be anchor on the reestablishment of the politico-economic order and the corresponding adjustments of the law system.
Type
journal article