Language, Value and Power--Excavate the Health Interest within J. Y. Interpretation of R.O.C
Date Issued
2010
Date
2010
Author(s)
Kao, Chih-Yang
Abstract
What is “Health” ?
When we agree with the health system as an important public interest, and to justify national restrictions on the basis of people''s basic rights, then we must consider the content of "health", in particular, what is its public nature, scope, extent and how to position it, we even have to give further consideration to the basic health perspective. In other words, we are faced with the controversy: "Whose" health? We may also ask, what is the extent to which we protect the health? Apart from preventing negative violations, should the State get involved in actively promoting health?
When the Grand Justice as the guardian of the Constitution engages in the task of constitutional review, he/she often faces the conflict of two basic principles, one being the protection of public interest and another one being the protection of fundamental rights. In this context, it is worth scrutinizing how Grand Justices handle the specific principles involved in the conflict, how they weigh (public) health benefits against fundamental rights of the individual, and what specific normative content they give health benefits.
However, while dealing with issues of legal principles, we inevitably touch upon questions of values. Ideas, views and arguments of the community and the judge''s own values all affect the decision. In addition, today''s legal discussion often forgets that law actually is an integral part of humanities and social sciences. Throughout Taiwan, legal training, judicial practice, and the education of rule of law perceive and describe law more and more as an entity separate from social reality. But the basic element of law is the "language" we daily have to use. Thereby it becomes obvious that the meaning of language depends upon implementing notions of value into common notions, whilst the formation of social values may either be based on the role of power or direct it conversely.
Therefore, this thesis applies language analysis in order to scrutinize the characteristics that are hidden beneath the "health" interest in the Grand Justices interpretation of the R.O.C Constitution. It engages in an analysis on the value level and the power level in order to re-interpret apparent interests from different perspectives, hoping to achieve an intensive and useful reflection of relevant norm content.
Subjects
Grand Justice Interpretation
Foucault
Language Analysis
Semiotics
New Rhetoric
Discourse Field
Axiology of Law
Governmentality
Bio-Power
Bio-Politics
SDGs
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