The Political Implication of Legal Gaps from the Perspective of Legal Indeterminacy: The Dismissal Cases of Taiwanese Higher Courts as an Example
Date Issued
2009
Date
2009
Author(s)
Yang, Da-Deh
Abstract
The purpose of the study is to investigate the phenomenon of legal indeterminacy which means that legal rules cannot determine the result of adjudication. In order to have a better understanding of the practice of the adjudication in Taiwan, this research takes the dismissal cases of higher courts, including Supreme Court and Taiwan High Court, as an example. By parsing through these legal opinions, we find that even Supreme Court, which is supposed to unify all different legal opinions of higher courts, does not consistently maintain its interpretation of certain legal rules. For example, Art.11 (b) of Labor Standard Act allows employers to dismiss employees when the employer’s business suffers an operation loss or contraction; nonetheless, the courts do not coherently demonstrate whether these employers are required to offer other suitable but lower-paid positions instead of dismissing employees right away.ince the traditional legal methodology cannot properly explain the phenomenon, the discussion of legal indeterminacy in American legal theories offers us a better perspective to re-evaluate this issue. Therefore, we chose American legal realism, Ronald Dworkin’s legal interpretative theory, and Duncan Kennedy’s critical legal theory to improve our comprehension of the issue. The realists focus on the contradictory interpretative skills of legal rules and confirm the existence of legal indeterminacy. However, they failed to overcome the problems caused by legal indeterminacy though proposed a new approach of policy-thinking in adjudication. ontrary to legal realism, Dworkin denies the phenomenon of legal indeterminacy. Under his constructive interpretative model, the ideal judge Hercules always can correctly and coherently decide hard cases by referring an unclear rule to the political morality of an idealized fraternal community so as to clarify the proper meaning of the rule. Nevertheless, Kennedy’s theory seems to follow the realism’s idea of legal indeterminacy by rejecting Dworkin’s theory for his idealism, but Kennedy actually encourages us to give up the discussion about legal indeterminacy and shifts the focus to the complex interaction between legal interpreters and structure of legal rule. He demonstrates that the previous discussion misleads us to concern only legal rules and prevents us from tackling the main issue, which is the ideological conflict between legal interpreters. According to Kennedy’s analysis, the key factor of the phenomenon of legal indeterminacy in the U.S. is the constant political conflicts between liberals and conservatives in the court forum by fighting against each other with opposite legal discourses. In other words, we cannot resolve the obscurity of legal rules merely by precise interpretative skills because it opens not only different discourses but also legal gaps for political conflicts.ollowing Kennedy’s idea which can offer a better explanation of legal indeterminacy, we utilize his conflicting legal discoursive structure in the American legal context as a model and reformulate the interpretation of relevant legal rules of dismissal cases in Taiwan by referring to the opposite view points of labor and employer. This model emphasizes the continuous tensions between conflicting interests and gives up to offer a fair interpretation of the rules as the traditional legal methodology requires. Under this new model, we can liberate legal scholars and practioners from the constraints of conventional interpretative model which over-emphasizes the logic and consistency of the interpretative process in legal reasoning. Then we will be more confident to construct a pro-labor strategy for creating flexible legal discourses in the court forum under the contra-labor political context in Taiwan.his study proposes to build up more progressive legal discourse for the disadvantaged after advancing our understanding of the key factor of legal indeterminacy, though it focuses merely on the dismissal cases. We believe that the same possibility should exist in other legal fields and encourage further researches to challenge the mainstream legal discourse.
Subjects
legal indeterminacy
American legal realism
Ronald Dworkin
dismissal cases
legal gaps
Type
thesis
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