Academia Sinica Law Journal Issue No.33

2023/09/25

Institutum Iurisprudentiae has published Issue No.33 of Academia Sinica Law Journal.
Journal's Link: https://www.iias.sinica.edu.tw/en/publication_post/1588/9

Articles
A Mixed-Methods Analysis of Empirical Legal Studies in Taiwan:
Knowledge Structure, Citation Network, and Qualitative Analysis
Chih-Ming Liang, Wei-Min Fan & Ching-Fang Hsu
Abstract
This article provides a mixed-method analysis on the state of the discipline. We analyze the Taiwanese empirical legal studies literature between 2001 and 2018, focusing on research published in Taiwanese law journals. Our analysis includes a qualitative evaluation of all 118 journal articles, and two sections of quantitative analysis of knowledge structure and citation network. We have three major findings. First, the research subjects center on a limited number of areas. Second, the knowledge structure consists of one large cluster (law and society) and a number of small clusters (surrounding key researchers). Third, for readers outside this field, empirical legal studies are a developing intellectual community in which research topics scatter. After reviewing all 118 articles’ content, we also find that the community actually has no consistent or unified definition of what constitutes empirical legal studies. In fact, the discipline presents a diverse understanding of empirical data and research methods, while some research contains no original empirical data. Quantitative researchers are in the majority, and the most frequently used methods are descriptive statistics, statistical tests, and regression. Qualitative researchers are in the minority, who highly rely on structured interview data. Finally, we raise two issues critical to the development of the discipline: what is empirical in empirical legal studies? And why do we need empirical legal studies for the study of law?
KEYWORDS: empirical legal studies, research methods in social science, knowledge structure analysis, citation network analysis, co-word network analysis, topic modeling, multidimensional scaling, reference corpus, social network analysis.

Rule of Law in a Time of Pandemic: Reflecting on Taiwan's Response Measures to the COVID-19 Pandemic from a Constitutional Perspective
Yang-Sheng Chen
Abstract
Since the outbreak at the end of 2019, COVID-19 has caused a massive number of infections and deaths worldwide. The number of confirmed cases in Taiwan has surpassed the 2003 SARS outbreak and Covid-19 has now become “The Pandemic of the Century”. The focus of this article is on how Taiwan, as a democratic state governed by the rule of law, could have controlled the pandemic while at the same time addressing the challenges posed to constitutional principles such as the protection of fundamental rights, separation of powers, and legal certainty. This article first clarifies whether the different models of counter-pandemic strategies call for freezing, adjusting, or maintaining the principles of constitutional law. This move is essential in determining the significance of the government’s decision to respond to the COVID-19 under the normal legal order instead of an emergency decree. Further, this article analyzes a series of case-studies on the pandemic preventive measures from the perspective of the division of powers. This article argues that those measures were in conflict with principles of the rule of law from the legislative, executive, and judicial perspectives. This article proposes specific suggestions for those pandemic control measures accordingly.
KEYWORDS: state of exception, legal certainty, statutory instrument, general decree, principle of proportionality.

Memorandum to Taiwan's Constitution Makers: The Procedural Dimension
Chien-Chih Lin
Abstract
Enacted in China in 1947, the current supreme law in Taiwan, the Constitution of the Republic of China, albeit workable, is ill-suited for Taiwanese people. In this sense, Taiwan will eventually need to enact a new constitution—a task that is fraught with difficulties, as constitution-making is a highly risky and costly project that may easily spawn domestic chaos and international disturbance. The task is made all the more difficult because the Taiwanese people have not discussed in sufficient depth the various critical aspects of constitution-making. Taken together, these difficulties may lead to tragic outcomes in Taiwan. Weaving together theories of constitution-making and the history behind the drafting of the ROC Constitution, this paper suggests that Taiwan should engage in a nation-wide discussion about the procedural issues involved in enacting a new constitution. Such a discussion may prevent populist constitution-making in times of emergency and create a political veil of ignorance which may improve the quality of the new constitution.
KEYWORDS: constitution-making, constitutional change, imposed constitution, referendum, civic participation.

Book Symposium
Chung-Wu Chen, The Future of Legal Studies in Taiwan—A Review of Tay-Sheng Wang's CONSTRUCTING LEGAL SCIENCE IN TAIWAN: THE INTEGRATION OF KNOWLEDGE IN EUROPE, THE UNITED STATES, JAPAN, AND CHINA

Chueh-An Yen, Within These Sacred Halls

Chia-Yin Chang, Opening the Moonshine Treasure Box: Reflecting on Tay-Sheng Wang's CONSTRUCTING LEGAL SCIENCE IN TAIWAN

Wan-Yu Chen, The Beauty and Sorrow of Historical Jurisprudence—A Book Review of Tay-Sheng Wang. 2022. CONSTRUCTING LEGAL SCIENCE IN TAIWAN: THE INTEGRATION OF KNOWLEDGE IN EUROPE, THE UNITED STATES, JAPAN, AND CHINA

Chien-Liang Lee, Language, Sources of Law, and Legal Families: The Epistemology and Methodology of Tay-Sheng Wang's CONSTRUCTING LEGAL SCIENCE IN TAIWAN