Academia Sinica Law Journal Issue No.34

Rights advocacy could be substantiated by governmental policies, citizen engagement, and international human rights convergence notwithstanding predominant reliance on judicial review. Judicial review has been advanced in many constitutional democracies for human rights protection, but the overreliance of which has led us to construct rights towards a more courts-centric, rights-based, and text-bound tendency. The function of civil engagement and good government practices to human rights advancements has therefore been overshadowed, leaving us to wonder what would be proper construction of human rights as guaranteed by the constitution.
The nature of rights has a stake here. Are rights to be recognized by the courts in order to be rights or could court take back rights it recognized by an overruling decision? This essay seeks to present a more plausible picture of rights by identifying and analyzing three competing models, namely system model, immerse model, and dialectic model. It reasons that the dialectic model that looks into the coordinating dynamics of rights discourse stands as a better way to construct the development of human rights in a constitutional democracy, aiming at preserving procedural values and coordination in a rights dialectic network.
Human rights in a dialectic construction would see the courts as part of the rights dialogism. Rights realization and perception as developed in the dynamics of rights advocacy, rights discourse or implementation are indeed the core of the constitutional rights that command our blessings.
KEYWORDS: human rights, rights discourse, judicial review, civil society, contextual reasoning.
 

When AI or robotics assist a professional, they are tools. In medicine, the doctrine of “competent human intervention” has tended to shift liability away from those who make devices and toward the professionals who use them. However, the professional in such scenarios should not bear the entire burden of responsibility. Tools can be defective, and vendors of defective, complementary AI and robotics should be held responsible for negligence. The burden of proof should still be on the plaintiff to demonstrate that not only a skilled medical professional, but also the maker of the tools used by such a professional, should be held liable for a preventable adverse outcome.
When AI and robotics replace, rather than merely assist, a skilled medical professional, the vendor of such computational systems needs to take on more responsibility for errors and accidents. In the medical field, there has long been a standard of competent professional supervision of the deployment of advanced technology. When substitutive automation endangers patients by short-circuiting that supervision, it is both defective and unreasonably dangerous. Nevertheless, at the damages phase of litigation, the vendor of the substitutive AI should be entitled to explain how damages should be mitigated based on its AI’s performance relative to the extant human- or human-machine-based standard of care. Such responsibility for explanation will serve an important informationforcing function in areas where public understanding is often limited by trade secrecy.
As law and political economy methods demonstrate, law cannot be neutral with respect to markets for new technology. It constructs these markets, making certain futures more or less likely. Distinguishing between technology that substitutes for human expertise and that which complements professionals is fundamental not just to labor policy and the political economy of automation, but also to tort law.
KEYWORDS: artificial intelligence (AI), robotics, liability, automation, automated decision making, malpractice, enterprise liability, professions, political economy, clinical decision support software.
 

Comparative law is a prominent approach under mainstream legal research paradigm. This article demonstrates how comparative law can be done with empirical studies and economic analyses. The core in the social-scientific comparative law is double causal reasoning. The first causal reasoning aims to find out, empirically, whether prior reforms in compared countries have produced desirable outcomes, and it is the focus of this article. The second causal reasoning aims to infer, theoretically, whether countries considering transplanting the reforms would lead to the same desirable outcomes. This article uses as examples the civil procedural law reforms in Germany, Japan, and Taiwan around 2000 to demonstrate how settlement rates change in response to legal reform and the likely driving factors of such changes. This exercise demonstrates the first causal reasoning. The take-away point is that for countries with similar background conditions, comparing what happened in another country would avoid repeating the same mistakes. This article argues that comparative law that relies on outcomes derived from foreign laws must be social-scientific comparative law.
KEYWORDS: settlement, successful mediation, plaintiff withdrawal, causal reasoning, causal inference, Germany, Japan.

This article aims to explore the relationship between morality and law in Jürgen Habermas's philosophical work by examining several revisions of his reasoning. First of all, the author briefly introduces Habermas's discourse ethics to point out his concepts of morality and ethics. Secondly, in Habermas’s discourse theory of law and democracy, the author demonstrates that Habermas revised his previous thinking and turned moral norms into abstract concepts, such that law stands with morality in a parallel-complementary relationship on the one hand but does not violate morality on the other. Consistent with his views of civil disobedience and constitutional courts, the author argues that Habermas’s position at this stage should be classified as legal positivism supported by democratic parliaments and democratic ethos. This perspective of legal positivism further emphasizes the substantial significance of Habermas’s revision of his practical theory on the issue of eugenics in a later period. Finally, the author concludes that the relationship between morality and law in Habermas's work does not always remain static, but continually changes with the theoretical development and different perspectives.
KEYWORDS: Habermas, morality and law, legal positivism, human rights, The Theory of Democracy, civil disobedience, constitutional court, eugenics.