Academia Sinica Law Journal Issue No.35

2024/09/30

Institutum Iurisprudentiae has published Issue No.35 of Academia Sinica Law Journal.
Journal's Link: https://www.iias.sinica.edu.tw/en/publication_post/1715/9

Articles
The Path to Legal Decolonization:
Sovereign Narrative Reconstruction and Legal Pluralism for Indigenous Peoples
Hsiao-Tan Wang
Abstract

Contemporary indigenous issues are seemingly inseparable from state law but the current legal framework in Taiwan may not be effective when indigenous people seek justice. This article aims to review colonial history and ongoing dilemmas in Taiwan to propose a critical theory of indigenous law in practice. Past literature indicates that Taiwanese law has either neglected or excluded indigenous law, and proposes that it must be given “space” for transitional justice to be achieved. However, it is argued herein that merely “making space” is still insufficient to fully respond to the fluidity of contemporary indigenous law and the legitimacy of the overall legal system. This article provides an analysis of the positioning of law and its role in governance, and the rehistoricizing and contextualizing of “time-spaces of law,” to facilitate the development of a legal framework and logic capable of integration. To move away from the violent relics of colonialism, this analysis suggests that past legal narratives are unmalleable and inorganic “steel and concrete” that need to be transformed into more flexible and organic “bones and muscles.” This “counter-narrative” includes three aspects of legal pluralism: firstly, a redefining of the mainstream concept of a singular hegemonic sovereignty over a territory to better reflect the non-exclusive and fluid form of tribal sovereignty; secondly, a distancing from modern legal techniques and realities that delegitimize diverse tribal governance actions and movement towards overlapping jurisdiction; and lastly, a theoretical reflection on how “othering” weakens indigenous resistance capabilities and impedes indigenous peoples from becoming legal subjects with agency. To reconstruct a postcolonial legal imagination that allows for more indigenous autonomy these aspects should be considered.
KEYWORDS: indigenous, time-spaces of law, sovereignty, jurisdiction, legal subject, postcolonialism, legal pluralism, legal narrative, legal landscape, legal tradition.

Peripheral Climate Litigation and Limited Judicial Dialogue:
A Study on Climate Litigation in Taiwan (2002-2022)
Chun-Yuan Lin
Abstract
Climate litigation has developed on a global scale and gradually become a strategy to speed up climate regulation. However, studies on climate litigation asymmetrically focus on leading cases in developed countries and underestimate the climate litigation in less-developed countries and their potential contribution. This article attempts to bridge the knowledge gap and to better understand the dynamic between climate legal claims, the legal framework, and the courts.
The author of this article searched for cases using the keywords “climate change,” “global warming” and “greenhouse gases” in the Taiwan Judicial Yuan database from 2002-2022, attempting to delineate the comprehensive picture on the development of climate litigation in Taiwan. This article finds that, although cases brought to court rarely address climate legal issues directly, there are a handful in which climate is regarded as a peripheral issue or is part of the background. The shared concern about environmental risks in the existing environmental law provides actors with ready bases to introduce climate discourse through litigation. This article also argues that the legislature and policies on climate change facilitates courts to engage in dialogue on climate law. However, the courts have been reluctant to respond to climate legal claims brought by litigants which discourage dialogue on climate change and the law in Taiwanese society.

KEYWORDS: climate change, climate litigation, courts, greenhouse gas, judicial dialogue.

Comments & Notes
Fact-Finding in Criminal Trials:
The Objective of Fact-Finding and Evaluation Strategies from a Consensus Perspective
Chun-Liang Yu
Abstract
To reach a broader consensus on fact-finding in criminal trials, a guilty version of fact should be specified, complete, consistent, and well-grounded. It should also meet the standard of proof to affirm a conviction through one of the two evaluation strategies involved in different scales: ordinal comparison or ratio analysis. Criticisms of ordinal comparison, such as its lack of operability, its inability to reach the beyond-reasonable-doubt standard, or being entirely replaceable by other criteria, fail to acknowledge the psychological research findings and distinctive theoretical function of this ranking system. Ratio analysis, which regards version of fact as a network, is a tool using probability to maintaining its logical consistency. This approach resolves concerns such as the inapplicability of subjective probability in trials or the violation of the presumption of innocence. These concepts not only reveal the serious flaws in the judicial practice in Taiwan that disregard the error rate in breathalyzer tests but also provide a clearer understanding of the essence of the third-party guilt defense. Moreover, the standard for appellate review provided by this article can resolve the judicial problems such as wrongfully application the concepts like “tunnel vision” and “the existence of multiple possible reasons.”
KEYWORDS: free proof, probative value, standard of proof, presumption of innocence, version of fact, inference to best explanation, prior probability, error rate, third-party guilty defense, tunnel vision.

An Evolutionary Path Towards an Anti-Substance Scientific Cognition:
On the Theory of State (Staatslehre) and Legal Science (Rechtswissenschaft) of Hans Kelsen
Yun-Chung Lin
Abstract
This article tries to place Hans Kelsen’s theoretical enterprise in its intellectual historical context. Focusing on his somewhat overlooked claim, namely, the pursuit of science—more specifically the pursuit of legal science (Rechtswissenschaft)—it attempts to demonstrate that this pursuit is central to Kelsen’s work, and uses it to explain many of his discourse strategies that were chosen and employed, and also connects them with the time, space, and academic background of Kelsen.
It begins with Kelsen’s theory of the state (Staatslehre) and points out that within its context, the dissolution of the concept of substantive state is crucial to the scientification of the study of law. The thesis of the identity of law and state, as a form of “stateless theory of the state,” is born out of this endeavor. The reason why the concept of the state to Kelsen, is the key to a legal science, lies in his philosophy of science and his imagination of the history of science. He believes that the development of human cognition presents an evolutionary process, which started from substantializing things to overcoming these substances. This evolution has already taken place in the sphere of natural science through the dissolution of the concept of God. In parallel comparison, legal science has to expel the concept of substantive state, overcoming the “theology of state”. Finally, Kelsen’s envisioning or acceptance of this kind of concept of state and conception of science, is related to his Austro-Hungarian background. The diversity of the empire made him wary of the concept of substantive state from the beginning, and the anti-substantial stance of Viennese Modernism (Wiener Moderne) also influenced his acceptance of similar scientific ideas.
KEYWORDS: Hans Kelsen, Legal Science (Rechtswissenschaft), Theory of State (Staatslehre), The thesis of identity of State and Law, Viennese Modernism (Wiener Moderne).