Academic journal article Washington International Law Journal

Translation, Codification, and Transplantation of Foreign Laws in Taiwan

Academic journal article Washington International Law Journal

Translation, Codification, and Transplantation of Foreign Laws in Taiwan

Article excerpt

I. Introduction

Taiwan, sometimes called "Formosa," was not prominent on the world stage until the seventeenth century. 1 The history of Taiwan's legal development is short but complex.2 With the advent of Western powers in East Asia, Taiwan encountered its first exposure to law derived from the modern West ("modern law" or "Western law") in the latter half of the nineteenth century.3 As discussed below, the first modern-style codes implemented in Taiwan were nevertheless products of the modernization of Meiji Japan, the first country to transplant Western modern law in East Asia. Furthermore, the modernized codes effective in today's Taiwan have come, surprisingly, from Republican China (1911-1949) since 1945.

Influenced by the legal codes of prewar Japan and Republican China, Taiwan's legal development should be understood with reference to the translation, codification, and transplantation of Western laws in these two East Asian countries. Specifically, Taiwan's legal history should be more broadly examined in a way that includes the Japanese and Chinese traditions of "receiving" Western laws. The process of this "reception" always includes translation of foreign laws and jurisprudence, codification of foreign laws or local legal practices, and transplantation of modern law. This process will be further explored and illustrated by the Taiwan case, with reference to Japan and China, in this article.

Taiwan's legal developments have many characteristics that distinguish them from the development seen in Japan or China. Following over forty years of authoritarian rule in the postwar era, Taiwan gradually became a liberal and democratic country in the 1990s, and the Taiwanese legal system underwent many reforms from then on.4 Today's Taiwan has shaped its own law by using multiple foreign laws and jurisprudences. The experience of legal modernization in Taiwan thus encourages us to rethink the significance of translation and codification of law in the process of transplantation of modern law in East Asian countries.

II. Legal Transplantation Involving Japanese Modern Codes and Taiwanese Customary Law

Because of Taiwan's status as a Japanese colony, it is important to understand 1) the process of legal modernization in prewar Japan; and 2) how Japanese modern law worked alongside, and sometimes replaced, Taiwanese customary law.

A. Legal Experiences of Japanese Colonists

Japanese governance of Taiwan was the first major influence on the development of modern Taiwanese laws. In 1895, Qing China ceded Taiwan to the prewar Japanese Empire under the Treaty of Shimonoseki.5 Prior to succession, Qing China officials in Taiwan established a Republic in an attempt to prevent Japanese rule, but it nonetheless failed to resist the Japanese invasion.6 Accordingly, Taiwan was already detached from the Chinese empire when Qing China modernized its law in 1902. Under the contemporaneous global tendency toward legal Westernization,7 Taiwan thus embarked on this course, prompted by the Japanese intervention rather than organization by residents on the island. Citizen-organized government did not emerge until the 1990s, about a hundred years later. As a result, the Taiwanese-composed of Han Chinese immigrants and plains aborigines assimilated by the Han Chinese immigrants during the Japanese colonial period (1895-1945)-were exposed to a modern law introduced and implemented by the Japanese authorities. An exception to this was most of the mountain aborigines, who maintained their original culture and were not exposed to modern-style laws due to the Japanese separation policy toward them.8 In any event, the extent to which Taiwanese people were exposed to modern law depended on the decisions made by Japanese rulers. Those Japanese colonialists were influenced by Japan's own experience with modern law. Therefore, to understand the development of Taiwanese law, it is necessary to understand the process of legal modernization in prewar Japan. …

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