A Reasonable Balance of Law and Sentiment: Social Order in Democratic Taiwan from the Policeman's Point of View
Martin, Jeffrey, Law & Society Review
Taiwan's political democratization has engendered a contradiction in its legal regime: consolidation of rule of law at the macro-institutional level is matched by the persistent marginalization of legal authority in ground-level social practices. This article uses an ethnographic study of neighborhood police to explore certain practical and structural elements involved in maintaining this contradictory sociopolitical order. I examine some of the processes through which state authority is invoked and applied to the policing of public space, focusing on the ideals of legitimacy that animate these processes. The argument of the article is that historical and cultural factors embodied in contemporary Taiwan's "idea of police"-exemplified in the trope of a balance between reason, law, and sentiment-are crucial to understanding how solidification of the rule of law within state institutions is kept within the boundaries of a social sensibility that does not take law as the last word.
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Recent studies of Taiwan's legal regime point to a contradiction. On the one hand, at the macro-institutional level, the island's transition to democracy (accomplished between 1986 and 1996) has been accompanied by an increasingly "strong judicial and political commitment to a liberal democratic 'thick' version of the rule of law" (Cooney 2004:417). At the same time, however, the groundlevel, micro-institutional practices inhabiting this judicial and political infrastructure continue to marginalize the significance of law per se, reproducing a social order organized around an alternative set of cultural values (Potter 1995; Winn 1994a, 1994b). In other words, in democratic Taiwan it appears that the complex set of practical and symbolic relays integrating the spheres of state and society somehow allow the rule of law to flourish in the former even as the "order of custom" is retrenched in the latter (Diamond 1971).
This article examines some of the work involved in maintaining this kind of sociopolitical order. Specifically, it draws materials from an ethnographic study of neighborhood policing to explore how local patrolmen are involved in maintaining the established (almost entirely extralegal) organization of public space within their jurisdiction. I examine how forces of public opinion call the police to act in these spaces, how patrolmen deal with the problems they are expected to solve, and how they talk about the legitimacy of what they are doing in relation to their encompassing social and cultural environment. The overall thesis of the article is that we can discern within the substantive contents of contemporary Taiwan's "idea of police" (Junior & Muniz 2006; Klockars 1985) a set of cultural sensibilities that defines the character of legitimate authority in such a way as to create a practical space in which the rule of law cannot effectively serve as the last word in social order.
As a "finding," this in itself will not strike anyone as particularly new. Ethnographic studies of police work, since at least the American Bar Foundation's 1953-1957 Survey of Criminal Justice, have been centrally concerned with understanding how and why the order of practice emergent in the discretionary aspect of policing is so profoundly and chronically divergent from the ideals of legality that purport to define the police role in democratic society (Ohlin & Remington 1993). This literature, in turn, has fed into a more general discussion of the ethnographically apparent characteristics of bureaucratic practice, and how we might best understand these in terms of the structural predicaments encountered by individuals working at the "front lines" of public service provision agencies (Lipsky 1980). In light of the size and significance of these literatures, it is surprising that there has not been more work aimed at exploring their core issues across broader comparative cultural and historical contexts. …