The legal complex fractured: Legal professional coalition and collision in Taiwan's judicial reform

• Published date: 01 July 2021
• Author: Ching‐fang Hsu
• Date: 01 July 2021
• DOI: http://doi.org/10.1111/lapo.12171

ORIGINAL ARTICLE

The legal complex fractured: Legal professional

coalition and collision in Taiwan’s judicial reform

Ching-fang Hsu

Research Institute of Humanities and Social

Sciences (RIHSS), Ministry of Science and

Technology, Taipei, Taiwan

Correspondence

Ching-fang Hsu, Research Institute of

Humanities and Social Sciences (RIHSS),

Ministry of Science and Technology, 9th

Floor, 97 Roosevelt Road, Taipei

100, Taiwan.

Email: chingfang.hsu@mail.utoronto.ca,

hsuchingfang@ntu.edu.tw

Abstract

Sociolegal studies have identified a collectivity of legal

actors—the legal complex—anditsassociationwithpoliti-

cal liberalism in varying power settings. However, little

attention has been paid to how such a collectivity evolves

with regime change, or if and when such a collectivity

might dissolve. Studying the case of Taiwan, this article

demonstrates how various legal professions—lawyers,

judges, and prosecutors—unite and divide during and after

state transition. Democratization had an unsettling effect

that brought out the internal dynamics of the legal profes-

sions, which initially aligned with one another to defend

judicial autonomy from authoritarian control, but then

confronted one another in judicial policy making during

democratic times. Each legal profession bases its policy

orientations on a normative commitment, which leads to

three lines of confrontation: the ways in which the judiciary

is held accountable, the extent to which the procuracy

enjoys investigative power, and the institutional division

between the judiciary and procuracy.

1|INTRODUCTION

What roles do legal professionals play in policy making in a transitional context? Prior scholarship

on the legal profession in politics has identified a collectivity of legal actors facilitating political

liberalism—the legal complex—both in authoritarian and democratic times. Studies of cause law-

yers worldwide have also pointed to the unconstrained agency of lawyers in varying power settings,

even in a revolutionary context. Relaxing the definition of the legal profession, research on courts

in the context of democratization has shed light on how judges respond to shifting political tides,

interact with politicians, and act upon normative ideals. Taken together, however, in the context of

the critical juncture of state transformation, the internal politics of the legal profession remain

unclear, as well as the policy consequences thereof. Specifically, further discussion is needed con-

cerning how such a collectivity of the legal complex evolves along with regime change.

DOI: 10.1111/lapo.12171

©2021 University of Denver and Wiley Periodicals LLC.

262 Law & Policy. 2021;43:262–284.wileyonlinelibrary.com/journal/lapo

This article follows the Taiwanese legal complex through the island nation’s democratization

to make two arguments, one empirical, the other theoretical. Firstly, the legal complex fractures

as democracy consolidates. The three legal professions—judges, lawyers, and prosecutors—had

previously aligned with one another to defy authoritarian control, but in democratic times, they

contested one another to further respective policy goals. Secondly, regime change has a profound

impact on the politics of the legal profession. This article highlights the unsettling effect of democ-

ratization, which changes the institutional structure in which legal practitioners collaborate and

allows intraprofessional conflict to materialize. Nevertheless, in this case, democratization also

encouraged each legal occupation to develop respective policy orientations and to remain consis-

tent with their specific policy commitments.

This article is structured as follows. The next section provides a critical review of existing studies

on legal actors in the context of regime change, with a special note on judicial reform in the post-

transition context. Section 3 introduces the background and data for the case. Sections 4 and 5 trace

the Taiwanese legal complex’s political action in advocating and negotiating for judicial reform. The

Taiwanese case advances comparative studies by first confirming the principle of judicial autonomy

as the node of cooperation, and then specifying the three sets of policy confrontations among the

three legal professions in democratic times, which were inflicted by the respective commitments they

formed in the authoritarian era. The final section concludes with a summary of the paper’stwomain

contributions to the literature: it explicates the legal complex in the aftermath of political liberaliza-

tion, while also noting the intriguing fact that the instrumental concepts that the professions within

the legal complex adopted to defy authoritarian rule also ultimately led to internal power struggles

among themselves.

2|SITUATING THE LEGAL COMPLEX IN POST-TRANSITION

JUDICIAL POLICY MAKING

Studies on the political roles of the legal profession abound. Specifically, the analytical concept

of the legal complex insightfully captured the collective nature of legal professionals’political

actions in moderating state power, supporting civil society, and promoting basic legal freedoms

(Halliday et al., 2007). Developed as a concept to trace the dynamic mobilization of legal pro-

fessionals in relation to the state in varying power settings (Halliday et al., 2012; Halliday &

Karpik, 1997), the legal complex is composed of different legal occupations “that belong to the

legal and judicial institutions of a given society and whose tasks are to create, elaborate, trans-

mit and apply the law”(Halliday, 2010). Varieties of combinations for or against liberal politics

are possible (Karpik & Halliday, 2011, pp. 222, 225), which may be dyadic (bar and bench) or

triadic (bar, bench, and others). Lawyers may act alone (Feeley & Miyazawa, 2007), or the bar and

bench may act together in favor of political liberalism (Epp, 2012; Ginsburg, 2007; Moustafa, 2007);

lawyers and judges might act passively in defense of core civil rights (Barzilai, 2007), or they might

act against basic legal freedoms (Ledford, 1998; Scheppele, 2019). The analytical edge of the concept

is twofold: first, it is a structural notion applicable to practically all jurisdictions, allowing researchers

to identify study subjects in accordance with occupational structure and political development in

case-specific contexts (Karpik & Halliday, 2011, p. 221). Second, the concept is action-oriented, spe-

cifically targeting those legal occupations that are “mobilizing law in one or more of its many modali-

ties”(Karpik & Halliday, 2011, p. 221), which allows for flexibility with respect to forms of

mobilization as well as comparison across jurisdictions. This literature informs the analytical frame

of this article, which traces the three legal professions—lawyers, judges, and prosecutors—and their

interactions as shaped by this tri-professional structure, while also focusing on the legal complex’s

collective actions for or against particular policy orientations.

Shifting focus from the question of who to the question of how, we can observe another

critical topic concerning the ways in which legal actors act in political transition. Two well-

HSU 263