| Special Workshop Title: | Law and Social Theory |
| Author: | Kao Su-Po |
| Paper Title: | In Need of Prudential Tradition? |
| Abstract: | Taiwan and South Korea,
electing former Human-right lawyers as their leaders in the
post-authoritarian era. It seems very natural to have lawyers play the
anti- authoritarian heroes and subsequently to become political leaders
in the new polity of popular sovereignty. After all, some people may
instinctively think that popular sovereignty and rule of law are
identical or at least overlapping concepts which naturally proceed hand
in hand.
However, this common impression of congeniality is far from self-evident. Rather, the two concepts can be in conflict in their respective value orientation and counterbalance each other in practice. The well-known observation of American society in Alexis de Tocqueville’s great work ‘Democracy in America’ portrays how the legal profession plays the ‘aristocratic’ or elite element in a democracy and realizes the counterbalance. Tocqueville even strikingly implied that this is ‘functionally necessary’ for the society to curb arbitrary power. In this paper, I will first try to clarify the interplay between popular sovereignty and rule of law and argue for the functional necessity of ‘prudential tradition’ in society. Secondly, I will try to explain why the local bars in the new democracies in East Asia cannot meet the functional need. I believe that this may result from twofold reasons, one conceptual and one practical and they reinforce each other in turn. Due to the consideration of the limits of length and time, I will focus on the practice of Taiwan as I discuss the practical part and leave the task of comparative studies for future. In sum, this paper can be viewed as a philosophical and social study of legal tradition which is the intersection of jurisprudence and sociology of law. The research interest of this paper may be further extended into two directions. First is the study of the mediating class in a state-centered society and second how to create a legal tradition out of nothing. The second one is of special interest because of the seeming incompatibility in the idea of tradition to intentional creation. The policy implication will be vital for the idea of rule of law to take hold in the new democracies which need it most. |
This page was last updated on: 2003-06-04.