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ABSTRACT
The question of how ordinary courts in new and emerging democracies may gain judicial independence remains an understudied subject compared to its constitutional court counterpart. Through a case study of Taiwan, this article adopts and expands upon the concept of power diffusion from the extant literature, arguing that the growing power of Taiwan’s private corporate sector led the dominant political party Kuomintang (KMT) to grant independence to the ordinary courts as a means to check against this threat, because the excessive rent-seeking and corruption brought about by these empowered corporations were threatening the nation’s successful economic model and its rule of law. Also, due to the corporate sector’s growing influence on the ruling party itself, the KMT leadership had to devise strategies that can credibly commit to ordinary court independence, which would otherwise be reversed thereafter. This unique implication guides a qualitative empirical analysis that reinterprets the historical events surrounding the judicial reforms that took place in the mid-1990s. The results yield strong evidence in support of the theory.
Acknowledgements
I would like to thank Evelyne Huber, Georg Vanberg, Graeme Robertson, Anna Bassi, Weitseng Chen, and two anonymous reviewers for their invaluable comments at different stages of the manuscript. I am also very grateful to Chin-Shou Wang for his many helpful advices.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 See Wang, “Judicial Reform in Taiwan.”
2 See Halliday and Karpik, Lawyers and the Rise of Western Political Liberalism.
3 See for example, Hilbink, “Origin of Positive Judicial Independence.”
4 Wang, “Judicial Reform in Taiwan,” 156.
5 See Stephenson, “Court of Public Opinion”; Vanberg, “Substance Vs. Procedure.”
6 Wang, “Judicial Reform in Taiwan,” 139–141.
7 See Moustafa, “Law Versus the State.”
8 See for example, Fu, “Autonomy, Courts and Politico-Legal Order”; Peerenboom, “Judicial Independence in China”; Wang, Tying the Autocrat’s Hands.
9 deLisle, “Development without Democratization,” 209.
10 Read, “Foreign Direct Investment,” 9.
11 Chen, Kao, and Kuo, “Inward FDI in Taiwan,” 2.
12 See for example, Landes and Posner, “Independent Judiciary”; Ramseyer, “Puzzling (In)Dependence of Courts.”
13 See Stephenson, “When the Devil Turns”; Ginsburg, Judicial Review in New Democracies.
14 Tsai, “Dependency, the State and Class,” 363; Ginsburg et al., “Judicial Review in New Democracies,” 169.
15 See Johnson, MITI and the Japanese Miracle; Amsden, Asia’s Next Giant; Wade, Governing the Market.
16 See Evans, Embedded Autonomy.
17 See Doner, Ritchie, and Slater, “Systemic Vulnerability.”
18 You, “Land Reform, Inequality, and Corruption,” 204.
19 Fields, “Not of a Piece,” 48.
20 Tan, “Transformation of KMT,” 155.
21 Wu, “Taiwan’s Developmental State after Turmoil,” 985.
22 Yeung, “Governing the Market.”
23 Lauridsen, “Governance and Economic Transformation,” 439.
24 Tsai, “Dependency, the State and Class,” 369.
25 Fields, “Not of a Piece,” 48.
26 Chin, Heijin, 84.
27 Ibid., 7.
28 Hsiao, “The State and Business Relations in Taiwan,” 94.
29 Chu, “Realignment of Business-Government Relations,” 131.
30 Chin, Heijin, 171–172.
31 Contrary to the majority of previous studies, Tang and Woods argue that the state may proactively react to economic development in a way that would impact the outcome of democracy. The present analysis follows this line of thinking. See Tang and Woods, “Conditional Effect of Economic Development.”
32 Chu, “The Realignment of Business-Government Relations,” 132.
33 Fiss, “The Limits of Judicial Independence,” 57–60.
34 Hilbink, “The Origins of Positive Judicial Independence,” 589.
35 In the case of Taiwan in the 1990s, the prospect of aligning corporate interests with ordinary court independence is dim, because the deeply entrenched developmental state created very lucrative (and often illegal) rent-seeking opportunities.
36 Hilbink, “The Origins of Positive Judicial Independence,” 588.
37 See Melton and Ginsburg, “Does de jure Judicial Independence Really Matter?”
38 The concept of focal point is attributed to Schelling’s “The Strategy of Conflict.”
39 Llanos et al., “Informal Interference in the Judiciary,” 7.
40 See for example, North and Weingast, “Constitutions and Commitment”; Moustafa, “Law Versus the State.”
41 Wang, “Independent Judiciary, Dependent Judges?,” 13.
42 The minister of justice traditionally had not been a very highly-ranked position within the Taiwanese government. Therefore, it would be difficult for the KMT leadership to fill the position with someone very senior. Ma might well be one of the best choices available.
43 Wang, “Judicial Independence Reforms,” 133.
44 Ibid., 134.
45 Ibid., 120–121.
46 Ibid., 122.
47 The author confirmed this point with C.S. Wang via email correspondence.
48 Wang, “Independent Judiciary, Dependent Judges?,” 12.
49 Ibid.
50 See or example, Moustafa, “Law Versus the State”; Landes and Posner, “Independent Judiciary.”
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Notes on contributors
David K. Ma
David K. Ma is a PhD candidate in political science at the University of North Carolina at Chapel Hill, USA.