COLONIAL UTOPIA – Legal System
There are a few cities under the rule of China that runs with different legal systems, such as Hong Kong and Taiwan. For us Hong Kong, we derived our legal system from the United Kingdom, our former colonizer. We follow the rule of law and the independence of the judiciary. Our constitutional framework is to follow the Hong Kong Basic Law, where we have a common law system. On the other hand, China follows a civil law system with socialist roots. (Department of Justice, HKSAR)
Taiwan, a city that China claims to be a part of its territory under the “One China Principle”, but has no actual control over, follows a civil law system. A civil law system means the emphasis of the legal system is placed on statutes rather than case law. The courts look to what the Constitution states first and then to codes, statutes and ordinances. (Columbus School of Law) Japan also follows a civil law system. (Syam, 2013) In this blog post, we will discuss the influence of the Japanese on Taiwan’s legal system.
For the purpose of colonialism, Japanese authorities decided to retain modern law for Taiwan. They didn’t think an identical legal institution should exist both in Japan and in Taiwan, due to the political, cultural differences. They therefore followed the precedent of contemporary Western colonial powers, and the Meiji government of Japan shaped a special legal system for Taiwan, a Western-style customary Civil Law. This legal system emphasizes on predominantly following the mother country’s law for areas that concerned the authority, and followed native legal practices for areas that concerned the people’s daily lives.(Wang, 2010)
The Japanese brought the concept of law in modern Continental legal systems to Taiwan. Under a Western-style civil law, the Taiwanese were able to have various legal rights on civil and commercial matters, as they are considered citizens, bearers of rights. They have an active role in the enforcement of obligations. In contrast, with the Chinese legal system, the enforcement of obligations depended on the voluntary performance of the obligor and the discretion of an official. It is ironic but interesting to see that Taiwan benefited from a modern legal system due to colonization. (Wang, 2010)
Moreover, Japan’s development of Taiwan’s court system prepared the Western principle of an independent judiciary to be carried out in Taiwan to this day, which does not exist in Taiwan’s mother country, China. (Wang, 2000)
Taiwan’s legal reforms and development in its law system benefited greatly due to Japan’s influence. Although both countries do not have identical legal systems, the Japanese authorities made great effort to create an appropriate, successful legal system for Taiwan, paving the way to the modernization of its civil justice system.
Columbus School of Law. The Legal System of Taiwan. http://www.law.edu/ComparativeLaw/Taiwan/.
Syam, Piyali. “Major Differences Between the Japanese and American Legal Systems.” Washington University Law. November 20, 2013. https://onlinelaw.wustl.edu/blog/major-differences-between-the-japanese-and-american-legal-systems/.
Department of Justice, HKSAR. Legal System in Hong Kong. http://www.doj.gov.hk/eng/legal/
Wang, Tay Sheng. “The Modernization of Civil Justice in Colonial Taiwan, 1895–1945.” 2010. http://www.zjapanr.de/index.php/zjapanr/article/view/3.
Wang, Tay Sheng. Legal reform in Taiwan under Japanese colonial rule, 1895-1945: the reception of western law. Seattle: University Of Washington Press, 2000.