In 2017, the Taiwanese Constitutional Court handed down Judicial Yuan Interpretation No. 748, which was a ruling in favour of same-sex marriage. The Court also ordered the national legislature to amend the law within two years. Despite a significant backslide in the Taiwanese 2018 referendum, the legislature eventually followed the Court’s order and legalized gay marriage in 2019. This victory made Taiwan the first state to legalize same-sex marriage in Asia. Many legal scholars consider the same-sex marriage ruling a progressive decision in which the Court undertook a counter-majoritarian task of protecting a minority group. While we agree with the Court’s role in promoting marriage equality, we contend that most legal scholars overlook an important question in this dynamic: the legislature had had several chances to settle this issue over the past decades, so why did it refuse to draft gay-marriage legislation but later, in 2019, defer to the Court’s decision? In this paper, we explain the political foundations of an activist judiciary by using the case of the first gay-marriage legislation in Asia. We argue that the risk of position-taking on tough issues leads incentive-facing political elites to engage in position avoidance and to see the political value in deferring to a high court’s ruling. Using original data, we present evidence of how Taiwan’s diverse constituency relative to the same-sex marriage issue influenced legislators’ position-avoidance behaviour and led them to dodge political backfire by delegating policy-making authority to the Constitutional Court.

Literature on neighbourhood disputes has explored legal consciousness by focusing on identity, personal relationships, and community norms. However, it still remains unclear how affective factors and one’s sense of identity can influence the social practice of law and how the recursive relationship between law, emotion, and identity can influence life in particular communities. This study explores the dynamics of identity/alterity construction, and the role of emotion in shaping these dynamics during a neighbourhood conflict in Taipei, Taiwan. This dispute highlights how ordinary Taiwanese people’s legal consciousness is constituted through a culturally embedded sense of emotion (qíng) and belonging (zìjǐrén). Analysis of “The Noodle Shop Case” advances our understanding of the social presence and authority of law and the ways in which the role of law changes according to how individuals feel as they seek both mutual recognition and justice.

The Principles of Asian Contract Law (PACL) are the most recent addition to the series of uniform laws regarding transnational commercial contracts. This time, the harmonization initiative must address the problem of a great variety of legal traditions, all of which are quite difficult to reconcile. The author focuses on the object and objectives of the PACL by reconsidering the notion of “Asian law” and the alleged cultural neutrality of contract law as a legal discipline. The paper argues that the PACL project lacks clarity. Its ambitious objectives, while apparently intelligible, fail to produce the desired results in their entirety: the Asian regional harmonization of contract law turns out to resemble its occidental forerunners. The study goes beyond the traditional comparative law. It explores the model law (in the making) in a broader context of legal policy, parallel regional private-law-making efforts in the field of contract law as well as in the context of legal globalization.