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The transition of Taiwan’s authoritarian legality transformed not only the authoritarian rulers’ strategic commitment to law, but also the authoritarian regime itself. The experience of this transition resonates with those in other parts of the world in that civic activism is necessary for the transformation of authoritarian legality. This chapter suggests that student activism is one crucial dimension for understanding the dynamics of the authoritarian legality transition in Taiwan. Student activism in Taiwan is higher law-centric, institutionalized, and dialectic, with collaborative efforts across generations within and outside the legal system and the state apparatus. It blurs the boundary between the state and society as well as the one between social and student movements. However, common to many young democracies, this transition mechanism appears to be a slippery slope to populism, and thereby paradoxically weakens the function of positive law and the legislative body, especially amid heavily polarized politics. The post-transition struggles in this young democracy are similar to the democratic crises nowadays in the USA and Europe, where populism, divided society, and a growing tide of discontent toward liberalism and democracy have significantly diminished the functions of liberal and democratic legal institutions.
One great fallacy in the study of law in authoritarian countries is to treat legality as the rule of law, and to then assume a linear development from the rule of law to democracy. In reality, we have seen jurisdictions with a high level of the rule of law but without democracy, as well as authoritarian regimes that resort to legality for strategic purposes but treat legality as a mere tool to strengthen authoritarian rule. In other words, legality without the rule of law, and the rule of law without democracy, are common. This is particularly true in Asia, where authoritarian regimes embracing the idea of the rule of law usually enjoy sufficient levels of legitimacy in that the majority of the population in the respective countries view the political system as appropriate or that it should not be opposed. As such, “authoritarian legality” constitutes a conceptual space where legality, authoritarianism, democracy, and legitimacy are intertwined and cause a great deal of ambiguity, coupled with divided views and competing evaluations of its operation.
A cluster of Asian states are well-known for their authoritarian legality while having been able to achieve remarkable economic growth. Why would an authoritarian regime seek or tolerate a significant degree of legality and how has such type of legality been made possible in Asia? Would a transition towards a liberal, democratic system eventually take place and, if so, what kind of post-transition struggles are likely to be experienced? This book compares the past and current experiences of China, Hong Kong, South Korea, Japan, Taiwan, Singapore, and Vietnam and offers a comparative framework for readers to conduct a theoretical dialogue with the orthodox conception of liberal democracy and the rule of law.