Written by Shih-An Wang.
Image credit: Cover of An Introduction to Taiwan’s Legal History, published by Angle Publishing.
The study of Taiwan has long been marginalised across various disciplines, and the field of law is no exception. Legal scholars in Taiwan have traditionally focused on the theories, doctrines, and practices of “legally advanced” countries, such as Germany, the United States, and Japan. Beneath this scholarly mentality lies the canonical viewpoint: that because these jurisdictions have significantly influenced Taiwan’s legal system, mastering their laws is the primary way to advance the quality of law at home.
This perspective, however, often overlooks the unique local layers that define Taiwan’s own legal identity. Alongside Taiwan’s democratisation, a growing cohort of scholars began applying a contextual lens to analyse how law interacts with Taiwan’s unique historical, social, and political conditions. By shifting their gaze from foreign doctrines to domestic nuances, these scholars recognise that Taiwan’s legal system is the product of a wide array of legal traditions and institutions that emerged at different historical stages. The overlapping layers of these legal influences have played a profound role in shaping how ordinary Taiwanese people understand, use, and imagine the law today.
Encountering Taiwan’s Legal History
Professor Tay-sheng Wang is widely regarded as a revolutionary pioneer in taking this approach to Taiwan’s legal history. His textbook, An Introduction to Taiwan’s Legal History, is one of the most important works that defines the field. Traditionally, legal history has been understood from a legal regime perspective, focusing on the legal trajectories of the Republic of China (ROC) and its preceding regimes, such as the laws of the Qing, Ming, and Yuan Dynasties. In contrast, Prof. Wang emphasises the significance of examining legal history through the lens of ordinary Taiwanese people’s experiences – a product of the varying influences imposed by the foreign or domestic powers that have exerted control over Taiwan and its adjacent islands. From this perspective, Taiwan’s legal system is “diverse” in both its features and its sources: not only the laws of the ROC but also the laws of Japan’s colonial rule, traditional Chinese law, and the ancestral laws of indigenous people are not merely relics; they are all essential components of a multi-layered legal history that needs to be carefully studied.
I first encountered Professor Wang and his textbook as a second-year undergraduate student. As a law student bombarded by a heavy courseload of dense legal subjects, Prof. Wang’s class offered a distinct space for me to explore the dynamic interplay between law and history in a way that felt both illuminating and accessible. Drawing on the materials within this textbook, Prof. Wang traced the multi-layered trajectories of Taiwan’s law: from the traditions of indigenous peoples through the Japanese colonial era, and from the KMT’s governance to our current legal landscape. Every week, I arrived at his class with enthusiasm, struck by the passion he brought to his lifelong research. That keenness, I believe, is driven by an unwavering curiosity and a deep devotion to the production of knowledge as a scholar. It seems that nothing can stop him from pushing the boundaries of the field, expanding our understanding of the past upon which our present is so firmly grounded.
Upon graduating, I became a master’s student under Prof. Wang’s guidance, beginning my academic journey as an emerging researcher. I set out to explore how the different layers of Taiwan’s legal system have evolved in tandem with its history, producing the complex thoughts, rules and practices we see today. His textbook was, naturally, the cornerstone of our research – a resource all his students consulted frequently. It served as the intellectual foundation that empowered us to venture into territories that had yet to be examined through the lens of legal history.
My own research focused on Taiwan’s cultural heritage law, a field defined by the vivid interactions between shifting political regimes and a citizenry grappling with how heritage is defined, managed, or removed. Drawing on the methodologies offered in this textbook, I examined the evolution of heritage law across the Qing Dynasty, the Japanese colonial era, and the ROC period. My study showed that cultural heritage law in Taiwan has served as a powerful tool through which political elites and citizens imagine, construct, and compete over varying interpretations of Taiwan’s culture, values and identity. In this sense, cultural heritage law is both a product of and driving force for Taiwan’s historical narratives.
The Intersection Between Legal History and Constitutional Law
As history is so often shaped by contingency, my own life evolved in ways I could never have foreseen as a master’s student in Taiwan. Several years after receiving my degree, I found myself as a doctoral student at the University of Chicago Law School in the United States, shifting my focus toward comparative constitutional law and politics in post-transition jurisdictions, including Taiwan. This transition brought me to a new terrain, one that interrogates the political origins, operations, and consequences of constitutional law across diverse borders.
My work focuses on how constitutional law in post-transition jurisdictions shapes and is shaped by their divergent political layers. I am particularly drawn to the phenomenon of democratic transition, authoritarian legacies, and the looming threat of backsliding. While these theoretical frameworks differ in emphasis, they share two vital premises: first, the law is a dynamic response to the shifting political landscape, and second, that law is inherently temporal. It is a constant evolution where there is no final guarantee to keep democracy in play or authoritarianism at bay.
The fact that my research rests upon these two premises is no mere contingency; rather, it can be traced back to the core tenets of Prof. Wang’s scholarship. In his textbook, he reminds us that a primary purpose of studying legal history is to uncover how specific legal decisions were forged in light of the political, social, economic and other conditions of their time. This suggests that law should be viewed not merely as a static body of normative values and logic, but as a living reflection of human actions, driven by motives and needs within particular contextual constraints. By learning the history of law, researchers and decision-makers can reflect on whether to follow an established path or forge a new one, assessing how current conditions have shifted. To make this assessment, we must critically examine the political, social, and economic landscapes with which the law constantly interacts. Understanding these aspects of human activity not only reveals the spirits of the law but also enables us to craft legal solutions better tailored to contemporary realities and real-world problems.
In this sense, Prof. Wang’s approach to legal history resonates deeply with contemporary constitutional scholarship on democratic transitions, authoritarian legacies, and democratic backsliding. While democratic transitions are often born from collective demands for self-rule, they do not guarantee that democracy will remain the dominant force. Authoritarian practices may persist precisely because they are favoured – or at least tolerated – by existing institutions or individuals. They significantly shape citizens’ and politicians’ political decisions, as well as their understandings of constitutionalism and democracy.
Moreover, political polarisation and social upheaval have made authoritarian governance appear attractive to some, fuelling the phenomenon of democratic backsliding. In an era of despair, we must ask: Do we consider liberal constitutionalism to be the prevailing norm? If so, how do we identify the root causes of its erosion? Answering these questions requires a nuanced understanding of the factors that enabled constitutional democracy in the past, as well as the reasons it has become unattractive to certain officials and citizens today. Ultimately, while constitutional law seeks to resolve modern crises, it shares a similar spirit to the study of legal history.
New Layers of Taiwan’s Law
The contemporary global challenges facing democracy and constitutionalism highlight the evolving nature of law in many countries – and Taiwan is no exception. As Prof. Wang has repeatedly emphasised in his book, Taiwan’s legal system is diverse and transforming. This suggests that new layers of legal developments will constantly emerge, offering fresh perspectives on and directions in the nation’s legal trajectories. Today, as Taiwan navigates a volatile international, geopolitical, and local landscape, stakeholders are grappling with new legal strategies. These legal strategies often spark numerous observations, debating the legal directions Taiwan should take in an era of uncertainty.
These observations will, in time, become part of Taiwan’s legal history, waiting for future generations to critically reflect on the zeitgeist of our time. This suggests that Taiwan’s legal history is never a finished project; rather, it is an unfolding ‘chain story’ – a continuous narrative connecting the past, the present, and the future.
Shih-An Wang is a Project Associate Professor at the Graduate School of Law, Kobe University, Japan. She holds a Doctor of Jurisprudence (JSD) from the University of Chicago Law School, United States. Her current research fields include comparative constitutional law, constitutional law and democracy, and national security law, with a particular focus on Taiwan and East Asia.
This article was published as part of the special issue on ‘Old Books in Taiwan Studies’.