台灣法學會五十載──從瓦解威權法治的「木馬」到民主法治守護者

Abstract

五十年前威權統治下臺灣，出現今稱「台灣法學會」的法律人異議團體。一九七○年代法學會以學術討論為主，偏向與統治權無關的法領域，以避政治色彩，但於美麗島事件，其成員仍以個人身分站上法庭對抗威權國家。一九八○年代及一九九○年代，法學會凝聚更多具自由民主理念的律師及學者，透過外國人之口 ; 從學理及比較法角度批判威權體制，故發揮「木馬效應」，促成了自由民主。此時學術活動經常涉及法與政治的議題，並鼓勵法學在地化，開始從事社運。二○○○及二○一○年代，經由與其他團體合辦研討會，將依臺灣經驗產出的法學論述與外國法學理論相互比較，肯認 ; 精緻化臺灣自由民主憲政秩序，並以學術結合社運，推動法治改革。老而彌堅的法學會，正以公民團體的身分，積極宣揚其信念。

A dissident jurist organization, which was originally named the Chinese Society of Comparative Law in the past but is now called Taiwan Law Society, emerged in the 1970’s Taiwan when the island was under authoritarian rule. Back in that time, the Law Society focused mainly on academic discussions with issues such as private law or judicial practice that were unrelated to the authority of state. They purposefully avoided political activities in exchange for supplying the legal aid to promote rule of law. However, some members of the Law Society advocated in the court against the authoritarian state in order to rescue the dissidents in the 1979 Formosa Incident. In the 1980s and 1990s, the Law Society brought together more lawyers and scholars with liberal and democratic ideas to criticize the authoritarian system through the mouths of foreigners and from the perspectives of doctrine and comparative law, thus creating a“Trojan horse effect”and contributing to a liberal and democratic Taiwan. In the 2000s and 2010s, the Law Society frequently co-organized conferences with other legal institutions and professional societies, and compared the jurisprudential theories based on Taiwan’s experience with those based on foreign experience so as to confirm and deepen the liberal constitutionalism in Taiwan. The Law Society wanted to promote the reform of the rule of law by combining academic and social movements as well. Unfortunately, the issue of constitutional law reform was so closely related to international and domestic political factors that it was beyond the ability of the Law Society. Similarly, while the Law Society successfully urged people in Taiwan to deal with the judicial reform, the content of the judicial reform still depends on the struggle and compromise of all parties. In contrast, the Law Society seems to play a leading role in legalizing the idea of“transitional justice.”The Law Society, now stronger than ever, is still actively promoting its beliefs as a civic organization in a democratic country.