Privacy and the New Legal Paradigm: Tradition and Development in Taiwan

Abstract

The right to privacy is relatively new but has ever increasing importance. Different approaches toward its protection do exist at the moment; however, they all face challenges due to rapid technological and global changes. This article presents an idea of a new legal paradigm and its application in privacy protection. This legal paradigm gives equal attention to the forming of state-made law and social norms. It also emphasizes the cooperative relationship between the two lawmaking efforts. The new legal paradigm requires a shift from the traditional internal legal point of view, which overlooks the importance of social normative formation. Such a shift, however, may not be equally difficult in the Chinese-speaking world, where social norms derived from efforts searching for proper relationship among different roles in a society have long been the teaching of the Confucian school. Within the Confucian teaching, this article searches for the traditional Chinese idea of privacy and how it is placed in a series of self-cultivation needed to bring order to the societies, following with a preliminary sketch of the current development of privacy protection in Taiwan to demonstrate its distinctiveness under such Confucian influence, i.e., emphasizing private ordering much more than legislative and administrative lawmaking. Since the success of the Taiwanese approach, or all future successful privacy protection, requires public spheres where concerns of different stakeholders can be reflected and dealt with, this article ends with a critical description of the development of the new research area, i.e., e-participation, and suggests how e-participation can be benefited by the idea of the new legal paradigm.