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|Other Titles:||Taking Note of Indigenous Peoples' Laws in Legal Science and State Law|
Indigenous Peoples;Plains Indigenous Peoples;Old Customs;Customary Law;Legal Science;Legislation
|Issue Date:||2016-06-20 10:49:36 (UTC+8)|
Like ethnic Chinese who have traditional Chinese law, indigenous peoples have their own laws, if law has been defined as a social norm that should be enforced by the authority recognized by a given society. Plains indigenous peoples lost their own legal traditions due to their being ruled by the Ch’ing Dynasty for 212 years and assimilated by the ethnic Chinese in Taiwan. In contrast, mountain indigenous peoples, who were not governed by foreign rulers until Japan acquired the sovereignty of Taiwan in the late nineteenth century, kept their own legal concepts for a longer period of time. The Japanese authorities in colonial Taiwan, however, did not follow the principle of “rule by law” when they dealt with the legal affairs of the mountain indigenous peoples. Thus, only a small number of them had the opportunity to come into contact with Japanese modern-style laws. The laws of indigenous peoples, called “customs” in Japan’s modernized legal system, had been sometimes applied by colonial policemen to deal with legal affairs ofmountain indigenous peoples. By contrast, the KMT regime immediately applied all of the modern-style laws of Republican China to indigenous peoples in 1945 when it took over Taiwan, although mountain indigenous peoples were quite unfamiliar with the modern law at that time. Meanwhile, Taiwan’s courts have never recognized customary law based on indigenous legal traditions in accordance with Article 1 of the ROC Civil Code. Since the 1990s, the positive law of Taiwan has begun to respect the special culture of indigenous peoples. However, many statutes enacted for the benefit of indigenous peoples in the 2000s have been poorly enforced. In order to improve this situation, the author argue that it is necessary to interpret the customs of indigenous peoples by legal terminology and jurisprudence, to establish customary law by courts, and to enact statutes based on the indigenous customary law. The rule of law will not be significant for indigenous peoples unless their own legal traditions have been taken into consideration in shaping what is the law.
Chengchi law review
|Appears in Collections:||[法學評論 TSSCI] 期刊論文|
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