在法學與國家法中看見原住民族法律

Abstract

若將「法律」定義為社會規範中，某些可透過該社會所共同承認的權威機關的強制力，加以貫徹執行的規範，則如同漢族之有傳統中國法，臺灣原住民族亦有其自己的法律，亦即「原住民法」。原住民族中的平埔族的固有法律觀念，因其受清朝統治二百一十二年遭漢化之故，終告流失。另一群尚未受外族統治的高山族原住民族，則固有法律觀念一直維持到日治時期才開始面對改變的壓力。按日本殖民地統治當局對於高山族原住民族的民事、刑事、程序法等事項，均不遵行「法治」，而是由所謂的蕃務警察就個案而為裁決，以致住在普通行政區內的高山族原住民當中的少數人，有機會接觸現代意義法制。在這樣的國家法底下，原住民法被視為是「習慣」（或稱「舊慣」），而成為警察為個案裁斷時的選項之一。相對的，國民黨政權將中華民國法全面地施行於原住民族，但高山族原住民族對此一迥異其固有法的現代意義法制頗為陌生，而中華民國法院也從未援引民法第一條來建構屬於原住民族的習慣法。一九九○年代起，國家法才開始尊重原住民族的文化，但縱令二○○○年代有不少顧及原住民族特有法律觀的立法，但在法律執行上仍有大落差。對此，本文提出「法學化習慣、習慣法到習慣立法」的路徑，期能本於原住民族法律傳統，形塑出對原住民族友善的民刑事法律，唯有如此「法治」才對其有實質意義。

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.