09chen
THE RULE OF LAW IN TAIWAN
Tsung-fu Chen
The English jurist, A.V. Dicey, once formulated a famous definition of the Rule of Law that included three principles: first, the law has absolute supremacy over arbitrary power, including the wide discretionary powers of government; second, all classes of people are equally subject to the ordinary law of the nation administered in the ordinary courts; and third, constitutional law is not the source but the consequence of the rights of individuals, as defined and enforced by the courts.1
In a modern welfare state, the discretionary powers of government are inevitable. As a result, the crucial issue is the extent to which the government is entitled to exercise this power. Although in a continental law system an administrative court is established in addition to ordinary courts, it can follow the principle of the Rule of Law by carrying out the due process of law. Even if a constitution is the result of legislation, constitutional rights must be the fruit of contests carried on in the courts on behalf of the rights of individuals.2 Therefore, Diceys concept of the Rule of Law means in modern society that (1) no arbitrary exercise of governmental power in excess of its authorization is permitted; (2) both the government and private citizens are subject to the law, with all classes of people entitled to a fair and equal procedure in any court of law; and (3) the courts shall be strengthened to enforce constitutional rights; otherwise abstract constitutional statements are merely a bill of rights in a book.
The American jurist, Franz Michael, provides a Western notion of the Rule of
Law, which we may use to compare the Chinese concept of legality, stating:
Rule of law is the very foundation of human rights. In the
Western legal tradition, law is applied equally to all; it is binding
A.V. Dicey, Introduction to the Study of the Law of the Constitution, 184-203, (London: MacMillan &
Co., 10th ed., 1959), in J.C. Smith & David
Tsung-fu Chen
The English jurist, A.V. Dicey, once formulated a famous definition of the Rule of Law that included three principles: first, the law has absolute supremacy over arbitrary power, including the wide discretionary powers of government; second, all classes of people are equally subject to the ordinary law of the nation administered in the ordinary courts; and third, constitutional law is not the source but the consequence of the rights of individuals, as defined and enforced by the courts.1
In a modern welfare state, the discretionary powers of government are inevitable. As a result, the crucial issue is the extent to which the government is entitled to exercise this power. Although in a continental law system an administrative court is established in addition to ordinary courts, it can follow the principle of the Rule of Law by carrying out the due process of law. Even if a constitution is the result of legislation, constitutional rights must be the fruit of contests carried on in the courts on behalf of the rights of individuals.2 Therefore, Diceys concept of the Rule of Law means in modern society that (1) no arbitrary exercise of governmental power in excess of its authorization is permitted; (2) both the government and private citizens are subject to the law, with all classes of people entitled to a fair and equal procedure in any court of law; and (3) the courts shall be strengthened to enforce constitutional rights; otherwise abstract constitutional statements are merely a bill of rights in a book.
The American jurist, Franz Michael, provides a Western notion of the Rule of
Law, which we may use to compare the Chinese concept of legality, stating:
Rule of law is the very foundation of human rights. In the
Western legal tradition, law is applied equally to all; it is binding
A.V. Dicey, Introduction to the Study of the Law of the Constitution, 184-203, (London: MacMillan &
Co., 10th ed., 1959), in J.C. Smith & David