New Historical Jurisprudence

This draft is to become a chapter of the book project "Judicial Reform in Taiwan: Institutionalising Democracy and the Diffusion of Law" (Neil Chisholm ed., Routledge, forthcoming). The project bears on Taiwan's judicial reform of 1999. It is the first book-length study of Taiwan's judiciary and its transformation in the early stage of Taiwan's democratization.

Written after a second judicial reform that was launched in 2017, this chapter aims at historicizing not only Taiwan's judiciary but also the attempts to reform it. This chapter provides in its first part a historical account of Taiwan's justice system and the society's perception of it in the long century between 1895 to 1999. Rejecting the conventional narratives which enumerate origins of legal reception, this part explains how the justice system under Japanese rule (1895--1945) has earned respect despite the colonialism, and why this system fell into disarray under the Republican Chinese occupation (1945--92).

This chapter argues then in its second part that Taiwan's reformers have reduced the poor quality of the country's administration of justice to the malfunction of the judiciary alone. Taking into account the history of Western judiciary itself, this chapter argues that the key reform issues pertain rather to state-building than the making of organizational and procedural laws. This chapter argues that the centralization of government lawyering in a broad sense is Taiwan's priority and expects that this issue would soon lead to more reform attempts.

This essay reflects on the relationship between the history of crime, the history of criminal justice, and the history of criminal law. It suggests an account of the historical analysis of criminal law that locates it within the general project of critical analysis of law (CAL).

Auf den ersten Blick erscheint es, als hätten sich das angloamerikanische und das deutsche Verbandsstrafrecht um die Wende zum 19. Jahrhundert gekreuzt wie zwei Schiffe bei Nacht: Während das angloamerikanische Recht vor 1800 keine Verbandsstrafbarkeit kannte, war dies im deutschen Recht nach 1800 der Fall. Eine historische Untersuchung ergibt allerdings, dass sie in beiden Rechtskreisen mindestens seit dem Mittelalter verbreitet war und dass weder in England vor 1800 noch in Deutschland nach 1800 vollständig auf sie verzichtet wurde. Eine weitergefasste vergleichende Analyse bringt einen gemeinsamen Ansatz zur kritischen Analyse der Verbandsstrafbarkeit zum Vorschein, der sich auf das Spannungsverhältnis von Recht und Polizei als grundlegende, in beiden Rechtskreisen zu findende Herrschaftsmechanismen zurückführen lässt.

This modest manifesto-or minifesto-portrays legal history as a mode of critical analysis of law, using the historical analysis of American penality as an illustration and the fullfledged manifestos by Piketty and Guldi & Armitage as points of reference. Historical analysis of law, in this light, appears as one mode of critical analysis among others, including, notably, comparative analysis of law, along with economic, philosophical, sociological, or ethical analysis of law, and so on. Historical analysis of law, in other words, is itself a mode of legal scholarship, not a subspecies of law or history. It is a comprehensive view of law from a particular critical vantage point: a way of doing law, rather than of doing things with law. Historical analysis of law in this sense is less "law and history" than "law as history," less legal history than historical jurisprudence.

The historiography of the jury is interestingly schizophrenic, even paradoxical. On one side is the once traditional, and still popular, history of the jury as palladium of liberty. On the other side is the once revisionist, but now widely accepted, account of the jury's origin as instrument of oppression. On one side is the jury as English, local, indigenous, democratic; on the other is the jury as French, central, foreign, autocratic. This paper reflects on this apparent paradox, regarding it as neither sui generis nor in need of resolution. Instead, from the longue durée comparative-historical perspective of New Historical Jurisprudence, the schizophrenic history of the jury and of other palladia of liberty, notably habeas corpus, can be seen to reflect the fundamental and long-standing tension between two modes of governance, law and police, rooted in the distinction between autonomy and heteronomy that has shaped the Western legal-political project since classical Athens. The historiography of the jury is interestingly schizophrenic, even paradoxical. On one side is the once traditional, and still popular, history of the jury as palladium of liberty. On the other side is the once revisionist, but now widely accepted, account of the jury's origin as instrument of oppression. On one side is the jury as English, local, indigenous, democratic; on the other is the jury as French, central, foreign, autocratic. This paper reflects on this apparent paradox, regarding it as neither sui generis nor in need of resolution. Instead, from the longue durée comparative-historical perspective of New Historical Jurisprudence, the schizophrenic history of the jury and of other palladia of liberty, notably habeas corpus, can be seen to reflect the fundamental and long-standing tension between two modes of governance, law and police, rooted in the distinction between autonomy and heteronomy that has shaped the Western legal-political project since classical Athens.

This modest manifesto — or minifesto — portrays legal history as a mode of critical analysis of law, using the historical analysis of American penality as an illustration and the full-fledged manifestos by Piketty and Guldi & Armitage as points of reference. Historical analysis of law, in this light, appears as one mode of critical analysis among others, including, notably, comparative analysis of law, along with economic, philosophical, sociological, or ethical analysis of law, and so on. Historical analysis of law, in other words, is itself a mode of legal scholarship, not a subspecies of law or history. It is a comprehensive view of law from a particular critical vantage point: a way of doing law, rather than of doing things with law. Historical analysis of law in this sense is less “law and history” than “law as history,” less legal history than historical jurisprudence. [Hard copy at http://ssrn.com/abstract=2584119]