Judiciary at the Crossroads: Property Laws and Courts in Post-World War II Taiwan and Manchuria, 1945–1953

Li, Teng

doi:https://doi.org/10.21985/n2-rnk0-dn64

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Judiciary at the Crossroads: Property Laws and Courts in Post-World War II Taiwan and Manchuria, 1945–1953

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Judiciary at the Crossroads argues that a professional judiciary was able to restrain power, and thus lay the foundation for an independent judiciary and possible the rule of law later. Historical evidence comes from the performance of courts in property ordering projects launched by the governments in Taiwan and Manchuria between 1945 and 1953. Taiwan and Manchuria had been Japanese colonies before 1945. After World War II, both the Chinese Communists in Manchuria and the Nationalists in Taiwan tried to muster property resources, consolidate their control of society, and legitimate their powers after the colonial rule. Both found that redefining judicial institutions was the key to achieving their economic, social, and political goals. While the Nationalist and Communist regimes sought control over their judiciaries, however, they subjugated the courts in distinctive ways. Taiwan, on the one hand, kept a professional judiciary, which meant that the judiciary - and only the judiciary - had the toolbox to apply codes to cases through specific method of reasoning and according to a set of formulated procedures. Consequently, this professional judiciary in the ROC moderated Taiwan’s land reform by affirming basic protection afforded to ownership, and pointed out regulatory mistakes the administration made when it inherited Japanese property in postwar Taiwan. The ROC judiciary could not reach decisions that were different from the official position in many other areas; it could, however, in certain aspects of civil life. Manchuria and other parts of China, in contrast, touted populist justice. Populist justice, at its core, meant that crowds decided on punishment based on sentiment. In the revolutionary years, the Communists relied on populist justice to mobilize the masses, wage the land reform, and secure the victory of the revolution. After the founding of the PRC, the government briefly experimented with a professional judiciary (which it inherited form the previous regime) and some forms of genuine trials based on public sentiment. It decided on institutionalized populist justice, using participatory crowds to justify decisions and transforming judgeship into officials who supervised the crowds. In the first half of the twentieth century, Manchuria and Taiwan were on parallel tracks to transition toward legal systems that bore resemblances to Japan, France, and Germany. It was the contrast between professional and populist justice between 1945 and 1953 that sent the development of legal institutions in Taiwan and Manchuria into two separate tracks in the decades to follow. In the late 1980s, the judiciary in Taiwan facilitated the process of democratization and earned itself independent status. The Chinese legal system started to rebuild itself toward professionalization with the start of the reform era, officially 1978, and has improved tremendously to that effect. At the moment, scholars believe that Chinese politics is demonstrating mixing signals. How much a professional legal community can resist the force to pull back is the question yet to be answered.

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