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Facing similar political and economic conditions, both China and pre-democratic Taiwan have applied the same strategy to implement structural reforms, a model characterized by “the rule of law without democracy.” One fashionable opinion has been that the Model in China will follow its life cycle in Taiwan and eventually lead to democratization, after the progress in overall reforms. Although seasoned policymakers have often expressed this viewpoint, it has surprisingly not been scrutinized in detail by existing legal literature.
By comparing the critical juncture of Taiwan’s total transition with that of China’s, this Article refutes this convergence theory. First of all, the examination of the Model in Taiwan unveils prominent limits that have prevented the rule of law from taking root until years after democratization. Secondly, this Article identifies four factors that have transcended the limits of the Model in Taiwan, but they either do not exist, or have minor or opposite effects in China. These factors are (1) the fusion of the early transplanted legal system in mainland China and the Japanese colonial legacy of legal development in Taiwan; (2) an inward-looking nationalism that empowered the reformist wing of the legal profession and the general public; (3) competitive local elections as an alternative platform for enforcing laws and advancing constitutionalism; and (4) the pressure exerted by geopolitics and international economy placing constraints on the authoritarian state. The absence of these factors may result in a very different final outcome of the Model in China.
This Article concludes by challenging the theories about authoritarian legality, which generally depict authoritarian rules as transitional and presume a linear transition. Rather, this Article suggests that the nonlinear, context-dependent, and functionalist approach be adopted in order to understand trajectories of the rule of law development in transitional countries.
