Civil Disobedience and the Rule of Law: How Taiwanese Courts Respond to Disobedience

Contemporary literature on civil disobedience heavily concentrates on the proper definition and scope of this concept and the conditions of its justification in terms of political morality.

Relatively little has dealt with how the judiciary should respond. Taiwan as a new liberal democracy has experienced a surge of social and civil movement after 2008, which culminated in the Sunflower movement. This period of surging disobedience led to a groundswell of judicial decisions showcasing the courts’ dynamic interactions with the civil society.

Based on analysis of dozens of judicial decisions in the decade preceding the Sunflower movement, I identify four models of judicial responses, which include “static formal law”, “conflict management”, “tolerant indulgence”, and “dynamic formal law”. Further, the radical actions of the Sunflower movement created such pressure on the court that it had to break from the preceding models and adopt the fifth model, namely “adjudicating change.”

I argue that the emergence of the last model is premised on a special meta-narrative of the rule of law held by a significant segment of Taiwan’s civil society and legal profession. Then I critically assess the merits and limits of all these models, especially the model of “adjudicating change”, and indicate their implications to a liberal democracy plagued by political polarization.