The Political Origins of Professional Identity: Lawyers, Judges, and Prosecutors in Taiwan's State Transformation, Ching-fang Hsu

In most civil law jurisdictions, judges, prosecutors, and lawyers are the three pillars of the legal professions. However, these three professional groups do not always share similar norms, political ideologies, or causes for collective action.

The three Taiwanese legal professions pledge to different professional norms in accordance with their political positions and experiences with the party­state. The timing of ideational transformation also reflects this political rela­tionship: Taiwanese lawyers, incorporating most social momentum afar from direct party-state manipulation, made a major breakthrough early in 1989-90; judges, with a strong constitutional mandate and political concession, started a series of norm-building in the mid-1990s; and prosecutors, facing the most persistent (attempts at) political control, aligned the latest, in 1998.

Taiwanese lawyers experienced a modest degree of control, as the state contained the bar from upstream by a differentiated admission policy. As the following section shows, the government mainly admits legal practitioners with a prior relationship to the state to ensure their deference before entering the profession, yet has limited direct control of the overall lawyer population. Being a relatively autonomous and embedded actor in the Taiwanese society, liberal-minded lawyers first reclaimed their own bar association and quickly joined the societal momentum at the height of democratization to become the Taiwanese people’s advocate.

259 highest priority and focus for action. Co-optation serves the main strategy of judges during democratic transition: skillfully utilizing various institutional platforms available to them, reformist judges collaborated with politicians and judicial bureaucrats to consolidate the normative pledge, despite the fact some of them were agents of the authoritarian party-state. Prosecutors, however, witnessed the strongest degree of political control. Institutionally inseparable from the state, prosecutors faced top-down and persistent attempts to instru­mentalize them, even after Taiwan's first party turnover in 2000. Combating such abuse of power, Taiwanese prosecutors developed an identity of justice. The reformist prosecutors consistently resist policy or political actions aiming to compromise them; they focus on investigating corruption and only select­ively co-operate with the administration to secure conditions facilitating such pursuit of their ideals. [...]

In Taiwan, a strong tradition of “people's advocate” is shared by many politically active lawyers. Originally initiated in the 1990s, the identity as “the legal profession in opposition” denotes the mission that lawyers should scrutinize those in power and advocate for those who are not. This profes­sional norm was developed as opposed to the KMT party-state by a minority of locally educated lawyers in the r980s. Most evidently observed in their contestation in the Taipei Bar leadership elections, the final success in r990 marked the end of not only state control over their profession, but also the baseline principle representative of Taiwanese lawyers' collective pursuit. [...]

The dissemination of the reformist ideal that lawyers should advocate for the people goes beyond bar associations.

Simply put, the impact of such an ideal is twofold. First, the embodiment in the early 1990s directly and radically changed the character and self­perception of the profession, from a contained subordinate of the party-state apparatus to an autonomous and vocal representative of Taiwanese citizens. Those who carry these ideals sustained their influence in the profession and mobilized societal and political capital to institutionalize and expand this line of pursuit. Second, the rhetorical and symbolic legitimacy of “people's advo­cate” has been elevated to become the default in the community, which in turn prepares a space to facilitate other lines of advocacy. After all, a functional democracy allows a wide variety of causes, and it is only natural for this professional ideal in the name of the people to be so prevalent that it is hardly discernible from the general public-interest practice of lawyers as Taiwan democratizes. [...]

Taiwanese judges, by contrast, strive for independence. The Taiwanese experience nicely demonstrates that judges act to defend judicial independ­ence not out of pure self-interest or strategic concern, but for normative reasons. That is, judges act because they believe they should be independent, as opposed to the institutionalized control they witnessed in the party-state era. Similarly to the pattern of formation and dissemination of their lawyer coun­terparts, small groups of young and reformist-minded judges first aligned in the early 1990s, and collectively mobilized to challenge the top-down admin­istrative control and lobbied for constitutional protection of judicial independ­ence. The network later entered management positions in the judicial bureaucracy, first under KMT, and continued working with the administra­tion after the first party turnover in 2000. [...]

It would be inaccurate, however, to say that the reformist network suc­ceeded in all their reform attempts. Some reformist judges did enter authority positions (whereas others simply remained on the bench), but they encoun­tered various pushbacks when putting their reformist ideals into practice.

For Taiwanese prosecutors, justice is an indispensable professional norm. Particularly, checking the abuse of power is at the core of this ideational pursuit. While the pattern of formation, mobilization, and dissemination is similar to their judicial counterparts, Taiwanese prosecutors' normative com­mitments come through interest-based requests, including securing resources for investigation and status protection as “judicial officer.” Targeting the KMT's clientalist party-state in the 1990s, a small group of reformist-minded prosecutors successfully aligned in 1998 and mobilized to break the top-down administrative control and lobbied for institutional support to prosecute abuse of political power.

Commentators familiar with Taiwanese politics may argue against the advancement of the prosecutors' pursuit of the ideal of justice, especially between 2008 and 2016, when the KMT was back in power, when the political instrumentality of the SIU was discernible. However, attempts to instrumentalize the prosecution for the interest of individual politicians are, and will always be, present in politics; in fact, the attempts precisely constitute the structural constraints from which prosecutors demonstrate their agentic pursuit. It is hence imperative, first, to seek empirical evidence if, and where, Taiwanese prosecutors show consistent logic of action to resist such instru- mentalization under different political containment. It is the presence of resistance, not the success of resistance, that indicates prosecutors' normative commitment. Second, how such action, allegedly out of the pursuit of an ideal, is received by the prosecutors' community is another important piece of evidence. As the following analysis aims to argue, a second, even third, generation of “reformist prosecutors” clearly passes on the ideal that prosecu­tors should pursue justice to check power, and there is also evidence suggest­ing the collective support of such an ideal. [...]

It is empirically challenging to verify the impact of ideas, especially when actors face great external constraints. For those politically active prosecutors in Taiwan, they do experience political containment, and their attempts to establish, disseminate, and consolidate their normative commitments are shadowed, if not covered, by continuous instrumentalization from the incum­bent political power. However, evidence still reveals the consistent presence of ideationally driven pursuits within the system and with numerous case investi­gations, both as individual cases and as a lock-in institutional effect by different generations of reformists who are linked intellectually through a particular network.

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