Legal Rights Lawyering vs. Political Lawyering: A Comparative Study of Taiwan and Mainland China

Abstract

The Communist People’s Republic of China and Nationalist Republic of China are often considered to be twin brothers of authoritarian one-party regimes. Both systems have adopted an instrumental view of the law for facilitating social management and economic development. Although they share many commonalities of the one-party system, there are salient differences between the two authoritarian regimes in various aspects. The regulation of the state over the legal professions and the advocacy work of rights lawyers are one of the legal aspects that outright demonstrate the commonalities as well as differences found in these two authoritarian systems. The different political/legal opportunity structures of the two authoritarian contexts gave rise to different pathways of legal mobilization. An examination of the interaction between the state and rights lawyering well reveals the complicated nature of authoritarian legality. This paper examines the path of the development of rights lawyering and makeup of rights lawyers in the two regions with a focus on the authoritarian period. It examines and compares the regulations and control over rights lawyering, and analyzes how the different legal structures, as well as other relevant political opportunities and constraints, have influenced the different developmental trajectories of rights lawyering in the two regimes. It is also anticipated that the case of Taiwan will provide some perspective on the potential future of rights lawyering in China. In the larger context, this comparative study might also shed light on the long-debated question of legal development and democratization in transitional states.