Law Is More Than Statutory Provisions

As I recall, a criminal law professor was once very furious. His student, who had become a judge, told him, 'Criminal law is completely useless.' When the professor asked why, the judge student replied, 'Because facts are determined by the judge; if necessary, within the scope permitted by the evidence, we just trim the facts a bit.' The student added, 'No judge discusses such intricate theories when writing a judgment. It is time-consuming, laborious, and makes the judgment easily overturned—that's just looking for trouble.'

The professor was furious, but he did not blame his student. After all, case dockets are overwhelming, and judgments are endless—that is the reality. Furthermore, a judge's own aspiration is to 'unearth the truth.' Searching for clues and piecing together facts—as long as this is not entirely the prosecutors' responsibility, judges will forever take it upon themselves and treat it as their 'divine vocation.' Finding the facts already takes considerable effort; applying statutory provisions and parsing words is enough to muddle through. Besides, theories are too abstract, and applying them can easily look awkward. If judgments do not even care whether the public can understand them, why bother bringing up theories only to expose one's own shortcomings.

The Value Judgment in Shooting Lien Sheng-wen

Of course, theory is very interesting, especially when it directly points to the underlying value judgments. For example, Ma-mien intended to kill a city councilor but accidentally shot Lien Sheng-wen instead, with the bullet passing through and causing the death of a member of the audience. Ma-mien mistook Lien Sheng-wen for the councilor. Theoretically, this is known as 'mistake of object of equivalent value.' A city councilor is a person, and Lien Sheng-wen is also a person; both are 'objects' to be killed. Criminal law does not care whether Ma-mien intended to kill a 'councilor' or 'Lien Sheng-wen'; as long as it is the killing of a 'person,' it constitutes the crime of homicide.

The Lien family has always cared deeply about whether Ma-mien was 'targeting Lien Sheng-wen'—which, of course, raises issues of political struggle or contract killing. However, the law does not care about this. 'All people' are equal, and killing is wrong. Who is targeted does not matter. Targeting a person is a serious crime. This is the value judgment of the law.

Legal Principles More Abstract Than Theory

Interestingly, there is no statutory provision in criminal law for the so-called 'mistake of object of equivalent value.' It is not explicitly written as a statutory provision, but judges have continuously used it, making it 'law' in a broad sense. According to modern British legal positivists, both laws enacted by the legislature and longstanding judicial judgments are considered 'positively existing' 'law.'

To put it more concretely, the precedents and resolutions of the Supreme Court, as well as the doctrinal theories widely accepted by courts at all levels, are 'law' in a broad sense. This is a very pragmatic observation, and it is related to Britain's historically strong 'empiricist' philosophical background. Going a step further, legal philosopher Dworkin calls this type of law 'rules.' Beyond rules, there are even more abstract 'principles,' which are also part of the legal system.

The vast majority of cases can be adjudicated by applying 'rules.' However, in so-called 'hard cases,' one has no choice but to invoke 'principles' to discuss, interpret, weigh, argue, and decide. For example, possessing firearms is illegal; this 'rule' is crystal clear with no room for ambiguity.

However, considering that indigenous peoples have their own cultural customs, in order to deeply argue the limits and scope of indigenous self-governance, one is forced to enter the level of 'principles.' This involves the weighing and choosing of our 'best interpretation' of constitutional values such as liberty, equality, democracy, and the rule of law—in short, legal principles even more abstract than theory, which are the balancing and trade-offs of constitutional values and virtues.

The Two Covenants Are Part of the Legal System

While the two Covenants belong to the international human rights legal system, they did not emerge out of thin air. Similar legal provisions can be found in various countries, ranging from constitutions down to statutes and regulations. Taiwan 'bridged' the two Covenants through an 'Enforcement Act,' incorporating them as part of 'domestic law.' In this regard, it merely 'demonstrates' that they are also a part of Taiwan's legal system.

Of course, the two Covenants contain quite specific 'rules,' such as Article 6, Paragraph 5: 'Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age'; and Article 8: 'No one shall be held in slavery.' These are clear, explicit, and unambiguous; surely no judge would question that these 'rules' have no legal effect.

The two Covenants also contain more abstract 'rules,' such as Article 6, Paragraph 2: the death penalty may be imposed only for 'most serious crimes'; Article 7 prohibiting 'torture'; and Article 9 stating that deprivation of liberty must be 'in accordance with such procedure as are established by law.' The application of these to individual cases inevitably requires further argumentation on what constitutes 'most serious crimes,' what 'torture' means, and how something is considered 'in accordance with law.'

With no statutory provisions to copy and no theories to assist in judgment, judges must engage in value discourse themselves. In Dworkin's terms, judges must engage in 'constructive interpretation': first gathering the 'rules' within the overall legal system—including legislation by the legislature, the two Covenants as domestic law, administrative orders, and judicial precedents, resolutions, and rulings—to sort through the legal order therein and clarify possible controversies. Afterward, they invoke 'principles' of constitutional values such as liberty, equality, democracy, and the rule of law to produce the most coherent and integrated argument.

Sorting through and clarifying the existing legal order is arduous and exhausting, but it is also a fundamental skill. The subsequent constructive interpretation based on legal principles, along with coherent and integrated argumentation, is precisely what makes law most fascinating and serves as the fundamental reason why judges are noble and worthy of our respect.

The Real 'Awkwardness' of Judges

We understand that the contents of the two Covenants are 'extensive,' and dumping them all into our country at once naturally makes judges feel a sense of difficulty in sorting and organizing them. However, dismissing them directly as 'imported goods or foreign products,' or reducing their effect to mere 'declarations,' are statements that ignore reality.

Simply put, even without signing the two Covenants, democratic and rule-of-law countries—whether through written or unwritten law—have long had similar legal provisions. Furthermore, the Enforcement Act 'bridges' the two Covenants, serving as further 'demonstration' that they are a part of Taiwan's legal system. Different conclusions may be reached, but one cannot close their eyes and skip over the two Covenants during argumentation.

The most difficult part is actually the coherent and integrated argumentation regarding constitutional values and virtues. In Taiwan's law schools, this has historically been a 'task' that schools do not teach, and the judicial sector 'respectfully' hands over exclusively to the Grand Justices. Judges inherently lack this capacity and avoid it like the plague. Or one might say that the workload is so heavy that even with the ability, there is 'no life left' to continue writing.

When judicial argumentation stops at the level of copying statutory provisions and precedents, that is precisely what is most odious about Taiwan's judiciary, and the fundamental reason why judges are not at all noble or respected by the people. The 'awkwardness' of judges has absolutely nothing to do with the two Covenants.