Impact of Globalisation on Family Law and Human Rights in Taiwan

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Impact of Globalisation on Family Law

and Human Rights in Taiwan

Amy H.L. Shee1

Professor of Law, National Chung Cheng University

Globalisation orthodoxy considers the phenomenon as the rapid increase in cross-border social, cultural, political, economic and technological exchange under conditions of capitalism. It has taken off as a concept in the wake of the collapse of the Soviet Union and of socialism and thus an undeniably capitalist process spreading over the democratic world. Anthony Giddens defines globalisation as a decoupling of space and time, emphasising that with instantaneous communications, knowledge and culture can be shared around the world simultaneously and thus creates a phenomenon of ‘globality’. (Giddens, 2001) It has been critically observed that the consequences of globalisation may be the end of cultural diversity, and the triumph of a uni-polar (American) system of liberal constitutionalism serving the needs of capitalist penetration from the core to its periphery.2

Critical theories begot from reviews of the impact of capitalist globalisation on ‘the periphery’ inspect Taiwan as a legal transplant and US dependent despite Taiwan’s label as an NIC with sustained economic growth and stable democratic systems. Issues of state sovereignty and social justice have become popular areas of academic study in socio-political sciences in Taiwan.3 I have no objection to the inclusion of Taiwan as belonging to the periphery of a capitalist globe, though with two doubts. First, if universalism is to be denounced, why should we announce a broad-spectrum account of ‘the periphery’? And this leads to the second question that if particularism is to be urged, why does Taiwan not deserve a specifically charted analytical framework for individuality? I therefore urge the readers’ indulgence, in this inspection of the uniqueness of Taiwan Family Law4.

As a child rights advocate, I would like to share my sentiments for the developmental right of a juvenile labeled ‘delinquent’. We are so accustomed to theorise and analyse such adolescents as belonging to the periphery of a normative society. So the parents are either abusive or neglecting. Their children are both deprived and unpromising. However, I am constantly reminded that a serving professional must learn to listen and to admire. It is my belief that before due appreciation is bestowed to the identity and integrity of every single ‘self’, no human rights discourse can qualify to judge. Delinquency may just be an essence of being young in the modern world where variable self-identities and living styles spring out everyday to confront the normative and cause chaos. When adults in authority are fully occupied with ordering over the contemporary chaos, other adults are urging for another normative society to promise better future for an emancipated generation. With all the noble passions and endeavours, we might have deprived a child the developmental right to participate and to choose. Maybe a delinquent can take the lead to purge normative deficiencies if we could learn to set aside the paradigm or paradigms and observe carefully with both our broad minds and open hearts.

We need critical theories to forward human civilisation, but individual development requires respect and encouragement. Instead of getting caught among the left, the right, the new right, the new left, or ‘the third way’ (Giddens, 2000) for criticisms, or of proudly placing Taiwan as a NIC together with the reflexive First World to work towards ‘socialist globalisation’ (Sklair, 2002), this paper is an effort to observe Taiwan as a unique case of development in family law and human rights.5 In this effort, I am not to upgrade the ‘marginal’, ‘peripheral’, or ‘recipient’ status of Taiwan or to overvalue the modernity of our law.6 Instead, fact sheets will be presented to demonstrate that Taiwan has enjoyed autonomy and creativity in its evolution with distinctive cultural traits and social reflections. If the audience could join me to review the Taiwan experiences as a developmental7 entity like how we may examine the difficult times of developed countries,8 the impact of globalisation on the shaping and transformation of Taiwan family legislation may show an image worthy of a retailored analytical framework.

Let’s return to a neutral statement that ‘globalisation’ or ‘global law’ is a controversial term and thus multiple choices are available on the roundabout of definitions. We may begin with characterising globalisation as ‘cross-border development of legal norms’. It involves ‘processes of international, transnational, and subnational norm development and interpenetration with little regard for the fixed geographical boundaries of the nation-state system’ (Berman, 2005:485), or ‘an emerging transnational legal culture in which a customary law of communities transcends national boundaries’ (Bederman, 2005:53). The idea of law and globalisation is thus taken to provide an instrumental lens for viewing the plural ways in which legal norms are disseminated in global society. And as such, it may also be ‘a useful theoretical insight as to the global pluralism of social systems and its implications for norm generation and application’ (Wai, 2005: 471).

In the area of Taiwan Family Law, the impact of modernisation, internationalisation and globalization has since the beginning of the 20th century refurbished both the legislation and later the Taiwan society with western ideologies of monogamy and the conjugal family (nuclear family) as well as their corresponding legislative principles of sexual/gender equality and the best interests of the child. The climate of social justice and human rights formulated by social revolution and political reforms in the past twenty years (since the lift of the martial law in 1987) has also transformed the rhetoric and context of law and practice. However, traditional Chinese ethics and family values, just like the western religious traditions,9 remain secure at the foundation of law. In short, traditional teachings, contemporary social practices and modern rights discourses have negotiated their paths to transform the family/families through law and push forward an evolving legal culture of Taiwan.

For a country like Taiwan, to follow the currents of modernisation and globalisation is an inevitable destiny for survival in both political and economic spheres. Local elites of all disciplines have jumped onto the bandwagon to secure their competence and privilege to lead in their chosen fields. Globalised interdisciplinary has been shared with pride among the new generation of family law academics. In view of such a landscape, I will attempt to map out the footprints of two globalised principles, viz. sexual/gender equality and the best interests of the child, which are the paramount pillars of the monogamous nuclear family to be preserved and protected by modern law.10

Irrespective of criticisms of capitalist globalisation promoting political, economic and cultural hegemony or of the instrumentality of rule of law and Constitutionalism, or of ‘forced’ elements or undue influences from the US and other hegemonies, this paper suggests that Taiwan has been engaged in an autonomous learning process. It has been involved in ‘a dynamic of selective adaptation’11 aiming to make Taiwan a fit member of the global village. Instead of being labeled a ‘transplant’ loaded with imposed foreign laws or otherwise praised as a ‘miracle’ of modenisation and economic growth, I will rather present Taiwan’s endeavours in family law, as a unique model of human rights development in the context of globalisation.

As a law professional and human rights activist who has been heavily involved in this development process, I may have frequently criticised Taiwanese developments in order to provoke or accelerate reform.12 Yet in this paper, which shares experiences with an international audience from all corners of the globe, I would like to tell our story in a positive connotation with Taiwan sentiments and family values, though I still cannot avoid bearing the rational mind cultivated by western education under the brand of Warwick tradition. This paper is thus to be shared by those who are concerned with global justice under the light of a sensitive perception and due respect for the individuality and integrity of a legal culture at the periphery.13

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