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Law and Social Change Survey Database

1. Project Objectives

By one theory, major social changes originate from outside the legal system.  Yet the legal system, as one social institution, cannot be external to social influence, and indeed legal systems have always transformed along their societies.  The way in which industrial revolutions transformed feudal legal systems in the West is one demonstration.  Or, take for example the pressing environmental issues the world over: environmental movements do not originate from within the legal system.  Rather they coalesce in society outside of the legal system, and bring their struggle to the legal arena propelled by the environmental consciousness they have created.  Law is often a microcosm of social life, and all major changes in law possess causes beyond the law itself.  Stated more boldly, major shifts of social relations and economic factors seem unavoidably to produce major legal changes.  Many countries offer excellent evidence of this in that regulations ensuring gender equality may be traced directly to feminist movements. Or, take for example sexual minority and gay rights movements’ struggle for legal protection.

While the changing legal system reflects changes in society, its structure becomes gradually more defined, and the role it plays in social life becomes all the more key.  It takes on an increasingly vital function in the information society.  In other words, social change may also be effected through the law.  The push for environmentalist legislation is one way in which environmental groups may influence public opinion, and move society along a course charted by progressive law.  The agent behind this change may be the legislature, judiciary, or ordinary people.  Thus, how do people view and react to the effects of changes in the legal system?  What hidden causes drive social change?  What will the next social or legal development look like?  What impact will it have?  What factors and conditions are instrumental?  What factors are likely to be ignored?  These questions are at the heart of our project.

        Thus we seek to illuminate the ebb and flow of law and social change.  The legal academy must indeed draw upon the tradition of social sciences survey research to define its own survey research methodology.  In terms of focus and significance, this new methodology will be distinct from that of sociology, and yet also different from government opinion polls and bureaucratic statistics.  This is one way of countering a long-standing overemphasis on legal dogmatics and its limitations.  And, it is necessary to explore other avenues for the accumulation of concrete experience related to empirical legal studies.  This would not only be a significant achievement for scholarly research and the development of new theory, it would moreover contribute greatly to the policy-making activities of the executive and legislative branches as well as the practice of law.

        The idea behind the Taiwan Law and Social Change Survey started with the Taiwan Database for Empirical Legal Studies project, which has been funded by the National Science Council since 2006.  After repeated discussion and planning, and building on the experience of participating in the 2007 Academia Sinica Taiwan Social Change Survey, TaDELS began it’s own annual survey in 2008.

2. Survey Research in Taiwan

(1) Japanese Colonial Period: the First Empirical Legal Survey in Taiwan

The earliest empirical legal survey research in Taiwan was conducted during the period of Japanese colonial rule in order to inform the new colonial legal system.  The strategic policy of “ preservation of old customs” (kyu-kan onzon,舊慣溫存), extolled by Gotō Shinpei, head of civilian affairs for the colonial government, speaks to the importance that understanding “old customs” (舊慣) held for the colonial regime.  In the Taiwan Governance Emergency Strategy (臺灣統治救急策) and The Opinion that Old Customs Must be Surveyed to Rule Taiwan (經營臺灣必須調查舊慣之意見), Gotō stressed that colonial rule ought to fully grasp old customs through survey research and expert analysis, and moreover that the colony’s legal system must be adjusted to accord with these.  In this way, the survey of old customs(舊慣調查) was a means of establishing a modern legal system in Taiwan.  Gotō commissioned the German-educated scholar of civil law Okamatsu Santarō to lead the project.

In 1898, the Governor-General of Taiwan promulgated multiple regulations related to land law in order to clarify and systematize the ownership of land.  This included the establishment of a Temporary Land Survey Bureau, which was to conduct a survey of “old land customs.”  It investigated old customs pertaining to both large and small rent rights, collected Qing-era land contracts, studied the historical development of commercial land transactions, and interviewed local elders.  Furthermore, it also instructed local police stations to compile a report of local dien rights (土地典權).  Much of this information is recorded in the Document Compilation of the Temporary Land Survey Bureau (臨時臺灣土地調查局公文類纂).  In 1900, Okamatsu compiled the Overview of the System of Taiwanese Old Customs (臺灣舊慣制度調查一斑) based primarily on fieldwork.  This survey was also translated into English and published under the title “Provisional Report on Investigations of Law and Customs in the Island of Formosa.”

In 1901, the Governor-Generalset up the Temporary Investigation committee on the Old Custom of Taiwan (臨時臺灣舊慣調查會), marking the official start of a ten-year extended study of “old customs.”  It’s major publications included Taiwan Private Law (Taiwan Shiho, 《臺灣私法》), Administrative Law of the Qing Dynasty (Shinkoku Gyōseihō,《清國行政法》) and Research on the Customs of Taiwan Aborigine Tribes (Taiwan banzoku kanshu kenkyu,《臺灣蕃族慣習研究》).  These are not only empirical research reports, but also contain contracts and other primary source documents acquired during the research.  Another example is the three-volume Taiwan Private Law praised by Japanese legal scholar Hozumi Shigeto as an “encyclopedic study of Taiwanese private law.”  In addition to the report findings itself, it also included three volumes of catalogued reference materials, comprising a total of about 1,714 contracts and other documents.  These include 1,200 real estate contracts, 125 documents related to personal matters, 38 personal property contracts, and 351 commercial contracts of obligation.  These stretch back to the reign of Kanghsi; most are from the late Qing Dynasty, with a few from the Japanese colonial period.  In addition to this, the Contract and Correspondance Compilation (契字及書簡文類集) published in 1916 was an explanatory guide to various types of contracts.  The Economic Research Department, Bank of Taiwan,  also recompiled and published this in 1963 as the Report of Qing Era Large rent rights(清代大租調查書).  This is an indispensible resource for contemporary scholars of Taiwanese private law during the late Qing and Japanese colonial period.  Furthermore, the Survey Reports on the Formosan Aborigines (Banzoku chosa hōkoku sho, 《番族調查報告書》), Ethnography of Formosan Aborigines (Taiwan banzokusi,《臺灣番族志》), and An Illustrated Ethnography of Formosan Aborigines (Taiwan banzoku zufu, 《臺灣番族圖譜》) serve as valuable textual and pictographic records of the lives of aboriginals at the time, and also contain maps.

Under the ethos of “scientific colonialism”, the Governor-General made quantitative research data one basis for their colonial governance and thus left behind much legal empirical statistical data, including the Statistical Annual of the Government General of Taiwan (Taiwan sōtokufu tokei shō《臺灣總督府統計書》), Criminal Statistics of the Government General of Taiwan, (Taiwan sōtokufu hanzei tokei, 《臺灣總督府犯罪統計》) and other statistical reports.  Besides these, there is also a rich collection of statistical materials in the Governor-General’s files stored at Taiwan Historica(http://www.th.gov.tw/).  These bear no small significance for deepening the historical understanding of empirical legal research in Taiwan.

(2) Survey Research Since 1945

The second large-scale empirical legal survey was conducted by the Ministry of Justice from August to December of 1966. Based on the Survey of Old Customs, the Survey of Taiwan Civil Matters (臺灣民事習慣調查), overseen by Professor Tai Yen-hui (戴炎輝), included comprehensive and in-depth interviews and fieldwork throughout all cities and counties of Taiwan, and touched upon matters such as the development of civil law customs, their types, legal relationships, terms, and force.  Still, the report unfortunately did not explain the research process and methods, or people’s opinions about these customs or their effect on society.  The findings of this five-month study were published as the Survey of Taiwan Civil Matters Report (臺灣民事習慣調查報告) (sixth edition, Ministry of Justice, 2004) and serve as an importance reference in civil proceedings.

While Taiwan has not subsequently seen a large-scale empirical legal survey, it must be noted that survey research methods did begin to be used in empirical legal research.  Take for instance professors Su Yeong-Chin (蘇永欽) and Chen Yih-yan’s (陳義彥) 1985 study of popular awareness of and access to the law (我國人民認知及處理法律事務障礙因素之研究); Professor Yeh Juinn-Rong’s (葉俊榮) law-related component of the Social Image Survey in Taiwan (臺灣社會意向調查—民眾的法律態度部分) in the 1990s; and Professor Su’s 1995 investigation of democratization and popular legal consciousness (法治認知與臺灣的政治民主化:從人民的執法行為探討).  Furthermore, a study of legal consciousness among jurists (法律人法意識之建構-台灣法學基礎教育現狀之檢討與前瞻) planned and overseen by Professor Chen Hwei-Syin (陳惠馨) and jointly conducted by eleven law professors from different fields made use of questionnaires and focus groups.

(3) Social Image Survey: General Survey of Social Attitudes in Taiwan

A project of Academia Sinica, the Social Image Survey in Taiwan carries out survey research concerning significant incidents in society as they occur, and utilizes interviews to understand the occurrence of these incidents as well as evaluating popular reactions thereto.  (The seventeen surveys before 1994 utilized face-to-face interviews, but due to funding reasons the survey was interrupted for several years.  It resumed in 1998 as a telephone poll, which better met the need for rapid information collection.)  Survey topics have often been closely related to legal issues, including the following: public order, evaluations of law enforcement officers, popular attitudes toward punishment and legal principles, law-abiding behavior, the tax system, tax exemptions, attitudes toward the function of law in Taiwanese society, attitudes toward judicial reform, confidence in legal practitioners, satisfaction with the government, evaluation of protection of free speech and assembly rights, performance of the legislative and judicial branches, conflict between environmental protection and economic growth, constitutional reform, fundamental rights, awareness of judicial procedure and function, treatment of suspected criminals, spouses’ attitudes toward property and household finances, gender roles, gender consciousness, crime (including forcing up prices, the sex industry, corruption, fraudulent bankruptcy, illegal dumping, pollution of waterways, tax evasion, vote buying, drug abuse, exotic animal trafficking, and illicit lottery), confidence in the police, crime control and procedural justice, and confidence in health officials, the CDC Director-General, and leaders of local agencies during the SARS incident.

(4) Taiwan Social Change Survey

Since the late twentieth century, many countries have conducted survey research of social change.  The largest and most representative of these is the International Social Survey Program.  At present, the ISSP has forty-one members; Taiwan joined in 2001.  In contrasts to the Social Image Survey in Taiwan, the ISSP aims to accumulate survey research data periodically and over the long term in order to illuminate social trends in Taiwan.  The Institute of Sociology, Academia Sinica began this project in 1984, with the Center for Survey Research in charge of the survey work.  The project is by now well established and provides online materials for academic purposes.  More importantly, each aspect of society covered by the Taiwan Social Change Survey may include law-related items.  That is, the social reality revealed by existing survey results can be used to uncover legal reality.

For example, before its May 23, 2007 revision, civil code article 1059, stipulated that in principle a child takes his or her father’s surname, and may only take his or her mother’s surname if she has no brothers.  Although the survey wasn’t specifically designed for legal research, there have been questionnaire items that touched upon the relationship between this norm and societal opinions.  For instance, the Taiwan Social Change Survey Phase One Wave One (1990), Phase Three Wave One (1995), Phase Four Wave One (2000), Phase Five Wave One (2005) questionnaire item “How do you think your children’s surnames should be decided?” yielded the following results:
“By the father” 85.2%, 82.2%, 79.7%, 74.0%, respectively
“By the father or mother” 12.9%, 15.4%, 18.2%, 24.4%, respectively
For the Phase Four Wave Three (2002) item “Do you support or oppose it if children take the mother’s last name?” 21.8% of respondents support or strongly support.  But, for the item “Will you let your children take the mother’s last name?” only 13.7% answered in the affirmative.  Other factors aside, these results reveal a high degree of correlation between the norm and social opinion and a slight margin of change throughout the nineties.

Furthermore, the social change survey’s use of face-to-face interviews tends to yield higher quality information, and allow for an in-depth look at complex family relationships, biographical factors, and subjective opinions.  When analyzing legal issues, researchers are able to consider multiple social and economic dimensions as well as subjective factors, making for more valid results.

(5) Deliberative Polling ®

The Deliberative Polling® method, which has recently caught on in the West and Taiwan, is quite different from traditional questionnaire surveys and simple polling techniques. This unique and rather resource-intensive method was chiefly developed by Stanford University doctor of political science and philosophy James Fishkin.  More information is available through his Center for Deliberative Democracy (CDD).

Deliberative polling is a form of democratic political participation that integrates the town hall meeting, quasi-experiment, focus group and survey research formats in order to overcome the problems caused by an overemphasis on equal participation and deliberation in modern democratic societies.  At the same time, it counters the traditional view held by many scholars that civic participation is primarily fostered through civics education.  By the late nineteenth century many developed nations had already implemented similar polls concerning important public issues at the national or local level.  In 2002 the Department of Health commissioned professors including Chen Dung-sheng, Huang Tong-yi, and Wu Chia-ling to conduct a public forum research project concerning Second Generation National Health Insurance.  After several months of nationwide interview research, two public fora were held in Taipei and Chiayi cities respectively.  After the successful completion of 1,009 surveys and the two fora, there was a marked difference in collective preferences.  Unlike the consensus conference and citizen conference formats, deliberative polling uses more representative samples.  Participants discuss predetermined topics and form opinions about them.  In contrast to citizen conferences, which are geared toward reaching consensus, deliberative polling emphasizes self-transformation and empowerment.
 
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