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|Other Titles: ||Law's Oppressive Effect and Creative Capacity: Human Rights and the Subject Formation of Human Trafficking Victims|
Human Trafficking;Human Rights;Placement, Victim;Law’s Function;Subject Formation;Legality;Legitimacy;Sociology of Law;Legal Anthropology
|Issue Date: ||2016-06-20 11:41:54 (UTC+8)|
Under pressure from the international community, Taiwan has started undertaking intervention against the deprivations suffered by laborers from foreign countries in the past few years. Government authorities have played a major role in passing relevant laws and establishing a preventive mechanism that combines the police, prosecutors, social services, the labor administration and immigration control. Even though these efforts have had a significant impact in improving foreign workers’ social and working conditions in Taiwan, the reality is far more complicated. Since the laws addressing human trafficking focus on the punishment of perpetrators, the laborers being trafficked are thus identified as “victims” and forced to stay in Taiwan to testify in criminal procedures. They are alienated as “others” who need to be helped and placed in appropriate facilities in our society. Is the most crucial function of law the oppressive effect or the creative potential to society? Based on my extensive field investigations, I intend to answer the question in this essay by illuminating the connections between “legality” and “legitimacy” in Taiwan’s legal culture. We tend to emphasize the importance of “abiding by the law” and avoiding any violation of “legality”, but at the same time we ignore the fact that laws can have an inherently oppressive effect. In practice, the facts involved in a legal case are often recorded vaguely and judged partially. The law enforcement also lacks refined operational imagination. Complicated ethical issues are often neglected in the strict abidance by the rules set by authorities and bureaucratic professionals. The “legitimacy” of law is therefore the ultimate concern in the process, excluding human interactions and conversations in applying legal statutes in real life situations. When the various situations of the victims and the complex moral conflicts involved are overlooked, law enforcement often results in social exclusion rather than in upholding human dignity. The creative potential of law is undermined and the oppressive effect is strengthened. I am convinced that in order to minimize the oppressive side of the law and to inspire creative legal solutions, we have to reconstruct the subjectivity of the people involved in the legal process. The triple categorization of “perpetrator”, “victim” and “savior” raises risks in advancing human rights since it prevents us from seeing the real-life conditions faced by individuals and taking effective measures. Human rights can only be improved when we begin to take the initiative and emphasize the subjectivity of people (especially the “victims”) in constructing a “lawful” social reality. Only by upholding “legitimacy”in law enforcement and shaping constructive responses to solve people’s predicaments can we expect to enforce the creative potential of law in this aspect.
|Relation: ||法學評論, 137,33-98頁|
Chengchi law review
|Data Type: ||article|
|DOI 連結: ||http://dx.doi.org/10.3966%2f102398202014060137002|
|Appears in Collections:||[法學評論 TSSCI] 期刊論文|
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