Conference Presentations by Tzung-Mou Wu
The Institutum Iurisprudentiae, Academia Sinica (IIAS), will host the Legal History in Action Wor... more The Institutum Iurisprudentiae, Academia Sinica (IIAS), will host the Legal History in Action Workshop on the 6th and 7th of May, 2015, in Taipei, Taiwan. The topic of the workshop is Writing Down Indigenous Customs. With a practical intent to pave the way for an effective application of indigenous customs in court, this workshop will invite leading and emerging legal historians and anthropologists to discuss what contemporary Taiwan can learn from the medieval West as well as the indigenous peoples' contact with the civil law tradition in South America.
Among the speakers will be Emanuele Conte (Roma Tre/ EHESS), Bernd Kannowski (Bayreuth), Soazick Kerneis (Paris Ouest), Bram van Hofstraeten (Maastricht), Rodrigo Míguez Núñez (Piemonte Orientale), Charles de Miramon (EHESS), Beatrice Pasciuta (Palermo), Claudia Storti (Milan), Barbara Truffin (Brussels) and Tzung-Mou Wu (IIAS).
The paper presentation may be conducted in English, French, German or Italian. Written abstracts and briefing in English will be available.
Registration is required, free from charge, and will be made available when the workshop's official website be launched in early April. A short CV and bibliography will be needed.
Contact: Ms. Huang ( [email protected] )
This paper outlines the process in which legal personhood was conceptualized in the western legal... more This paper outlines the process in which legal personhood was conceptualized in the western legal culture between the 18th and the mid-20th century. The paper takes a lexical approach to an array of French and German juristic literature. The paper contrasts the Latin “persona” and the vernacular Person/ personne. The former is susceptible to legal fiction, and may as well be applied as denied to any singular or plural human and non-human being. The latter is a neologism that embodies a particular, German variant of liberalism. This paper concludes by arguing there are two concepts of legal personhood: one categoricalist, the other essentialist.
The lexical approach of this paper highlights the inconsistency between the Latin word “persona” and its vernacular derivatives Person/ personne. The Latin “persona” is close to “homo” but cannot signify the latter when it is used alone (or, in an “absolute” way) as predicate. To say that X is a “persona” means unequivocally that X is a mask, the proper sense of the word. “Persona” leads to what is nowadays known as legal personhood by forming idiomatic expressions with transitive verbs meaning “bear”, “were” or “carry” (tenere, gerere, sustinere, etc.) which means “represent” and where “persona” loses its semantic value. Thus the concept of legal personhood based on “persona” neither requires any human element by itself, nor entails any analogy with human being. This paper calls it “categoricalist”, for that it presupposes neither essence nor substance. On the other hand, the essentialist concept deems the vernacular word Person/ personne equal to human individual, and ties human essence to the concept of legal personhood.
The inconsistency between “persona” and Person/ personne goes across the borders between law, theology, philosophy, etc. It cannot be overcome without committing neologism, since it is unanimously admitted that the legal personhood in contemporary sense stems from the civil law tradition, and, therefore, Latin texts.
The categoricalist concept appears in the works of a series of natural right scholars, at least from Hobbes to Wolff, in French case law and, arguably, in the writing of a small number of German and Italian Roman law scholars. The essentialist concept is invented by the midst of the 19th century. It convinces more textbook authors than legislators, and matters much more to public law and political theories than to civil law, where it is rooted.
Dissertation by Tzung-Mou Wu
While the French word "personne", according to the contemporary literature, derives from the Lati... more While the French word "personne", according to the contemporary literature, derives from the Latin word persona and means human in the legal sense, the present study shows that this definition dates back to no further than the mid-19th century, and that it only anchored definitively in the language of French jurists after 1870. By reviewing the case law on transfer tax issues of the 1800's and the texts of several forgotten French-speaking authors, this study traces various usages of the word personne in the 19th century, and argues that the word has no content to be conceptualized in neither of its two major uses. Either it functions as a pronoun, and thus can be easily replaced or removed, or it loses its meaning by becoming a part of the idiomatic phrases which stem from the Latin construction "personam gerere" ("to represent"), in which my keyword requires a direct objective complement in genitive case. More specific usages, such as "moral person" in Pufendorf's sense and "error as to the person" in terms of marriage, also ascertain that "personne" goes with "have" rather than "be." Integrated in a case-law language represented by R.-T Troplong, the traditional usages started to lose their ground to the modem one since the publication of the 2nd volume of F. C. Savigny's System. Between 1840 and 1870, Savigny's neologism confronted to a "gallicanistic" legal historiography which saw, in conformity with the later French medievalist scholarship, in the old French law not only elements coming from the ancient Germanic law, but also those of feudal, canonical and case-Iaw origins.
Papers by Tzung-Mou Wu
Glossae: European Journal of Legal History, 2014
Una influyente opinion academica desde los anos 50 sostiene que Christian Wolff acuno el concepto... more Una influyente opinion academica desde los anos 50 sostiene que Christian Wolff acuno el concepto moderno de la capacidad juridica general y la personalidad juridica con el termino �persona moralis� en su Ius naturae (1740-1748), y que fue un precursor del derecho moderno a la personalidad juridica. El presente articulo cuestiona aquella opinion conduciendo un analisis del corpus de todas las ocurrencias de la palabra �persona� en el tratado de ocho volumenes de Wolff. El articulo sostiene que tanto �persona� como �persona moralis� en Wolff deben ser leidos a la luz del Allgemeines Landrecht (ALR) prusiano, cuya intencion era proteger una sociedad estamental.
Cette these porte sur les mutations semantiques qu'a subies le mot "personne" depui... more Cette these porte sur les mutations semantiques qu'a subies le mot "personne" depuis la codification de Bonaparte jusqu'a la Premiere guerre mondiale. Elle montre que le mot conservait ses emplois et sens traditionnels dans le langage des juges et des praticiens, qu'exemplifient bien des sources jurisprudentielles en matieres diverses, et la litterature sur l'abolition de l'esclavage et sur l'adage "le mort saisit le vif". Elle montre egalement que le mot n'a ete associe aux idees d'homme et de sujet de droit qu'a partir de la lecture neologique de fragments romains proposee par Savigny, et que ce changement semantique s'installait apres 1870 a travers les ecrits doctrinaux.
This paper challenges the modern legal concept of “person” by analyzing the translation problems ... more This paper challenges the modern legal concept of “person” by analyzing the translation problems of some Roman law fragments. It shows why the Latin word “ persona ” cannot be the etymon of the vernacular “person,” and argues that the modern use of “person” stems from the nineteenth-century German juridical literature, especially that of F. C. von Savigny. This paper shows that “ persona ” forms a phrase with verbs like gerere , tenere and sustinere (bear, carry, hold, etc.) and has no meaning by itself. Such phrases require a noun complement in genitive form, as their synonym “represent,” which is transitive, needs a direct object. On the other hand, the modern literature attributes a sense to “person,” taking it as equivalent to “human individual” and using it word with the verb “be.” This use is a modern invention and cannot be re-translated into Latin without semantic confusion.
Glossae, 2014
An influential scholarly opinion argues since the 1950's that Christian Wolff coined the modern c... more An influential scholarly opinion argues since the 1950's that Christian Wolff coined the modern concept of general legal capacity and legal personhood with the term " persona moralis " in his Law of Nature (1740–1748), and was a precursor of the modern right to legal per-sonhood. The present article challenges that opinion by conducting a corpus analysis of all the occurrences of the word " persona " used in Wolff's eight-volume treatise. The article argues that both Wolff's " persona " and " persona moralis " are to be read in the light of the Prussian Allgemeines Landrecht (ALR), which intended to protect a society of estates.
The question of what the law is may preoccupy some legal theorists. Answering it is definitely th... more The question of what the law is may preoccupy some legal theorists. Answering it is definitely the legal professionals' nightmare. Constitutional and statutory requirements now require Taiwan’s officials and lawyers to confront the problem of ascertaining and applying indigenous customs in the exercise of all state powers. Yet, the most widely accepted juridical concept of custom results in a choice between two evils, to wit, breaching either the general duty to uphold law or the concrete obligation to respect indigenous values. So far, efforts have only been made to document the customs, but the documentation thus produced is too ethnographic to be legally useful. The challenge, therefore, is one of translation. Values are to be carried from an indigenous world into the modern one, and the little-known form of custom is to be expressed in the language of the science of law.
This paper argues for the translation of indigenous customs with conceptions available in an array of examples from European legal history. This paper explains that, in cases like Taiwan, the solutions known to the English-speaking literature all end in the dilemma I call "modern state centralism" (MSC). The solutions are divided into two types: legal pluralism and Francisco Suárez's conception of custom. The former defeats itself in that its criticism against the state's monopoly of law amounts to suggesting that the state tolerate all kinds of non-state normativity. The latter reduces to MSC because recent literature ignores Suárez's legal historical references and important studies written in German. The rest of the section shows how "non-modern" legal techniques may help. This paper concludes by suggesting that the concept pair of law and custom be dissociated from four others, to wit, written and unwritten law, state and society, law in books and law in action, and, finally, alien and native law.
An influential scholarly opinion argues since the 1950's that Christian Wolff coined the modern c... more An influential scholarly opinion argues since the 1950's that Christian Wolff coined the modern concept of general legal capacity and legal personhood with the term "persona moralis" in his Law of Nature (1740-1748), and was a precursor of the modern right to legal personhood. The present article challenges that opinion by conducting a corpus analysis of all the occurrences of the word “persona” used in Wolff's eight-volume treatise. The article argues that both Wolff's “persona” and “persona moralis” are to be read in the light of the Prussian Allgemeines Landrecht (ALR), which intended to protect a society of estates..
Book Chapters by Tzung-Mou Wu
State Law and Legal Positivism, 2021
Sur les chemins d'un Jus Commune universalisable, 2021
Qu’est-ce qu’un collectif ? Du commun à la politique, 2010
Hollowing out of Land Ownership: a Demographic Perspective from East Asia (Japanese), Mar 30, 2018
Some attribute hypothetically the "hollowing-out of land ownership" in rural Japan---the topic of... more Some attribute hypothetically the "hollowing-out of land ownership" in rural Japan---the topic of this book---at least partly to her allegedly French-styled land law, and wonder whether Taiwan's German-styled land law, of which Japan's colonial government laid the administrative foundation from 1898 to 1905, may be a role model. As one of the discrepancies between maps, title registry, and the physical reality, the hollowing-out in contemporary rural Japan refers to the increase of outdated titling information in the registry. This phenomenon seems to result from, among others, the indifference of urban residents toward the rural estates they inherit, which, in turn, stems from the fact that the registration costs tend to outweigh the benefits of rural estates.
This chapter argues that the land-law origin hypothesis is irrelevant to the hollowing-out issue, and suggests that some specific pro-registration incentives be designed. To challenge the land-law origin hypothesis, this chapter highlights the differences between the history of land law and its administration on the one hand, and the history of cadastral mapping on the other. This comparison shows that the French and German laws which influenced Japan, Republic of Korea, and Taiwan are less relevant to the hollowing-out issue than the conditions of the investments in cadastral mapping. Moreover, if the rules of inheritance allowing title acquisition without registration, there seem to be few solution available, as these rules are common to Japanese, Korean, Taiwanese, and many other legal systems.
On condition that the land law in force holds sway, it may be worthwhile for Japan's policy makers to ponder three solutions. The first is to provide and promote the functional equivalent of notaries public, on which Taiwan had spent more than two decades. The second is to device local incentives for registration by taking into account B. Arruñada's argument that land parcels of different value need different titling and registration options, and that these options may coexist. The third is to learn from Korea's efforts in improving their land information system in capacity and quality.
Drafts by Tzung-Mou Wu
Judicial Reform in Taiwan: Institutionalising Democracy and the Diffusion of Law (Neil Chisholm ed., Routledge, forthcoming)
This draft is to become a chapter of the book project "Judicial Reform in Taiwan: Institutionalis... more This draft is to become a chapter of the book project "Judicial Reform in Taiwan: Institutionalising Democracy and the Diffusion of Law" (Neil Chisholm ed., Routledge, forthcoming). The project bears on Taiwan's judicial reform of 1999. It is the first book-length study of Taiwan's judiciary and its transformation in the early stage of Taiwan's democratization.
Written after a second judicial reform that was launched in 2017, this chapter aims at historicizing not only Taiwan's judiciary but also the attempts to reform it. This chapter provides in its first part a historical account of Taiwan's justice system and the society's perception of it in the long century between 1895 to 1999. Rejecting the conventional narratives which enumerate origins of legal reception, this part explains how the justice system under Japanese rule (1895--1945) has earned respect despite the colonialism, and why this system fell into disarray under the Republican Chinese occupation (1945--92).
This chapter argues then in its second part that Taiwan's reformers have reduced the poor quality of the country's administration of justice to the malfunction of the judiciary alone. Taking into account the history of Western judiciary itself, this chapter argues that the key reform issues pertain rather to state-building than the making of organizational and procedural laws. This chapter argues that the centralization of government lawyering in a broad sense is Taiwan's priority and expects that this issue would soon lead to more reform attempts.
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Conference Presentations by Tzung-Mou Wu
Among the speakers will be Emanuele Conte (Roma Tre/ EHESS), Bernd Kannowski (Bayreuth), Soazick Kerneis (Paris Ouest), Bram van Hofstraeten (Maastricht), Rodrigo Míguez Núñez (Piemonte Orientale), Charles de Miramon (EHESS), Beatrice Pasciuta (Palermo), Claudia Storti (Milan), Barbara Truffin (Brussels) and Tzung-Mou Wu (IIAS).
The paper presentation may be conducted in English, French, German or Italian. Written abstracts and briefing in English will be available.
Registration is required, free from charge, and will be made available when the workshop's official website be launched in early April. A short CV and bibliography will be needed.
Contact: Ms. Huang ( [email protected] )
The lexical approach of this paper highlights the inconsistency between the Latin word “persona” and its vernacular derivatives Person/ personne. The Latin “persona” is close to “homo” but cannot signify the latter when it is used alone (or, in an “absolute” way) as predicate. To say that X is a “persona” means unequivocally that X is a mask, the proper sense of the word. “Persona” leads to what is nowadays known as legal personhood by forming idiomatic expressions with transitive verbs meaning “bear”, “were” or “carry” (tenere, gerere, sustinere, etc.) which means “represent” and where “persona” loses its semantic value. Thus the concept of legal personhood based on “persona” neither requires any human element by itself, nor entails any analogy with human being. This paper calls it “categoricalist”, for that it presupposes neither essence nor substance. On the other hand, the essentialist concept deems the vernacular word Person/ personne equal to human individual, and ties human essence to the concept of legal personhood.
The inconsistency between “persona” and Person/ personne goes across the borders between law, theology, philosophy, etc. It cannot be overcome without committing neologism, since it is unanimously admitted that the legal personhood in contemporary sense stems from the civil law tradition, and, therefore, Latin texts.
The categoricalist concept appears in the works of a series of natural right scholars, at least from Hobbes to Wolff, in French case law and, arguably, in the writing of a small number of German and Italian Roman law scholars. The essentialist concept is invented by the midst of the 19th century. It convinces more textbook authors than legislators, and matters much more to public law and political theories than to civil law, where it is rooted.
Dissertation by Tzung-Mou Wu
Papers by Tzung-Mou Wu
This paper argues for the translation of indigenous customs with conceptions available in an array of examples from European legal history. This paper explains that, in cases like Taiwan, the solutions known to the English-speaking literature all end in the dilemma I call "modern state centralism" (MSC). The solutions are divided into two types: legal pluralism and Francisco Suárez's conception of custom. The former defeats itself in that its criticism against the state's monopoly of law amounts to suggesting that the state tolerate all kinds of non-state normativity. The latter reduces to MSC because recent literature ignores Suárez's legal historical references and important studies written in German. The rest of the section shows how "non-modern" legal techniques may help. This paper concludes by suggesting that the concept pair of law and custom be dissociated from four others, to wit, written and unwritten law, state and society, law in books and law in action, and, finally, alien and native law.
Book Chapters by Tzung-Mou Wu
This chapter argues that the land-law origin hypothesis is irrelevant to the hollowing-out issue, and suggests that some specific pro-registration incentives be designed. To challenge the land-law origin hypothesis, this chapter highlights the differences between the history of land law and its administration on the one hand, and the history of cadastral mapping on the other. This comparison shows that the French and German laws which influenced Japan, Republic of Korea, and Taiwan are less relevant to the hollowing-out issue than the conditions of the investments in cadastral mapping. Moreover, if the rules of inheritance allowing title acquisition without registration, there seem to be few solution available, as these rules are common to Japanese, Korean, Taiwanese, and many other legal systems.
On condition that the land law in force holds sway, it may be worthwhile for Japan's policy makers to ponder three solutions. The first is to provide and promote the functional equivalent of notaries public, on which Taiwan had spent more than two decades. The second is to device local incentives for registration by taking into account B. Arruñada's argument that land parcels of different value need different titling and registration options, and that these options may coexist. The third is to learn from Korea's efforts in improving their land information system in capacity and quality.
Drafts by Tzung-Mou Wu
Written after a second judicial reform that was launched in 2017, this chapter aims at historicizing not only Taiwan's judiciary but also the attempts to reform it. This chapter provides in its first part a historical account of Taiwan's justice system and the society's perception of it in the long century between 1895 to 1999. Rejecting the conventional narratives which enumerate origins of legal reception, this part explains how the justice system under Japanese rule (1895--1945) has earned respect despite the colonialism, and why this system fell into disarray under the Republican Chinese occupation (1945--92).
This chapter argues then in its second part that Taiwan's reformers have reduced the poor quality of the country's administration of justice to the malfunction of the judiciary alone. Taking into account the history of Western judiciary itself, this chapter argues that the key reform issues pertain rather to state-building than the making of organizational and procedural laws. This chapter argues that the centralization of government lawyering in a broad sense is Taiwan's priority and expects that this issue would soon lead to more reform attempts.
Among the speakers will be Emanuele Conte (Roma Tre/ EHESS), Bernd Kannowski (Bayreuth), Soazick Kerneis (Paris Ouest), Bram van Hofstraeten (Maastricht), Rodrigo Míguez Núñez (Piemonte Orientale), Charles de Miramon (EHESS), Beatrice Pasciuta (Palermo), Claudia Storti (Milan), Barbara Truffin (Brussels) and Tzung-Mou Wu (IIAS).
The paper presentation may be conducted in English, French, German or Italian. Written abstracts and briefing in English will be available.
Registration is required, free from charge, and will be made available when the workshop's official website be launched in early April. A short CV and bibliography will be needed.
Contact: Ms. Huang ( [email protected] )
The lexical approach of this paper highlights the inconsistency between the Latin word “persona” and its vernacular derivatives Person/ personne. The Latin “persona” is close to “homo” but cannot signify the latter when it is used alone (or, in an “absolute” way) as predicate. To say that X is a “persona” means unequivocally that X is a mask, the proper sense of the word. “Persona” leads to what is nowadays known as legal personhood by forming idiomatic expressions with transitive verbs meaning “bear”, “were” or “carry” (tenere, gerere, sustinere, etc.) which means “represent” and where “persona” loses its semantic value. Thus the concept of legal personhood based on “persona” neither requires any human element by itself, nor entails any analogy with human being. This paper calls it “categoricalist”, for that it presupposes neither essence nor substance. On the other hand, the essentialist concept deems the vernacular word Person/ personne equal to human individual, and ties human essence to the concept of legal personhood.
The inconsistency between “persona” and Person/ personne goes across the borders between law, theology, philosophy, etc. It cannot be overcome without committing neologism, since it is unanimously admitted that the legal personhood in contemporary sense stems from the civil law tradition, and, therefore, Latin texts.
The categoricalist concept appears in the works of a series of natural right scholars, at least from Hobbes to Wolff, in French case law and, arguably, in the writing of a small number of German and Italian Roman law scholars. The essentialist concept is invented by the midst of the 19th century. It convinces more textbook authors than legislators, and matters much more to public law and political theories than to civil law, where it is rooted.
This paper argues for the translation of indigenous customs with conceptions available in an array of examples from European legal history. This paper explains that, in cases like Taiwan, the solutions known to the English-speaking literature all end in the dilemma I call "modern state centralism" (MSC). The solutions are divided into two types: legal pluralism and Francisco Suárez's conception of custom. The former defeats itself in that its criticism against the state's monopoly of law amounts to suggesting that the state tolerate all kinds of non-state normativity. The latter reduces to MSC because recent literature ignores Suárez's legal historical references and important studies written in German. The rest of the section shows how "non-modern" legal techniques may help. This paper concludes by suggesting that the concept pair of law and custom be dissociated from four others, to wit, written and unwritten law, state and society, law in books and law in action, and, finally, alien and native law.
This chapter argues that the land-law origin hypothesis is irrelevant to the hollowing-out issue, and suggests that some specific pro-registration incentives be designed. To challenge the land-law origin hypothesis, this chapter highlights the differences between the history of land law and its administration on the one hand, and the history of cadastral mapping on the other. This comparison shows that the French and German laws which influenced Japan, Republic of Korea, and Taiwan are less relevant to the hollowing-out issue than the conditions of the investments in cadastral mapping. Moreover, if the rules of inheritance allowing title acquisition without registration, there seem to be few solution available, as these rules are common to Japanese, Korean, Taiwanese, and many other legal systems.
On condition that the land law in force holds sway, it may be worthwhile for Japan's policy makers to ponder three solutions. The first is to provide and promote the functional equivalent of notaries public, on which Taiwan had spent more than two decades. The second is to device local incentives for registration by taking into account B. Arruñada's argument that land parcels of different value need different titling and registration options, and that these options may coexist. The third is to learn from Korea's efforts in improving their land information system in capacity and quality.
Written after a second judicial reform that was launched in 2017, this chapter aims at historicizing not only Taiwan's judiciary but also the attempts to reform it. This chapter provides in its first part a historical account of Taiwan's justice system and the society's perception of it in the long century between 1895 to 1999. Rejecting the conventional narratives which enumerate origins of legal reception, this part explains how the justice system under Japanese rule (1895--1945) has earned respect despite the colonialism, and why this system fell into disarray under the Republican Chinese occupation (1945--92).
This chapter argues then in its second part that Taiwan's reformers have reduced the poor quality of the country's administration of justice to the malfunction of the judiciary alone. Taking into account the history of Western judiciary itself, this chapter argues that the key reform issues pertain rather to state-building than the making of organizational and procedural laws. This chapter argues that the centralization of government lawyering in a broad sense is Taiwan's priority and expects that this issue would soon lead to more reform attempts.