Page 16 - 第三屆原住民族傳統習慣規範與國家法制研討會論文集

10 第三屆原住民族傳統習慣規範與國家法制研討會

To Take Note of Indigenous Peoples’ Laws in

Jurisprudence and the State Law

Abstract

Like ethnic Chinese who have traditional Chinese law, indigenous peoples have their own laws, if
the law has been defined as a social norm that should be enforced by the authority recognized by this
society. Plains indigenous peoples lost their own legal traditions due to their being ruled by the Ch’ing
Dynasty for 212 years and assimilated by ethnic Chinese in Taiwan. In contrast, mountain indigenous

peoples, who were not governed by foreign rulers until Japan acquired the sovereignty of Taiwan in the
late nineteenth century, kept their own legal concepts for a long time. The Japanese authorities in
colonial Taiwan, however, did not follow the principle of “rule by law” when they dealt with the legal
affairs of mountain indigenous peoples. Thus, only few of them had opportunity to contact

modern-style Japanese laws. The laws of indigenous peoples, called “customs” in Japan’s modernized
legal system, had been sometimes applied by colonial policemen to deal with legal affairs of mountain
indigenous peoples. On the contrary, the KMT regime immediately applied all of the modern-style
laws of Republican China to indigenous peoples in 1945, when it took over Taiwan, although mountain

indigenous peoples were quite unfamiliar with the modern law at that time. Meanwhile, Taiwan’s
courts have never recognized the customary law based on indigenous legal traditions in accordance with
Article 1 of the ROC Civil Code. Since the 1990s, the positive law of Taiwan has begun to respect the
special culture of indigenous peoples. However, many statutes enacted for the benefit of indigenous

peoples in the 2000s have poor enforcement. In order to improve this situation, the author argue that it
is necessary to interpret the customs of indigenous peoples by legal terminology and jurisprudence, to
establish the customary law by courts, and to enact the statutes based on the indigenous customary law.
The rule of law will not be significant for indigenous peoples unless their own legal traditions have

been taken into considerations in shaping what is the law.

Keywords: indigenous peoples, Plains indigenous peoples, old customs, customary law, jurisprudence,
legislation