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Ma blends arbitrary whims and rule of law
By Lin Chia-ho 林佳和
German political scientist Ernst Fraenkel, sometimes referred to as the father of pluralism, observed Nazi Germany for many years and, in 1941, proposed the theory of the dual state, based on his study.
Nazi Germany was a dual state because at times, to regulate the state, the Nazi regime emphasized law and stability in areas such as administrative injunction, court rulings and even legislative actions.
The focus was on upholding and consolidating the order of its capitalist economy. So, in a sense, Nazi Germany was a country based on the rule of law.
However, Nazi Germany also often went the other way. At many times, for political goals and intentions, the law was not viewed as being important and procedure was treated as a joke.
Policy measures that result from arbitrary decisions are acts of administrative dictatorship, even when they are disguised as legal. Under these circumstances, concepts like the rule of law, human rights and procedural justice become meaningless.
So, Nazi Germany was neither a pure dictatorship nor totalitarian state; it was a dual state.
If Taiwanese look at how President Ma Ying-jeou (馬英九) has acted since he entered office, it is easy to draw comparisons between his actions and the concept of a dual state.
Taiwan is clearly not a pure dictatorship: Administration is not entirely arbitrary, courts are not totally without independence, there is a legislative opposition, there are both formal and concrete expressions of the rule of law, and democratic and human rights values are expressed from time to time.
However, whenever the China factor comes into the equation, Ma acts in a totally arbitrary manner, as can be seen from his actions when China’s former Association for Relations Across the Taiwan Straits chairman Chen Yunlin (陳雲林) visited the nation and more recently from the stubborn way he has handled the cross-strait service trade agreement.
The Ma administration has shown that it is easily provoked to anger and that many of its actions do not differ from the actions of authoritarian governments and dictatorships.
The Italian philosopher Giorgio Agamben said: “The arcanum of policy is not sovereignty but government, not the king but the minister, not the law but the police force.”
When Taiwanese look closer at the operations of Ma’s government, it is shockingly a perfect example of both Fraenkel’s idea of a dual state and Agamben’s theory mentioned above.
Franz Neumann of the Frankfurt School of social theory also wrote a well-known observation of Nazi Germany titled Behemoth: The Structure and Practice of National Socialism.
In the book, Neumann stated his belief that a country under National Socialism is not a country or is, at least, moving toward chaos and lawlessness, in which the rights and dignity of people will be swallowed up. He claimed that such countries were planning to use their power to turn the entire world into a chaotic mess.
Neumann believed that the most appropriate name for countries with such a social system was “behemoth,” a beast with an unpredictable temper — at times gentle and violent the next, that slaughters people and is capable of wreaking limitless havoc in the world — as described in Jewish mythology.
This nation needs to break free of the shackles of the dual state.
It cannot become a target for the behemoth to trample. Taiwan does not need moral appeals or more manners and etiquette; the nation needs the determination and will to protect democracy and human rights.
Lin Chia-ho is an assistant professor at National Chengchi University’s College of Law.
Translated by Drew Cameron
source: Taipei Times
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