Interdisciplinary Relations of Law and Ethnology on the Issue of Indigenous Ethnic Group Recognition: A Case Study of the Taiwan Constitutional Court’s Judgment No 17 of 2022
Chou Yu-Jie, Dr Chou Shih-Huang"
Abstract
What is to be recognised as an ethnic group (or as in the present case, an indigenous ethnic group)? This is not only a fundamental inquiry in the discipline of ethnology, but also one of the issues decided in Judgment No 17 of 2022 by the Taiwan Constitutional Court. The Judgment is a recent demonstration of what insights ethnology can, or attempts to, bring into the discipline of law. Inevitably, the two disciplines have different answers to the question, and several observations can be made. First, on the one hand, a legal ‘test’ for the recognition of indigenous ethnic group could adopt criteria or considerations that are not ethnological, eg legislative intent or doctrines of transitional justice. Secondly, on the other hand, the legal test may still refer to, at least partially, the ethnological understandings of the concept of ethnic group. In Judgment No 17, such understandings were perceived by the court through expert opinion. Thirdly, the legal test would nonetheless not escape criticism from the ethnology discipline, which raises the further question of to what extent should the legal understandings depart from the ethnological understandings. Particularly, the legal test formed in Judgment No 17 is criticised from the ethnological perspective for its overemphasis on bloodlines, vagueness and lack of nuance, and its inability to facilitate the development of a ‘functional’ ethnic group. In general, the effort to establish interdisciplinary relations of law and ethnology on the issue of indigenous ethnic group recognition is welcomed. However, it remains unknown as to whether the dialogue between the two disciplines could reach any conclusion other than ‘agreeing to disagree’.