Prof. Chen Yi-Kai visiting scholar at ERCCT

Posted on Jul, 16 2012

We warmly welcome Prof. Chen Yi-Kai (陳怡凱) from the Department of Law and Graduate Institute of Law in Science and Technology at National Cheng Kung University, Tainan, as our visiting scholar. Prof. Chen, who is also a University of Tuebingen Alumnus, will stay at the ERCCT from July 1st to Sept. 1st, 2012. During his stay Prof. Chen will work on his project on "Constitutional Crisis of Split National Identity and its Resolution", the purpose of which Prof. Chen describes as follows:

Research and discussions on national identity have been vibrant in politics, but this topic seems to attract little attention from the lawyers.  As usual, the lawyers adopt the legal theories developed from the advanced European countries so as to resolve the constitutional problems.  However, it may be argued that this theoretical approach is problematic, because many constitutional problems in contemporary Taiwan are caused by the division of national identity, while the constitutional theories cited by law academics are developed from the normal countries without such contradictory views on national identity, such as Germany and USA.  Owing to the fact that law academics and practitioners overlooked the reality of split national identity in Taiwan when they copied foreign theories in order to resolve constitutional problems, the division of national identity is dramatically deepened.  For example, the Grand Justice overlooked the consideration of national identity embedded in Article 2 of the Civic Organizations Act and Article 11 (I) of the Assembly and Parade Act that prohibits the advocacy of Communism and the partition of national territory, and interpreted both regulations as null and void for the reason of violating the freedom of expression.  As a result, the concept of the state defaulted by the Constitution is given a vague impression, and the division of national identity is simultaneously intensified.

This research will first analyze the international and national factors of split national identity in Taiwan.  Then the constitutional crisis inspired by the split national identity will be examined as well.  Moreover, the disadvantages of the methods applied by the law academics and Grand Justice in constitutional interpretations will be pinpointed.  Furthermore, this research argues that the concept of the state is a basic premise and the borderline of Constitution.  National identity should be a common sense among people in a state based on the Constitution rather than a fundamental right that could be disposed by people as they please.  Finally, this research suggests that the integration theory proposed by Rudolf Smend, a constitutional theory developed during the German Weimar period with the same split social background as Taiwan, should be adopted as the new way to resolve the constitutional crisis of integration failure in contemporary Taiwan.