AbstractThe right to privacy is relatively new but has ever increasing importance. Different approaches toward its protection do exist at the moment; however, they all face challenges due to rapid technological and global changes. This article presents an idea of a new legal paradigm and its application in privacy protection. This legal paradigm gives equal attention to the forming of state‐made law and social norms. It also emphasizes the cooperative relationship between the two lawmaking efforts. The new legal paradigm requires a shift from the traditional internal legal point of view, which overlooks the importance of social normative formation. Such a shift, however, may not be equally difficult in the Chinese‐speaking world, where social norms derived from efforts searching for proper relationship among different roles in a society have long been the teaching of the Confucian school. Within the Confucian teaching, this article searches for the traditional Chinese idea of privacy and how it is placed in a series of self‐cultivation needed to bring order to the societies, following with a preliminary sketch of the current development of privacy protection in Taiwan to demonstrate its distinctiveness under such Confucian influence, i.e., emphasizing private ordering much more than legislative and administrative lawmaking. Since the success of the Taiwanese approach, or all future successful privacy protection, requires public spheres where concerns of different stakeholders can be reflected and dealt with, this article ends with a critical description of the development of the new research area, i.e., e‐participation, and suggests how e‐participation can be benefited by the idea of the new legal paradigm.
The right to privacy is relatively new but has ever increasing importance. Different approaches toward its protection do exist at the moment; however, they all face challenges due to rapid technological and global changes. This article presents an idea of a new legal paradigm and its application in privacy protection. This legal paradigm gives equal attention to the forming of state-made law and social norms. It also emphasizes the cooperative relationship between the two lawmaking efforts. The new legal paradigm requires a shift from the traditional internal legal point of view, which overlooks the importance of social normative formation. Such a shift, however, may not be equally difficult in the Chinese-speaking world, where social norms derived from efforts searching for proper relationship among different roles in a society have long been the teaching of the Confucian school. Within the Confucian teaching, this article searches for the traditional Chinese idea of privacy and how it is placed in a series of self-cultivation needed to bring order to the societies, following with a preliminary sketch of the current development of privacy protection in Taiwan to demonstrate its distinctiveness under such Confucian influence, i.e., emphasizing private ordering much more than legislative and administrative lawmaking. Since the success of the Taiwanese approach, or all future successful privacy protection, requires public spheres where concerns of different stakeholders can be reflected and dealt with, this article ends with a critical description of the development of the new research area, i.e., e-participation, and suggests how e-participation can be benefited by the idea of the new legal paradigm. Adapted from the source document.
There is an increasing interest in incorporating significant citizen participation into the law-making process by developing the use of the internet in the public sphere. However, no well-accepted e-participation model has prevailed. This article points out that, to be successful, we need critical reflection of legal theory and we also need further institutional construction based on the theoretical reflection. Contemporary dominant legal theories demonstrate too strong an internal legal point of view to empower the informal, social normative development on the internet. Regardless of whether we see the law as a body of rules or principles, the social aspect is always part of people's background and attracts little attention. In this article, it is advocated that the procedural legal paradigm advanced by Jürgen Habermas represents an important breakthrough in this regard. Further, Habermas's co-originality thesis reveals a neglected internal relationship between public autonomy and private autonomy. I believe the co-originality theory provides the essential basis on which a connecting infrastructure between the legal and the social could be developed. In terms of the development of the internet to include the public sphere, co-originality can also help us direct the emphasis on the formation of public opinion away from the national legislative level towards the local level; that is, the network of governance.1 This article is divided into two sections. The focus of Part One is to reconstruct the co-originality thesis (section 2, 3). This paper uses the application of discourse in the adjudication theory of Habermas as an example. It argues that Habermas would be more coherent, in terms of his insistence on real communication in his discourse theory, if he allowed his judges to initiate improved interaction with the society. This change is essential if the internal connection between public autonomy and private autonomy in the sense of court adjudication is to be truly enabled. In order to demonstrate such improved co-original relationships, the empowering character of the state-made law is instrumental in initiating the mobilization of legal intermediaries, both individual and institutional. A mutually enhanced relationship is thus formed; between the formal, official organization and its governance counterpart aided by its associated 'local' public sphere. Referring to Susan Sturm, the Harris v Forklift Systems Inc. (1930) decision of the Supreme Court of the United States in the field of sexual harassment is used as an example. Using only one institutional example to illustrate how the co-originality thesis can be improved is not sufficient to rebuild the thesis but this is as much as can be achieved in this article. In Part Two, the paper examines, still at the institutional level, how Sturm develops an overlooked sense of impartiality, especially in the derivation of social norms; i.e. multi-partiality instead of neutral detachment (section 4). These two ideas should be combined as the criterion for impartiality to evaluate the legitimacy of the joint decision-making processes of both the formal official organization and 'local' public sphere. Sturm's emphasis on the deployment of intermediaries, both institutional and individual, can also enlighten the discourse theory. Intermediaries are essential for connecting the disassociated social networks, especially when a breakdown of communication occurs due to a lack of data, information, knowledge, or disparity of value orientation, all of which can affect social networks. If intermediaries are used, further communication will not be blocked as a result of the lack of critical data, information, knowledge or misunderstandings due to disparity of value orientation or other causes. The institutional impact of the newly constructed co-originality thesis is also discussed in Part Two. Landwehr's work on institutional design and assessment for deliberative interaction is first discussed. This article concludes with an indication of how the 'local' public sphere, through e-rulemaking or online dispute resolution, for example, can be constructed in light of the discussion of this article.
