Abstract
This article reexamines Taiwan’s Cultural Fundamental Act through the lens of Adrian Vermeule’s theories on the Administrative State and Common Good Constitutionalism. It particularly explores whether the legal remedies stipulated in Article 28 constitute subjective public rights under administrative law.
The article first outlines the implications of Vermeule’s theory and the U.S. judicial principle of Chevron deference for legitimizing administrative authority, subsequently analyzing their relevance to Taiwan’s cultural legal framework. From the perspective of rationalizing administrative governance, the Cultural Fundamental Act establishes a comprehensive cultural administration system. However, due to the predominantly guideline-oriented nature of its provisions, it is challenging to derive explicit claims for concrete rights directly from the law.
Furthermore, the article examines how the Cultural Fundamental Act, as a policy-declarative law, grants administrative agencies discretionary power and policy flexibility, enabling them to transform abstract norms into specific policies and measures through professional governance. Using Article 9, which covers cultural asset preservation, subsidies, and expropriation, as an example, the article demonstrates how administrative agencies can structurally exercise discretion under a multi-track management mechanism to achieve the common good objectives of cultural governance. Additionally, the article employs the “protective norm theory” to highlight the challenges in establishing the Cultural Fundamental Act as a basis for subjective public rights. It identifies that provisions such as “cultural access rights” and “cultural impact assessments” suffer from ambiguity in defining rights holders and content, presenting dual challenges of concretization and litigability in administrative remedies.
In conclusion, the article attempts to clarify from Vermeule’s theoretical perspective that although the Cultural Fundamental Act may not easily be interpreted as establishing a comprehensive system of subjective public rights, it appropriately meets the needs of the modern administrative state by preserving the flexibility necessary for administrative agencies to realize cultural governance objectives, while ensuring a public-oriented approach to cultural policy, thus balancing individual rights protection with the pursuit of the common good.