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Gillespie, John --- "Globalisation and Legal Transplantation: Lessons from the Past" [2001] DeakinLawRw 15; (2001) 6(2) Deakin Law Review 286

Globalisation And Legal Transplantation: Lessons From The Past

JOHN GILLESPIE[*]

I INTRODUCTION

Starting with the Meiji restoration in mid nineteenth century Japan, decolonising East Asian states extensively borrowed Western law to create commercial legal frameworks. A recent study of legal reform between 1965 and 1995 in six Asian countries found a discernable shift from local discretionary rules to imported Western commercial norms, but concluded that legal imports were unevenly received.[1] For example, Malaysia began the survey period with a Western style legal system, but ended sharply diverging from Western practices in many areas.[2]

More perplexingly, the study found evidence of convergence in market-based legal strategies and commercial legislation, but not necessarily in legal institutions.[3] For example, though guided by American inspired legislative templates, security exchange institutions in Japan and Korea functioned as political tools of their respective Ministries of Finance.[4] Legal rules, the study speculated, transplant more easily than culturally embedded institutions. At best the study found that ‘throughout much of Asia’s legal history, law preceded economic development, but economic development was an important condition for the acceptance and use of laws.’[5]

A Legal Transplantation

Two main themes are discernable in the legal transplantation discourse. Convergence theorists contend that nation-states are enmeshed in an inevitable and accelerating shift towards internationalisation and globalisation. Ever increasing telecommunications, urbanisation, international investment and trade are credited with collapsing regional differences, which in the past inhibited legal transplantation.[6] Ignoring the path-dependent trajectory of legal development, multilateral funding agencies like the International Monetary Fund, World Bank and Asian Development Bank routinely make loan agreements to developing Asian states conditional on enacting Western-style commercial law.[7] Similarly, multilateral organisations like the World Trade Organisation (WTO) and APEC pursue legal harmonisation strategies designed to transmogrify domestic capitalist laws (especially those of the United States) into global legal templates.[8] Underlying this vision of global equivalence and convergence is the unsubstantiated assumption that legal transplants no longer convey national culture from one society to another, but rather, function as a series of technical adjustments between legal systems.[9]

The other main theme originates from Montesquieu’s skepticism that laws can not traverse cultural boundaries.[10] He proposed that laws express the spirit of nations and are consequently deeply embedded in, and inseparable from their geographic, customary and political context. The transfer of laws across cultural boundaries constitutes a ‘grand hasard’, because laws can not change manners and customs, which must evolve.

Taken together these explanations fail to account for East Asia’s uneven legal reform. There is a need for theoretical alternatives to the unproductive convergence and cultural-essentialist dichotomy. At issue is whether laws arising out of, and serving the sociopolitical needs of one society, can induce similar effects in other societies. This article looks to past legal borrowings for insights into the efficacy of contemporary legal transplantation. The importation of Chinese political-legal ideology and law into pre-colonial Vietnam over many centuries, provides an expansive backdrop to study legal transplantation patterns.

Previous research suggests that Vietnam's contemporary legal system is constructed from legal transplants historically derived from—China, France, the former Soviet Block, and more recently East Asia and Western countries.[11] Together these sources form a complex legal architecture based on different systems of knowledge, the new overlaying and interweaving the old.[12] The ‘official’ legal system has always reflected the laws of conquerors, colonists and patron-states, which were superimposed over the pre-existing habits and practices forming the ‘unofficial’ legal system.[13] In order to unravel the myriad influences on legal development, a theoretical means of analysing interaction between legal transplants and host country legal systems is required.

B Synthesising a Legal Transplantation Theory

Proponents of legal transplantation contend that laws reflect the legal traditions of governing elites, rather than extrinsic social, political and economic factors.[14] Globalising forces are also credited with accelerating legal reification, by creating one international legal dialogue comprised of a collection of regional sub-variations. In its extreme form, some multilateral donors postulate a future where a single transnational jurisdiction emerges as national legal systems wither away.

Others contend that since laws are cultural artifacts that mirror the ‘felt needs’ of society, they are unlikely to induce the same behavior in different societies. Put differently, there is much ‘law’ beyond legal rules and the transplantation of statutory and doctrinal rules does not necessarily transfer the ‘whole law’. Rules, it is argued, lie on the surface of legal systems and do not accurately represent deeper underlying sociopolitical dynamics.

Legal history shows that certain legal transplants take root in foreign legal terrain, though successes are largely limited to borrowing between Western countries. Explaining this phenomenon, Otto Kahn-Freund offered the valuable insight that that there are ‘degrees of transferability’. Even so, ‘laws designed to allocate power, rule-making, decision making, above all, policymaking power’ he opined, remain deeply embedded in social institutions and are unlikely to easily transplant. His complex theories are scattered in fragments throughout his writings, however, it is possible to discern three main hypotheses. One, all laws have to some extent de-coupled from their sociopolitical moorings, making legal transplants across sociopolitical boundaries a theoretical possibility. Two, since laws de-couple to varying degrees, some are more likely to survive the journey than others. Three, sociopolitical institutional factors determine the degree of coupling between law and society, they are: the ideological role of law, the distribution of state power, and pressure from non-state interest groups.

Three working postulates have been synthesised from Kahn-Freund and later legal-sociological writings to identify the likely sites of interaction between imported laws and host country sociopolitical structures:

1 Legal Ideology: Transplanted laws should accord with the dominant ideology in host countries. The success of legal transplantation is strongly influenced by the congruence between the ideological content of transplanted laws and host country political-legal ideologies. Here ideology is used in the Gramscian sense to identify categories of meaning to understand social reality.[15] Ideology has the ‘capacity to persuade people that the world described in its images and categories is the only attainable world in which a sane person would want to live.’[16]

2. Structural Variance in Power Distribution: Transplanted laws should comport with host country legal frameworks and political legal cultures. The effectiveness of transplanted law is also profoundly influenced by its compatibility with host country power structures and legal cultures (epistemologies).[17] Political-legal culture is the historically conditioned, deeply rooted attitudes that influence the way bureaucrats and judges use law to find reality. It encompasses epistemological assumptions regarding rationality, efficiency and merit, which in turn shape understandings of borrowed law. Pierre Legrand suggests ‘[t]he aim must be to try to define why different legal cultures invest similar legal rules with different meanings’.[18]

3. Special Interest Groups: Transplanted laws should attract support from host country special interest groups and comport with local production regimes. Certain laws require specific configurations of state and non-state interest groups, such as market support organisations (for example banks, lawyers, accountants, unions, political parties, markets and family-based commercial structures) to function effectively.[19]

II CONSTRUCTING VIETNAM’S PRE-COLONIAL LEGAL SYSTEM

Much has been written about Vietnamese legal history, especially during the pre-colonial periods. The purpose here is not to attempt the impossible and present the legal history of Vietnam in one article, but rather to examine the patterns of legal borrowing informing political-legal thought. There is little doubt that China overwhelmingly provided the inspiration, ideology and legal precepts which shaped legal thought in Vietnam for over two thousand years. Applying the previously discussed working postulates, this discussion analyses Chinese sources from ideological, political-legal, cultural and state-village (special interest group) perspectives.

A Van Long-Au Lac: Ancient Vietnam

The precise origins and structure of the proto-Vietnamese state and legal system are speculative. Most historians agree, however, that by 1000 BC a loose confederation of tiny feudal Hung kingdoms (Hong Bang dynasty 2879-258 BC), unified by a shared language, race and culture, practised bronze age rice agriculture (Dong Son culture) in what is now northern Vietnam.[20] Eventually, Thuc An Duong Vuong formed the historical Kingdom of Au Lac, considered by some scholars as the forerunner of the Vietnamese nation.[21] Accounts about this period are derived from mythology or records compiled centuries later by Vietnamese Confucian scholars intent on forging a national identity. Either way information is conjectural. Sources agree, however, that small proto-states with differentiated state and social power structures emerged before Chinese domination began in 111 BC.[22]

III TRANSPLANTING THE CHINESE LEGAL SYSTEM

Chinese political-legal thought came to Vietnam with the invading Han Dynasty armies in 111 BC.[23] For one thousand years (111 BC-938 AD), first under the Han Dynasties (206 BC-220 AD) and later the Tang Dynasty (589-907 AD), Chinese scholarship, political theories, religious values, family structures and bureaucratic practices indoctrinated and moulded, though never entirely supplanted indigenous Vietnamese outlooks.[24] Constantly changing to reflect local conditions and Chinese intellectual developments during the Song (960-1279) and Ming (1368-1644) dynasties, these core beliefs remained central to Vietnamese political-legal ideology decades after French colonisation in the mid-nineteenth century. This section outlines the main elements of Tang Dynasty political-legal ideology and culture introduced into Vietnam. Following sections examine how this belief structure was received into Vietnamese institutions and culture to form indigenous political-legal traditions.

A Chinese Political-Legal Ideology

1 Imperial paramountcy

Discredited by Qin dynasty despotism, the Han and later Tang dynasties rejected rule-by-law (Legalism) and turned instead to Confucian teachings prescribing ‘government by the good’.[25] This doctrine formed the ideological core of the Chinese governance system transplanted to Au-Luc (ancient Vietnam).

Han and Tang dynasty Imperial-Confucianism rested on three ideological pillars: imperial paramountcy, virtue-rule and hierarchical state administration.[26] As the ‘Son of Heaven’, the Chinese emperors were endowed with a mandate to govern all civilised people. Since Confucianism taught that people acquire their nature (hsing) and ability from Heaven, as the ‘Son of Heaven’, the emperor was the human source of sustenance and culture—the ‘father and mother’ of society. Confucianism primarily relied on moral authority, represented at the state level by the emperor and at the local level by familial patrimony, to maintain social control. The relationship between subjects and rulers was paternalistic, like father to son. Subjects were expected to obey and revere, while emperors owed a duty to feed and protect.[27] Since emperors ruled as Heaven’s proxies, they could not be judged according to temporal standards such as popularity or even compliance with rituals and laws. Instead, Heavenly displeasure was gauged from mystical signs and natural disasters such as floods and plagues.

2 Virtue-rule

Confucianism not only legitimised imperial rule; it also furnished the instrument of rule. The ideological struggle between the Legalist (fa-chia) School, which believed in ‘rule by law’, was decisively resolved in favour of Confucius’s ‘proper behavior according to status’ (li) long before the Chinese annexed Vietnam.[28] Confucius believed that each member of society possessed ‘latent, pre-existing notions of propriety’ and society manifested analogous morals based on five cardinal relationships.[29] The humanist thread, which carried back through Mencius to Confucius, emphasised the perfectibility of human nature.[30] Man could be induced to follow ‘The Way’ by education, social pressure and virtuous example’.[31]

The cultivation of inherent norms and the five cardinal relationships were necessary to promote harmony for individuals and society. If people were led by laws (fa) they would avoid punishment and lack a sense of shame. If they were led by virtue (li) prescribing ‘correct’ behavior, they would develop a sense of shame and strive for good.[32] Over reliance on fa for social regulation implied disharmony, which in turn impugned imperial legitimacy.[33] The relationship between li and fa is epitomised by the maxim ‘to depart from the province of li is to enter the province of punishment’.

Although Confucianism subordinated laws to morality, in practice laws played a more prominent role than many Western writings admit.[34] Confucian thought was never a unified totality, but rather contained many facets in a broad framework. Counterbalancing Confucian humanism, a quasi-legalist thread promoted by Confucian scholars such as Hsun-tzu, saw state law as a means of codifying li, though certainly never replacing virtue-rule by morally perfected leaders.[35] Evincing an authoritarian outlook, people were considered evil by nature, or at best instinctual. By using legal sanctions to compel social obedience, only strong central governments were thought capable of promoting stability and prosperity. Legalists also urged strict legal compliance to minimise bureaucratic adventurism and promote community acceptance of law.[36]

Imperial-Confucianism combined both humanist and legalist philosophical threads. The Confucian elite saw no inconsistency in championing rule through ritual principles (li), while controlling social behavior with draconian penal laws. Li was formulated and observed by ‘superior men’ (imperial householders and high level officials).[37] Fa applied to ‘small people’ who failed to qualify as ‘superior men’.

The Tang Dynasty Code (651 AD), which applied in Vietnam during the later stages of Chinese rule, prescribed criminal penalties for violations of li morality.[37] By criminalising infractions of the five asymmetric social relationships, the Code institutionalised Confucian hierarchical inequalities. For example, criminal penalties varied according to social rank and the elite were exempted from numerous statutory obligations. The Code also applied the doctrine of guilt by association, holding families collectively liable for the criminal behavior of individual members. In short, fa prescribed and punished violations of moral rituals (li).

Since Confucius reasoned from everyday life, moral principles were not based on sacred revealed texts or deities.[38] Authorities consequently treated legal rules expressing Confucian morality as optional instruments, rather than immutable divine principles. Though playing a normative role in inculcating Confucian morality, laws were primarily used to preserve Confucian hierarchies and social order.[39] It was never countenanced that legal norms in written laws could or should form the basis of social rule.

3 Hierarchical state administration

In addition to legitimising and furnishing the moral norms of state rule, Confucian ideology provided the hierarchical template for state administration. Imperial-Confucianism stressed that social integration was only possible by maintaining the social hierarchy; the emperor at the pinnacle, followed by mandarins, village notables and family heads. With the emperor heading the bureaucracy (outer court) and the imperial household (inner court), a clear distinction between public and private functions was difficult. It was not until the Tang dynasty (589-907) that the two functions were separately administered.[40]

Depersonalised rule implied by the term ‘state’ conveys a misleading impression about Imperial-Confucian institutions.[41] The Chinese word for state (Guojia) is comprised of two characters, guo (state) and jia (family). Confucian teachings equated the state to the emperor. Moral authority enabled emperors to project political power over subjects, a process that inhibited the development of doctrines separating and specialising state power.[42] Unsurprisingly, the imperial-state behaved like an extended family, and the imperial family like a small state. Bureaucrats routinely interfered in the imperial household and members of the imperial household interfered in bureaucratic matters. In this personalised space there was little reason to differentiate public and private spheres and state and society. The interests of rulers were synonymous with those of the imperial-state.

B Receiving Chinese Legal Culture

Commentators disagree about the extent to which Chinese political-legal ideology penetrated and transformed indigenous Vietnamese thinking. Some contemporary nationalistic texts read history backward to demonstrate an indigenous cultural core.[43] These writings implausibly maintain that ‘the regulations, customs and habits of Vietnam still prevailed, as they had existed long before’ after one thousand years of Chinese domination.[44] At the other extreme, some Western writers contend that few qualitative cultural differences survived Chinese annexation.[45]

During centuries of Chinese domination several factors conspired to preserve discrete local practices. In the first place, since ethnic Vietnamese remained in control of villages and communes, few gained access to the classical Confucian training required for social advancement.[46] Language barriers effectively isolated villagers from deep Chinese culture.[47] Further limiting access to core Chinese culture, Chinese rulers evidently modified transplanted Confucian canon to suit local conditions.[48] Legalism (fa) rather than humanistic moral persuasion (li) was considered more appropriate for the resistive, morally unperfected indigenous population.[49]

Most accounts contrast Chinese rule in administrative centres inhabited by a mixed Chinese-Viet population with a largely self-regulating Viet speaking peasantry.[50] Chinese administrators collected taxes and labour, but otherwise discouraged contact between villagers and administrative centres. Nevertheless, over ten centuries of Chinese domination, transplanted Imperial-Confucian, Buddhist and Taoist religious values transformed peasant, and especially elite outlooks.[51] That the post-independence regimes both resembled and differed from the Chinese template, implies that sinization stimulated indigenous values, producing local political-legal adaptations.

IV IMPORTED KNOWLEDGE SYSTEMS IN IMPERIAL VIETNAM

Most legal histories invest the dynasties following independence from China (939) with distinctive political-legal cultures. The Ly dynasty (1009-1225) is characterised as a period of national development where Buddhism challenged rigid Confucian hierarchical structures.[52] Though Confucianism began to resurge during the Tran dynasty (1225-1400),[53] and especially Nguyen dynasty rulers are credited with borrowing extensively from Tang and Ming dynasty laws and bureaucratic processes. Transplants eventually produced an elite political-legal culture more inline with Chinese than earlier Ly and Tran dynastic practices.

More important than dynastic succession, is the role of Confucianism in ordering society. Confucianism was not the only foreign ideology shaping traditional Vietnamese law—far from it—but its reception roughly indexes the sinization of traditional law in Vietnam. The following section traces the reception of Confucianism across Vietnamese dynasties.

A State-Building: Forging a Political-Legal System

1 Confucian political-legal ideology

Following independence, it was not until the Ly and Tran dynasties that recognisably Vietnamese governance structures took shape.[54] After a thousand years of domination, Chinese culture and knowledge was the natural cultural and legal reference point. The most important cultural import was the ‘reduction of religions into the same source’ (tam giao dong nguyen), which syncreticly blended Confucianism, Mahayana Buddhism and Taoism.[55]

Buddhist teachings emphasising spiritual liberation through ethical conduct and discipline, initially came to Vietnam from India, however, Mahayana Buddhism (via China) came to dominate.[56] Taoism treated with privilege the natural order, charting a passage to ‘the way’ through mysticism. It rapidly became interwoven with indigenous animist spirit cults and rituals. When combined with Confucian beliefs, the reduction of religions into the same source’ provided numerous ethical permutations and combinations to syncreticly reinterpret and consolidate Chinese governance practices. Vietnamese rulers experimentally infused Chinese beliefs with indigenous cultural elements like animistic spirits and popular Buddhism, self-consciously forging a distinctive indigenous identity.[57]

Contrasting with China, where the Confucian canon was treated as an all- encompassing source of political, social and moral authority, Ly and Tran dynasty rulers used Confucian texts as persuasive precedents for guiding state policy. The moral and historical precepts that gave coherence and context to the canon were often ignored. As Wolters opined ‘they localized the Confucian corpus by fragmenting it and detaching passages, drained of their original contextual meaning, in order to appropriate fragments at their discretion and fit them into the context of their own statements.’[58] Fragmentary borrowing produced a confused and inconsistent official ideology.

A century after the Tran dynasty ended in 1400, Vietnamese rulers abandoned eclectic borrowing and comprehensively adopted the Chinese neo-Confucian governance principles, such as the ‘Heavenly Mandate’ (Thien Menh), virtue rule (duc tri), and moral indoctrination.[59] With increasing vigour, Lê and especially Nguyen dynasty emperors imported the ideological and institutional trappings of Chinese imperial rule. Many provisions in the Lê Trieu Hinh Luat (Lê Penal Code), popularly called the Trieu Hong Duc (Hong Duc Code), were either borrowed directly from, or substantially influenced by the Chinese Tang Code and Ming Codes.[60]

The Code, however, contained numerous articles regulating civil relationships not found in Chinese legal texts. They included provisions compensating landowners for unauthorised government appropriation, private encroachment and fraudulent sales.[61] In vitiating contracts for fraud and duress, and forbidding market manipulation and usury, the Code intervened in village commerce in ways never countenanced by Chinese law.[62]

Indigenous Vietnamese legal provisions were not confined to commerce, and also reflected differences between Vietnamese and Chinese village and family structures. Contrasting with Chinese practices, village officials, rather than family heads, compiled population registers used to assess taxation and corvee. The Code also adjusted gender rights to preserve the higher status women enjoyed in Vietnamese society. Married women, for example, were entitled to reclaim their contributions to matrimonial estates after their husbands’ death.[63]

Influenced by earlier imperial annalists, many contemporary Vietnamese commentators view the early Lê Dynasty as a golden age of political-legal innovation.[64] For both sets of scholars, history is less a record of events than an opportunity for exemplary guidance. For them, legislative provisions chronicling indigenous village practices demonstrated legal originality, even superiority over Chinese law.[65] Having discovered legal difference, the most extreme commentators speculated that Lê Code provisions governing commercial transactions differentiated public and private interests and approached Western rights-based law.[66]

This construction misconstrues the ideological content of the Lê Code. To the Confucian mind, close textual readings made limited sense since legal meaning resided in the moral teachings of mandarin literati. Appeals to the letter of the law implied a disregard for morality, or worse, moral weakness. Commercial provisions in the Lê Code were intended to preserve village harmony and imperial market taxes, and did not perform the Western legal function of conferring private rights.[67] Significantly, the commercial provisions did not disrupt the primary purpose of the law, which was to reproduce the imported neo-Confucian social order (tam cuong).[68]

The more sinoised Hoang Viet Luat (Laws and Decrees of Imperial Viet), completed by Emperor Nguyen Gia Long in 1815, slavishly copied the Ching Code.[69] Of its three hundred and ninety eight articles all but one are either identical to or closely based on Ching Code articles. It strengthened the existing criminalistion of neo-Confucian morality, removing most indigenous provisions found in the Lê Code. Also contrasting with the Lê Code, provisions showing the social reality of everyday commerce, land dealings and womens’ rights were stripped away.[70]

Contrasting with China, where scholars (within politically sanctioned limits) vigorously debated the official canon, strict controls over imported information inhibited scholarly debate and ideological development in Vietnam.[71] By prohibiting Vietnamese scholars from forming private contacts with their Chinese counterparts, rulers restricted unauthorised interpretations. Moral discourse was never permitted to undermine an elite ideology more in tune with Chinese philosophy than Vietnamese realties.[72]

Unsurprisingly, there is little evidence of original Vietnamese legal thought, much less adaptation and localisation of neo-Confucian political-legal canon. In surveying writings prescribing suitable behavior for Confucian ‘superior men’ (quan tu), David Marr estimated that ‘the Vietnamese author devotes 95% of his presentation to the teachings of Confucius and disciples, perhaps interlarded with examples of superior men in China, then allocates at most 5% to Vietnamese thinkers or role models’.[73]

B Confucian Political-Legal Culture

Mirroring the increasing adoption of Chinese statutory provisions, Vietnamese rulers increasingly looked north for administrative structures. The Ly dynasty portrayed their rulers as Chinese-style emperors. The Tran dynasty introduced a bureaucratic examination system that emphasised deep knowledge of Chinese language, literature and governmental practices.[74] Reversing past experimentation with indigenous governance structures, Lê dynasty reformers extensively borrowed Chinese governance models. They replaced indigenous counsellors (Te Tuong) with the Chinese Six Board governance structures and added a meritorious Chinese-style civil service examination (thu si) recruitment, to aristocrat recruitment (nhiem tu).[75] Those implementing imperial rule (mandarins) were recruited for their loyalty to the emperor (relatives) and knowledge of neo-Confucian canon.[76]

High-ranking bureaucrats initially questioned doctrinaire neo-Confucianism.[77] But seeing opportunities to convert social status into state power, they soon embraced the imported ideology. Lê rulers vigorously proselytised neo-Confucian ethical codes. Writings, public discussions and petitions reviling the prestige and moral authority of senior mandarins were criminalised.[78]

The Nguyen dynasty took sinisation a step further by mimicking Ching dynasty governance in every conceivable manner.[79] More than the Lê dynasty, the Nguyen emperors believed that Ching morality and institutions were complex and interrelated, and tinkering with established practices carried the risk of system failure. The ensuing literal application of Ching law led the Vietnamese to endow some Chinese institutions with powers and functions only countenanced on paper. A few words terse of prescription in Chinese codes did not disclose socio-political constraints designed to limit institutional power in China’s larger and more complex administrative system.[80] Cultural differences were minimised by the preparedness of Vietnamese rulers to tolerate some redundant Chinese organisational structures and humour disgruntled mandarins unwilling to relinquish past practices, by giving new Ching institutions old Vietnamese bureaucratic titles.[81] Despite these precautions, subtle changes in meaning occurred during the translation of Chinese into Vietnamese nom characters.

What little is known about pre-colonial political-legal culture suggests few substantive departures from Chinese practices. Mandarins hearing cases were encouraged to base decisions on written law. Codes were supplemented with edits issued by emperors on specific issues. The problem for bureaucrats was finding the penalty most suited to a case through either precedent or analogy. As with the Chinese, Vietnamese mandarins in the Bo Hinh (Justice Board) collected case commentaries to assist court decision-making. Case-law was not binding and there was little attempt to categorise a system of doctrine and principles. Where analogy failed, catch-all provisions allowed bureaucrats to criminalise ‘doing what should not be done’, or those ‘committing wicked acts’. It did not matter that offensive behaviour was not otherwise proscribed by statute.[82] Behind such provisions lay a concern to maintain moral order notwithstanding gaps and contradictions in written law. Real legal power resided in the discretionary power of the Confucian literati to set the moral tone. Control over public discourse and moral indoctrination was consequently a more potent legal weapon than judicial practices or jurisprudence.

Again like China, no clear division between legality and morality was possible or desirable. The Vietnamese term thao dang describes the situational validity of law and morality.[83] Thao dang encouraged decision-makers to syncreticly select from moral and ethical sources (especially the ‘reduction of religions into the same source’ (tam giao dong nguyen)), the most ethical solution to specific problems. [84] Exogenous normative sources such as law were not considered absolute, universal or immutable, but merely alternate sources of guidance. Decision-making processes were expected to personalise rational rules. Many Vietnamese homilies describe the importance of personalism. For example, ‘mot bo cai ly khong bang mot ty cai tinh’ (a granary of reason does not equal a little bit of feeling) or law is the lowest form of morality. Outcome orientated decision-making attempted to generate harmony by blending competing moral and social precepts. Legal inconsistencies were defined out of existence.

C State-Village: Special Interest Groups

Traditional law straddled two social interfaces in pre-colonial Vietnam, namely imperial state-village and village-family.[85] Imperial codes required the Mandarin bureaucracy (quan vien) to only deal with village based Councils of Notables (hoi dong tien chi) and not with their constituent members.[86] Villages acted like corporate entities or organised interest groups in their dealings with central-local relationships (tran uong-dia phuong).[87] Village leaders interacted with families and clans, but not individuals.

The familiar injunction phap vua thua le lang (the laws of the emperor give way to the customs of the village) implies some degree of village resistance to imperial political-legal ideology and culture. Chinese-legal principles limiting wives’ influence over the sale of family property, enshrined in the Nguyen Code,[88] for example, never entered popular village practice.[89] Indigenous spirits and cultural beliefs both limited and commingled with imported Chinese culture,[90] while those with the least to gain from Confucian hierarchies continued to emphasise comparatively egalitarian Mahayana Buddhism.[91]

Though local religious and cultural precepts undoubtedly moderated the penetration of imported laws and institutions into villages, elite ideology profoundly influenced local practices.[92] The Lê Dynasty and especially the Nguyen Dynasty codes established a legal architecture enmeshing village leaders and family heads into Imperial-Confucianism. The most substantial criminal penalties (five-relationships (ngu luan)) reached into village and family life.[93] Crimes by wives against husbands and especially by children against parents (filial piety (hieu)) were considered more heinous than offences against social inferiors.[94] [95] Further inculcating elite ideology, as morally superior ‘first knowers’ or ‘first apprehenders of principles’, mandarins were obliged to instruct those slower to understand in Confucian doctrines.[96]

Ultimately, village autonomy was more a function of imperial forbearance than formal legal doctrine. Due process remained an imperial prerogative. Emperors could and did intervene where and when ever they desired. But more typically, the imperial legal system remained superficial—far above the contingencies of daily life. Village and family heads were enmeshed in the state system[97] only in so far as they were held accountable for up holding Confucian hierarchies.[98] Centre-local dualism of this kind was not uniquely Vietnamese—similar patterns existed in China—suggesting that village autonomy was an element of, rather than an exception to neo-Confucian governance.

V A HISTORY OF POLITICAL-LEGAL BORROWING

Alexander Woodside observed that ‘Vietnamese borrowing from China exhibited the usual variegated patterns of acculturation in which some institutions and objects spread rapidly from one society to another, some spread more slowly, and some do not spread at all or are rejected.’[99] More generally though, Vietnamese rulers increasingly borrowed from Chinese models as the state and society grew in size and sophistication. This trajectory of legal borrowing appears to contradict the working postulates, which predict that as indigenous political-legal ideologies and cultural practices develop, resistance to imported laws and processes build. The following sections seek to explain the history of legal borrowing using the working postulates as a conceptual framework.

A Political-Legal Ideology

By the fifteenth century imported Song neo-Confucian ideology dominated political processes and the legal system under the Lê dynasty. Voluntary political-legal borrowings on the scale and with the ideological conformity displayed by Lê and Nguyen rulers was unknown in other pre-colonial East Asian countries and deserves further consideration for what it says about the later wholesale importation of the Soviet political-legal system.[100]

and Nguyen emperors considered political-legal alternatives to neo-Confucianism, like Buddhism, as incapable of managing a sophisticated irrigated rice economy and resolving interminable imperial succession disputes.[101] In order to control fractious aristocratic-oligarchies, Lê rulers needed to consolidate power in an elite bureaucracy separate from old noble families.[102] Confucian social hierarchies backed by an elaborate Chinese-style bureaucratic system provided a proven centralising model. In addition to the technical superiority of, and prestige commanded by Chinese law, Nguyen emperors were attracted to Chinese governance models as a means of counteracting increasing Western influence. As Dao Duy Anh observed in 1937, Chinese influence only diminished when it became apparent that the Confucian model offered few effective responses to Western imperialism.[103]

Nguyen rulers minimised incompatibilites between imported and indigenous ideology by suppressing political-legal debate challenging orthodox neo-Confucianism. A strong correlation between ideological consent and institutional functionality is inferred by the fact that in neo-Confucian Hue, imported legal institutions worked far better then in remote provinces where the sinoised veneer was thinnest.[104]

B Political-Legal Culture

Imported organisational structures used to recruit officials for their knowledge of neo-Confucian canon eventually produced an elite aligned with the political culture of the imported legal system, minimising incongruities between imported ideology and domestic legal culture.[105] Further cementing ties between the Nguyen dynasty and China, many high offices in the Nguyen court were Ming loyalists (Minh-huong) of mixed Chinese-Vietnamese ancestry. Their sinoatic cultural outlook not only influenced the imperial court, but also facilitated highly sophisticated legal and institutional borrowing from China.[106]

Recalling Chinese political-legal culture, law in traditional Vietnam never decoupled from morality. As a consequence, moral consciousness, rather than legal rules, formed the central organising principle. Confucian/legalist jurisprudence endeavoured to make the punishment fit the crime, and social status fused individual legal identities with families and ensured that law preserved Confucian social hierarchies.

C Special Interest Groups

Vietnamese rulers worked hard to ensure that legal-cultural borrowings did not exacerbate long-standing elite-village ideological and cultural differences. Mesmerised by neo-Confucian orthodoxy, Nguyen dynasty emperors were less sympathetic than earlier rulers to autochthonous village practices and sinoised some long-standing indigenous social practices with neo-Confucian precepts.

Some commentators attribute this doctrinaire adaptation of Chinese political-legal thought to the Nguyen rulers’ mistaken belief that villagers, like the elite, unreservedly accepted neo-Confucianism.[107] Others theorise that Nguyen rulers thought indigenous legal provisions in the Lê Code reflected northern precepts and practices not necessarily pertaining to the Nguyen heartland in central and southern Vietnam.[108]

After intense indoctrination over the centuries neo-Confucian hierarchical beliefs came to order many facets of village life. What was once considered an alien political-legal ideology had through acculturation sensitised village life to neo-Confucian ranks, honorific titles and social positions. This meant that village-based organised interest groups generally supported the political-legal principles underlying transplanted Confucian/legalist culture. Moreover, the political economy of Vietnamese villages largely corresponded with the wet-rice agricultural economy in China. The fact that village organisations were never as sinoised as the urban elite did not seriously impede transplanted law, because Imperial-Confucianism in China and Vietnam allowed for considerable village autonomy. The breakdown in neo-Confucian virtue-rule during the late nineteenth century coincided with French colonial administration and is only partially ascribable to a cultural clash between neo-Confucian and village thinking.[109]

In sum, Chinese legal transplants were effective, because the Vietnamese elite, especially those controlling state apparatus, understood and internalised neo-Confucian ideology. More than their predecessors, Nguyen rulers realised that effective neo-Confucian virtue-rule required the wholesale adoption of Chinese ideology, governmental organisations and political-legal culture, and eclectic borrowing risked organisational disunity. By borrowing a complete system, inconsistencies between foreign and indigenous cultural precepts were minimised. For example, Vietnamese officials deeply infused with Chinese literary values interpreted imported rules with congruent neo-Confucian epistemologies.

Finally, investing neo-Confucian values with the nationalist purpose of protecting Vietnamese sovereignty, rulers reduced local opposition to Chinese borrowings. Further reducing conflict, the wet-rice political-economy of Vietnamese villages corresponded to Chinese economic structures. Ultimately, neo-Confucian orthodoxy in villages was never considered as vital as official compliance, because hierarchical distinctions between the morally perfected elite and uneducated villagers formed a central organising premise of Confucian/legalist culture.

VI CONCEPTUALISING POLITICAL-LEGAL THINKING IN CONTEMPORARY VIETNAM

Searching for reasons why transplanted Western commercial law behaves unpredictably (to Western observers) in contemporary Vietnam, some Vietnamese and foreigners observe similarities in style between pre-colonial neo-Confucianism and contemporary political-legal culture. But is it plausible after almost one hundred years of French colonisation, a socialist revolution and extensive contacts with modern Asia, that neo-Confucian/legalism shapes modern legal ideology and culture? To glibly assume that traditions continue, overlooks the more difficult question: how do they integrate and engage with new (and frequently imported) ideas and practices?

VII COLONIAL LEGAL BORROWING (1867-1954)

Like colonial legal transplantation elsewhere in East Asia, imported French colonial law superimposed a thin veneer of Western political-legal ideology and culture.[110] Perhaps in time it too would have been received and localised. Particularly after the establishment of the Faculty of Law at Hanoi University, Vietnamese bureaucrats, judges and lawyers studied French legal norms and institutions.[111] But with the exception of a tiny Francophone elite, most had little contact, much less a detailed knowledge, of the imported system and remained enthralled by neo-Confucian and village morality. Though lingering for some years after independence, it is remarkable how few traces of French legalism remain today. Not only were despised colonial institutions and legal norms suppressed by revolutionaries, but many Francophile Vietnamese fled to the South in 1954 and overseas following reunification of North and South Vietnam in 1975.

VIII IMPORTING REVOLUTIONARY LAW (1954-1986)

Following the French defeat, the Democratic Republic of Vietnam (DRV) began adopting the institutional trappings of a modern socialist state. The Soviet Union was both the institutional model and source of most substantive and procedural law. As with the Nguyen rulers one hundred and fifty years earlier, communist party leaders borrowed an entire legal system including ideology, laws, institutions and bureaucratic procedures. Legal borrowings took two main forms—revolutionary morality and socialist legality.

A Revolutionary Morality

Revolutionary morality emphasised the central role of the ‘vanguard party’ (communist party) leading a class struggle and implementing policy through mass-mobilisation campaigns.[112] Since law and party policy were interchangeable, implementing agencies did not distinguish legislation and party edicts. There was no real attempt to apply consistently, far less develop, a coherent body of rules circumscribing public and private interests.

Political morality provided a potent means of controlling a society unused to legislative norms. Nguyen Khac Vien famously observed that ‘[a]mong the great family of Communist Parties, the Vietnamese and Chinese have particularly exhibited more of a moralistic tone than Communist Parties elsewhere’.[113] He opined that in defining people as ‘a totality of their social relationships’, Confucianism and Marxism shared similar frames of reference that transcended doctrinal differences. Belief in ‘collective discipline’ and the ‘fulfillment of social obligations’ provided a common platform that enabled neo-Confucian political morality to profoundly influence Marxist-Leninist governance.

Naturally, the ‘Heavenly’ authority of Confucianism could hardly differ more from Marxist-Leninist secularism and claims to ‘scientific’ legitimacy. Equally, neo-Confucian morals conflicted with Marxist-Leninist state ownership and class-struggle ideology. Transcending ideological differences, the party-state selectively plundered neo-Confucian political-legal culture to replicate alien socialist values. For example, the quintessential neo-Confucian principle of chinh nhgia (exclusive righteousness) was appropriated to support assertions of Marxist-Leninist infallibility. Leadership through revolutionary morality became a pivotal tool of party rule.

By portraying the party-state as an infallible moral exemplar, contemporary writings echo neo-Confucian political theory. Nguyen Phu Trong, a member of the politburo, grandiloquently described the party as ‘the intellect, the honour, the conscience of our time; the party is the embodiment of the wisdom, quality, the quintessence of the nation’. High-ranking party officials are by implication, ‘superior men’ inhabiting a moral high ground that descends in all social directions.

Neo-Confucian political-legal culture is also discernible in the fusion of individual and family legal personalties. The political and moral background of those applying for party and government positions is evaluated by scrutinising the political history of extended families for three generations. By a similar logic, the children of ‘counter-revolutionaries’ (phan cach mang) were excluded from higher education and the state owned workforce, in punishment for the wrongdoing of their parents. Even the Civil Code (articles 116-119) vests households, rather than individuals with collective ownership over residential houses.

Imported socialist laws were filtered through local jurisprudential practices that ‘blend law with reason and sentiment’ (ap dung phap luat co ly co tinh). Invoking neo-Confucian political-legal culture, Ho Chi Minh urged Vietnamese bureaucratic and judicial institutions to generate ethical norms that validated official action.[114] The expressions ly va tinh (reason and sentiment) and hop tinh hop ly (suitable sentiment suitable customary law) were and still are regularly recalled by legal officials to justify policy deviating from strict legalism.

Even state controls over legal transplantation discourse mimic earlier imperial patterns. For example, contemporary writers refer to the legal and constitutional basis of imported legal principles without ever saying how or why they were adopted.[115] Alternatively, innovative authors smuggle foreign concepts into their writings without acknowledging their source. In each case, legal borrowing is too politically sensitive for direct analysis. Public commentators are forced to encode their work in metaphorical language.

B Socialist Legality

Attempts were made to regularise revolutionary virtue-rule with the imported Soviet doctrine of phap che xa hoi chu nghia (socialist legality).[116] As economic production progressively came under centralised planning, the DRV imported from the Soviet Union an entire legal system based on socialist economic laws and legal institutions (i.e. Supreme Court, Procuracy and State Economic Arbitrators). Thousands of Vietnamese were sent to the Eastern Block countries from the 1960s until 1990 to learn the skills needed to manage and implement the imported system.

Following reunification in 1975, the revolutionary nature of party rule became increasingly irrelevant to the tasks of managing a modern state. Questions were raised during the Fifth and Sixth Party Congress whether revolutionary ideology should continue to dominate state institutions.[117] But it was not until the launch of doi moi (renovation) policy in 1986 that the National Assembly formally introduced legislation recognising private ownership over income producing assets. The first wave of commercial laws, comprising the Law on Foreign Investment 1987, Land Law 1988 and Ordinance on Economic Contracts 1989, were primarily based on Chinese market reforms.[118] Only in areas where China lacked appropriate experience were laws imported from the capitalist West. For example, the Law on Companies 1990 was based on French Law.

Deeply traumatised by the collapse of the Soviet Union, the government with increased urgency moved to implement state policy through normative law. Under a doctrine called nha nuoc phap quyen, or the ‘law based state’,[119] legal reformers called for stable, authoritative and compulsory law; equality of economic sectors before the law; the use of law to constrain and supervise legal enforcement, and a competent judiciary capable of resolving private, commercial disputes.

As the economy shifted from command to mixed-market principles, the state needed a legal framework that devolved economic decision-making power to market players. This, in turn, required massive importation of Western commercial law. Especially after the 1992 Constitution recognised private commercial ownership, a commercial legal framework covering companies, taxation, securities, insurance, anti-monopoly and many other areas has been enacted with the support of multi and bi-lateral donors.

C Reconciling Revolutionary/neo-Confucian Morality with Legalism

Contradicting the image of legal normality projected by nha nuoc phap quyen (law based state), the dominant legal ideology in Vietnam is multi-faceted. It oscillates between strict legal instrumentalism and the political expediency permitted by Marxist legal theories. Although the focus of the party and state has shifted from class struggle to economic development, the Marxist metaphor of the base (mode of production) determining the superstructure (ideals, culture and law) is still alive in the minds of central policymakers.[120] From this ideological perspective, the purpose of law is to create a superstructure that reflects the ‘will of the ruling class’ (y chi cua giai cap thong tri) and its domination over the means of production.[121]

VII CONCLUSION

Ancient neo-Confucian borrowings are more than mere academic curiosities, since they provide insights into the mysterious processes conditioning legal transplantation. Successive borrowings from Chinese, French, Soviet and, more recently, Western legal systems demonstrate layered or textured reception patterns. Ideological precepts are swiftly adopted by receptive elites to improve their social positions. Mandarins in neo-Confucian societies and party cadre in socialism benefited materially and morally from imported ideologies.

Borrowed political-legal culture, in contrast, faces greater local resistance. It took the Le and Nguyen rulers centuries to inculcate neo-Confucian values. The French never succeeded in proselytising Western legal liberalism. Even with the benefit of modern transportation and communication socialist values at best only engaged state employees. This history of legal transplantation infers, however, that eventually imported political-legal culture integrates with, and occasionally displaces, pre-existing concepts. During the transition period, which is measured in decades, incongruities between imported ideologies and local cultural precepts destabilise borrowed legal norms.

On a practical level, Western legal ideas easily transplant to Western trained legal technocrats enmeshed in foreign aid and legal harmonisation projects. Conversely, party elite and middle level legal officials quarantined from foreign influence read imported legal texts from neo-Confucian/socialist perspectives that reconstruct their original meaning. Imported laws designed to transform socialist concessionary discretion to universal commercial norms are consequently subverted by particularistic or moral based solutions. Finally, imported commercial laws lack social traction unless they engage compatible market institutions. Legal harmonisation aiming to replicate Western anti-monopoly rules, for example, is a fatuous exercise until host countries develop markets based on private competition.

The cycle of Chinese and Soviet borrowings have lessons for legal transplantation beyond the borders of Vietnam. At best, it is naive to assume that legal convergence and harmonisation are both inevitable and desirable. At worst, visions of legal globalisation evince Eurocentric thinking that defines out of existence inconsistent legal values and cultures. Analytical frameworks, like the working postulates, are needed to direct analysis towards the sites of interaction between imported laws and host country institutions. Since the Seattle protests against the WTO in 1999, multi-lateral organisations have been held more accountable to national democratic discourses. Political processes are now required to protect the vulnerable from transplanted free trade systems in undemocratic East Asia.


[*] Associate Professor, School of Law, Deakin University.



[1] K Pistor and P Wellons, The Role of Law and Legal Institutions in Asian Economic Development 1960-1995 (1999) 280-284.

[2] See for example Khoo Boo Teik, ‘Between Law and Politics: the Malaysian Judiciary Since Independence' in Kanishka Jayasuriya (ed) Law, Capitalism and Power in Asia (1999) 205-232.

[3] Pistor and Wellons, above n 1, 280-284.

[4] Ibid 281.

[5] See Pistor and Wellons, above n 1, 50.

[6] These views are summarized in Pistor and Wellons, above n 1, 14, 36-40.

[7] Structural development loans to Korea and Indonesia advanced by the IMF in 1998 were conditional on broad ranging legal and institutional reforms. See Asian Crisis Home Page <www.stern.nyu.edu/globalmacro/> Second Global Law and Justice Conference Home Page <www4.worldbank.org/legal/ljro1/>

[8] See, for example, B Black and R Kraakman, ‘A Self-Enforcing Model of Corporate Law’ (1996) 109 Harvard Law Review 1911-1982; Sarah Biddulph, ‘Through a Glass Darkly: China, Transparency and The WTO’ (2001) 3 The Australian Journal of Asian Law 59, 90-92. See generally Francis Fukuyama, The End of History and the Last Man (1992).

[9] See Kanishka Jayasuriya, ‘The Rule of Law and Governance in the East Asian State’ (1999) 2 The Australian Journal of Asian Law 107, 108-112; Alan Watson, ‘Comparative Law and Legal Change’ (1978) 37 Cambridge Law Journal 313, 315-320.

[10] See Montesquieu, ‘De L'Espirt des Law (The Spirit of Laws)’ in J P Mayer and A P Kerr (eds), Livre I Gallimard 1749 (reprint, 1970). See generally Pierre Legrand, ‘Comparative Legal Studies and Commitment to Theory’ (1995) 58 Modern Law Review 262, 263-273; Tahirih V Lee, ‘Risky Business: Courts Culture, and the Market Place’ (1993) 47 University of Miami Law Review 1335, 1338 (transplanted law has the capacity to create "chaos" where it was originally designed to address different cultural problems).

[11] See, for example, John Gillespie, ‘Private Commercial Rights in Vietnam: A Concise Analysis’ (1994) 30 Stanford Journal of International Law 325, 326-333; John Gillespie, ‘Land Law Subsystem? Urban Vietnam as a Case Study’ (1998) 7 Pacific Rim Law and Policy Journal, Univeristy of Washington 555, 557-569.

[12] See generally Robert McKinley, ‘Zaman dan Masa, Eras and Periods: Religious Evolution and the Permanence of Epistemological Ages in Malay Culture’ in AL Becker and Aram Yengoyan (eds), The Imagination Of Reality: Essays In Southeast Asian Coherence Systems (1979) 306; A Terry Rambo, ‘Black Flight Suits and White Ao-Dais: Borrowings and Adaptations of Symbolism of Vietnamese Cultural Identity’ in University of Hawaii Center for Southeast Asian Studies, Borrowings And Adaptations In Vietnamese Culture (1987) 25 Southeast Asian Paper 121-22.

[13] See Masaji Chiba, ‘Introduction’ in Masaji Chiba (ed), Asian Indigenous Law: An Introduction With Received Law (1996) 5-6; cf F Von Benda-Beckmann, ‘Symbiosis of Indigenous, and Western Law is Africa and Asia: An Essay’ in W Mommsen, J de Moor et al (eds), Legal Pluralism In European Expansion And Law: The Encounter Of European And Indigenous Law In 19th And 20th Century Africa And Asia (1992) 307 –325.

[14] See Ewald, ‘Comparative Jurisprudence (II): The Logic of Legal Transplants’ (1995) 43 American Journal of Comparative Law 498-502.

[15] Antonio Gramsci deduced that law is both ideologically constructed and a bearer of ideology. Influenced by Lenin's belief that legal systems are integral to, and characteristic of capitalism, many early Marxist writers emphasised the oppressive and coercive nature of law. See Alan Hunt, ‘Dichotomy and Contradiction in the Sociology of Law’ in Piers Beirne and Richard Qunney (eds), Marxism and Law (1982) 87-8; See Maureen Cain, ‘Gramsci, The State and the Place of Law’ in David Sugerman (ed), Legality, Ideology and the State (1983) 111-115; Alan Hunt, ‘The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law’ (1985) 9 Law Society Review 11, 13-19.

[16] Robert Gordon, ‘Critical Legal Histories’ (1984) 36 Stanford Law Review 65, 108.

[17] Also see Susan Silbey, ‘Making a Place for a Cultural Analysis of Law’ (1992) 17 Law and Social Inquiry 41: ‘[T]he fact that a group of people have a common culture means that they have common codes. With the aid of such a common system of codes it is possible to communicate group affiliation to the environment, to the group and to oneself.’ Also see Jorgen Selmer, ‘“Cultural Groups" and the Study of Life-Styles and Cultural Identity’ in Lauri Honko (ed), Tradition And Identity (1988) 47, 57; Also see Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (1983) 167, 175-215.

[18] Pierre Legrand, ‘The Impossibility of “Legal Transplants” ’ (1997) 4 Maastricht Journal of European Comparative Law 111, 119.

[19] See Kahn-Freund, ‘On Uses and Misuses of Comparative Law’ (1974) 37 Modern Law Review 1, 12-14. The analysis of anti-corruption transplants in Vietnam from the perspective of non-state institutions is a work in progress undertaken by the author.

[20] Though concurring that the Hung King period remains shrouded in myth, Vietnamese legal historians seem more convinced than their Western counterparts that state-like characteristics developed among the Viet tribes before Chinese annexation in 111 BC. See for example Dinh Ngoc Vuong, ‘The State and Law in the Hung Kings Period’ (1995) 1 Vietnam Law and Legal Forum 31, 31-33; Nguyen Ngoc Huy and Ta Va Tai, The Code: Law in Traditional Vietnam (1987) 4.

[21] See Jeremy Davidson, ‘Recent Archeological Activity in Vietnam’ (1975) 6 Journal of Hong Kong Archeological Society 80-99; Nguyen Khac Vien, Vietnam: A Long History (1993) 15-19; Hoang Thi Chau, ‘Understanding "Phu Dao" in the Hung Vuong Legend’ (1967) 9 Historical Studies Review 22.

[22] See Dinh Ngoc Vuong, ‘The State and Law in the Hung Kings Period’ (1995) 1 Vietnam Law & Legal Forum 31, 32-33.

[23] Although 111 BC is generally given for the Chinese annexation of Vietnam, the rebel Chinese state of Nan Yueh incorporated Au Luc from 207 BC. See Nguyen Ngoc Huy et al, above n 20, 4.

[24] For a scholarly study of Vietnamese History see Keith Taylor, The Birth of Vietnam (1983).

[25] See Cheng F Zhang, ‘Public Administration in China’ in Miriam K Mills and Stuart S Nagal (eds), Public Administration in China (1993) 4-5.

[26] The term ‘Imperial-Confucian’ is taken from John King Fairbank, who used it to distinguish the Legalist-Confucian amalgam used for governmental from the original teachings of Confucius, Mencius and others. See John King Fairbank, China: A New History (1992) 62-63.

[27] This duty was evidently mystical in nature and should not be equated with Rousseauian social contracts. See William P Alford, ‘The Inscrutable Occidental? Implications of Roberto Unger’s Uses and Abuses of the Chinese Past’ [1986] 64 Texas Law Review 936-938; Vuylsteke, ‘Tung Chung-shu: A Philosophical Case for Rights in Chinese Philosophy’ in Vuylsteke, Law and Society: Culture Learning Through Law (1977) 303-308, 311-323.

[28] See Fairbank, above n 26, 51-55, 62-63.

[29] See generally D Bodde and C Morris, Law in Imperial China (1967) 19-23. The five cardinal relationships were those between ruler and subject, father and son, husband and wife, elder and younger brother, and older and younger friend.

[30] See Benjamin Schwartz, ‘Some Polarities in Confucian Thought’ in David S Nivison and Arthur F Wright (eds), Confucianism in Action (1959) 54-57.

[31] See R Ames, The Art of Rulership: A Study in Ancient Chinese Political Thought (1983) 121.

[32] See Simon Leys (trans and notes), The Analects of Confucius (1997); See generally D Bodde and C Morris, above n 29.

[33] See Alford, above n 27, 915, 928-952; Frederick Tse-Shyang Chen, ‘The Confucian World Order’ in Mark W Janis (ed), The Influence of Religion on the Development of International Law (1991) 35-37.

[34] See K Y Chen, ‘A Discussion and Reappraisal of Chinese Legal Institutions and Their Formation and Development from the Perspective of Chinese Culture’ in K S Hsieh and L C Chi (eds), A Collection Of Papers On History Of Chinese Legal Institutions (1968) 1; also see Alford, above n 27, 928-952.

[35] Hsun-tzu lived in pre-imperial China around 300 BC. See Ames, above n 31, 121; Hsun-tzn, ‘Human Nature is Evil’ in B Watson (trans and ed), Basic Writings of Mo Tzu, Hsun Tzu and Han Fie Tzu (1967) 162-3.

[36] According to Kuan-tzu, ‘If [the ruler] does not conform to the law, governmental affairs will lack a constant standard. ...When prohibitions take precedence over [the ruler] himself, his order will function among the people.’ Han Fei-tzu, ‘The Use of Men’ quoted in Liang Chi-Chao, History of Chinese Political Thought During the Early Tsin Period (1930) 121.

[37] See Chu’u Tung-tsu, Law and Society in Traditional China (1965) 177.

[37] See Frederick Tse-Shyang Chen, ‘The Confucian View of World Order’ in Mark W Janis (ed), The Influence Of Religion On The Development Of International Law (1991) 31, 36; Wallace Johnson (ed and trans), The T’ang Code, vol 1: General Principles (1979).

[38] See Chuong Thau and Phan Ngoc, ‘Confucianism in Vietnam Seen from an Historical Tradition’ (1994) 1 Vietnamese Studies 85, 86-87.

[39] Some commentators have re-evaluated the role of law in ancient China. They argue that some neo-Confucian scholars called for law-based governance where the actions of the emperor should proceed through law. It is a long way, however, from procedural compliance (which in reality was rarely followed) to dividing social problems according to legal and political processes. See Alford, above n 27, 943-948.

[40] See Fairbank, above n 26, 78; also see David McMullen, State and Scholars in T’ang China (1986).

[41] See generally Peter K Bol, “This Culture of Ours”: Intellectual Transitions in T’ang and Sung China (1992).

[42] See Alexander Woodside, ‘Exalting the Latecomer State’ in Anita Chan et al (eds) Transforming Asian Socialism: China and Vietnam Compared (1999) 23-24.

[43] See for example Phan Huy Le, ‘The Vietnamese Traditional Village: Historical Evolution and Socio-Economic Structure’ 1 Vietnam Social Sciences (1991) 39, 40-43; Phan Huy Le, ‘The Problem of Democracy in Vietnam’s Traditions’ (1994) 4 Vietnam Social Sciences 3, 4-10; Dao Tri Uc and Le Minh Thong, ‘Su Tiep Nhan Cac Gia Tri Phap Ly Phuong Dong va Phuong Tay Doi Voi Su Phat Trien Cac Tu Tuong Phap Ly Viet Nam’ (Reception of Oriental and Occidental Legal Values in the Development of Vietnamese Legal Ideology’ (1999) 5 Nha Nuoc va Phap Luat (State and Law) 3, 3-15.

[44] Pham Diem, ‘A Brief Look at the Rule by Feudal China (from 179 BC to the Xth Century)’ (1995) 1(10) Vietnam Law and Legal Forum 28, 29.

[45] See K W Taylor, ‘Preface’ in K W Taylor and John K Whitmore (eds), Essays Into Vietnamese Pasts (1995) 5.

[46] See Keith W Taylor, ‘An Evaluation of the Chinese Period in Vietnamese History’ (1980) 23(1) Journal of Asiatic Studies 146, 146-148; Pham Diem, above n 45, 28, 28-29.

[47] See Taylor, above n 46, 6-7. The Chinese language was predominantly learnt by Viet monks to study Buddhism. As the only indigenous intellectual class, monks were especially influential during the post-independence Dinh and Ly dynasties (968-1225).

[48] Interviews with Dao Tri Uc, Director, Institute of State and Law (Hanoi, July 1998). (Dao Tri Uc led a research team investigating ancient Vietnamese law. His speculations regarding modifications to Chinese laws are unpublished).

[49] See David Marr, Vietnamese Anticolonialism (1971) 10.

[50] See Pham Diem, above n 45, 28, 29. Eventually customs and habits differed slightly from village to village.

[51] For example the Ly dynasty accepted the quintessential Chinese three religions of Confucianism, Taoism and Buddhism, but unlike China during that period gave special emphasis to Buddhism.

[52] See Cuong Tu Nguyen, 'Rethinking Vietnamese Buddhist History: Is the Thien Uyen Tap Anh a "Transmission of the Lamp"’ in Taylor and Whitmore (eds), above n 46, 113-115; Ha Van Tan, ‘Buddhism from the Ngo to the Tran Dynasties’ in Nguyen Tai Thu (ed), History of Buddhism in Vietnam (1992) 100-103,117-125; Ngo Ba Thanh, ‘Influence of Buddhism on Ancient Vietnamese Law and Role of Comparative Law in Contemporary Juridical Science’ (1996) 2 Vietnam Law and Legal Forum 24, 27-28.

[53] See Nguey Duc, Viet Su Luoc (A Summary of Vietnamese History) (1960) 167-174.

[54] The literature dealing with the construction of a national identity following Chinese rule is extensive but see E S Ungar, 'From Myth to History: Imagined Polities in 14th Century Vietnam', in David Marr and A C Milner (eds), Southeast Asia in the 9th and 14th Centuries (1986) 177-186; Keith W Taylor, ‘An Evaluation of the Chinese Period in Vietnamese History’ (1980) 23 Journal Of Asiatic Studies 146, 146-8 (discusses how the flexible social system of early Vietnam successfully resisted Chinese attempts to transform it into an orthodox sinic patrimonial system); Keith K Taylor, ‘Authority and Legitimacy in Eleventh-Century Vietnam’ (1988) 12 Vietnam Forum 20-59; M B Hooker, The Laws of Southeast Asia: The Pre-Modern Texts (1986) 449-451; Tran Thi Tuyet, ‘The State and the Law of the Tran Dynasty’ (1996) 2 Vietnam Law and Legal Forum 28, 28-29; L Cadiere, ‘Religious Beliefs and Practices of the Vietnamese’ (1958) 33 Bulletine de la Société des Studes Indonchinoise 1-23; (I Mabbett (trans), Working Paper 60 (1958) 11-20).

[55] See O Walters, ‘Assertions of Cultural Well-being in Vietnam’ (1979) 10 Journal Of Southeast Asian Studies 435, 442-43; David G Marr, Vietnamese Anti-Colonialism (1971) 20; L Cadiere, ‘Religious Beliefs and Practices of the Vietnamese’ (1958) 33 Bulletine De La Societe Des Études Indochinoises 1-23; (I Mabbett (trans) Working Paper 60 (1958)); Do Thai Dong, ‘Modifications of the Traditional Family in the South of Vietnam’ (1993) 3 Vietnam Social Sciences 77, 80-81.

[56] See Minh Chi, ‘Buddhism’s Entry into Vietnam and Its Practice During Chinese Control’ in Nguyen Tai Thu (ed), History of Buddhism in Vietnam (1992) 1-15.

[57] See K W Taylor, ‘Authority and Legitimacy in Eleventh-Century Vietnam’ (1988) 12 Vietnam Forum 20, 45-49; John K Whitmore, ‘Social Organization and Confucian Thought in Vietnam’ (1984) 15 Journal of Southeast Asian Studies 294, 297-298.

[58] O W Wolters, ‘Assertions of Cultural Well-being in Fourteenth-Century Vietnam: Part I’ (1979) 10 Journal Of Southeast Asian Studies 435, 437.

[59] See Vu Van Vinh, ‘Development of Confucianism in the Tran Dynasty and the Struggle of Confucian Scholars against Buddhism at the End of the XIV Century’ (1999) 2 Vietnam Social Sciences 55, 57-60; John K Whitmore, ‘Foreign Influences and the Vietnamese Cultural Core: A Discussion of the Pre-modern Period’ in Truong Buu Lam (ed), Borrowings and Adaptations in Vietnamese Culture, Southeast Asia Paper No. 25 (1987) 1, 8-10; R B Smith, ‘The Cycle of Confucianization in Vietnam’ in W F Vella (ed), Aspects of Vietnamese History (1973) 6-24.

[60] Of the Code’s seven hundred and twenty two articles, two hundred were either directly borrowed from, or substantially influenced by the Tang Code and seventeen were borrowed from the Ming Code. See Ta Van Tai, 'Vietnam's Code of the Lê Dynasty (1428-1788)' (1982) 30 American Journal of Comparative Law 523, 525. For an authoritative discussion about possible drafting dates see Nguyen Ngoc Huy and Ta Van Tai, The Lê Code: Law In Traditional Vietnam (Volume 2) (1987) 21-29.

[61] See Ta Van Tai, above n 61, 530-531; Huy and Tai, above n 61, 19-29, 189-204. Also see Ta Van Tai, The Vietnamese Tradition Of Human Rights (1988) 203-12; Nguyen Viet Huong, ‘King Lê Thanh Tong and the “Hong Duc” Code’ (1996) 2(21) Vietnam Law and Legal Forum 29, 29-22.

[62] Most of the contractual provisions of the Lê Code concerned freedom of consent, unfair trade practices, and market price manipulation (article 576). A considerable number of provisions in the Lê Code, such as articles 388-400, were devoted to the rules of inheritance; these were designed to maintain the stability of the family unit. Huy and Tai, above n 61, 19-29, 189-204.

[63] Lê Code articles 308, 322, 375, 388 and 391. See Tran Thi Tuyet, ‘Vietnam’s Feudal Laws and the Protection of Women’s Interests’ (2000) 6(65) Vietnam Law and Legal Forum 28, 28-30; Nguyen Viet Huong, ‘“Ouoc Trieu Hinh Luat” and the Personal and Property Relations in Feudal Families’ (1996) 3(25) Vietnam Law and Legal Forum 22, 22-25; David W Haines, ‘Reflections of Kinship and Society under Vietnam’s Lê Dynasty’ (1984) 15 Journal of South Eastern Studies, 307, 309-313.

[64] Most contemporary accounts of the early Lê dynasty rely on versions of the Dai Viet Su Ky Toan Thu (Complete Historical Records of the Dai Viet) that were revised during he Mac dynasties to emphasise the benefits of the centralizing and sinoizing Lê Thanh Tong regime. See John K Whitmore, ‘Chung-hsing and Cheng-t’-ung in Texts of and on Sixteenth-Century Viet Nam' in K W Taylor and John K Whitmore (eds), Essays Into Vietnamese Pasts: Studies on Southeast Asia No. 19 (1995) 116-136; Nola Coke, ‘Nineteenth-Century Vietnamese Confucianisation in Historical Perceptive: Evidence from the Place Examinations (1463-1883)’ (1994) 25 Journal of Southeast Asian Studies 277, 277-282, 303, 305.

[65] See for example Huy and Tai, above n 61; Pham Diem, ‘Some Thinking of the Reality of Civil Judiciary by Viewing the Law of the Vietnam’s Feudal Period’ (2001) 2 Nha Nuoch va Phap Luat (State and Law) 40, 40-44; Dao Tri Uc and Lê Minh Thong, ‘Su Tiep Nhan Cac Gia Tri Phap Ly Phuong Dong va Phuong Tay Doi Voi Su Phat Trien Cac Tu Tuong Phap Ly Viet Nam (Reception of Oriental and Occidental Legal Values in the Development of Vietnamese Legal Ideology)’ (1999) 5 Nha Nuoc va Phap Luat (State and Law) 3-15.

[66] Some argue, for example, that Lê Code provisions functioned like professional law in delineating and preserving private horizontal rights. See for example Lan Quoc Nguyen, ‘Traditional Vietnamese Law’ (1989) 13 Hastings International and Comparative Law Review 142, 165-174; Ta Van Tai, above n 61, 527-533, 538-542.

[67] See Vu Van Mau, ‘Le Driot Prive Vietnamien Moderne Compare Aviec Les Droits Occidentaux’ in Association Nationale de Droit Compara, Quelques Aspects Technique de la Reception des Driots Occidentuax (1963) 7; also see Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws (1975) 229-231; See Nguyen Duc Nghinh, ‘Markets and Villages’ in The Traditional Village in Vietnam (1993) 352-355.

[68] Neo-Confucian morality aimed to penalise moral infractions of neo-Confusion morals, calibrated penalties according to the social and kinship status of wrongdoers and make family-heads liable for family crimes. See J K Whitmore, ‘ Social Organisation of Confucian Thought in Vietnam’ (1984) 15 Journal of South East Asian Studies 294, 305.

[69] The Hoang Trieu Luat Le, also widely known as the Gia Long Code, contained 398 articles arranged in 22 volumes that precisely followed the structure, legal categories and provisions of the Ching dynasty legal code. See Tran Thi Tuyet, ‘The Nguyen Dynasty and its Legislation in the First Half of the 19th Century’ (1997) 3(32) Vietnam Law and Legal Forum 24, 24-25.

[70] The Nguyen Code was not as concerned with pragmatic social arrangements like contracts and land as the Lê Code. See Lan Quoc Nguyen, ‘Traditional Vietnamese Law, The Lê Code and Modern United States Law: A Comparative Analysis’ (1989) 13 Hastings International and Comparative Law Review 141, 144.

[71] See Woodside, above n 43, 231-233. This does not explain why imperial-drafting committees did not attempt to localise imported rules.

[72] The ‘Kham-Dinh Viet-Su Thong Giam Cuong Muc’ national history of the mid-nineteenth century reflected a Chinese world view. See J K Whitmore, ‘Note: The Vietnamese Confucian Scholar’s View of His County’s Early History’ in Hall and Whitmore (eds), Explorations of Early Southeast Asian History: Volume 1 (1978) 193-203.

[73] See David Marr, ‘Concepts of Statescraft in Vietnam’ (Paper presented to the International Conference on Vietnamese Studies, Hanoi, 14-17 July 1998) 2.

[74] See Vu Van Vinh, ‘Development of Confucianism in the Tran Dynasty and the Struggle of Confucian Scholars against Buddhism at the End of the XIV Century’ (1999) 2 Vietnam Social Science 55, 57-60. Just how closely bureaucratic responsibilities corresponded to Chinese patterns is difficult to ascertain as records from this period are not extant. See Tran Thi Tuyet, ‘The State and the Law under the Ly Dynasty (1009-1225)’ (1995) 2(16) Vietnam Law and Legal Forum 26, 26-28.

[75] See Marr, above n 74, 12; also see J K Whitmore,’ Foreign Influences in Vietnamese Cultural Core’ in Truong Buu Lam (ed.), Borrowings and Adaptations in Vietnamese Culture, South East Asia Paper No. 25, Centre for Asian and Pacific Studies, University of Hawaii, 10. For a nationalistic account promoting the notion of a meritocracy at work see Nguyen Viet Huong, ‘Feudal Rules on Recruitment, Selection, Training and Employment of Mandarins’ (1998) 4 (47) Vietnam Law and Legal Forum 25, 25-27; Doa Duy Anh, ‘Influence of Confucianism in Vietnam’ (1994) 1 Vietnam Studies 22, 23-24.

[76] See Tran Thi Tuyet, ‘Feudal State Apparatus Structure in Vietnam’ (1998) 5 (49) Vietnam Law and Legal Forum 21, 21-23; R B Smith, 'The Cycle of Confucianization in Vietnam' in W F Vella (ed), Aspects of Vietnamese History (1973) 11-12.

[77] In 1487 Tran Phong, a high ranking official was condemned to death by Emperor Le Thanh Tong for criticizing the adoption of Minh laws and institutions. See Huy and Tai, above n 61, 25.

[78] Le Code article 136, reproduced in Huy and Tai, above n 61, vol II, 25.

[79] See Alexander Woodside, A Comparative Study of Nguyen and Ch’ing Civil Government in the First Half of the Nineteenth Century (1971) 60-110.

[80] For example, the Nguyen Emperors worried about the excessive power Ching codes appeared to vest in Grand Secretaries and constructed Vietnamese institutions to avoid this imaginary problem. See ibid 87-89.

[81] See Tran Thi Tuyet, ‘Vietnam’s Last Kingdom—Its State Structure’ (1997) 3(31) Vietnam Law and Legal Forum 18, 19; Woodside, above n 80, 69-70.

[82] ‘Whoever commits an act that should not be done shall be condemned to penal servitude or exile for a major wrong and demotion or fines for a minor one’, Lê Code, article 642.

[83] These comments are based on interviews with a Vietnamese sociologist specializing in state-village relations. Interviews Hoang Ngoc Hien, Sociologist, Nguyen Du School of Creative Writing, Hanoi, June 21, 1998, April, September 1999, August 2000.

[84] Nguyen Van Huyen vividly describes syncretised thinking in villages:

In this jumble of spiritual things, the cult of ancestors and the cult of the village patron can be distinguished.

The great majority of the people in the country have a very flexible and very soft popular religion

characterized by a certain number of practices, some related to Confucianism, others to Taoism or

to Buddhism, that are automatically obeyed on different occasions in life. Nguyen Van Huyen, ‘Traditional Law in Vietnam’ (1997) 3 Vietnam Law and Legal Forum 277. Also see O Walters, above n 56, 442-43; D Marr, above n 50, 20; L Cadiere, above n 55, 1-23; (I Mabbett (trans) Working Paper 60 (1958)); Do Thai Dong, above n 56, 80-1.

[85] For a discussion about traditional law see Neil Jamieson, Understanding Vietnam (1993) 11-12.

[86] See for example, Gia Long Code articles 64-72 (1812-1945); P L F Philastre, Le Code Annamite (1909 reprint 1967) 335-57.

[87] Adopting a Sino-Vietnamese conception as first envoy from heaven, the Emperor imposed harmony between nature and temporal elements through delegated authority vested in the Mandarins. See Nguyen Duc Nhuan, ‘Do the Urban Regional Management Policies of Socialist Vietnam Reflect the Patterns of the Ancient Mandarin Bureaucracy? (1984) 8 International Journal of Urban Regional Research 1, 73, 74-75.

[88] See A Miraben, Precis De Droit Annamite (outlines the laws of succession in the Gia Long Code) (1986) 84-92; Nguyen Ngoc Huy and Ta Van Tai, ‘The Vietnamese Texts’ in M B Hooker (ed), The Laws of South East Asia (1986) Vol 1, 488-489.

[89] See Robert Lingat, Les Regimes Matrimoniaux du Sud-Est de L’asie: Essai de Droit Compare Indochinois (1952) 30-36, 93-96. Many of the Code provisions were applied by the population as customary rules during the Nguyen dynastic period. See Huy and Tai, above n 89, 475-476.

[90] See Woodside, above n 80, 25-30.

[91] See Pierre Poivre, ‘Voyage de Pierre Poivre en Cochinchina’ (Kristine Alilunas-Rodgers (trans)) in Li Tana and Anthony Reid (ed), Southern Vietnam under the Nguyen: Institute of Southeast Asian Studies, Singapore, Data Paper Series No. 3 (1993) 62-78.

[92] See Marr, above n 74, 58-61.

[93] Ruler-subject, father-son, husband-wife, elder brother-younger brother and friend-friend.

[94] See Pham Diem, ‘Criminal Offences Under Ancient Laws of Vietnam’ (1999) 5(58) Vietnam Law and Legal Forum 27, 27-29; Pham Diem, ‘Relationships Between Parents and Children under Vietnam’s Ancient Laws’ (1999) 6(63) Vietnam Law and Legal Forum 29, 29-30.

[95] The ten heinous crimes were plotting high treason (an attempt on the emperor's life) , plotting grave insubordination (desecrating imperial ancestral temples and palaces), plotting treason (working for an enemy state), wicked insubordination (attempts to kill grandparents, parents or actually killing senior male relatives), inhumanity (killing three people in one family), stealing articles from the emperor, lack of filial piety, discord (bat muc) (plotting to kill or sell relatives), disloyalty (killing an active official) and incest. Le Code, article 2.

[96] See Alexander Woodside, ‘Exalting the Latecomer State’ in Anita Chan et al (eds), Transforming Asian Socialism: China and Vietnam Compared (1999) 23-24.

[97] This system was based on the metaphor of Emperors as fathers and villages as sons. For a discussion about Confucian social control see D Bodde, Law in Imperial China (1973) 299-315; also see Jamieson, above n 86, 38-40.

[98] Ibid 38-40.

[99] Woodside, above n 97, 81.

[100] Naturally invading armies brought entire legal codes, but the only comparable legal experiment was the unsuccessful transplantation of the Chinese Tang Code to seventh century Japan. See Masaji Chiba, ‘Three-Level Structure of Law in Contemporary Japan-The Shinto Society’ in Masaji Chiba (ed), Asian Indigenous Law: In Interaction with Received Law (1986) 304-307.

[101] See Trung Anh, ‘Legal Thought of Vietnam Feudalist Class’ (1995) 2(13) Vietnam Law and Legal Forum 24, 24-25.

[102] It should be noted that the examination system in Vietnam never fulfilled the objectives of the Le dynasty in controlling the power of noble families. See Woodside, above n 97, 213-216; Dao Tri Uc and Le Minh Thong, ‘Su Tiep Nhan Cac Gia Tri Phap Ly Phuong Dong va Phuong Tay Doi Voi Su Phat Trien Cac Tu Tuong Phap Ly Viet Nam’ (Reception of Oriental and Occidental Legal Values in the Development of Vietnamese Legal Ideology) (1999) 5 Nha Nuoc va Phap Luat (State and Law) 3, 5-8; Huy and Tai, above n 89, 17. It is interesting to note that precisely the same tactic was used by the Qin dynasty in early Chinese history. See Fairbank, above n 26, 55-56.

[103] Dao Duy Anh, ‘Influence of Confucianism in Vietnam’ (1994) 1 Vietnam Studies 23, 239-33.

[104] See Woodside, above n 97, 81-83.

[105] See Dao Duy Anh, above n 104, 27-29; Woodside, above n 97, 213-216.

[106] It should be noted that Vietnamese educated in Chinese schools during the Ming occupation in the early fifteenth century were instrumental in borrowing Sung-neo-Confucian ideology and governance practices by the first Lê dynasty rulers. See J K Whitmore, ‘Chiao-chih and Neo-Confucianism’ (1977) 4 Ming Studies, 51, 51-91. For a discussion concerning the Nguyen dynasty connections with China see John R Clammer, ‘French Studies on the Chinese in Indochina: A Bibliographical Survey’ (1981) 12 Journal of South East Asian Studies 15, 17-18; Woodside, above n 97, 116.

[107] Interview with Dao Tri Uc, Director, Institute of State and Law (Hanoi, July 1998).

[108] See Nola Cooke, ‘Regionalism and the Nature of Nguyen Rule in Seventeenth-Century Dang Trong (Cochinchina)’ (1998) 29 Journal of Southeast Asian Studies 122, 157-161.

[109] See Truong Huu Quynh, 'Laws on Mandarins of Our Country in the Feudal Period’ (1994) 5 Nha Nuoc va Phap Luat 3, 6-8.

[110] See S H Roberts, The History of French Colonial Policy 1870-1925 (1929, new impression 1963) 64-75; also see Nguyen The Anh, ‘The Vietnamese Monarchy under French Colonial Rule 1884-1945’ (1985) 19 Modern Asian Studies 153-155 (discusses reasons for preserving the monarchy under the collaboration policy).

[111] See David Marr, Vietnamese Tradition on Trial, 1920-1945 (1981) 96; Stephen Young, ‘Vietnamese Marxism: Transition in Elite Ideology’ (1979) 19 Asian Survey 770.

[112] See Le Van Luong, ‘Tang Cuong Che Do Tap Trung Dan Chu Trong Dang Ta’ (Strengthening the Democratic Centralism in Our Party) (1960) 6 Hoc Tap (Study Review) 27-30, 33; Le Duy Vau, ‘The Nao La Phat Huy Tap The va Dan Chu Dung Muc?’ (How to Satificatory Expand Collectivity and Democray?’ (1956) 2 Hoc Tap (Study Review) 70-72.

[113] Nguyen Khac Vien, Tradition and Revolution in Vietnam (1974) 50. Also see Dinh Gia Trinh, ‘May Y Kien Dong Gop Ve De Van De Bao Ve Phap Che’ (Some Opinions on the Protection of Legality), 1961 (3) Tap San Tu Phap, 20, 23-24.

[114] See Thanh Duy ‘Scientific and Cultural Basis of Ho Chi Minh’s Ideas of State and Law’ (Co So Khoa Hoc va Van Hoa Trong Tu Tuong Ho Chi Minh Ve Nuoc va Phap Luat) (1997) Communist Review (Tap Chi Cong San) 26-29.

[115] See, eg, Le Minh Thong, ‘Mot So De Ve Nha Nuoc Phap Quyen Trong Boi Canh Viet Nam (Some Issues about the Law based State in the Context of Vietnam)’ (unpublished papers); The Mansfield Dialogue, ‘Rule of Law and its Acceptance in Vietnam’ Conference (1 September 2000); Nha Nuoc va Phap Luat, Nhung Van De Ly Luan Co Ban Ve Nha Nuoc va Phap Luat (Basic Theoretical Issues about State and Law) (1996) 97-112.

[116] See V M Letsnoi, ‘Viec Bao Dam Phap Che Xa Hoi Chu Nghia’, (Enforcement of Socialist Legality) (1961) 11 Tap San Tu Phap 45, 45-51; Le Honh Hanh, Giao Trinh Ly Luan Nha Nuoc va Phap Luat, (Themes of State and Law) (1998) 295-320.

[117] See Truong Chinh, ‘Introduction to the Political Report’ (unpublished report) (Hanoi, Vietnam).

[118] The blend of socialist-public law and capitalist private law is especially evident in this Ordinance. For example, it contains provisions designed to regulate command contracts between State Owned Enterprises and laws reflecting the devolved decision making in market transactions.

[119] This new terminology first appeared in a speech made by Do Muoi at the 7th Party Congress in 1991. See Sua Doi Hien Phap Xay Dung Nha Nuoc Phap Quyen Viet Nam Day Manh Su Nghiep Doi Moi (Amending the Constitution, Establishing a ‘law based state’ and Promoting Doi Moi Achievements) (1992) 30, 32-3, 37.

[120] Applying a historical-materialist analysis, society passes through various stages of development during its transition to advanced socialism. According to their respective Communist Parties, China and Vietnam are currently traversing state-capitalism, where a dominant state sector co-exists with private ownership. In this mixed economy, private ownership is tolerated provided it does not disrupt state economic management and ‘collective mastery’-state and collective ownership.

[121] ‘Resolution 7, Mid-term Congress Resolution, Part V’, Saigon Giai Phong (1994) 2; Vu Oanh, ‘Developing Combined Forces in Mass Motivation Work and Renovating the Work Content and Method of the Fatherland Front and Mass Organizations’ (1993) 3 Nhan Dan 3; Do Phuong, ‘Party-State-Law’ (1995) 1(5) Vietnam Law and Legal Forum 3, 3-5; Do Muoi, ‘Building and Perfecting the State’ (1995) 1(6) Vietnam Law and Legal Forum 6. It should be noted that articles 11 and 12 of the 1992 Constitution not only demand official obedience to the law, but also require citizens to observe the law and assist the state to observe the law.

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