DSpace at VNU: Confucianism and the future of law in Vietnam

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VN_ÍOUPM A L OF SCIEN C E, ECO NO M IC S-LAW , N01E, 2004

O N 7 U C IA N IS M AN D THE FU T U R E OF THE LAW IN VIETNAM

P h am D uy N gh ia (•)

ụh et.ier C onfucianism , which w as

e a te au tifu l house blown down by a

die to lack of re p a ir” an d which

to have been d e v a s ta te d by different

m

-t>‘rn schools of th o u g h t, plays any role

,h3 col stru c tio n of th e V ie tn am ese law

n kỉeps torm enting the contemporary

s

ị the n e x t gen eration s This article

â

c}es ipon some problem s re la tin g to

Ị r)le jnd lim itatio n of law in th e way it

u >ncf3 people’s behav io rs a n d the

ojicti'n b e tw ee n C onfucianism an d th e

measures to a d ju s t people’s

^ia/ior This article also ra ises some

rysal to m ake c o ntrib utio n to bringing

] ^

vtiarri’ w ritten law close to its people

.A Doctrine for V ie tn a m e s e C u rren t

Law

] is common know ledge t h a t c u ltu ra l

d e e n o m i c p a tte r n s in different

‘i^ies from P rim itiv e C om m unism ,

iV>ry Feudalist, C a p ita list to Socialist

, - ị e s \re widely in trodu ced in the s ta te

J rental law textbooks Som etim es, the

li y £ our n a tion is ignored so the

cuntry fits in one re a d y m ade

)C?1 A such, th e re h a v e b een different

of state an d law It is jurisdiction al

pcern doctrines, n o t V ietn am ese

ijsopy t h a t univ erse, h u m a n

ir s a d society t h a t a re often based on

r acultofLaw, Vietnam National University, Hanoi.

to explain w h a t th e s ta t e an d law are According to th e h ack n e y e d cliche, “th e law-based s ta t e ” one of some newly- borrowed concepts, if not defined exactly,

is often ra s h ly reason ed as a type of state

Fo rtu n ately , th e in te lle ctu al have been enlig hten ed t h a t law is not ju s t a

go v e rn m e n t’s tool

The q uestio ns ra is e d h e re a re ‘W h at are th e s trik in g fe a tu re s in th e history of

V ietnam ese s ta te an d law developm ent

an d a p a r t from th e influence of C hinese

c u ltu re ’ ‘W h a t d istin g u ish ed V ietnam ese legal c u ltu re from o th e rs ’ Both these questions need a n sw e rin g for every nation has its own c haracteristic, a n d custom s which rule over its people’s behaviors After th e Cold War, ideology h a s no longer been a gap betw een n ations While legal h a rm o n iz a tio n is p u sh ed up by global free tra d e , the im p o rtan c e of nation al

c u ltu ra l id entity p re s e rv a tio n including legal cultu re, h a s become extrem ely significant This is sim ila r to th e freedom

an d independence protection of o u r country from colonialists’ invasion in th e

n in e te e n th century So, in order to preserve n a tio n a l c h a ra c te ris tic s an d w ash out th e in s u lt of being poor a n d backw ard, the very first th in g t h a t le a r n e r s of law should do is to u n d e r s ta n d a n d honor th e legal c u ltu re and ju risd ic tio n a l philosophy

of th e ir country

2 4

C onfucianism and the future o f the law in V ietnam

- — —25

To u n d e r s ta n d V ie tn am ese law and

its social organization, it is a need to

u n d e rs ta n d V ie tn am ese h istory of ideology

developm ent for people’s way of th in k in g

affects th e ir behaviors Only by t h a t way

can we explain w h a t th e V ietn am ese

respect, love, h a te or fear as well as can

u n d e rs ta n d th e way th ey organize th e ir

own activities, which is so called culture

V ietn am ese ideology can be divided into

two categories: Common ideology- ideology

of common people, descended from th is

g eneration to a n o th e r by m e a n s of folklore

and academ ic ideology- ideology of th e

intellectual Such tra d itio n a l ideologies

should be stu d ie d tho ro ug hly a n d h a n d ed

down to the n e x t g en eration before alien

ones come up with

Confucianism is one of th e most

fu n d a m e n ta l e le m e n ts in the foundation of

th e V ietnam ese ideology It is believed

th a t Confucianism is one of th e th re e

religions (C onfucianism , Taoism and

Buddhism ) which influence V ietnam ese

culture In fact, C onfucianism is not an

ideology because it w as n ot Confucius who

c re ate d t h a t k in d of m entality And

C onfucianism is not a religion of which

Confucius is th e h e a d like th e case of

Catholicism a n d J e s u s C onfucianism is a

philosophy of life according to which

people live a comfortable a n d peaceful life,

w ith no difficulties in th e ir household,

th e ir clan, th e ir village a n d th e ir n a tio n a l

affairs This k in d of philosophy h a s been a

foundation for V ie tn a m e s e society for

th o u s a n d s of ye ars a n d p e n e tr a te d into

V ietn am ese consciousness so deeply and

n a tu ra lly t h a t it leaves tra c e ln

V ietn am ese c u ltu ra l vestige eYy

T h ro u g h o u t history, e ac h a g o

own u n d e r s ta n d in g of Confucianism Y\

are different schools of Confi-ucHn including P rim itiv e Confucianii: m Confucianism, T a n g C onfuciam

m, In

16m s ,

1C

Confucianism, Neo-Confucianism,

T rad itio n al C onfucianism , fcchcia

C onfucianism a n d C om m on Confucia •

1

C o n tem po rary Neo-Confucianism K*r

r n Confucianism, J a p a n e s e Confuciaiisi Singapore C onfucianism Of L

:ne

v a ria n ts, th e re m u s t be unchan^pH

^ r t Also, as a th o u g h t of life, Confucia Song Confucianism in parti-ula*

’ ẵ

th o u g h t based on a m ix tu re of Bucdl

a nd T aoist e le m e n ts a n d indigenous lai'

g radu ally becam e eth n ic s of lifci It „

t h a t th e J a p a n e s e , K orean and Cl n

w a n t to b re a k th is tra d itio n a l Pliloo,'

of life while e n ric h in g th e ir co uit'ies A tho ug ht, once deep-rooted in p^p consciousness, in spite of be:nj dft]

C onfucianism does live perm am rU y 1

w ay it affects people’s way of tliik in I

th e ir behaviors Thus, studying tra d itio n a l philosophy to e x p l a n w h c

s ta te a n d law a re m e a n s stacyin tra d itio n a l w ay of thinking of

fo refa th e rs to explain sone ci*r

ph eno m ena T his is a key to bnrg W(t legal d ocum en ts close to the n e re ts people in V ietnam Only by that wa law live p e rm a n e n tly h pep.

consciousness O th erw ise, al bor-)v schools of th o u g h t will soon befogotij- our th o u s a n d -y e a rlo n g histor;/

V N I L Journal o f Science Economic N„IE, 2004

26 Pham Duy Nghia

T here may be some u n d e rly in g reasons

for C onfucianism ’s being devastated

Firstly, it may orig inate from th e W estern

education m ovem ent in w hich c u ltu re and

civilization w ere mixed m eanw hile

Confucians were bew ildered a bo ut w h a t to

do nex t to catch up w ith W estern

civilization Secondly, it m ay begin from

revolutionists’ movement of using Vietnamese

tra n s c r ip t which u n in te n tio n a lly created

th e gap disabling th e offspring to re a d

th e ir family a n n a ls F u rth e rm o re ,

altho ug h th e re w as no h a r s h anti-

Confucianism m ovem ent like t h a t in C h in a

after the Chinese revolution, C onfucianism

in V ietn am w as no longer a leading

doctrine in organizing society It more or

less lost its hold on th e n a tion People only

used some old m a n n e r of speech of

Confucianism to p ro p a g a n d ize new

political th o u g h ts borrowed from th e West

N ot u n til re c en t tim e h a s C onfucianism

been stud ied again, w hich can be seen as

th e in stinctive r e tu r n in g to th e roots

while O rien tal c u ltu re ha s aroused

in te re st am o ng W e s te rn scholars W h a t a

sh am e to us! T h a t C onfucianism re sea rc h

foundations have been m u sh ro o m in g both

in E urope and A m erica ind icates th e

a m az in g a ttra c tiv e n e s s of O rie n ta l

philosophy of life in th e m o d e rn world

2 I n tr o s p e c tiv e n e s s an d T h eo ry o f

R e c tific a tio n o f N a m es a s

C o n fu cia n ism ’s M e a su r e s to A djust

P e o p le ’s B eh a v io rs

Like o th e r E a s te r n philosophies,

Confucianism believes t h a t th e p a th to

discover a n d conquer th e o utside world

originates from w h e re one s ta r ts to find

th e h a rm o n y b etw een individual a n d the universe introspectively

According to th e books of th e M ean, Way of N a tu re is w h a t is endow ed by God over which people’s b ehaviors a re ruled Because everyone h a s h is own c h arac te rs and inborn m akings, one is too much while the o th e r is not enough, he needs to be educated appropriately T e m p e ra te person

is th e one who know s how to control his emotions, e ith e r h a p p y or angry, every th in g is k e p t m oderately The medium is im p a rtia l behavior, a basis for the right The harmonious is uncontradictory behavior - a common link betw een people Therefore, C onfucianism is a Doctrine of the M e a n [2, pg 20]

C onfucianism ’s philosophy of life is mostly b a se d on five basic virtues including benevolence, righteousness,

civility, know ledge a n d loyalty, of which

benevolence is considered as th e key to Confucian ethics Like a n energy storing seed giving life to buds, leaves and twigs, benevolence decides h u m a n app ea ra n ce and charac te rs The concept of benevolence

in C onfucianism is considered a fulcrum to

pu sh a large p a r t of h u m a n society into a stable, peaceful a n d kindness-oriented world Benevolence carrie s in it a narrow

m eanin g b u t also enjoys a broad sense a t the sam e time It fits all k inds of people It may ta k e a whole C onfucian’s life ju s t to look for th e values of th e word

V N U Journal o f Sc ience, Econom ics-Law, N„IE, 2004

C o n fu cian is m an d the future o f the law in V ietnam 27

T h e m o st general m e an in g of

benevolence is love for all h u m a n beings

The C h inese c h a r a c te r ‘J e n ’ literally

re p re s e n ts th e re la tio n sh ip betw een "two

persons," or co-hum anity People with

benevolence a re th e ones who love th e ir

p a re n ts, siblings, spouse as well as th e ir

fellow c o u n try m e n , an d who have no ill

feelings for anyone Benevolence is best

expressed in th e Confucian golden rule,

"Do n ot do to o th e rs w h a t you do not w a n t

done to yourself' T hese people always

consider o th e rs as th e ir dear, th in k in g of

th e u n iv e rse as a unity, showing th e ir

n a t u r a l n ot re lu c ta n t love Thus, they

surely enjoy a peaceful s ta te of mind and

security In c o ntrast, people w itho ut

benevolence h av e none [14, pg 82-83]

Benevolence also m e an s tolerance to

others, a good u n d e r s ta n d in g to hav e the

rig h t a ttitu d e u n d e r all circum stances,

courage to a s s u m e responsibilities to be on

o n e ’s g u a rd w ith in civility rules In o ther

w ords, benevolence helps people control

t h e i r desires a n d re s is t all te m p ta tio n s

G e n tlem en alw ays ta k e benevolence

into account in all his activities like eating,

d re s sin g a n d speaking in h u rr ie s or

difficulties C onfucianism is th erefore

practiced exactly like a religion Such a

b e lief a n d discipline formed an cien t

C onfucians whom scholar N guyen Khac

V ien considered to be s tra n g e b u t

respectab le The root of W estern legal

c u ltu re is Catholicism w hile t h a t of th e

O r ie n t is Confucianism

Confucius of A u tu m n a n d Spring

A nnals th o u g h t highly of benevolence,

M encius of W arrin g th e S ta te gave prom inence to rig h teo u sn ess which is w hat should be done by an individual to the com m unity People w ith righteousness know how to live sincerely, to hold back his sexual desire to keep th in gs in order, to

re g re t m ak in g m istakes, which keep them

aw ay from evils They should n e ith e r be fond of rich ness nor a s h a m e d of poverty

As a h u m a n , th e two most valuable things are benevolence a n d rig h teo u sn ess w ithout which a powerful king is not worth respecting

In c o n tra st to M encius' supposition

t h a t h u m a n beings’ in n a te n a tu re should only be nourished, according to Hsyn-tzu

a person is born w ith an evil natu re, therefore a tte n tio n should be paid to civility People w ith civility know how to

s u p re ss th e ir sexual desire so t h a t all thou gh ts, words a n d behaviors a re in conformity w ith civility Civility m ans resp ect to th e noble, piety to th e old, faith

to th e superior, m odesty to the junior, tolerance to th e coward Civility also

m ean s c au tio u sn e ss in speaking and dressin g behaviors According to Hsyn-tzu,

a n a tio n w h e re rig h teo u sn ess an d civility

a re respected is in order, otherw ise it gets into chaos “L e a rn how to behave first and

th e n to re a d a n d w rite ” - th e slogan commonly found in schools nowadays originates from H sy n -tz u ’s respect for civility

Politically, H sy n -tz u ’s theory does not

p u t a s tre s s on legal punishm ent

V N U , Journal o f Science, E conom ics-Law, N ()IE, 2004

28 Pham Duy N ghia

However, because it m a in ta in s t h a t

h u m a n beings a re born w ith desires th a t,

if not being gu a rd e d a n d re stric ted , would

lead h u m a n s to conflict a n d strife, and

th a t in th is sense h u m a n n a t u r e is evil a n d

goodness is only acqu ired from train in g,

therefore, p u n is h m e n t is a m ajor concern

For H syn-tzu, everybody values

righ teousness a n d benefits yet he should

use his knowledge to ta k e th in g s into

consideration Of h is two disciples, H an

Fei and Li Ssu, H a n Fei w as more

ex tra o rd in a rily ta le n te d a n d heavily

influenced by H sy n -tz u ’s respect for

civility As a result, he extrem ized th e

th o u g h t into legal fram e w o rk a n d used

“fame fo rm ation” th e o ry as a tool to govern

the country

In short, C onfucianism is a foundation

of self-adjustm ent, self-correction a n d

s h a m e pre serv a tio n a n d it is a tra d itio n a l

th o u g h t to govern a nation C onfucianism

considers m orality as a ba sis of politics [7,

pg 53] A lthough Confucianism does not

deny th e role of law in k e ep in g th e society

in order, it h e a d s to th e root of se u rity

r a th e r t h a n th e p u n is h m e n t used for those

who commit crimes A good point of civility

is t h a t it p re v e n ts th e evil even w hen th e re

is no sign of it in o rd e r to b ring people

close to th e good, s ta y a w ay from the evil

w ithout th e ir consciousness T h us, civility

has an educatio nal role, p re v en ting

insecure seeds while law is a n imposing

a n d d o m inating tool of th e ruler Confucius

once said “If th e s ta te affairs a re u sed to

o rie n ta te people, p u n is h m e n ts a re used to

im p lem ent th e equality, people surely try

to avoid p u n is h m e n ts w itho ut being ash a m e d However, it is not th e case if they a re orie n te d by m o ra lity ”(Analects,

c h a p te r II)

A p a rt from in tro sp e ctiv en e ss, th eory of policy is also a tool of Confucianism to

ed ucate people T h is th e o ry was discreetly

im plicated in th e A u tu m n and Spring

A nnals p ra y e rs a n d n o te -ta k in g s in the

A nalects of Confucius According to the

A nalects of Confucius, C onfucius said th a t irratified n a m e s le ad to inconsistent words, incom plete w ork, merciless chorus and wrong p u n is h m e n t which, in tu r n

re su lted in people’s confusion So, for a virtu ous m a n w ith ra tifie d nam e, words and deeds acco m p anied e ac h o t h e i

A n o th e r C onfucian th o u g h t is

m a in ta in in g an o rd e rly society of ra n k s

a nd classes C onfucius said: "There was Tao (a way or ro a d of rig h teou sness) only

w hen fa th e rs w ere fa th e rs , w hen sons were sons, w hen R u le rs w ere R ulers and

w hen m in iste rs w e re m inisters." Every society is Dased on fam ily of which a virtu ous m a n is th e r u l e r literally This one should be e d u c a te d carefully Knowledge a n d civility should be considered as two m ottoes Civility is

m orality, know ledge is u n d e r s ta n d in g [1 2, pg22o] M a n a g in g o n e ’s household m eans keeping one’s fam ily in harm ony All family m e m b e rs arv emotional an d faithful, th e in fe rio r su b m its to the superior, th e s u p e rio rs ta k e care of the inferior So, t iat for h e r s should be fa th e rs

m e an s p a re n ts w h e n alive should have sense of purpose a n d w h e n dead should be

V NU, Journal o f Science, EconomicS-Law, N„IE 2004

C o n fu cia n is m and the future o f the law in Vietnam 29

a good exam ple for c h ildren to follow

F a t h e r ’s p ro p riety is clemency, ch ild re n ’s

p ro p riety is piety From th e n , people’s

b eh aviors a re ru le d over by w h a t people

call “ra tified n a m e s ”

Regretfully, a fte r h a v in g become an

official doctrine of H a n dynasty,

C onfucianism w as con tin u a lly d isto rte d to

a s s e r t the r u l e r s ’ a u tho rity H an

C onfucianism s ee m e d to forget the

in te ra ctio n b e tw e e n th e su p erio r and the

inferior It only focused on th e du ties of

being obedien t of th e inferior The concept

of th r e e moral bonds m ay be s h a p e d by

T u n g C h u n g -s h u a t t h a t t i m e [ l l , p g l8ó]

T h e notion of loyalty, piety, a w o m a n s

th r e e obediences a n d four v irtu e s were

s o m etim es a b n o rm a lly understood For

exam ple, a fem ale, before m a rria g e , was

considered as to obey all h e r p a r e n ts ’

o rd ers, for e x am p le m a rry th e one th a t

h e r p a re n ts h a d selected for h e r w ith ou t

freedom in love a n d m a rria g e A fter being

m a rrie d , she sho uld obey all h e r h u s b a n d ’s

o rd e rs and w h e n h e r spouse is dead, she

m u s t obey h e r son Since H an dyn asty

opened an e x a m in a tio n session in 14 BC,

le a r n e r s only focused on le arn in g by h e a r t

for e x am in ation s T hey more or less lost

th e original c re a tiv e n e s s in learning

C onseq uen tly, C onfucianism g rad ually

b e ca m e co nservative, com p lacent a n d anti-

lnno vative in bo th political a n d economic

te rm s In p a ra lle l w ith golden rules

k e e p in g th e society in order, some r u ’es of

C onfucianism w ere like h in d ra n c es

k e e p in g the c o u n try beh in d th e re s t of the

w orld The key p o in t here is t h a t we

should realize such non-motives and limit

th e ir n egative im pacts Only th e n can Confucianism be useful to our p re s e n t day life

3 In n er C o n fu cia n ism and O uter

L e g isla tio n as a U n iq u e O rien tal

L egal C ulture

C hinese H istory says in 536 BC Ching

d y n a sty ’s King intro duced the Book of law

In 513 liC, u n d e r T an d y n a sty ’s King order, a huge cauldro n on which the legislation w as carved was used for crim inals As tim e w e n t by, a school in

favor of ru le by law emerged Rules by

morality a n d law w ere two most popular schools in th e A u tu m n a n d S p ring A nnals and W arrin g The s ta t e s period Debates betw eens scholars of those two schools con tributed to th e sh a p in g of legal forms of

th e E a s te r n co u n trie s u n d e r th e influence

of C hinese culture C hi’in d ynasty followed th e school of th o u g h t in favor of rule by law From 350 BC, land priv atization w as im plem ented , the monopoly by th e a ris to c r a t w as abolished All people both w orked a n d fought, which

re su lted in th e p rosperity a n d power of Chi’in d y sn asty 120 y e ars la te r (227 BCE),

w hen th e first e m p e ro r of Chi-in dynasty unified th e whole country

On re a d in g th e w orks of H an Fei (280-

233 BC)- th e m ost typical re p re se n ta tiv e of the rule-by-law school which w ere w ritten

in prison w ith m e n ta l sufferings, more

th a n two th o u s a n d s y e ars later, one is

a m azed a t th e sh a rp -w itte d th o u g h t of which the in ta c t v alues a re re m a in ed at present time H an Fei’s views are as follows:

VNU, Journal o f Science, Economic S - L u w , N J E , 2004

Pham D uy N ghia

4 Law m u st be t r a n s p a r e n t Only

t r a n s p a r e n t law can b rin g p ro sp erou s and

p e a c e f u l tim e s [ 4 , p g 7 3 ]

« L aw m u s t be strictly followed Law

w h a t is used for th e public, p u n is h m e n t

is u s e d to direct o n e ’s behav io rs, so t h a t

people follow ru les w ith o u t u n c e rta in ty

Those w ho obey such ru le s a re re w ard ed

white th o s e who do not a re p u n ished

ệ People of a n y position a n d ra n k a re

tre a ted equally before law Law does not

side w ith th e rich Once law is

im plem ented, the to le ra n t d a re not

tjle ra te , th e b ra v e d a re not com pete w ith

l;lW P u n is h m e n t a n d re w a r d s a r e not only

far any given subjects E ven a n a ris to c ra t

can be p u n is h e d a n d a boor can be

r e w a r d e d [3 , p g 4 3 ].

ệ U n lik e “ratified n a m e ” theo ry of

Confucianism w hich w as u s e d to a ss u re

the relationship be tw ee n classes, H a n F ei’s

‘n a n e fo rm atio n ” th e o ry accidentally or

purposefully aim ed a t e lim in a tin g social

clashes A chiev em ents sho uld be accessed

according to work types If ach ie v e m en ts

fit cbeds a n d deeds fit words, th e r e should

|ie i.wards O therw ise, th e r e should be

p u n sh m en ts

Although H a n F ei’s books w ere highly

appieciated in C hi’in D ynasty , a fte r th e

eclipse of th is dy nasty, school favor of rule

•>y law was ov ershad ow ed by

> n u c i a n i s m ’s school favor of ru le by

norility H a n E m p e ro r Wu h a d to use

egiilation to deal w ith dom estic affairs

ind use C onfucianism for diplom atic ones

n O'der to keep society in order From t h a t

tim e on, a tre n d to combine both Confucianism a n d legislation to rule th e

co untry cam e into existence Also from

th e n on C onfucianism h a s been deeply

im bued in O rie n ta l legislation Confucianism does not deny a n d criticize

b u t m ak es light of h a r s h p u n ish m e n ts

T he society should be by morality organized a n d should be based on rule Self-education w ith th e five basic vertues- benevolence, rig hteo usn ess, civility, knowledge a n d loyalty should be used as a principle to correct oneself, to m anage one’s household, to ru le th e country a n d pacify th e world M oral ru le s of Confucianism which have been adjusted for c e n tu rie s now replace a m ajor p a rt of the functions of law

4 S ix P r o p o sa ls to B rin g W ritten Law

C loser to P e o p le ’s I n te r e s ts

The p rim a ry objective of legislation is

to serve people’s benefits, not th e constitution In t h a t spirit, th e following six proposals should be ta k e n into consideration

F i r s t l y , law is closer to people and is

more effective w h en people willingly follow rules B u t it is the case w hen law is close

to th e ir needs, th e ir d e m an d as well as

th e ir w an ts On th e c o ntrary, w hen law is

a g a in s t n a tu re , a g a in s t people’s wish, it will be boycotted no m a tte r how h a rs h , forceful a n d th r e a te n in g p u n is h m e n ts a re used T h e n th e illegal is common, the legal

is exceptional Therefore, m aking law stric te r a n d more effective m ean s b e tte r

p re s e n tin g people’s views and in terests

V'NU, Journal o f Science, Economics-Law, N„IE, 2004

C onfucianism and the future o f the law in Vietnam

The insufficiency, ov erlapping and

contradiction of legal do cu m ents or the

lack of legal staff a re j u s t only te m p o ra ry

and superficial re a so n s for the

ineffectiveness The key is to b ring the soul

of law n e a r e r to people’s consciousness and

interests It is necessary to rally 80 million

V ietn am ese people in organ izatio ns

re p re s e n tin g th e ir various in te re sts There

should be unions, associations, religions

and p a rtie s to promote people’s will — a

su p re m e will which c o nqu ers all forces of

the state

S e c o n d ly , law a n d law m e asu re s

should be redefined if people a re viewed as

root, th e s ta te is viewed as tool not the

o th e r way round Law is not ju s t a set of

rules set by the s ta te b u t a reflection of

people’s desires which a re converted into

laws The bodies who speak those desires

and p re s e n t a lot of u n io n s should not be

ju s t legislative b u t also juridical

organizations In m odern time, rigid laws

have been g ra d u a lly replaced by soft laws

set up by lots of in stitu tio n s Once realized

by public bodies of pow er such k in d s of

rules a n d re g u la tio n s become law Thus,

e sta b lish in g and im p le m e n tin g law is no

longer th e sole b u sin ess of the state, it

should be th e common b u sin ess of all

people in th e country The s t a t e ’s function

is to e n s u re proper law e s ta b lis h m e n t an d

im p le m e n ta tio n

T h i r d l y , a variety of people’s in te re sts

in co m m u n ity principles of life, family and

v illages’ r u le s as well as official legal

do cu m ents of the locality should be well

p re s e n te d by social in s titu tio n s and

organ izatio ns such as p a rty o rgan isatio ns and tra d e union As th e ruling part}, the

V ietnam ese C o m m u n ist P a rty plays; < role in esta b lish in g a n d im plem enting law procedures T h a t people a re rich 0)r poor

a nd the c o u ntry is powerful or n.)t IS

m ainly a ttr ib u te d to th e P a r t y ’s p-oicies The P a rty ’s political d o c u m e n ts ^ rcj resolutions a re based on to form legislation, a n d o th e r socio-ecoiomic policies respectively At th e sam e tiln* t i e gov ernm en t and o th e r s ta te bodies issue official legal directives to realize hone guidelines In o th e r words, V ie tn an e se law is mostly based on P a r ty ’s idetlogy However, due to some technical consents

in legislation, th e tra n s m is sio n from deas into w ritte n legal d ocum en ts i; H0

im perfect t h a t th e m isunderstaidir.g betw een political o rie n ta tio n a n d legal norm s still exists

F o u r t h l y , w h e n b u s in e s s m e n a?e given more freedom to tra d e , th e y iurey will become a powerful force in the Sicieiy who tries to gain control over ecoromi: cultural, a n d social life and of O une control politics a n d legislation soon Tais g inevitable because b u s in e s s m e n art aho citizens, even some of th e m a re in th' leed

of c re a tin g n a tio n ’s prosperity Though tra d e -u n io n a n d interest- oriinUd org a n iz atio n s’ activities, businessmen hy

p re s su re on g o v e rn m e n t a n d legislatures publicly or discreetly, th e y even t*y 0 control law A typical exam ple of tiis s

t h a t C h inese local cou rts h a d to uffcr from a g re a t p re s s u re cau sed by re.'ionil

ru le rs as th e ir feud In adiitioi,

V N U , Jo urnal o f Science, Econom ic N J E , 2004

32 Pham Duy Nghi a

b u s i n e s s m e n pre g e ttin g b e tte r

u n d e r s t a n d i n g of s e ttin g ru le s as th e ir

own r i g h t a n d use it as a tool to respo nd to

m arktet changes a n d law a d ju stm e n ts This

p h e n o m e n o n is not a d e q u a te ly m entioned

in V ie tn a m e s e law studies

N o t only law b u t also economic

tr a n s a c tio n s in th e m a r k e t a re affected by

the r i g h t to set ru le s a n d re g u la tio n s of

b u s in e s s m e n The s ta te is not alw ays a

comrruander b u t som etim es a c o u n te rp a rt

of b u s in e s s m e n T h e re h a s no longer bee -

su b m issiv e n e ss b u t com petitiveness

be tw e e n legal n o rm s a n d b u s in e s s m e n ’s

in d e p e n d e n t norms This factor is w orth

considering w h en law reform is

im plem ented A lthough th e s ta te is not

s u p p o s e d to help b u s in e s s m e n to realize,

access a n d allocate b u s in e s s risks, it

should ha v e effective in te rv e n tio n to

protect th e public’s in te re s ts a g ain st

abuses of u n e q u a l info rm ation and

competitive a d v an tages

F i f t h l y , not only elected bodies but

also ju d ic ia ry o rg a n iz atio n s a t all level,

eicher n ational or local ones have big

power to set up rules Sometimes,

governm ental or m in is te ria l le tte rs or

circulars or decisions by People’s

Committee of all level a re of high

practicality and ha v e b e tte r effects on

every individual r a t h e r t h a n any Acts

which m ainly con tain g e n eral principles

T.iis is an inevitable a n d u n c h ang eab le

fact The th in g is we should supervise the

rights to set up ru le s to prevent

corruption This gives rise to estab lishing

the in stitu tio n s to p rotect th e law which is

supposed to abolish su ch constitutio n violating rules T here is a need to s e t up

a d m in is tra tiv e bodies to t r e a t violations of

in s titu tio n s of power T h e re is n o th in g new

in th is because more t h a n two h u n d re d years ago, the W est realized th a t

go vern m ent w as not God M uch longer before th e E a s t th e y know such

in s titu tio n s to lim it a n d b alan ce power should be set up Regretfully, two

c en tu ries later, V ie tn am ese is still at pains

to find th e '.vay to set up a n d use such

in s titu tio n s effectively

S i x t h l y , it is high tim e th e rig ht to

create rules of the ju dg e was discussed The legal system in V ie tn am h a s followed

th e legal th o u g h t of th e F o rm e r Soviet Union, liy now, the N a tio n al Assembly has the rig h t to c o n stitu te law s a n d the rig ht

to explain laws, in theory, is held by The

S ta n d in g C om m ittee of National Assembly, yet in reality, it is in th e h and

of th- g o v ern m en t a n d a d m in istra tiv e institutio ns V ie tn am ese courts only have the rig h t to <>pply a n d im p le m e n t rules,

b u t not to c reate or explain them The practice to view legal procedures came into being w hen th e c o untry w as u n d e r French rule, according to which Inferior C ourt should consider th e Inferior C o urt’s decisions as one k ind of law Scholars also base th em selves on legal procedures to build up theoretical studies These practices w ere abolished in V ietnam in the late 1950s V ie tn am ese courts now only base th em selv es on legal docum ents, they

do not correlate th e ju d g m e n t of previous cases

V N U Journal o f Sc ienc e, Econom ics-Im w, N„IE, 2004

C o n fu cian is m and the future o f the law in V ietnam 33

N e v erth ele ss, th e S u p re m e C ou rt’s

guidelines which have been su m m e d up

from experience are more, or less w orth

referrin g to in judg in g procedures In th a t

sense, to a c e rta in extent, it h a s some

impacts If the C ourts which judge

in d e p e n d e n tly are realized, t h a t judges

should be given more power to set up

rules, apply, co m m ent as well as explain

laws to a d ju s t some p a rtic u la r cases

should be considered It is reaso nab le if

the function to explain law is g ra n te d to

the C ourt, b e c a u s e only jurisdictio nal

in s titu tio n s can ju dg e w h a t deeds a re legal

or illegal Besides, outside th e Court, the

ju dg e should consider justice and

th eoretical s tu d ie s as a s u b sid ia ry source

of his job W hen th e re a re no ru le s and

re g u la tio n s concerned, he should ju dg e a

case b a sin g on justice a n d th e right, not

respectfully s u b m it th e record to his senior

a n d w a it for th e ju dg m en t T h is kind of

th o u g h t stem m ed from th e concept th a t

law does no t only contain w ritten

docum ents, th e re do exist law of th e rig h t

an d law of conscience T he jud ge w ith his

ju d g m e n t is not like th e official a n d his

a d m in is tra tiv e decision He should bring

law of conscience an d th e rig h t close to life

c re a tin g law (Latin root: juris-law ; dicta-

announce)

5 C o n c lu sio n

P eople’s a w a re n e s s of civic rig h ts h as

led to jurisd iction al reform s, which can

b rin g c h an ges to old schools of th e s ta te

a n d legislation A s ta te of people, by people

a n d for people is on th e w ay to replace the

s ta t e of p ro le ta ria t dictatorship .Judging for objective t r u t h procedures h a s been replaced by equal in s titu te proceedings

b e tw ee n the prosecutor an d th e law yer

A m ong innovational th o u g h ts w hich have

b een sw ept aw ay by globalization storm

th e r e a p p e a rs fa m ilia r Confucianism Confucianism which h a s secured a firm hold on V ie tn am ese ’s consciousness certain ly will lead us to peace and delib eratio n to well organize a civil service

sy ste m a n d legislation to serve its people

b etter W este rn e rs h a v e ta k e n a lot of

m e a s u re s to m ake a u th o ritie s subm it to people’s will Such m e a s u re s should be soon le arn ed like th e way we should soon

le a r n how to m a s te r all IT in stru m e n ts

N evertheless, no m ạ tte r how good such

m e a s u re s are, n o th in g can replace the living th o u g h t a n d ideology We can not use w h a t th e W es te rn e rs respect, hate or

d re a d to replace n a tio nal consciousness

L e a rn in g tKe superficial will ju s t increase people’s xenophilia, widen th e gap betweer

ge n eratio ns, the sense of nationalism wil fall into decadence, th u s weaken the country The s ta te a n d legislation of tae

V ie tn am ese should be establishec a.ic exp lain ed on th e basis of Vietnamese ideology -That W este rn civilization Ù borrowed is to complement CUĨ shortcom ings, to encourage Vietnamese people to prom ote th e ir m tio ta

qu intessence V ie tn am ese civil ierv.ee

sy stem an d legislation can not s ta r t with c

borrow ed W este rn school of th o u g it tu: proceed w h a t we h av e h a d for thousands o' years

V N U , Jou rn a l o f Science, Econom ic S -L a w , N ()IE, 2004