The Law of China and Vietnam in Comparative Law
FORDHAM INTERNATIONAL LAW JOURNAL [Vol.
Bui Ngoc Son
Copyright c by the authors. Fordham International Law Journal is produced by The Berkeley
Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
The law of China and Vietnam has been often ignored or
marginalized in mainstream scholarship of comparative law. This is
due to three orientalist assumptions, namely: nihilism (lawlessness);
instrumentalism (law as a tool for political control without rule of law
qualities); and assimilationism (no distinctive legal systems). These
assumptions fail to capture the complexity of law in China and Vietnam
and fail to place it in a better positon in comparative law. This Article
argues that the exploration of the law of China and Vietnam can
substantively enrich comparative law scholarship, for the following
reasons: first, there are multiple layers of law throughout their legal
history, namely chthonic law, Confucian law, civil law, socialist law,
and global law; second, the two states have accommodated some forms
of the rule of law as a strategic response to the need to consolidate the
legitimacy of the socialist regimes; and third, there are distinctive legal
systems in these countries, namely the Confucian legal system and the
socialist legal system, which are separate from other traditional legal
systems (Islamic law, Hindu law, and Buddhist law) and other modern
legal systems (civil law and common law). This Article concludes that
the study of law in China and Vietnam can make important
contributions to: traditional comparative law (functionalism and
taxonomy of legal systems); post-modern comparative law (law and
ideology, law and politics, law and culture, law and society, and legal
pluralism); and global comparative law (legal transplants, global legal
diffusion, and law and development).
* Senior Research Fellow, Centre for Asian Legal Studies, National University of
Singapore Faculty of Law; PhD (The University of Hong Kong). I greatly appreciate the support
of the Centre for Asian Legal Studies. I am also thankful to the editors of the Fordham
International Law Journal for their excellent editing work.
This Article aims to locate the law of China and Vietnam within
the general context of comparative law.1 A background introduction is
necessary. China and Vietnam are two Asian countries whose
populations (about 1.4 billion and 95 million respectively) make up
1. Its primary concern is not to compare law in China and Vietnam, although some
comparisons are occasionally made. For substantive comparison, see LEGAL REFORMS IN CHINA
AND VIETNAM: A COMPARISON OF ASIAN COMMUNIST REGIMES (John Gillespie & Albert H.Y.
Chen eds., 2010); ASIAN SOCIALISM AND LEGAL CHANGE: THE DYNAMICS OF VIETNAMESE
AND CHINESE REFORM (John Gillespie and Pip Nicholson, eds. 2005).
approximately twenty percent of the world population.2 During their
millennia history, both countries were influenced by Confucianism, one
of the world’s major traditions of philosophy.3 The two countries are
among the five socialist/communist countries4 that survived the
collapse of the Soviet Union.5 After the Cold War, both countries have
implemented the so-called “socialist market economy”, leading to
China’s being second largest economy and Vietnam’s being the
47thlargest economy in the world measured by nominal gross domestic
product.6 Both China and Vietnam have actively integrated in the
global economy, including the joining of the World Trade
Organization.7 Accompanying economic reform is legal reform. The
two socialist countries have implemented the so-called “socialist rule
of law state,”8 leading to the development of sophisticated legal
systems, despite the international condemnations of violation of human
rights and the lacking of the rule of law.9
Unfortunately, law in China and Vietnam has been ignored or
marginalized in mainstream scholarship of comparative law,10 although
it has been extensively studied by county-experts and scholars of
comparative Asian legal studies.11 Comparative law literature has
focused mainly on modern legal systems of western developed
countries in North America and Europe.12 When it comes to Asia,
comparative law scholars are more concerned with the countries which
have similar institutional settings and level of development, such as
Japan.13 The neglect or marginalization of Chinese and Vietnamese law
in comparative law stems from, among other things, what is called
“legal orientalism”14 or the western conceptualization of law in the
Oriental societies like China and Vietnam. Legal orientalism has
generated at least three assumptions about law in China and Vietnam,
which can be called: nihilism, instrumentalism, and assimilationism.
The nihilist view is that such oriental societies like China (and by
extent Vietnam) were dominated by “oriental despotism”15 in which
law did not exist as the consequence of “the rule of man”.16 Even in
modern time, it has been also argued that the domination of the
communist regimes in these countries has resulted in the neglect of law,
such the time of lawlessness during Mao era in China.17 If the subject
matter does not exist, there would be no study. Second, some may agree
that there are laws in modern China and Vietnam but hold the
instrumentalist view that the socialist states have promulgated law as a
tool for political control, exemplified what is called the rule by law
rather than the rule of law.18 When law in China and Vietnam is
considered lacking the rule of law qualities, it will be marginalized or
ignored in comparative law literature. Finally, assimilationists cannot
see distinctive legal systems in China and Vietnam separate from the
two dominant legal systems, namely civil law and common law. 19
Therefore, they have ignored or marginalized their law and focused on
the dominant civil law and common law.
The three above assumptions fail to capture the complexity of law
in China and Vietnam and fail to place it in a better positon in
comparative law. This Article argues that the exploration of the law of
China and Vietnam can substantively enrich comparative law
scholarship, for the following reasons: first, there are multiple layers of
law throughout their legal history, namely chthonic law, Confucian
law, civil law, socialist law, and global law; second, the two states have
accommodated some forms of the rule of law as a strategic response to
the need to consolidate the legitimacy of the socialist regimes; and
third, there are distinctive legal systems in these countries, namely the
Confucian legal system and the socialist legal system, which are
separate from other traditional legal systems (Islamic law, Hindu law,
and Buddhist law) and other modern legal systems (civil law and
common law). This Article concludes that the study of law in China
and Vietnam can make important contributions to: traditional
comparative law (functionalism and taxonomy of legal systems);
postmodern comparative law (law and ideology, law and politics, law and
culture, law and society, and legal pluralism); and global comparative
17. Mo Zhang, The Socialist Legal System with Chinese Characteristics: China’s
Discourse for the Rule of Law and a Bitter Experience, 24 TEMP. INT’L & COMP.1, 12 (2010)
(“many regarded Mao’s era as the era of “lawlessness.’”).
18. Eric Orts, The Rule of Law in China, 34 VAND. J. TRANSNAT’L. L. 43, 106 (2001)
(“The Chinese government seems to move strongly toward adopting the rule by law in the
instrumental, positive sense…”).
19. See e.g., the conflation of socialist law and civil law, John Quigley, Socialist Law and
the Civil Law Tradition, 37 AM. J. COMP. L. 781, 808 (1989) (“Socialist law contains features
that distinguish it from the legal systems of other countries of the civil law family. But those
points of difference have not removed socialist law from the civil law tradition”).
law (legal transplants, global legal diffusion, and law and
This argument is pursued in four parts. Part I explores the multiple
layers of law in China and Vietnam. Part II will examine the partial
achievement of the rule of law in the two countries. Part III considers
the two distinctive legal systems. Part IV concludes with further
reflections on the possible contributions of exploration of law in China
and Vietnam to comparative law.
II. NIHILISM? MULTIPLE LAYERS OF LAW.
Different laws have existed throughout Chinese and Vietnamese
legal history, including: chthonic law, Confucian law, civil law,
socialist law, and global law. Currently although China and Vietnam
are socialist countries, their law does not exclusively include socialist
law as elements of other laws have still informed the complex situation
of legality. I propose the concept of “multiplayers of law” to understand
this complexity. This concept refers to the co-existence of different
legal ideas, rules, process, institutions, and cultures in one society.
Within this multiple legal framework, one legal system may be
dominant, but elements of other legal layers still exist in their complex
A. Chthonic Law
Patrick Glenn usefully coins the term “chthonic law” to refer to
the law of indigenous people.20 This oldest forms of law exist in both
China and Vietnam. In China’s Shang dynasty (c. 1600 BC–c.
1046 BC), chthonic law embodies in the customary laws of the zu, “a
consanguineous group of people descended from a common
ancestor.”21 In his book Origins of Chinese Law, Yongping Liu argues
that “there were no unified customary law in Shang times, but there are
many sets of customary laws practiced by the different zu.”22 The
subsequent dynasty, the Zhou dynasty, codified a series of li (rituals)
in an attempt to “maintain the unity of the members of the Zhou Zu”,
but still “allowed the people of other zu to use their customary laws.”23
20. GLENN, supra note 10, at 60.
21. YONGPING LIU, ORIGINS OF CHINESE LAW 21 (1998).
22. Id. at 22.
That means the Zhou’s law includes both the codified li and the
Prior to the coming of the Chinese conquers in 111 BC, the
Vietnamese people lived according to their indigenous law. Ma Yuan,
a Chinese official, reported to the Han Emperor that “the law of the
Viet people” was different from the law of the Han dynasty in ten
points.24 There is no evidence indicating the existing of written law
prior to the Chinese domination. What Ma Yuan called “the law of the
Viet people” is indigenous law orally transmitted and memorized
throughout different generations of the Vietnamese people. One
example from the marriage law is the customary rule that when the
older brother dies, the younger brother will marry his sister-in-law,
which is stemmed from the matrilineal system of the indigenous
people.25 Chthonic law continues to exist throughout Vietnamese legal
evolution with different nuances and contents. During the Chinese
dependency period (111 BC- AD 905), the Chinese conquers continued
to allow the local people to live according to their indigenous law at the
village level. Successive independent dynasties in Vietnam also
allowed the existence of chthonic law at communal level. Notably,
during the independent period, chthonic law was written down. The
hương ước (village law) drafted around the 15th century is a written
mixture of Confucian moral norms and indigenous customs of the
villages.26 Under French colonialism (1887-1945), hương ước
continued to exist as the mixture of indigenous customs and colonial
policies for villages. The Communist government abolished the hương
ước but has allowed their revivals since 1998. Contemporary hương
ước are a mixture of indigenous customs and socialist policies for
communal communities.27 While the Kinh people, the Vietnamese
majority residing in North Vietnam have their hương ước, minority
groups in Western Highlands and Northwest of Vietnam have their own
indigenous law with different names, such as Hịt khỏng (Thái), Phat
kđi (Êđê), Phat Ktuôi (M’nông), N’ri (Mạ).28
The Civil Code in Vietnam recognizes the applications of
customary law defined as “rules of conduct obvious to define rights and
obligations of persons in specific civil relations, forming and repeating
in a long time, recognized and applying generally in a region, race, or
a community or a field of civil.”29 That means indigenous law is a layer
in the Vietnamese multi-player legal system.
B. Confucian Law
I use the term “Confucian law” to refer to a distinctive legal
system that is drawn on fundamental ideas, concepts, and principles of
Confucianism. Confucianism is a Chinese school of thought created by
Confucius (551-479 BC) and developed by Mencius (372 – 289 BC)
and Xunzi (312–230 BC) during the late Spring and Autumn Period
(770-476 BC) and Warring States Period (475-221 BC) in the history
of China.30 Major Confucian work includes: The Four Books (The
Analects of Confucius, The Mencius, The Great Learning, and The
Doctrine of the Mean); Five Classics (the I Ching or Book of Changes,
the Shu Ching or Book of History, the Shih Ching or Book of Poetry),
the Yi Li or Book of Rites, and the Chunqiu or Spring and Autumn
Annals); and Xunzi’s writings.31 Confucianism is a tradition and a
philosophy about a good way of life, including a good way of
governing. Particularly, in response to the historical context of political
chaos, classical Confucians’ central concern is a good political order
which in their belief depends on personal cultivation of virtual values.
Confucian philosophy therefore develops different moral, political, and
legal ideas, concepts, and principles.
28. See generally, NGÔ ĐỨC THỊNH, LUẬT TỤC TRONG ĐỜI SỐNG CÁC TỘC NGƯỜI Ở
VIỆT NAM [CUSTOMARY LAW IN THE LIVES OF ETHNIC GROUPS IN VIETNAM] (2010). See also,
David Lempert, Ethnic Communities and Legal Pluralism: The Politics of Legal Argument in
Market-Oriented Communist Vietnam, 25 LEGAL STUD. F. 539 (2001).
29. Civil Code, No. 91/2015/QH13, art. 5 (Nov. 24, 2015) (Viet.).
30. See generally, XINZHONG YAO, AN INTRODUCTION TO CONFUCIANISM (2000).
31. THE FOUR BOOKS: CONFUCIAN ANALECTS, THE GREAT LEARNING, THE DOCTRINE
OF THE MEAN, AND THE WORKS OF MENCIUS (James Legge, trans., 1945); MICHAEL NYLAN,
THE FIVE “CONFUCIAN” CLASSICS (2001); JOHN KNOBLOCK, TRANS. XUNZI: A TRANSLATION
AND STUDY OF THE COMPLETE WORKS (1988, 1990, 1994).
In Confucianism, ren (variously translated into English as “love”,
“perfect virtue”, benevolence”, or “humaneness32) is the central
concept foundational to the rest moral, political, and legal discourses.
The term is not clearly defined in Confucian work, which leads to
different scholarly explanations.33 I define ren as the love of others or
the concern for others, the distinctive characteristic of the socialized
human, distinguishing human being from other beings.34 On the ground
of the central concept of ren, Confucianism develops different moral
norms regarding the concerns for others in different social
relationships, such as xiao (filial piety), ti (fraternal submission), and
Ren is also the foundation for the governmental and legal
concepts: zheng ming (rectification of names) or the consistence
between the governmental tittles and the expected virtues and
functions; minben (people as basis) or the government working for the
public good; and li which comprehensively includes “rituals,
institutions, social and moral norms, which regulate all dimensions of
the peoples’ lives, ranging from personal behavior, familial
relationships, to socio-political functions and structures.”35
Particularly, li is an important concept in Confucian legal theory.36 Ren
is the moral foundation of li. Therefore, “in order to comply with Li, it
was essential to possess morals such as filial submission, brotherliness,
righteousness, good faith, and loyalty, basic norms of of virtue.”37
From the Han dynasty (221 B.C.) to the fall of the Qing dynasty
(1911), the legal system in China was predominantly influenced by
Confucianism, and hence it can be called Confucian law, although it
was also influenced by Legalism, another Chinese school of thought
which underlines the use of law (particularly criminal law) as the
instrument of state control.38 The Confucian influence leads to the
characterization of “Confucianization of law” or “the incorporation of
32. In this study, I refer to use the English term “humaneness”, which better captures the
meaning of ren.
33. See FUNG YU-LAN, A HISTORY OF CHINESE PHILOSOPHY VOL. 1 70 (Derk Bodde
trans. 1952); TU WEI-MING, THE CREATIVE TENSION BETWEEN JEN AND LI, 18 PHILOSOPHY E.
W. 34 (1968).
34. BUI NGOC SON, CONFUCIAN CONSTITUTIONALISM IN EAST ASIA 35 (2016).
35. Id. at 52.
36. DERK BODDE & CLARENCE MORRIS, LAW IN IMPERIAL CHINA 51 (1973).
37. Zhang, supra note 17, at 12.
38. For legalism, see Eirik Lang Harris, Legalism: Introducing a Concept and Analyzing
Aspects of Han Fei’s Political Philosophy, 9 PHILOSOPHY COMPASS 155 (2014).
the spirit and sometimes of the actual provisions of the Confucian li
into the legal codes.”39 One of the most important legal codes in
imperial China is the Tang Code, which “laid a foundation of the
traditional Chinese legal system.”40 According to Mo Zhang, “many in
China regarded the whole Tang Code as an outward legal expression
of the Li not only because it was deeply rooted in the Li, but also
because it legalized the Li as the basic social norms of conduct.”41
Particularly, “the ten abominations”, the most serious offenses,
stipulated in the Code, “express what we have termed fundamental
Confucian morality.”42 For example, one of them is the lacking of filial
piety, which aims to protect the Confucian moral norm of xiao (filial
piety). Confucianism influenced on not only formal criminal codes but
also the practice of criminal law and criminal procedure. Norman P. Ho
demonstrates that officials of the Tang dynasty drew on not only the
Tang Code but also fundamental moral principles in Confucian
classical texts to decide cases.43 In addition to criminal law and
procedure, “constitutional law” and administrative law in imperial
China were also influenced by Confucianism.44 The creation of several
imperial institutions (such as the royal examination system, jingyan or
imperial lectures, and yushitai or censorate) was inspired by Confucian
principles of good government operated by well-educated and virtual
The Confucian legal culture has still influenced in contemporary
China. Mo Zhang indicates that the Confucian position of a benevolent
government working for the people “maintain its influence in the
country. For example, it is a commonly held belief in China that a good
39. BODDE & MORRIS, supra note 36, at 29. Some refers to the “legalization of
Confucianism.” See Herbert H. P. Ma, The Legalization of Confucianism and its Impact on
Family Relationships, 65 WASH. U. L. Q. 667 (1987).
40. Zhang, supra note 17, at 10.
41. Id. at 13.
42. GEOFFREY MACCORMACK, THE SPIRIT OF TRADITIONAL CHINESE LAW 57 (1996).
43. Norman P. Ho, Understanding Traditional Chinese Law in Practice: The
Implementation of Criminal Law in the Tang Dynasty (618-907 AD), 32 UCLA PACIFIC BASIN
L. J., 145, 163 (2015); Norman P. Ho, Confucian Jurisprudence in Practice: Pre-Tang Dynasty
Panwen (Written Legal Judgments), 22 PACIFIC RIM L. & POL. J. 49 (2013); Norman P. Ho,
Confucian Jurisprudence, Dworkin, and Hard Cases, 10 WASH. U. JURIS. REV. (forthcoming
44. Wm. Theodore de Bary, The ‘Constitutional Tradition’ in China 9 (7) J. CHINESE L.
7-8 (1995); Pierre-Étienne Will, Virtual Constitutionalism in the Late Ming Dynasty in
BUILDING CONSTITUTIONALISM IN CHINA 261-274 (Stéphanie Balme & Michael W. Dowdle
45. See generally, FRANKLIN W. HOUN, CHINESE POLITICAL TRADITIONS (19
government is the source of a better life for the people, and the
traditional concept of a “parental officer,” whose job is to make
decisions for the people, remains intact in the minds of the public and
the government.”46 Another example is that the Confucian virtue of
filial piety becomes a legal duty in today’s China: the revised law called
“Protection of the Rights and Interests of Elderly People” requires adult
children to visit their aging parents regularly.47 The first case was heard
by the People’s Court of Beitang District, Wuxi City in east China’s
Jiangsu Province.48 “The court ruled in favor of the 77-year-old
plaintiff, surnamed Chu, who sued her daughter for neglecting her.”49
Citing the above law, the court ordered that Chu’s daughter and
sonin-law must visit Chu every two months and “at least three times during
major traditional holidays.”50
Confucian law was transplanted from China into Vietnam. During
the Chinese dependency period, the colonists introduced Confucianism
and Confucian law, but the local people largely lived under their
indigenous law, which was tolerated by the invaders. Early
independent dynasties, such as the Tran and the Ly dynasties, have
some policies to develop Confucianism and Confucian law, but it was
not until 15th century under the rule of the Le Dynasty that
Confucianism became official ideology of the imperial government and
Confucian law was well developed with the enactment of the Quốc
triều Hình luật (the Penal Code of the Royal Court), informally called
Luật Hồng Đức (Hồng Đức Code).51 Despite its name, the code covers
different areas from criminal law to civil law. The Tang Code of China
was the model of the Hồng Đức Code. Yet, the Le Code is the
consequence of both legal transplants and indigenization. The Le Code
was more influenced by the Tang Code on criminal matters, but on civil
law issues (such as contracts, torts, property, inheritance, and
matrimonial property), it was more reflective of Vietnamese
46. ZHANG, supra note 17, at 41.
47. Edward Wong, A Chinese Virtue Is Now the Law, N.Y. TIMES (July 2, 2013),
48. First Elderly Care Case Heard After Law Amendment, PEOPLE’S DAILY ONLINE (July
3, 2013), http://en.people.cn/90882/8308378.html [https://perma.cc/RM98-RZEE] (archived
Oct. 4, 2017).
51. See generally, NGUYEN NGOC HUY & TA VAN TAI, THE LE CODE: LAW IN
TRADITIONAL VIETNAM: A COMPARATIVE SINO-VIETNAMESE LEGAL STUDY WITH
HISTORICAL-JURIDICAL ANALYSIS AND ANNOTATIONS (1987).
indigenous customs and social reality.52 Different from the Le dynasty,
the Nguyen dynasty (1802-1945), the last dynasty in Vietnam, enacted
the Hoàng Việt Luật Lệ or the Gia Long Code in 1815, loyally
mirroring China’s Qing Code. This code was also enforced during the
French colonial period.53 In addition to legal codes, the imperial
government in Vietnam also created several institutions inspired by
Confucianism, such as royal examination system, jingyan or imperial
lectures, and yushitai or censorate.54
The legal system in imperial Vietnam is comprised of not only the
above comprehensive legal codes but also many other more specific
legal codes and imperial regulations, including:
Thiên Nam Dư Hạ Tập (1483) (Volume of the Leisure of
the Southern Heaven), a collection of imperial
regulations on different specific issues;
Hồng Đức Thiện Chính Thư (1541-1560?) (Hồng Đức’s
Book on Good Governance), a collection of imperial
regulations on civil law issues, mainly property and
Quốc Triều Chiếu Lệnh Thiện Chính (1705-1729) (The
Dynasty’s Promulgations and Orders on Good
Governance), a collection of imperial proclamations and
orders on different specific issues;
Quốc Triều Khám Tụng Điều Lệnh ((1705-1729) (The
Dynasty’s Promulgations on Litigation), a collection of
imperial promulgations on civil and criminal procedures;
Lê Triều Hội Điển (unknown date) (The Lê Dynasty’s United Regulations), a book on the administrations of six ministries (revenue, personnel, defense, justice, public works, and rites);
Từ tụng Điều Lệ (1468) (Regulations on Litigation), a
collection of imperial regulations on civil and criminal
52. Ta Van Tai, Vietnam’s Code of the Lê Dynasty (1428-1788), 30 AM. J. COMP. L. 527
53. PHAM DUY NGHIA, VIETNAMESE BUSINESS LAW IN TRANSITION 31 (2002).
54. For more details, see Bui Ngoc Son, Confucian Constitutionalism in Imperial Vietnam,
8 NAT’L TAIWAN UNIV. L. REV. 373 (2013).
Nhân mạng Tra nghiệm Pháp (1737) (Methods of
Forensic Autopsy), a collection official instructions on
forensic autopsy; and
Quốc Triều Hồng Đức Niên Gian Chư Cung Thể Thức
(1470-1497) (Hồng Đức Dynasty’s Formats For
Pleadings), a collection of official formats for drafting
legal documents filed with a mandarin’s office.55
Unlike the comprehensive criminal codes, these legal texts focus
on civil law, administrative law, civil and criminal procedure, criminal
examination, and legal process, although they may also include
criminal penalties. They include not only legally enforceable norms but
also prescriptions of moral conducts and other instructions. Like the
above criminal codes, these legal texts are also influenced by
Confucian moral principles. An extensive examination of these legal
texts is beyond the scope of this study. It is, however, useful to give
some examples. The Hong Duc Book on Good Governance, the unique
book on civil law in imperial Vietnam, comprised many provisions
about familial issues, which are influenced by Confucianism. For
example, Article 36 in an imperial regulation collected in the Book
stipulates that: “To be a man, to teach and bring up virtuous father and
filial children are the foremost tasks. Parents must provide their
children with rice and clothes…Children must respect and support their
parents…”56 This Article tries to protect the Confucian norm of filial
piety. In the same regulation, Article 38 listed seven reasons for the
husband to divorce his wife: failing to have children; disregarding the
husband for his poverty; malignant disease; lasciviousness; failing to
respect parents; failing to live in harmony with sisters and brothers; and
stealing.57 This provision is closely connected to three among the sìzì
or four virtues in Confucianism, namely zhong (loyalty to the king),
xiao (filial piety), jie (faithfulness), and yi (righteousness).58
Vestiges of Confucian law still remain even under the
contemporary communist rule in Vietnam. To illustrate, the first
sentence of the preamble to the Constitution restates the tradition of
55. These texts are published in modern Vietnamese language. See VIỆN NGHIÊN CỨU
HÁN NÔM, ĐIỂN CHẾ VÀ PHÁP LUẬT VIỆT NAM THỜI TRUNG ĐẠI [INSTITUTIONS AND LAWS
IN VIETNAM IN THE MEDIEVAL ERA] (2011).
56. VIỆN NGHIÊN CỨU HÁN NÔM, 1 ĐIỂN CHẾ VÀ PHÁP LUẬT VIỆT NAM THỜI TRUNG
ĐẠI, [INSTITUTIONS AND LAWS IN VIETNAM IN THE MIDDLE PERIOD] 456 (2011).
58. For more details on these Confucian virtues, see CHUN SHAN, Major Aspects of
Chinese Religion and Philosophy: Dao of Inner Saint and Outer King 223 (2012).
nhân nghĩa (humaneness-righteousness).59 In addition, as a
constitutional culture, the Vietnamese communist leaders have been
influenced by both socialist values and Confucian beliefs “that value
virtue-rule more highly than strict conformity to legal rules and
processes.”60 The Criminal Code also protects some moral values
resonated with the Confucian ethics. For example, the Code includes
the offence called “Ill-treating or persecuting grand-parents, parents,
spouses, children, grandchildren and/or fosterers.”61 This provision
echoes the Confucian norm of filial piety. Another example in the Code
is Article 19 on “non-denunciation of crimes.” This Article stipulates
that the grand-father, grand-mother, father, mother, offspring,
grandchild, sibling, wife or husband of an offender, who fails to
denounce the latter’s crime, shall not bear penal liability unless in cases
of failing to denounce crimes against national security or particularly
serious crimes.62 This reminds another controversial aspect called zhi
(uprightness) in the Confucian norm of filial piety, which requires
upright son to “remonstrate his father against his wrongdoing, and the
best environment for the successful remonstration can be provided by
non-disclosure of his father’s wrongdoing.”63
Confucian influence is particularly evident in Vietnam’s family
law.64 Especially, the Confucian norm of filial piety remains a strong
influence. 65 To illustrate, the Law on Family and Marriage provides
that: “Children have the obligations and rights to care for and support
their parents, especially when their parents fall sick, become senile or
disabled.”66 The Law also requires that: “Adult children who no longer
live with their parents are obliged to support their parents who have no
working capacity and no property to support themselves.”67 In addition,
the Law stipulates that the following agencies and organizations have
the right, as prescribed by the civil procedures legislation, to request
the Court to force the people who fail to voluntarily perform their
supporting obligation to perform such obligation: relatives,
administrative bodies on family and children, women’s unions, and
“other individuals, agencies and organizations.”68 Also, the Law on the
Elderly People underlines the children’s duty to offer financial support
to their parents and grandparents.69 Mass media has disseminated many
facts about the elderly parents being neglected by their children,70 but
there is no any case in which parents sue their children for being
neglected. This context of non-litigation may connect to moral
Several important factors shape the continuing influence of
Confucian legal culture in Vietnam. One factor concerns Ho Chi Minh,
the father of modern Vietnam and the founder of the Communist Party
of Vietnam, who has played the influential role even in today’s
Vietnam. Different from Mao Zedong, Ho Chi Minh is an advocate of
Confucian moral values and principles.71 Second, modern Vietnam
does not witness radical movements against Confucianism, like
China’s May Four Movement and Cultural Revolution Movement.
These factors enable the continuing influence of Confucian legal
culture in contemporary Vietnam. However, the recent rising
antiChinese nationalist movement72 in Vietnam as the consequence of the
conflict between China and Vietnam over the islands may inhibit the
direct reference to Confucian values in legal discourse and practice. In
this context, the influence of Confucian legal culture may happen at
unconscious level: people may not be aware of the Confucian origins
66. Law on Family and Marriage, No. 52/2014/QH13, art. 71 (Jun. 26, 2015) (Viet.).
67. Id. art. 111.
68. Id. art. 119.
69. Law on the Elderly, No. 39/2009/QH12, art. 10 (Nov. 23, 2009) (Viet.).
70. See e.g. Nguyễn Muội, Cụ bà bị con bỏ rơi giữa đường [A Female Elderly Abandoned
in the Street], BÁO ĐIỆN TỬ PHÁP LUẬT THÀNH PHỐ HỒ CHÍ MINH [HO CHI MINH CITY ELEC.
L. J.] (Oct. 7, 2013), http://plo.vn/xa-hoi/cu-ba-bi-con-bo-roi-giua-duong-314679.html
[https://perma.cc/L4T4-865C] (archived Oct. 2
71. See Bui Ngoc Son, The Confucian Foundations of Ho Chi Minh’s Vision of
Government, 46 J. ORIENTAL STUD. 35, 41 (2013).
72. Nhung T. Bui, Managing Anti-China Nationalism in Vietnam: Evidence from the
Media During the 2014 Oil Rig Crisis, 30 PAC. REV. 16
of certain norms and values that inform their legal behavior and
C. Civil Law
Entering the twentieth century, both China and Vietnam
transplanted ideas, norms, and institutions of the civil law tradition
from the western world as a response to the need to modernize the legal
system and the nation more generally so as to cope up with the
challenges posted by the western powers.
In his recent book, Michael H.K. Ng provides an extensive
account of the “Legal Transplantation in Early Twentieth-century
China.”73 Accordingly, in early 1900s, the Qing government initiated a
series of legal reforms.74 After the first Opium War (1839–42), China
was forced to sign treaties with Western industrial nations, which led
to the extraterritorial application of their western law and institutions
in the Chinese territory.75 Ng notes that “in an attempt to secure the
Western powers’ support to abolish extraterritoriality” most of the
proposals for legal reform were based on the western civil law model
and the Japanese model which had been in turn westernized.76 In the
course of legal reforms based on legal transplants, the Qing government
sent their legal experts to study law overseas (mainly in Europe) and
hired foreign legal experts (mainly from Japan) as consultants for its
legal reforms initiatives.77 Consequently, the Qing government enacted
many legal codes, which “were drafted largely on the base of German,
French, and Japanese templates.”78 Examples include the Provisional
Articles for Local Courts and the Court Organization Law, which
introduced important changes to the justice system, such as the
distinction of civil and criminal cases in trial procedures, or the
confirmation of courts as “separate[d] and specialized institution[s] for
hearing and adjudicating lawsuits.”79
The Qing dynasty also drafted the Civil Code, modelling after
German and Japanese law, but this law was not completed under the
73. MICHAEL H.K. NG, LEGAL TRANSPLANTATION IN EARLY TWENTIETH-CENTURY
74. Id. at 2.
75. ZHANG, supra note 17, at 27.
76. NG, supra note 73, at 2.
77. Id. at 13.
imperial regime.80 The Xinhai Revolution in 1911 overturned the Qing
dynasty and created the Republic of China. The republican government
resumed the law-making process, but the Code was also not enacted
due to “power struggles amongst warlords.”81 Eventually, the Civil
Code was enacted in 1930 under the Nationalist Government, drawn
mainly on the civil law tradition.82 As Mo Zhang explains, “In addition
to its civil law style of division between general principles and specific
provisions, the Code was replete with civil law concepts. For example,
Part III of the Code dealt with property rights, but it used the name of
‘Rights over Things.’ ‘Things’ is a term for property in civil law
countries.”83 Apart from the Civil Code, the Nationalist Government
also enacted five other major codes, which also “relied heavily on civil
law tradition, and contained many legal principles taken from Germany
and Japan.”84 These codes altogether constitutes the so-called “Code of
Six Laws” (Liu Fa Quan Shu).85
The Code of Six Laws presents “the complete reception of the
civil law tradition in China”,86 but this does not mean a complete break
with the past Confucian law. Zhang indicates that: “Despite the strong
influence of civil law tradition, mainly in the areas of legal philosophy
and jurisprudence, no clear cut distinction was ever made between
Chinese legal tradition and the contemporary legal system, especially
with respect to the deeply-rooted concept of Li.”87 In other words, civil
law is a modern legal layer superimposed upon the previous Confucian
legal layer. At another point, the later socialist regime abolished the
Code of Six Laws, but “the civil law feature was not diminished;
instead, it was actually carried over and strengthened in the modern
legal system of China.”88 That means civil law remains a legal layer in
the contemporary Chinese legal system.
Like China, civil law was also introduced in Vietnam from the
West. However, the difference is that the process of transplantation of
civil law in Vietnam was the consequence of French colonialism. The
French colonists enacted three separate civil codes in three Vietnamese
80. ZHANG, supra note 17, at 29.
81. Id. at 29-30.
82. Id. at 30.
86. Id. at 31.
88. Id. at 33.
regions: the Abbreviated Civil Code 1883 in Cochinchina (south), the
Civil Code Implements in the Vietnamese Courts in Tokin (north) 1983,
and the Central Vietnam Civil Code 1936 in Annam (centre).89 In
addition, the colonialist also enacted the Vietnamese Commercial Code
in 1942 and numerous regulations concerning civil and commercial law
issues.90 Moreover, the colonists “seconded French legal personnel
including judges, court officials, and lawyers to administer the
system.”91 French civil law’s influence on Vietnam has been
summarized in the following words:
The French heritage remains heavy in the entire legal system,
military and civilian. The older, more renowned lawyers and
judges are often found to be French educated, French and
nonEnglish speaking. Professional works are often published in
French. The French trappings as well as institutions are adapted by
the Vietnamese, and these are superimposed over the Vietnamese
society without much change. The Code Napoleon influence is
naturally strong, and the civil code system, as distinguished from
the common law, is employed. Trial by jury is not employed, the
technique of cross-examination is severely limited, and the
authority of an examining magistrate is much enlarged as
compared with US or common law practice.92
French civil law continues to influence on Vietnam even after the
country regained independence from France. John Gillespie observes
that: “Vestiges of colonial legality lingered for over a decade after the
1946 Constitution declared Vietnam independent from French rule.”93
Even under the “Renovation” (Đổi mới) period since 1986, the first
Civil Code of the socialist regime firstly enacted in 1995 have several
provisions deriving from the colonial Civil Code of Annam, such as the
provisions on mortgages, pledges, and suretyship.94
It has been seen that civil law has been transplanted into China
and Vietnam in early twentieth century. However, the mechanisms of
89. Bui Xuan Hai, Vietnamese Company Law: The Development and Corporate
Governance Issues, 18 BOND L. REV. 22, 23 (2006).
90. PHAM, supra note 53, at 32.
91. John Gillespie, Understanding Legality in Vietnam, in VIETNAM’S NEW ORDER:
INTERNATIONAL PERSPECTIVES ON THE STATE AND REFORM IN VIETNAM 140-41 (Stéphanie
Balme & Mark Sidel eds., 2007).
92. GEORGE S. PRUGH, LAW AT WAR VIETNAM 1964-1973, 21 (1975).
93. Gillespie, supra note 91, at 141.
94. John Gillespie, Transplanting Commercial Law Reform: Developing a ‘Rule of Law’
in Vietnam 162 (2006).
legal transplants in the two countries are different. Civil law was
imposed in Vietnam through colonial power. Differently, although the
China was confronted with the western powers, it was not formally
colonized and therefore has freedom to choose which models of law to
borrow. Why is civil law rather than common law the referred model
for legal transplant in China? One may argue that this is because the
civil law is consistent with the Chinese legal tradition of codification
of legal norms. However, law in traditional China is also consistent
with the common law tradition. Confucian legal theory and Confucian
law focus on fundamental moral principles as the foundation of the
legal system, which is not different from common law. Moreover,
Confucian legal theory and Confucian law also underline the necessity
of following established traditional norms, which is consistent with the
common law’s concept and practice of precedents. In fact, the fact that
China transplanted civil law rather than common law is mainly because
civil law as a kind of positive law is transplantable in a short period of
time, while the development of common law relies on the natural
evolution over a long period of time.95 In early twentieth century, the
Chinese government needs to reform the legal system in a short time to
cope with the immediate challenges from the western powers, and the
transplantation of civil law can meet with this demand.
D. Socialist Law
In both China and Vietnam, the current legal system is dominated
by the layer of socialist law transplanted from the former Soviet Union.
Socialist law is associated with Marxist economic theory and soviet
law. Socialist law is defined by these concepts and principles: “socialist
legality” which underlines the use of law as an instrument for the state
to control the society and citizens’ strict and unanimous application of
law; “vanguardism” or the leading role of the communist party as the
single ruling party; “democratic centralism” or the rejection of the
separation of power in favour of the centralization of power into the
supreme “soviet” or the national assembly; the “public ownership” of
means of productions leading to the state’s controlling of the national
95. In fact, Alan Watson’s account of legal transplants also relies on the experience of civil
law. See ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW (2d
strategy to different substances of law. For example, they can
accommodate more social economic rights than civil-political rights,
as the former can consolidate the sociological foundation of the
political legitimacy, while the latter would open the door for the
citizens to challenge the existing regime. To illustrate, the freedom to
do business is more accommodated than the freedom of speech and
III. ASSIMILATIONISM? TWO DISTINCTIVE LEGAL SYSTEMS
Having demonstrated that law in China and Vietnam has a rich
history, and that the law embodies some rule of law qualities, the next
question is whether there are distinctive legal systems in these
countries. I argue that there are two legal systems practiced in China
and Vietnam, namely the Confucian legal system and the socialist legal
system, which are separate from other traditional, and modern legal
systems of the world. However, before considering these legal systems,
it is necessary to define what constitutes a legal system.
A. Legal System
For the purpose of this study, I deploy the concept of “legal
system” rather “legal families” or “legal tradition” although the two
later may have virtues in their own ways. Unlike the concept of legal
families, the concept of legal system does not focus on legal methods,
legal sources, and style of trials.220 Unlike the concept of legal tradition,
the concept of legal system is not primarily concerned with the
transmission of legal information across generations.221 To be sure, all
of these elements are reflected in the concept of legal system.
Lawrence M. Friedman defines a legal system as including three
elements, namely: structure, substance, and culture.222 The structure of
the legal system refers to “the skeleton or framework, the durable part,
the part that gives a kind of shape and definition to the whole.”223 This
legal structure is consisted of the organizations, sizes, jurisdictions of
the basic branches of state: the judiciary, the legislature, and the
executive.224 The second element of the legal system is its substance
220. For legal families, see SIEMS, supra note 12, at 75.
221. GLENN, supra note 10, at 13.
222. LAWRENCE M. FRIEDMAN, AMERICAN LAW: AN INTRODUCTION 19-22 (1998).
223. Id. at 19.
224. Id. 19-20.
defined as “the actual rules, norms, and behavior patterns of people
inside the system.”225 The third element is legal culture, or “the
people’s attitude toward law and the legal system- their beliefs, values,
ideas, which concerns the legal system.”226 Friedman underlines that:
“the legal culture, in other words, is the climate of social thought and
social force that determine how law is used, avoided, or abused.”227
Friedman provides a useful framework to conceptualize a legal
system. However, in addition to the three elements, there may be a forth
element namely the jurisprudential foundation of a legal system.
Drawing on the work of post-modern legal comparativists,228 this refers
to the fundamental principles, concepts, ideas, that underline the whole
legal system. The jurisprudential foundation shapes the creation and
operation of legal institutions, the substantive contents of the law, and
the way people use or avoid the law. Jurisprudential element is different
from the cultural element in Friedman’s construction as the latter only
refers to the way of legal practice.
All in all, a legal system can be conceptualized as including four
elements: jurisprudence, structure, substance, and culture. With this in
mind, we will consider the Confucian legal system and the socialist
legal system in the next sections.
B. The Confucian Legal System
The Confucian legal system can be considered a distinctive legal
system as it has distinctive jurisprudence, structure, substance, and
culture. The jurisprudential foundation of the Confucian legal system
is the Confucian philosophy. The Confucian legal system is underlined
by distinctive Confucian concepts, principles, and doctrines, such as,
ren (humaneness), li (rituals), yi (righteousness), zhong (loyalty), xiao
(filial piety), five relationships (ruler - ruled, father-son, husband-wife,
elder brother -younger brother, friend-friend), junzi (gentlemen),
zhengming (rectification of names), and minben (people-as-basis). The
conceptual foundation of the Confucian legal system is drawn on
classical Confucianism, but the evolution of this legal system in
different periods of time in China was accompanied by the evolution
of Confucianism. Consequently, the jurisprudential foundation of
225. Id. at 20.
227. Id. at 21.
228. SIEMS, supra note 12, at 98-9
Confucian legal system evolved over time, with the reconstruction of
the classical Confucian ideas and concepts and the generation of new
ideas and concepts of neo-Confucians. For example, the Confucian
legal system in the Sung dynasty (1127–1279) in China was
underpinned by Sung Neo-Confucians, particularly, Zhu Xi
(11301200), who integrates “law closely with both morality and his
metaphysical views on li (principle).229
The second element of the Confucian legal system is structure.
The monarch, as an institution, is the most important element in the
Confucian legal structure. A legitimate monarch is required to work for
the happiness of the people, as stipulated by the concept of minben
(people-as basis.) A physical king must also act in accordance with the
expected virtues and functions of an ideal king, as suggested by the
doctrine of zheng-ming (rectification of names).230 In addition to the
monarchial institution, there are several distinctive institutions
designed to implement the Confucian philosophical concepts and
principles regarding the virtues of the rulers and officers, including: the
royal examination system, the imperial lectures, the censorate, and the
The third element of the Confucian legal system is its substance.
The substance of the Confucian legal system includes the rules and
norms. The sources of these rules and norms include Confucian
classics, imperial codes, imperial regulations, case-law, and customary
law.232 The contents of the rules and norms cover different aspects, not
merely crimes and punishments, although the Confucian legal rules and
norms are normally backed by criminal sanctions. The substance of the
Confucian legal system extended from criminal law to criminal and
civil procedures, litigation, family law, land law, property law,
administrative law, and even constitutional law (fundamental rules and
norms regulating the imperial power). To be sure, the Confucian legal
system does not have a clear distinction of these areas of law as modern
229. Norman P. Ho, The Legal Philosophy of Zhu Xi (1130-1200) and
NeoConfucianism’s Possible Contributions to Modern Chinese Legal Reform, 3 TSINGHUA CHINA
L. REV. 168 (2011) (not be confused between li (理) [“principle”] with li (礼) [‘rituals’], id.,
Finally, the Confucian legal system has distinctive legal culture.
One example is the culture of non-litigation (wusong) stemming from
the related doctrine of social harmony and the disregard of the pursuit
of material interests in the name of moral self-cultivation.233 This
culture is significantly different from the litigious tendency in liberalist
and individualist legal culture.234 Another culture is called “legalization
of morality,”235 or the protection and enforcement of moral values by
law, as opposed to the liberalist trend to separation of law from
morality, underpinned by the concept of neutral government.236 In other
words, in the Confucian legal culture, there is no a clear distinction
between law and morality. Last but not least, the Confucian legal
system has generated what can be called “Confucian constitutional
ethics” which emphasizes the necessity of political leaders’ acquiring
moral virtues and their propriety in practicing political power. This is
different from liberal constitutionalism which focuses mainly on the
political leaders’ observation of constitutional rules.237
Nowadays, in China and Vietnam, Confucianism has been no long
the official ideology, and the Confucian legal system has been no
longer implemented. The jurisprudential, structural, and substantial,
and cultural elements of the current legal systems in the two countries
are significantly informed by socialist and global elements. Yet, as
mentioned above, some Confucian values and ideas, such as filial piety,
are still reflected in the modern law in China and Vietnam. There is
another area of the legal system in which the Confucian influence is
prominent, namely legal culture. The triumph of communism, the
borrowing of socialist law, and the diffusion of global law have
virtually removed the Confucian, structural, and substantial elements
from the legal system. However, the Confucian legal culture ingrains
in the mindset of the people for thousand years and operates at the
subconscious level, and therefore, is difficult to be eradicated within a few
233. Chen, supra note 166, at 260-61.
234. FRIEDMAN, supra note 222, at 20.
235. Caleb Wan, Confucianism and Higher Law Thinking in Ancient China, 10 REGENT
J. INT’L L.77, 97 (2013).
236. For a comparison of Chinese and western legal culture, see Zhiping Liang,
Explicating “Law”: A Comparative Perspective of Chinese and Western Legal Culture, 3 J.
CHINESE L. 50 (1989).
237. For criticism of this liberal tendency and the call for constitutional ethics, see Keith
E. Whittington, On the Need for A Theory of Constitutional Ethics, 9 THE GOOD SOCIETY 60
(2000). See also, JAMES M. BUCHANAN, JAMES M. BUCHANAN, THE LOGICAL FOUNDATIONS
OF CONSTITUTIONAL LIBERTY 371 (1999) (proposing the concept of “ethics of constitutional
decades. Consequently, the Confucian legal culture remains its
influences. The tendency to avoid going to the court, to legalize moral
values (as the cases of filial piety law), and to aspect political leaders
to have moral values is still evident in China and Vietnam. Even global
legal scripts are also viewed, understood, and re-interpreted by the local
people with the infusion of Confucian meanings.238 The Confucian
influence on legal culture in China and Vietnam may be un-conscious:
the people may not aware of the Confucian roots in their legal behavior
and attitudes. Finally, the contemporary influence of the Confucian
legal culture is fragmentary rather comprehensive as it was during the
C. The Socialist Legal System
During the soviet era, comparative law scholars added the third
legal system, namely socialist law, to the two familiar legal systems
(common law and civil law).239 After the collapse of the Soviet Union,
socialist law has virtually disappeared in comparative law literature.240
John Quigley in his influential article published during the Soviet era
concluded that socialist law “contains features,” but “those points of
difference have not removed socialist law from the civil law tradition,”
because of “the historical connection of socialist law to civil law and
the continuing relevance in socialist law of civil law rules, methods,
institutions, and procedures.”241 Wring after the soviet era, Inga
Markovits argued that socialist law was not dead simply because it did
not exist: the alleged features of socialist law are not confined to the
law of the former socialist countries.242 Recently, William Partlett and
Eric C Ip revitalized the debate, arguing that socialist law has
distinctive features, and that socialist law has not been dead as it has
still influenced the current Chinese public law.243 I argue that socialist
law is a distinctive legal system which is still implemented in China
238. Gillespie, supra note 152, at 953 (discussing how several Confucian norms (such as
filial piety, loyalty, and gentlemen) influence the way the Vietnamese people understand
239. RENE DAVID & JOHN E.C. BRIERLEY, MAJOR LEGAL SYSTEMS IN THE WORLD
TODAY: AN INTRODUCTION TO THE COMPARATIVE STUDY OF LAW (1968).
240. Partlett & Ip, supra note 102, at 473.
241. Quigley, supra note 19, at 808.
242. Inga Markovits, The Death of Socialist Law? 3 ANNUAL REV. LAW. SOC. SCI. 233
243. Partlett & Ip, supra note 102, at 465.
To begin with, socialist law is underpinned by distinctive
jurisprudential foundation. A legal system is characterized not only by
rules, methods, institutions, and procedures, but more essentially by
jurisprudential foundation or fundamental ideas and principles that
underpin the legal system. In this regard, socialist law is undergirded
by distinctive fundamental legal ideas and principles, which
differentiates it from other legal systems, and hence makes it a
distinctive legal system. The ideational foundation of socialist law is
rooted in Marxism-Leninism, defined by these distinctive legal
concepts: “socialist legality”; “vanguardism”; “democratic
centralism”; “public ownership of means of productions”, and statist
rights. These concepts are hegemonic in the socialist legal system,
dominating the law-making and legal discourse and practices of
politicians, legislators, lawyers, officers, and ordinary citizens. Other
legal systems do not have such concepts or vocabularies. These
concepts are embodied in the socialist legal system and guild the
direction of legal evolution and of the society as a whole towards what
the communists believe as the paradise of socialism and then
communism. Therefore, the Law on Legislation in China requires that:
“Lawmaking shall adhere to the basic principles of the Constitution,
and shall be centered around economic development, and shall adhere
to the socialist road, adhere to the democratic dictatorship by the
people, adhere to the leadership by the Chinese Communist Party, and
adhere to the theory of Marxism, Leninism and Mao Zedong thoughts
and Dengxiaoping theory, and adhere to the reform and opening to the
Socialist law may contain some rules and procedures similar to
those of civil law, but they are fundamentally sustained by different
legal principles, which make the operation, manifestation, and nuance
of the similar rules and procedures different. For example, the concept
of public ownership may be adopted in other legal systems, but in the
socialist legal system, this concept dominates the whole economy and
the whole property regime with the regime’s aspiration to achieve the
socialist paradise in which every property belong to the public.
Moreover, the domination of the communist party also means that its
ideology (Marxism-Leninism) dominates the whole intellectual life of
244. LEGISLATION LAW OF THE PEOPLE’S REPUBLIC OF CHINA (2000), art. 3.
the society despite the emergence of pluralist ideas due to social
complexity and globalization.
Partlett and Ip correctly point out that socialist law is evident in
Chinese public law. This is evident in Vietnam as well. However, the
influence of socialist law in China and Vietnam is not confined to
public law. Even private law is also influenced by the socialist legal
concepts and principles. Law for the market, such as corporate law,
competition law, investment law, and property law, cannot escape the
“socialist orientation” of the market economy. The so-called
“economic law” in China which has it root in Soviet law is an
instrument for the state to direct the economy towards the state’s
socialist goal. The Chinese government defines the function of
economic law as follow: “Economic laws are a collection of laws and
regulations which adjust social and economic relations arising from the
state’s intervening in, managing and regulating economic activities for
the society’s overall interests. They provide legal devices and an
institutional framework for the state to conduct appropriate
intervention in, and macro control of the market economy, thereby
preventing malpractices resulting from spontaneous and blind
operation of the market economy.”245 Vietnam also has the “economic
law,” which has the same instrumental function, although it has
gradually changed to be more like business law.246 In fact, the whole
legal system in China and Vietnam are underlined by the fundamental
socialist legal concepts and principles. Some aspects of the legal system
in China and Vietnam may contain some non-socialist elements, but
fundamental socialist legal concepts and principles, such as “socialist
legality”, the leadership of the communist party; “democratic
centralism”, remains dominant in the legal system. Finally, socialist
law and socialist legal theory have still provided distinctive legal
vocabularies and concepts for legal discourse in China and Vietnam.247
Let us now turn to consider the second element in the socialist
legal system: the structure. The most important element in the socialist
legal structure is the communist party, which differentiates the socialist
245. STATE COUNCIL WHITE PAPER, supra note 123.
246. See e.g., PHAM, supra note 53, at 50.
247. SEPPÄNEN, supra note 163. For early discussion, see Albert Chen, Toward a Legal
Enlightenment: Discussions in Contemporary China on the Rule of Law, 17 PACIFIC BASIN L.
J. 125, 164 (1999) (“The dogmas of the Marxist orthodoxy as codified by the Soviet and Maoist
states are still alive and well in China.”) For the case of Vietnam, see Thiem H. Bui,
Deconstructing the “Socialist” Rule of Law in Vietnam: The Changing Discourse on Human
Rights in Vietnam’s Constitutional Reform Process, 36 CONTEMP. SE. ASIA 77 (2014).
legal system from other modern legal systems. To be sure, absolute
power or single-party system is not distinctive to socialist law. But, in
the socialist legal system, the communist party is not a private
organization separate from the state created to compete for power
through free and equal elections: it is essential component of the legal
structure and dominates all aspects of the state and the society with
party departments created from the central to the communal levels.248
Socialist law in China and Vietnam cannot be conceptualized without
the consideration of the essential role of the communist party in the
The state institutions in China and Vietnam also have distinctive
features. To be sure, like many other countries, these countries also
have three fundamental state powers, legislature, executive, and
judiciary, practiced by different state branches. However, the
arrangement of these institutions is different due to the fact that they
are underlined by different constitutional jurisprudences. This
arrangement is characterized by the supreme position of the legislature
and the subordinate positions of other institutions. This formal
arrangement is underpinned by the principle of “democratic
centralism.” Within that arrangement, the legislature is not merely an
ordinary legislature as in western civil or common law countries. It is
both the constitution-making and law-making bodies. It has both
constituent power and constituted powers. In terms of constituted
powers, it has not only the legislative power, but also other powers that
may be practiced by other institutions in civil law and common law
countries, such as the power to review the constitutionality of the law
(including its law and regulations issued by other state institutions).
Other state institutions are constitutionally required to report to the
legislature and have no institutional means to challenge it, such as veto,
dissolution, or judicial review. This arrangement must be distinguished
with the commonwealth model of parliamentary supremacy
underpinned by a different concept of sovereignty in which the
248. Backer Larry Catá, Party, People, Government, And State: On Constitutional Values
And The Legitimacy of The Chinese State-Party Rule of Law System, 30 B.U. INT’L L.J. 331,
342 2012 (“the party as the polity”). For the case of Vietnam, see Tuong Vu, The Revolutionary
Path to State Formation in Vietnam: Opportunities, Conundrums, and Legacies, 11 J. VIET.
STUD. 267 (2016) (arguing that “the [communist] party’s radical ideology and practices shaped
the path of state formation by creating particular opportunities and conundrums in five key
aspects of state formation: legitimization, establishing sovereignty, territorialization, creating a
centralized bureaucracy, and monopolizing violence.”).
executive can dissolve the parliament and the courts can have the weak
judicial review power.249
In addition, the courts system in the socialist legal structure in
China and Vietnam has the distinctive feature: centralization. In
socialist law, “following the Leninist principles of vanguardism and
democratic centralism, courts were seen as extensions of Party control.
Thus, all courts were institutionally subordinated to a powerful
Supreme Court with vast power to control the work of lower courts and
‘articulate judicial policy.’”250 Partlett and Ip indicate that this feature
“has not faded away” in China. 251 More specifically, “like Soviet
courts, Chinese courts were centralized supervisory institutions
entrusted with the responsibility to promote the Party’s ideology and
agenda.”252 Courts in Vietnam have similar feature. The Law on
Organization of People’s Courts of 2014 is enacted, among other
things, “to institutionalize the Party’s guidelines and viewpoints on
judicial reform.”253 The Law establishes one of the chief functions of
the courts as to protect “the socialist regime.”254 The Law also creates
a centralized judicial system. Accordingly, the supreme people’s court
is vested with the powers: (1) to supervise the adjudicating work of
other courts, except cases prescribed by a law; (2) To make overall
assessment of adjudicating practices of courts, ensuring the uniform
application of law in trial; (3) to train and retrain judges, assessors and
other staffs of people’s courts; (4) to manage people’s courts and
military courts organizationally in accordance with this Law and
relevant laws, ensuring independence of courts from one another; and
(5) to submit to the National Assembly draft laws and resolutions; to
submit to the National Assembly Standing Committee draft ordinances
and resolutions in accordance with law.255
The structure of the socialist legal system in China and Vietnam
is also characterized by the Leninist-style institution called procuracy.
249. See generally, STEPHEN GARDBAUM, THE NEW COMMONWEALTH MODEL OF
CONSTITUTIONALISM: THEORY AND PRACTICE (2012).
250. Partlett & Ip, supra note 102, at 502.
251. Id. at 503.
252. Id. For more details on the relationship between the communist party and courts in
China, see Ling Li, The Chinese Communist Party and The People’s Courts: Judicial
Independence in China, 64 AM. J. COMP. L. 37 (2016).
253. VNL_KH1, Salient Points of The New Law on Courts, VIETNAM LAW AND LEGAL
FORUM MAGAZINE (Feb. 6, 2015),
http://vietnamlawmagazine.vn/salient-points-of-the-newlaw-on-courts-4009.html [https://perma.cc/B59M-CF4C] (archived Oct. 2
254. LAW ON ORGANIZATION OF PEOPLE’S COURTS (2014) (Viet.), art. 2.
255. Id., art. 20.
Lenin designed this institution to implement the principle of “socialist
legality”: strict and unanimous application of the law of the central
government by the lower level state institutions and citizens. 256 In the
legal structure in China and Vietnam, the procuracy remains the fourth
branch of the state, not a component of the executive or the judiciary,
organized from the central to the local levels.257 However, their
functions are narrower than in the original version: they practice public
prosecution, and only supervise judicial procedures and activities.258
While the former function is similar to the prosecutions in other legal
systems, the later function is distinctive to the socialist legal system,
reflecting the Leninist legacy.
We are now in a position to consider the substance of socialist
law. To be sure, the sources of legal rules and norms in China and
Vietnam include codes and legislations like in many civil law countries.
The two countries have also begun to develop case-law like common
law countries. But, one of most important features of the legal rules in
the socialist legal systems in China and Vietnam is their sources
contained in a huge amount of administrative regulations issued by
different institutions and with different titles. In China, in addition to
the constitution, the sources of Chinese law, as stipulated in the
Legislation Law, include: “the law (Falu) enacted by the NPC;
administrative regulations (Tiaoli, Guiding or Banfa) enacted by the
State Council (central government); administrative rules (Guizhang)
enacted by the State Council organs; local regulation enacted by the
local People’s Congress (Di Fang Tiaoli); and local rules (Guizhang)
enacted by local governments.”259
In a similar vein, the Law on Enactment of Normative Legal
Documents lists the following sources of Vietnamese law:
1. The Constitution.
256. See generally, Stephen Holmes, The Procuracy and Its Problems: Introduction, 8 E.
EUR. CONST. REV. 7
257. For the case of China, see Partlett & Ip, supra note 102, at 498-501. For the case of
Vietnam, see Pham Lan Phuong, The Procuracy as a Subject of Constitutional Debate:
Controversial and Unresolved Issues, 11 ASIAN J. COMP. L. 30
258. For more details, see Organic Law of the People’s Procuratorates of the People’s
Republic of China (promulgated by the Standing Comm. Nat’l People’s Cont., Sept. 2, 1983),
art. 4; Law on Organization of the People’s Procuracies, art. 2 (Nov. 24, 2014) (Viet.).
259. Qianlan Wu, How has China Formed Its Conception of The Rule of Law? A
Contextual Analysis of Legal Instrumentalism in ROC And PRC Law-Making, INT’L J. L. IN
CONTEXT 5 (201
2. Codes and Laws (hereinafter referred to as Laws), Resolutions
of the National Assembly
3. Ordinances, Resolutions of Standing Committee of the National
Assembly; Joint Resolutions between Standing Committee of the
National Assembly and Management Board of Central Committee
of Vietnamese Fatherland Front
4. Orders, Decisions of the President.
5. Decrees of the Government; Joint Resolutions between the
Government and Management Board of Central Committee of
Vietnamese Fatherland Front
6. Decision of the Prime Minister.
7. Resolutions of Judge Council of the People’s Supreme Court.
8. Circulars of executive judge of the People’s Supreme Court;
Circulars of the Chief Procurator of the Supreme People’s
Procuracy; Circulars of Ministers, Heads of ministerial agencies;
Joint Circulars between executive judge of the People’s Supreme
Court and the Chief Procurator of the Supreme People’s
Procuracy; Joint Circulars between Ministers, Heads of ministerial
agencies and executive judge of the People’s Supreme Court, the
Chief Procurator of the
9. Supreme People’s Procuracy; Decisions of State Auditor
10. Resolutions of the People’s Councils of central affiliated cities
and provinces (hereinafter referred to as provinces).
11. Decisions of the People’s Committees of provinces.
12. Legislative documents of local governments in administrative
13. Resolutions of the People’s Councils of districts, towns and
cities within provinces (hereinafter referred to as districts).
14. Decisions of the People’s Committees of districts.
15. Resolutions of the People’s Councils of communes, wards and
towns within districts (hereinafter referred to as communes)
16. Decisions of the People’s Committees of communes.260
This feature of legal source is due both to the practical need to
govern the emerging market and changing society and to the
260. Law on Enactment of Normative Legal Documents, No. 80/2015/QH13 art. 4 (Nov.
25, 2015) (Viet.).
jurisprudential reason concerning Marxist legal positivism. These legal
instruments play an important role in the socialist legal system in
Vietnam: these regulations are essential to the implementation of the
constitutions, codes, and legislations. The latter do not have the direct
effect to the society like the former. So, different from civil and
common law systems, in the socialist legal system, the constitution and
legislations are enforced mainly not by court’s judicial decisions but by
Another feature of socialist legal rules and norms is that they can
be found even in the documents of the communist party. As the
communist party is the essential component of the legal structure, its
documents are not purely political but also include norms or even rules
that have the weight of legal effects. The communist party in China and
Vietnam, through national congresses, the central committee, and the
Politburo, often issue documents which decide on consequential
national issues, and provide the guidance for socioeconomic, legal and
political developments. The party conclusions and guidance are not
optional but authoritative to the state actions. The state bodies cannot
in general reverse what has been decided by the party. For example, the
opening policy for economic reform in both China and Vietnam was
decided by the communist party and then was translated into
constitutions and law.261 With this definitive effect, the party’s
documents can be considered having legal weight in certain
circumstances. In this regard, the Communist Party of China’s Central
Committee’s Decision Concerning Some Major Questions in
Comprehensively Moving Governing the Country According to the Law
is the authoritative legal source. The Communist Party of Vietnam’s
Politburo’s Conclusion No.01-Kl/Tw on The Continued
Implementation of The Strategy for Legal Reform from 2016 to 2020
has similar legal significance.
The contents of legal rules in socialist law include issues similar
to the law of common law and civil law countries. But, socialist law
does not adopt the distinction between “public law” and “private law”
as in other legal systems. Instead, legal rules and norms in socialist law
are grouped under the rubric called “branch of law.” In the Soviet legal
jurisprudence, “a ‘branch of law’ is understood as the aggregate of legal
261. For China, see, Chen, supra note 146, at 60. For Vietnam, see Tran Thanh Huong &
Duong Anh Son, Economic Development and Constitutional Reform in Vietnam” in 3
CONSTITUTIONALISM IN SE. ASIA 311(Clauspeter Hill & Jörg Menzel eds., 2008).
norms regulating relations in a particular sphere (branch) of social
life”.262 The concept of “branch of law” has still informed the socialist
legal system in China and Vietnam. For example, in China’s
Whitepaper on its legal system refers to “branches of the socialist
system of laws with Chinese characteristics”.263 Accordingly, “the
socialist system of laws with Chinese characteristics is an organic
integration of the related laws of the Constitution, civil and commercial
laws, administrative laws, economic laws, social laws, criminal laws,
litigation and non-litigation procedural laws, and other legal branches,
with the Constitution in the supreme place, the laws as the main body,
and administrative and local regulations as the major components.”264
Similarly, the concept of “branch of law” remains dominant in
Vietnam. In law-making, a legislation is normally started by
identifying the particular sphere of social life that the legislation will
regulate.265 The division of the “branch of law” also affects legal
education. Vietnamese textbooks on “general theory on law and state”
clearly define the concept of “branch of law,” its components
(including “scope of regulation” and “method of regulation”), and
introduce fundamental branches of law in the Vietnamese legal system,
including: state law or constitutional law, administrative law, financial
law, land law, civil law, labor law, marriage and family law, criminal
law, criminal procedure law, civil procedure law, economic law, and
international law).266 Even the structure of law schools in Vietnam is
also organized according to the concept of “branch of law” following
the soviet-style. Therefore, the law schools are divided into certain
“departments” consistent with the branches of law.267
Finally, let us consider legal culture. Unlike rules and structures,
legal culture need time to establish. There may not be a
wellestablished socialist legal culture in China and Vietnam. However,
some features of legal culture of socialist law have germinated in China
and Vietnam. At least, two emerging cultures can be observed, which
can be called: the regulatory culture and the bureaucratic culture. First,
the regulatory culture indicates a strong tendency among the state
agencies to regulate the society as a top-down, interventional process.
To be sure, regulation is not distinctive to the socialist legal system.268
However, socialist law, as evident in China and Vietnam, has a heavy
concern on the state’s regulatory intervention on nearly all corners of
the society, ranging from the way to organize the public power to the
way to wear clothes.269 Among other purposes (eg., economic
development), this socialist regulation is meant to direct people’s
behaviors towards the culture and goals that the state favor. The second
culture is bureaucratic. In this regard, legal and administrative process
in socialist law heavily requires multi-steps of procedures. This is not
merely a technical issue. The heavy concern of multi-staged procedures
is to make sure that the party and the state can meticulously control the
society and people’s behavior to achieve their goals.
IV. CONCLUSION: TOWARD A BETTER PLACE IN COMPARATIVE LAW
I conclude with further reflections on possible contributions of the
study of law in China and Vietnam to traditional comparative law,
postmodern comparative law, and global comparative law.270
To begin with, the study of the law of China and Vietnam can
enrich traditional comparative law. As Siems writes, “the disregard of
non-western countries by traditional comparative law is more difficult
to excuse.”271 The study of law in China and Vietnam can avoid such
excuse. Moreover, the diversity of law in the legal history of China and
Vietnam cast doubt on the functionalist approach in traditional
comparative law which tends to overemphasis the common legal
268. See generally, BRONWEN MORGAN & KAREN YEUNG, AN INTRODUCTION TO LAW
AND REGULATION (2007).
269. See e.g. Decree on Penalties for Administrative Violations Pertaining to Culture,
Sports, Tourism and Advertising, No. 158/2013/NĐ-CP, art. 13 (Nov. 12, 2013) (imposing
administrative punishment on models who wear clothes in consistent with Vietnamese culture
in their performance) (Viet.).
270. I adopt these three dimensions of comparative law from SIEMS, supra note 12, at 9.
271. Id. at 36.
features.272 In addition, the study of law in China and Vietnam can
rectify some mistakes in classification of legal systems in traditional
comparative law. It is simplistic to group law in China under a single
rubric, like “Chinese Law”273 or “Chinese legal tradition.”274 There are
different legal systems in China and Vietnam, and these legal systems
play the dominant role in different period of time. The traditional
taxonomy of legal systems can be enriched by the addition of two
distinctive legal systems, namely the Confucian legal system and the
socialist legal system. Moreover, the study of these legal systems is
important for understanding legal history and contemporary law not
only in China and Vietnam but also in other countries and jurisdictions
whose traditional law and modern law are influenced by these legal
systems. To illustrate, Confucian law also influenced legal history and
even modern law in Japan and Korea.275 Vestiges of Confucian legal
culture can also be found in Singapore276 and Hong Kong.277 Socialist
law is also adopted and has recently experienced different levels of
change in three other contemporary socialist countries, namely Laos,278
North Korea,279 and Cuba.280 Finally, the addition of the Confucian
legal system and the socialist legal system can enrich comparative legal
systems. Confucian law can be compared with other traditional legal
systems (e.g., Islamic law, Hindu law, and Buddhist law),281 while
socialist law can be compared with other modern legal systems (e.g.,
civil law and common law).
The study of law in China and Vietnam can also contribute to
post-modern comparative law, which focuses on the way similar legal
words and concepts having different meaning in different legal
systems.282 Throughout its history, law in China and Vietnam is
apparently not autonomous. Their law is not merely controlled by
professional lawyers but is understood and practiced in its complex
relationship with contextual factors. Therefore, China and Vietnam
provide rich data for post-modernist comparative studies of: law and
ideology, law and politics, law and culture, law and society, and legal
Finally, global comparative law can greatly benefit from
exploring law in China and Vietnam. These countries provide rich data
for the study of legal transplants and global legal diffusion. Confucian
law was transplanted cross East Asian traditional societies, and this
deserves a comparative study. The transplants of civil law and socialist
law in China and Vietnam further provide a laboratory for comparative
examination of legal transplants. Moreover, the fact that China and
Vietnam are now global actors and vehemently borrowed global law
provide significant data for study of legal global diffusion. Last but not
least, the global revival of the “law and development” movement283 is
resonated in the two countries.284 While some are optimistic about the
role of law in fostering economic development, others are frustrated
about reality.285 Economic development in China and Vietnam in the
last three decades has occurred in tandem with legal reform. Whether
there is connection between the legal reform and the economic reform
deserves further comparative legal studies.
HINDU LAW: BEYOND TRADITION AND MODERNITY (2003); ANDREW HUXLEY, THAI LAW:
BUDDHIST LAW: ESSAYS ON THE LEGAL HISTORY OF THAILAND, LAOS AND BURMA (1996).
282. SIEMS, supra note 12, at 5.
283. For the evolution of law and development movement, see Michael Trebilcock, Law
and Development: Forty Years after ‘Scholars in Self-Estrangement’ 66 UNIV. OF TORONTO L.
J. 301 (2016); Michael Trebilcock, Between Universalism and Relativism: Reflections on the
Evolution pf Law and Development Studies, 66 UNIV. OF TORONTO L. J. 330 (2016).
284. GUANGHUA YU, RETHINKING LAW AND DEVELOPMENT: THE CHINESE EXPERIENCE
(2013); LAW AND DEVELOPMENT AND THE GLOBAL DISCOURSE OF LEGAL TRANSFERS (John
Gillespie & Pip Nicholson eds., 2012).
285. Benjamin van Rooji & Pip Nicholson, Inflationary Trends in Law and Development,
24 DUKE J. COMP & INT’L L. 297-348 (2013).
F i g u r e 2 : N u m b e r o f R e g u l a t i o n b y A r e a : 1 9 8 7 - 2 0 1 6
S o u r c e : A u t h o r ' s C r e a t i o n f r o m t h u v i e n p h a p l u a t ( l a w
l i b r a r y )
Number of Regulation
Source: Author's Creation from Thu vien Phap luat (Law
Thừa Thiên Huế
Bà Rịa - Vũng Tàu
2. Countries in the world by population ( 2017 ), WORLDOMETERS, http://www. worldometers.info/world-population/population-by-country [https://perma.cc/DN5R-KWJU] (last visited Oct . 4 , 2017 ).
3. See generally, RETHINKING CONFUCIANISM: PAST AND PRESENT IN CHINA, JAPAN, KOREA AND VIETNAM (Benjamin A. Elman , et al. eds., 2002 ).
4. International observers tend to describe these countries as “communist.” See eg ., LEGAL REFORMS IN CHINA AND VIETNAM, supra note 1 . Meanwhile, these countries tend to identify themselves as “socialist.” See for Vietnam Constitution , art. 2 ( 1 ) ( 2013 ) (“The Socialist Republic of Vietnam State is a social rule of law State . . . ”); XIANFA art. 1 ( 1982 ) (China) (“The People's Republic of China is a socialist state .”). In this Article, “communist” or “socialist” regime is understood with same meaning to refer to the regime ruled by a communist party .
5. The three others are Cuba, Laos, and North Korea. For the survival of the communist regimes, see WHY COMMUNISM DID NOT COLLAPSE: UNDERSTANDING AUTHORITARIAN REGIME RESILIENCE IN ASIA AND EUROPE (Martin K . Dimitrov ed. 2013 ).
6. For economic reform in China and Vietnam, see TRANSFORMING ASIAN SOCIALISM: CHINA AND VIETNAM COMPARED (Anita Chan , Benedict J. Tria Kwekvliet , & Jonathan Unger, eds. 1999 ) ; MARKET AND SOCIALISM: IN THE LIGHT OF THE EXPERIENCES OF CHINA AND VIETNAM (Janos Kornai & Yingyi Qian eds., 2008 ).
7. Members and Observers, WORLD TRADE ORG., https://www.wto.org/english/thewto_e /whatis_e/tif_e/org6_e.htm] (last visited Oct . 4 , 2017 ).
8. For China, see the roundtable on the future of China's “rule according to law,” ASIAN POLICY 20 (July 2015 ). For Vietnam, see John Gillespie, Changing Concepts of Socialist Law in Vietnam, in ASIAN SOCIALISM AND LEGAL CHANGE: THE DYNAMICS OF VIETNAMESE AND CHINESE REFORM 45 (John Gillespie and Pip Nicholson eds., 2005 ).
9. See e.g., China: Events of 2016 , HUMAN RIGHTS WATCH , https://www.hrw.org/worldreport/2017/country-chapters/china-and-tibet [https://perma.cc/5PK2-6A2X] (last visited Oct . 29 , 2017 ); Vietnam: Events of 2016, HUMAN RIGHTS WATCH , https://www.hrw.org/worldreport/2017/country-chapters/vietnam [https://perma.cc/W3B8-JV7X] (last visited Oct . 29 , 2017 ).
10. See e.g., MARY ANN GLENDON , PAOLO G. CAROZZA & COLIN B . PICKER, COMPARATIVE LEGAL TRADITIONS: TEXT, MATERIALS, AND CASES ON WESTERN LAW , FOURTH EDITION ( 2014 ) ; RUDOLF B. SCHLESINGER ET AL., COMPARATIVE LAW : CASES, TEXTS, MATERIALS ( 1998 ). The law in China is sometime referred to in major comparative law work . See e.g., PATRICK GLENN , LEGAL TRADITIONS OF THE WORLD 319-360 ( 2014 ) ; UGO MATTEI , TEEMU RUSKOLA & ANTONIO GIDI, SCHLESINGER'S COMPARATIVE LAW: CASES , TEXT, MATERIALS (7th ed. 2009 ).
11. See e.g. Gillespie & Chen, eds., supra note 1.
12. MATHIAS SIEMS , COMPARATIVE LAW 35-37 ( 2014 ) (criticizing “the focus on western countries” in comparative legal studies”).
13. THE OXFORD HANDBOOK OF COMPARATIVE LAW (Mathias Reimann & Reinhard Zimmermann eds., 2006 ), including one chapter on “development of comparative law in East Asia” , which focuses on Japan) . See also, JOHN HENRY MERRYMAN, DAVID S. CLARK & JOHN OWEN HALEY, COMPARATIVE LAW: HISTORICAL DEVELOPMENT OF THE CIVIL LAW TRADITION IN EUROPE , LATIN AMERICA , AND EAST ASIA ( 2010 ) (including one chapter on law of East Asian countries , namely China, Korea, Japan, and Thailand).
14. For legal orientalism, see TEEMU RUSKOLA, LEGAL ORIENTALISM: CHINA, THE UNITED STATES AND MODERN LAW ( 2013 ); Carol G.S. Tan, On Law and Orientalism , 7 J. COMP . L. 5 ( 2012 ).
15. See generally, KARL AUGUST WITTFOGEL, ORIENTAL DESPOTISM: A COMPARATIVE STUDY OF TOTAL POWER ( 1957 ).
16. Teemu Ruskola , Law Without Law, or Is “ Chinese Law” an Oxymoron?, 11 WM . & MARY BILL RTS . J. 655 , 656 ( 2003 ).
24. PHAN HUY LÊ , ET AL., LỊCH SỬ VIỆT NAM, TẬP 1 [ VIETNAMESE HISTORY , VOLUME 1 ] 217 ( 1991 ).
25. VŨ VĂN MẪU , CỔ LUẬT VIỆT NAM VÀ TƯ PHÁP SỬ DIỄN GIẢNG, QUYỀN THỨ NHẤT, TẬP MỘT [VIETNAMESE TRADITIONAL LAW AND THE EXPLANATION OF PRIVATE LAW , BOOK I , VOLUME 1 ] 129 - 132 ( 1975 ).
26. See generally, VŨ DUY MỀN, HƯƠNG ƯỚC CỔ ĐỒNG BẰNG BẮC BỘ [ANCIENT VILLAGE CONTRACTS IN NORTH VIETNAM] ( 2010 ).
27. ĐÀO TRÍ ÚC ED., HƯƠNG ƯỚC TRONG QUÁ TRÌNH THỰC HIỆN DÂN CHỦ Ở NƯỚC TA HIỆN NAY [COMMUNAL CONTRACTS IN THE PROCESS OF IMPLEMENTING DEMOCRACY IN OUR NATION TODAY] ( 2003 ).
59. HIẾN PHÁP [CONSTITUTION], pmbl. ( 2013 ) (Viet .).
60. John Gillespie, Understanding Legality in Vietnam, in VIETNAM'S NEW ORDER: INTERNATIONAL PERSPECTIVES ON THE STATE AND REFORM IN VIETNAM 137 , 145 ( Stéphanie Balme & Mark Sidel eds., 2007 ).
61. Criminal Code , No. 100/2015/QH13, art. 185 ( Nov . 27, 2015 ) (Viet .).
62. Id . art. 19 .
63. Huang Yong , Why an Upright Son Does Not Disclose His Father Stealing a Sheep: A Neglected Aspect of the Confucian Conception of Filial Piety?, 5 ASIAN STUDIES 15 ( 2017 ).
64. Thomas J. Walsh , The Law of the Family in Vietnam: Assessing the Marriage and Family Law of Vietnam, 42 CAL . W. INT'L L. J . 61 ( 2011 ).
65. See generally , Kiều Anh Vũ, Chữ “Hiếu” Trong Cổ Luật Và Luật Thực Định [“Filial Piety” in Ancient and Contemporary Law] , KIỀU ANH VŨ (Nov. 2 , 2011 ), https://kieuanhvu. wordpress.com/ 2014 /11/02/chu-hieu -trong-co-luat-va-luat-thuc-dinh [https://perma .cc/Q95QQBUX] (archived Oct. 29 , 2017 ); Ngô Thị Minh Hằng , Chữ Hiếu Trong Nho Giáo Và Ảnh Hưởng Của Nó Đến Pháp Luật Việt Nam Xưa Và Nay [Filial Piety in Confucianism and Its influence in Vietnamese Law Then and Now], TRƯỜNG ĐẠI HỌC LUẬT TP . HỒ CHÍ MINH (June 25 , 2014 ), http://www.hcmulaw.edu.vn/hcmulaw/index.php ?option=com_content&view= article&id=10361:s-kcb-nckh&catid=309:s-kcb-nckh& Itemid =357 [https://perma.cc/4H4M3GG5] (archived Oct. 29 , 2017 ).
230. For more details , BUI, supra note 34 , at 43-45.
231. Id ., at 83.
232. Albert Chen , Confucian Legal Culture and Its Modern Fate, in THE NEW LEGAL ORDER IN HONG KONG 519-20 (Raymond Wacks ed ., 1999 ).
262. Harold J. Berman , Legal System, in ENCYCLOPEDIA OF SOVIET LAW 477 (F.J.M. Feldbrugge et al. eds. 1985 ).
263. STATE COUNCIL WHITE PAPER , supra note 123.
264. Id .
265. See , e.g., Criminal Code , No. 100/2015/QH13 art. 1 ( Nov . 27, 2015 ) (“This Code regulates crimes and punishments .”) (Viet.).
266. See , e.g., GIÁO TRÌNH LÝ LUẬN NHÀ NƯỚC VÀ PHÁP LUẬT [TEXTBOOK ON GENERAL THEORY ON LAW AND STATE] (Lê Minh Tâm ed. 2009 ).
267. For example, the School of Law at Vietnam National University-Hanoi is comprised of these six departments: Department of Theory and History of State and Law; Department of Constitution and Administration; Department of Criminal Law; Department of Civil Law; Department of Business Law; and Department of International Law. See School of Law, VIETNAM NATIONAL UNIVERSITY, HANOI, http://www.vnu.edu.vn/eng/?C2247/N12718/page1 [https://perma.cc/Z7C4-9D6P] (last visited Oct . 10 , 2017 ).
272. For functionalism, see KONRAD ZWEIGERT & HEIN KOTZ, AN INTRODUCTION TO COMPARATIVE LAW 34 ( 1998 ).
273. Id . at 286.
274. JOHN W. HEAD, GREAT LEGAL TRADITIONS: CIVIL LAW , COMMON LAW , AND CHINESE LAW IN HISTORICAL AND OPERATIONAL PERSPECTIVE 458 ( 2011 ).
275. CONFUCIANISM, LAW, AND DEMOCRACY IN CONTEMPORARY KOREA (Sungmoon Kim ed . 2015 ); Chaihark Halm, Law, Culture and the Politics of Confucianism, 16 COLUM . J. ASIAN L. 253 ( 2003 ); Woo-jung Joon, The Influence of Confucianism on the Criminal Laws of Korea and Japan, 9 KOR . U. L. REV. 21 ( 2013 ).
276. M Chen-Wishart , Legal Transplant of Undue Influence: Lost in Translation or a Working Misunderstanding? 62 INT'L COMP. L . Q. 1 ( 2013 ).
277. Charles K. N. Lam and S. H. Goo , The Intrinsic Value of Confucianism and Its Relevance to the Legal System in Hong Kong and China, 3 CHINESE J. COMP . L. 175 ( 2015 ).
278. U.N. DEVELOPMENT PROGRAM , THE LAW-MAKING PROCESS IN LAOS PDR: A BASELINE STUDY ( 2015 ).
279. Eric Yong-Joong Lee , Development of North Korea's Legal Regime Governing Foreign Business Cooperation: A Revisit under the New Socialist Constitution of 1998, 21 NW . J. INT'L L . & BUS . 199 ( 2000 - 2001 ).
280. Larry Catá Backer , The Cuban Communist Party at The Center of Political and Economic Reform: Current Status and Future Reform, 7 NW . IINTERDISC. L. REV. 94 ( 2015 ).
281. For other traditional legal systems, see WERNER MENSKI, COMPARATIVE LAW IN A GLOBAL CONTEXT: THE LEGAL SYSTEMS OF ASIA AND AFRICA ( 2006 ) ; WERNER MENSKI,