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

OUPM A L OF SCIENCE, ECO NO M ICS-LAW , N01E, 2004

VN_Í

O N 7U C IA N ISM AND THE FU TU R E OF THE LAW IN VIETNAM
P ham D uy N ghia (•)

was

to explain w h a t the s ta te and law are.

e a teau tiful house blown down by a

According to the hackneyed cliche, “the

die to lack of re p a ir” and which

law-based s ta te ” one of some newlyborrowed concepts, if not defined exactly,

ụhet.ier

Confucianism,

which

m . to have been d e v asta ted by different
-t>‘rn schools of tho ug ht, plays any role

is often rashly reasoned as a type of state.
Fortunately, th e in tellectual have been

,h3 col stru ctio n of th e V ietnam ese law
n kỉeps torm enting the contemporary

s
â

ị the n ext generations.

enlightened th a t
governm ent’s tool.

This article

law

is

not

ju s t

a

c}es ipon some problem s re lating to

The questions raised h e re are ‘W h at

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

are the striking features in th e history of

. u>ncf3 people’s

the

V ietnam ese state and law developm ent

ojicti'n betw een C onfucianism and th e

and a p a r t from th e influence of Chinese

measures

behaviors
to

a d ju st

and

people’s

c u ltu re ’. ‘W hat distin gu ished V ietnam ese

^ia/ior. This article also raises some

legal

rysal to m ake contribution to bringing
]^

vtiarri’ w ritten law close to its people.

questions need an sw ering for every nation

p a tte rn s

in

o th e rs ’. Both

these

which rule over its people’s behaviors.
After the Cold War, ideology h as no
longer been a gap betw een nations. While

] is common knowledge th a t cultural
e e n o m ic

from

has its own characteristic, and custom s

.ADoctrine for V ietn a m ese C urrent
Law
d

culture

legal harm on izatio n is pu shed up by global

different

free trade,

the

im portance

of national

‘i^ies from Prim itive Com m unism ,
iV>ry Feudalist, C ap italist to Socialist
, - ị e s \re widely introduced in the s tate

cultural

J rental law textbooks. Sometimes, the

significant. This is sim ilar to the freedom

li y £ our n a tion is ignored so the
cuntry fits in one ready made
)C?1 A such, th e re h ave been different
of state and law. It is jurisdictional

and

pcern

V ietnam ese

out the in su lt of being poor an d backward,

ijsopy
t h a t universe, h u m a n
ir s a d society th a t are often based on

the very first th in g th a t le a rn e rs of law

doctrines,

not

legal

identity

culture,

p reserv atio n
h as

independence

become
protection

including
extrem ely

of

our

country from colonialists’ invasion in the
n in e te en th

century.

So,

in

order

to

preserve national ch aracteristics and w ash

should do is to u n d e rs ta n d a n d honor the
legal culture and jurisdictional philosophy
of th e ir country.

r acultofLaw, Vietnam National University, Hanoi.

24


Confucianism and the future o f the law in Vietnam

- — —25

To u n d e rs ta n d V ietnam ese law and
its social organization, it is a need to
u n d e rsta n d V ietnam ese history of ideology
developm ent for people’s way of thin k ing
affects th e ir behaviors. Only by th a t way
can

we

explain

w hat

th e

V ietnam ese

respect, love, h a te or fear as well as can
u n d e rs ta n d th e way they organize th eir
own activities, which is so called culture.
V ietnam ese ideology can be divided into
two categories: Common ideology- ideology
of common people, descended from this
generation to a n o th e r by m ean s of folklore
and academic ideology- ideology of the
intellectual.

Such

tra d itio n a l

ideologies

should be studied thoroughly and han ded
down to the next generation before alien
ones come up with.

n a tu ra lly t h a t it leaves tra c e ln
V ietnam ese cultu ra l vestige.
T hro ug ho ut history, each

eYy

ago

own u n d e rs ta n d in g of Confucianism Y\
are different schools of Confi-ucHn

m
Confucianii: m, I
n
Confucianism, T ang Confuciam

including

Prim itive

16m .

s,

Confucianism, Neo-Confucianism,
T raditional C onfucianism ,
fcchcia
1C
Confucianism a n d Common Confucia •
1
C ontem porary Neo-Confucianism K*r
rn
Confucianism, J a p a n e s e Confuciaiisi
Singapore
C onfucianism . ...Of
L
:ne
v arian ts, th e re m u st 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

most

and Taoist elem en ts and indigenous lai'
gradually becam e ethnics of lifci. It „

fu n d a m e n tal elem en ts in the foundation of

t h a t the Ja p a n e se , K orean and Cl n.

the V ietnam ese ideology. It is believed

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

th a t Confucianism is one of th e three

of life while enriching th e ir couit'ies A

religions

thought,

Confucianism

is

one

of

(Confucianism,

Buddhism)

which

the

Taoism

influence

and

V ietnam ese

once

deep-rooted

in p^p

consciousness, in spite of be:nj dft]

culture. In fact, C onfucianism is not an

Confucianism does live perm am rU y 1

ideology because it was not Confucius who

way it affects people’s way of tliik in I

created

th e ir

th a t

kind

of

m entality.

And

behaviors.

Thus,

studying

Confucianism is not a religion of which

trad itio n al philosophy to e x p l a n w h c

Confucius is the h ead like th e case of

s tate a n d law are m e an s stacyin

Catholicism a n d Jesu s. Confucianism is a

trad itio n al

way

philosophy

forefathers

to

of life

according

to

which

of

thinking

explain

sone

of
ci*r

people live a comfortable a n d peaceful life,

phenom ena. This is a key to bnrg W(t

w ith no difficulties in th e ir household,

legal docum ents close to the n erets

th e ir clan, th e ir village a n d th e ir natio nal

people in V ietnam . Only by that wa

affairs. This kin d of philosophy h a s been a

law

foundation

consciousness.

for

V ietn am ese

society

for

live

p e rm a n e n tly
O therw ise,

h

pep.
al bor-)v

th o u san d s of years a n d p e n e tra te d into

schools of th o u g h t will soon befogotij-

V ietnam ese consciousness so deeply and

our thou sand -yearlon g histor;/.

V N I L Journal o f Science. Economic

s

-Im w ,

N„IE, 2004


Pham Duy Nghia

26

T here may be some un derly ing reasons
for

Confucianism’s

being

devastated.

Firstly, it may originate from th e W estern
education movem ent in which c u lture and
civilization

were

mixed

m eanw hile

Confucians were bew ildered about w h a t to
do

next

to

catch

up

w ith

W estern

civilization. Secondly, it m ay begin from
revolutionists’ movement of using Vietnamese

originates from w h ere one s ta rts to find
the h arm on y betw een individual and the
universe introspectively.
According to th e books of th e Mean,
Way of N a tu re is w h a t is endowed by God
over which people’s behaviors are ruled.
Because everyone h as his own characters
and inborn m akings, one is too much while

tra n scrip t which un in te n tio n a lly created

the o ther is not enough, he needs to be

the gap disabling th e offspring to read

educated appropriately. T em p e ra te person

th e ir

an n als.

F u rth erm o re ,

is the one who knows how to control his

was

h a rs h

emotions,

e ith e r

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

everything

is

after the Chinese revolution, Confucianism

medium is im p a rtia l behavior, a basis for

in V ietnam

leading

the right. The harmonious is uncontradictory

doctrine in organizing society. It more or

behavior - a common link betw een people.

less lost its hold on th e nation. People only

Therefore, Confucianism is a Doctrine of

family

although

used

there

was

some

old

Confucianism

no

no

longer

m anner
to

of

a

anti-

speech

propagandize

of

happy

kept

or

angry,

moderately.

The

the M e a n .[2, pg. 20]

new

political tho ug hts borrowed from the West.

C onfucianism ’s philosophy of life is

Not un til recent tim e h a s Confucianism

mostly

been studied again, which can be seen as

including

the

roots

civility, know ledge a n d loyalty, of which

aroused

benevolence is considered as the key to

inte re st am ong W estern scholars. W h at a

Confucian ethics. Like an energy storing

sham e to us! T h a t Confucianism research

seed giving life to buds, leaves and twigs,

foundations have been m ushroom ing both

benevolence decides h u m a n

instinctive

while

in

O riental

Europe

am azing

and

r e tu rn in g

to

c u ltu re

has

America

a ttra ctiv en e ss

th e

indicates

of

the

O riental

philosophy of life in th e m odern world.

2. In tr o sp e c tiv e n e ss and T h eory o f
R ectifica tio n
of
N am es
as
C on fu cian ism ’s M ea su res to A djust
P e o p le’s B eh a v io rs

based

on

five

benevolence,

basic

virtues

righteousness ,

appearance

and characters. The concept of benevolence
in Confucianism is considered a fulcrum to
push a large p a r t of h u m a n society into a
stable,

peaceful

and

kindness-oriented

world. Benevolence carries in it a narrow
m eaning b u t also enjoys a broad sense a t
the sam e time. It fits all kinds of people. It

Like

oth er

E a s te rn

philosophies,

Confucianism believes t h a t th e p ath to

may ta k e a whole C onfucian’s life ju st to
look for th e values of th e word.

discover a n d conquer th e outside world

V N U . Journal o f Sc ience, Economics-Law, N„IE, 2004


Confucianism and the future o f the law in Vietnam

The

m ost

general

27

m eaning

of

Confucius

benevolence is love for all h u m a n beings.

A nnals

The

Mencius

C hinese

c h a ra c te r

‘J e n ’

literally

of

th o u g h t
of

A u tu m n
highly

W arring

and

Spring

of benevolence,
th e

State

gave

re p re se n ts th e relationship betw een "two

prominence to righ teou sness which is w hat

persons,"

should be done by an individual to the

or

co-humanity.

People

with

benevolence are th e ones who love th eir

community.

pare n ts, siblings, spouse as well as their

know how to live sincerely, to hold back his

fellow countrym en, and who have no ill

sexual desire to keep things in order, to

feelings for anyone. Benevolence is best

regret m aking m istakes, which keep them

expressed in th e Confucian golden rule,

away from evils. They should neith er be

"Do not do to others w h a t you do not w ant

fond of richness nor a sh a m e d of poverty.

done to yourself'.

These people always

As a h u m a n , th e two most valuable things

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

are benevolence an d righteousness without

the universe as a unity, showing th eir

which

n a tu r a l not re lu c ta n t love. Thus, they

respecting.

surely enjoy a peaceful s ta te of mind and
security.

In

contrast,

people

w ithout

benevolence have none [14, pg 82-83].

a

People

w ith

powerful

king

righteousness

is

not

worth

In co n trast to M encius' supposition
th a t h u m a n beings’ in n a te n a tu re should
only be nourished, according to Hsyn-tzu

Benevolence also m eans tolerance to

a person is born with an evil nature,

others, a good u n d e rs ta n d in g to have the

therefore

rig h t a ttitu d e

u n d e r all circum stances,

civility. People w ith civility know how to

courage to a ssu m e responsibilities to be on

supress th e ir sexual desire so th a t all

o ne’s gu ard w ithin civility rules. In other

thoughts,

words, benevolence helps people control

conformity

th e ir desires an d re sist all tem ptations.

respect to th e noble, piety to the old, faith

G entlem en

alw ays ta k e benevolence

into account in all his activities like eating,
d ressin g a n d
difficulties.

speaking...

in

Confucianism

h u rries or

is

therefore

practiced exactly like a religion. Such a
belief

an d

discipline

formed

ancient

Confucians whom scholar N guyen Khac
V ien

considered

respectable.

to

be

stran g e

bu t

The root of W estern legal

c u ltu re is Catholicism while t h a t of the
O rie n t is Confucianism.

a tte n tio n

words
w ith

to th e superior,
tolerance
m eans

to

should

and

be

paid

behaviors

civility.

are

Civility

to

in

m ans

modesty to the junior,

the

coward.

cautiousness

in

Civility

also

speaking

and

dressing behaviors. According to Hsyn-tzu,
a nation w here righ teou sness and civility
are respected is in order, otherw ise it gets
into chaos. “L earn how to behave first and
th e n

to re a d

an d

commonly

found

originates

from

w rite” - the slogan
in

schools

H sy n-tzu’s

nowadays
respect

for

civility.
Politically, H sy n-tzu ’s theory does not
put

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

a

stre ss

on

legal

punishm ent.

28

Pham Duy Nghia

However,

because

it

m a in ta in s

th a t

to

avoid

p u n is h m e n ts

w ithout

being

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

asham ed. However, it is not the case if

if not being guarded a n d restricted, would

they are oriented by m orality”(Analects,

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

c h ap te r II)

th a t in this sense h u m a n n a tu re is evil and
goodness is only acquired from training,
therefore, p u n is h m e n t is a m ajor concern.
For

Hsyn-tzu,

everybody

values

righteousness a n d benefits yet he should
use his knowledge to ta k e th in gs into
consideration.
Fei

and

Li

Of his two disciples, H an
Ssu,

H an

Fei

extraordinarily

ta le n te d

influenced

H syn-tzu’s

by

was

and

more

heavily

respect

for

civility. As a result, he extrem ized the
th ou gh t into legal fram ew ork and used
“fame form ation” theory as a tool to govern

A part from introspectiveness, theory of

policy is also a tool of Confucianism to
educate people. T his th e o ry was discreetly
implicated in th e

A u tu m n

and

Spring

Annals p ray ers a n d note-takin gs in the
Analects of Confucius. According to the
Analects of Confucius, Confucius said th a t
irratified

n a m es

lead

to

inconsistent

words, incomplete w ork, merciless chorus
and wrong p u n is h m e n t which, in tu rn
resulted in people’s confusion. So, for a
virtuous m an w ith ra tified name, words
and deeds accom panied each o th e i.

the country.

A nother
In short, Confucianism is a foundation
of

self-adjustm ent,

self-correction

and

sh am e preservation a n d it is a traditio n al
thought to govern a nation. Confucianism
considers m orality as a basis of politics [7,
pg 53].

Although Confucianism does not

deny the role of law in k eeping the society
in order, it h ead s to the root of se urity
ra th e r th 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 th a t it p rev en ts the evil even w hen there
is no sign of it in o rder to bring people
close to th e good, stay aw ay from the evil
w ithout th e ir consciousness. Thus, civility
has

an

educational

role,

preventing

insecure seeds while law is a n imposing
and dom inating tool of th e ruler. Confucius
once said “If th e s ta te affairs are used to
orientate people, p u n is h m e n ts are used to
im plem ent the equality, people surely try

C onfucian

th o u g h t

is

m ain ta in in g an o rderly society of rank s
and classes. Confucius said: "There was
Tao (a way or road of righteousness) only
when fa th e rs w ere fa th e rs, w hen sons
were sons, w hen R u le rs were Rulers and
when

m inisters w ere

ministers."

Every

society is Dased on fam ily of which a
virtuous m an is th e r u le r literally. This
one

should

Knowledge
considered

be
and

as

two

ed u cated
civility

carefully.
should

mottoes.

be

Civility is

morality, knowledge is u n d e rs ta n d in g [ 1 2 ,
pg22o]. M anaging o n e ’s household m eans

keeping
family
faithful,

one’s fam ily
m em bers
th e

arv

inferior

in

harm ony.
emotional

su bm its

to

All
and
the

superior, th e su p erio rs ta k e care of the
inferior. So, t iat for h e rs should be fathers
m eans p a re n ts w h e n alive should have
sense of purpose a n d w h en dead should be

VNU, Journal o f Science, EconomicS-Law, N„IE. 2004


C onfucianism and the future o f the law in Vietnam

29

a good exam ple for children to follow.

should realize such non-motives and limit

F a th e r ’s pro priety is clemency, child ren’s

their negative impacts.

prop riety is piety.

Confucianism be useful to our p resen t day

From

then, people’s

behaviors are ru le d over by w h a t people

Only then can

life .

call “ratified n a m e s .”

3.
dynasty,

In n er C on fu cian ism and O uter
L eg isla tio n as a U n iq ue O riental
L egal C ulture

Confucianism w as continually distorted to

Chinese H istory says in 536 BC Ching

Regretfully, a fte r h aving become an
official
a ss e rt

doctrine
the

of

r u le r s ’

H an

H an

d yn asty ’s King introduced the Book of law.

the

interaction betw een th e superior and the

In 513 liC, u n d e r Tan dy n asty ’s King
order, a huge cauldron on which the

inferior. It only focused on th e duties of

legislation

was

being obedient of th e inferior. The concept

criminals.

As tim e w en t by, a school in

of th re e moral bonds m ay be shap ed by

favor of rule by law emerged. Rules by

T u n g C h u ng -sh u a t t h a t t i m e [ l l , p g l 8 ó].

morality a n d law were two most popular

The notion of loyalty, piety, a w o m a n s
th re e obediences a n d four v irtu es were

schools in th e A utum n a n d Spring Annals

and W arring The s ta te s period. Debates

som etim es

For

betw eens scholars of those two schools

exam ple, a female, before m arriage, was

contributed to th e sh ap in g of legal forms of

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

the E a s te rn countries u n d e r the influence

orders, for exam ple

of

C onfucianism

authority.

seem ed

abn o rm a lly

to

forget

understood.

m a rry the one th a t

C hinese

carved

culture.

was

Chi’in

used

for

dynasty

h e r p a re n ts had selected for h e r w ithout

followed th e school of th o u g h t in favor of

freedom in love a n d m arriage. After being

rule by law.
From 350 BC,

privatization
was
im plem ented,

m arried , she should obey all her h u s b a n d ’s
o rd e rs and w hen h er spouse is dead, she
m u s t obey h e r son. Since H an dynasty
opened an e x am in atio n session in 14 BC,
le a rn e rs only focused on learn ing by h e a rt
for exam inations. T hey more or less lost
th e

original

c re ativ e n e ss

in

learning.

land
the

monopoly by the a risto c ra t w as abolished.
All people both worked a n d fought, which
resulted in th e prosperity and power of
Chi’in dy snasty 120 years later (227 BCE),
w hen the first em p ero r of Chi-in dynasty
unified th e whole country.

gradually

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

b ecam e conservative, com placent and anti-

233 BC)- th e most typical rep resentativ e of

lnnovative in both political and economic

the rule-by-law school which were w ritten

te rm s.

in prison w ith

C onsequently,

In

C onfucianism

p a ra llel

w ith

golden

rules

k eep ing the society in order, some r u ’es of
C onfucianism

w ere

like

hindrances

k e ep in g the c o u n try behind th e re st of the
world. The key point here is th a t we

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

m en tal sufferings, more

th a n two th o u s a n d s years later, one is
am azed a t th e sh arp-w itted th o u g h t of
which the in ta c t values are

rem ained at

present time. Han Fei’s views are as follows:


Pham Duy Nghia

4

Law

m u st be tra n s p a r e n t.

Only

tr a n s p a r e n t law can b ring prosperous and
p e a c e fu l

tim es

time

on,

a

tre n d

to

combine

both

Confucianism a n d legislation to rule the
country came into existence. Also from

[4 , p g 7 3 ] .

« L aw m u st 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 one’s behaviors, so th a t
people follow rules w ith o u t uncertain ty.
Those who obey such ru le s a re rew arded
white th o se who do not are punished.

th e n on Confucianism h a s been deeply
im bued

in

O rien tal

legislation.

Confucianism does not deny and criticize
b u t m akes light of h a r s h pu nish m en ts.
The

society

should

be

by

morality

organized a n d should be based on rule.

Self-education w ith the five basic vertues-

ệ People of any position a n d ra n k are

benevolence,

righteousness,

civility,

treated equally before law. Law does not

knowledge and loyalty should be used as a

side

is

principle to correct oneself, to m anage

not

one’s household, to rule th e country and

w ith

implemented,

th e
the

rich.

Once

to le ra n t

law
dare

tjlerate, the b rave d a re not compete w ith

pacify

l;lW. P u n is h m e n t and re w ard s a re not only

Confucianism which have been adjusted

far any given subjects. Even a n aristo crat

for centu ries now replace a major p a rt of

can be

the functions of law.

pu n ish ed

and

a

boor can

be

th e

world.

M oral

rules

of

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

ệ U nlike “ratified n a m e ” theory of

4. Six P rop osals to B rin g W ritten Law
C loser to P e o p le’s In terests

Confucianism which w as u sed to assu re
The p rim ary objective of legislation is

the relationship betw een classes, H a n Fei’s
‘n a n e form ation” th eo ry accidentally or
purposefully aim ed a t elim in atin g social
clashes. A chievem ents should be accessed

according to work types. If achievem ents

to

serve

people’s

benefits,

not

the

constitution. In th a t spirit, the following
six

proposals

should

be

ta k en

into

consideration.

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

F ir s tly , law is closer to people and is

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

more effective w hen people willingly follow

p u nsh m en ts.

rules. B ut it is the case w hen law is close

Although H an Fei’s books w ere highly
appieciated in C hi’in D ynasty, after the
eclipse of this dynasty, school favor of rule
•>y

law

was

overshadow ed

by

> n u c i a n i s m ’s school favor of rule by
norility. H an E m p eror Wu h a d to use
egiilation to deal w ith domestic affairs
ind use C onfucianism for diplomatic ones
n O'der to keep society in order. From th a t

to th e ir needs, th e ir dem and as well as
th e ir w ants. On th e contrary, w hen law is
a g ain st n a tu re , a g ain st people’s wish, it
will be boycotted no m a tte r how h arsh,
forceful and th re a te n in g p u n ish m en ts are
used. Then the illegal is common, the legal
is

exceptional.

Therefore,

making

law

stric te r and more effective m eans b e tte r
p resen ting people’s views and interests.

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


Confucianism and the future o f the law in Vietnam

The

insufficiency,

overlapping

and

organizations such as p a rty organisations

contradiction of legal docum ents or the

and tra d e union. As the ruling part}, the

lack of legal staff are ju s t only tem p orary

V ietnam ese C om m un ist P a rty plays; <

and

the

role in establishing and im plem enting law

ineffectiveness. The key is to bring the soul

procedures. T h a t people are rich 0)r poor

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

and the country is powerful or n.)t IS

interests. It is necessary to rally 80 million

mainly a ttrib u te d to th e P a rty ’s p-oicies

V ietnam ese

The

superficial

reason s

people

in

for

organizations

P a rty ’s

political

do cu m ents

^ rcj

re p re se n tin g th e ir various in terests. There

resolutions

are

based

on

should be unions, associations, religions

legislation,

and

o th e r

socio-ecoiomic

and p arties to promote people’s will —a

policies respectively. At th e sam e tiln* t i e

suprem e will which conquers all forces of

governm ent and o th e r s ta te bodies issue

the state.

official legal directives to realize

S e c o n d ly ,

law

and

law

m easures

should be redefined if people are viewed as
root, the s ta te is viewed as tool not the
oth er way round. Law is not ju s t a set of
rules set by the sta te b u t a reflection of
people’s desires which are converted into
laws. The bodies who speak those desires
and p re sen t a lot of unions should not be
ju s t

legislative

but

also

juridical

to

form

hone

guidelines. In o th e r words, V ietnanese

law is mostly based on P a rty ’s idetlogy
However, due to some technical consents
in legislation, the tran sm issio n from deas
into

w ritten

imperfect
between

legal

th a t

docum ents

th e

political

i;

H0

m isunderstaidir.g

o rientatio n

a n d legal

norms still exists.
F o u r th ly ,

w hen

b u sin essm en

a?e

organizations. In modern time, rigid laws

given more freedom to trade, they iurey

have been grad ually replaced by soft laws

will become a powerful force in the Sicieiy

set up by lots of institutions. Once realized

who tries to gain control over ecoromi:

by public bodies of power such kinds of

cultural, a n d social life and

rules and regulations become law. Thus,

control politics a n d legislation soon. Tais g

establish ing and im plem entin g law is no

inevitable because bu sin essm en art aho

longer th e sole b usiness of the state, it

citizens, even some of th em are in th' leed

should be th e common b usiness of all

of creating n a tio n ’s prosperity.

Though

people in th e country. The s ta te ’s function

trade-union

oriinUd

is to e n su re proper law e sta b lish m e n t and

organizations’ activities, businessmen hy

im plem entation.

p ressure on governm ent and legislatures

T h i r d l y , a variety of people’s in terests
in co m m un ity principles of life, family and
villages’ ru le s as well as official legal

docum ents of the locality should be well
p resen ted

by

social

in stitu tio n s

V N U , Journal o f Science, Econom ic s - I m

w

\

and

N J E , 2004

and

interest-

of Oune

publicly or discreetly, they even t*y 0
control law. A typical example of tiis s
th a t C hinese local courts h a d to uffcr
from a g re a t p re ssu re caused by re.'ionil
rulers

as

th e ir

feud.

In

adiitioi,


Pham Duy Nghi a

32

b u s in e s s m e n

pre

getting

b etter

supposed

to

abolish

such

constitution

u n d e r s ta n d in g of settin g rules as th eir

violating rules. T here is a need to set up

own r i g h t and use it as a tool to respond to

a d m in istrativ e bodies to tr e a t violations of

m arktet changes a n d law ad ju stm en ts. This

institution s of power. T h ere is nothing new

p h e n o m e n o n is not a d eq u ately mentioned

in this because more th a n two h un dred

in V ie tn a m e s e law studies.

years

N ot

only

law

but

also

economic

tra n s a c tio n s in the m a rk e t are affected by
the r i g h t to set ru les a n d regulations of
b u sin essm en . The s ta te is not always a
comrruander b u t som etim es a co u n terp art
of b u sin e ssm e n . T h ere h a s no longer bee subm issiveness

but

competitiveness

ago,

the

W est

realized

th a t

governm ent w as not God. M uch longer
before

th e

E a st

th e y

know

such

in stitu tio ns to limit a n d balance power
should

be

set

up.

Regretfully,

two

centuries later, V ietnam ese is still at pains
to find th e '.vay to set up and use such
in stitu tio ns effectively.

betw een legal n orm s a n d b u sin essm en ’s

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

in d e p en d e n t norms. This factor is worth
is

create rules of the judge was discussed.
The legal system in V ietnam h a s followed

im plem ented. Although th e s tate is not

the legal th o u g h t of th e F o rm er Soviet

to help b u sin essm en to realize,

Union, liy now, the N ational Assembly has

considering
su pposed

access

w hen

and

law

allocate

reform

b u sin ess

should

have

effective

protect

th e

public’s

abuses

of

u n e q u al

it

the rig h t to constitute laws and the right

to

to explain laws, in theory, is held by The

against

S tanding

Com m ittee
of
National
Assembly, yet in reality, it is in the hand

risks,

interv entio n
in te re sts

inform ation

and

of th-

competitive advantages.

governm ent

and

adm inistrative

institutions. V ietnam ese courts only have
F i f t h l y , not only elected bodies but
also judiciary org an ization s at all level,
eicher national or local ones have big
power

to

set up

governmental
circulars

or

or

rules.

Sometimes,

m in isterial

lette rs

or

the rig ht to <>pply and im p lem ent rules,
b ut not to create or explain them. The
practice to view legal procedures came into
being w hen the country w as u n d e r French
rule, according to which Inferior Court

decisions

by

People’s

should

all

are

of

consider

th e

Inferior

C ourt’s

Committee

of

high

decisions as one kind of law. Scholars also

practicality

and have b e tte r effects on

base them selves on legal procedures to

level

which mainly contain general principles.

build up theoretical
studies. These
practices were abolished in V ietnam in the

T.iis is an inevitable a n d unchangeable

late 1950s. V ietnam ese courts now only

fact. The th in g is we should supervise the

base them selves on legal documents, they

rights

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

every individual r a th e r th a n

to

set up

ru le s

to

any Acts

prevent

corruption. This gives rise to establishing

cases.

the institutions to protect th e law which is

V N U . Journal o f Sc ienc e, Economics-Imw, N„IE, 2004


C onfucianism and the future o f the law in Vietnam

N evertheless,

C ourt’s

s ta te of p role ta ria t dictatorship. .Judging

guidelines which have been sum m ed up

for objective tr u th procedures h a s been

from experience are more, or less worth

replaced by equal in s titu te proceedings

referring to in judging procedures. In th a t

b etw een the prosecutor and the lawyer

sense, to a c ertain extent, it h a s some

Among innovational th o u g h ts which have

impacts.

judge

been swept away by globalization storm

indepen dently are realized, th a t judges
should be given more power to set up

th e re a pp ears fam iliar Confucianism
Confucianism which has secured a firm

rules, apply, com m ent as well as explain

hold

laws

certainly

If

to

the

a d ju st

the

S u p rem e

33

Courts

some

which

p a rtic u la r

cases

on

V ietnam ese’s
will

lead

consciousness

us

to

peace

and

should be considered. It is reasonable if

deliberation to well organize a civil service

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

system a n d legislation to serve its people

the

jurisdictional

better. W esterners hav e ta k e n a lot of

in stitu tio n s can judge w h a t deeds are legal

m e asu re s to m ake au th o rities subm it to

or illegal. Besides, outside th e Court, the

people’s will. Such m easu res should be

judge

soon learned like the way we should soon

Court,

b ecau se

should

only

consider

justice

and

theoretical studies as a sub sidiary source

le a rn how to m a ster all IT instrum ents

of his job. W hen th e re are no rules and

N evertheless, no m ạ tte r how good such

reg ulatio ns concerned, he should judge a

m e asu re s are, nothing can replace the

case basing on justice an d the right, not

living th o u g h t and ideology. We can not

respectfully su b m it th e record to his senior

use w h a t th e W esterners respect, hate or

an d w ait for the judgm ent. This kind of

d read to replace national consciousness

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

L earn in g tKe superficial will ju s t increase

law

w ritten

people’s xenophilia, widen the gap betweer.

docum ents, th e re do exist law of th e right

generations, the sense of nationalism wil.

and law of conscience. The judge w ith his

fall

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

country. The s tate a n d legislation of tae

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

V ietnam ese

law of conscience and th e rig h t close to life

explained

c re atin g law. (Latin root: juris-law; dicta-

ideology. -That

announce).

borrowed

does

not

only

contain

5. C o n clu sio n
People’s a w are n e ss of civic righ ts has

into

decadence,
should
on th e
is

th u s
be

weaken

establishec

of Vietnamese

W estern

civilization Ù

to

complement

to encourage

people

prom ote

quintessence.

a.ic

basis

shortcomings,
to

the

Vietnamese

th e ir

V ietnam ese

CUĨ

civil

m tio ta
ierv.ee

led to jurisdictional reforms, which can

system and legislation can not s ta r t with c

b ring changes to old schools of th e state

borrowed W estern school of th o u g it tu:

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

proceed w h a t we have had for thousands o'

a n d for people is on the way to replace the

years.

V N U , Journal o f Science, Econom ic S -L aw , N ()IE, 2004


34

Pham Duy Nghia

REFERENCES
1.

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Trần Trọng Kim, Nho giáo: Đại cương triết học Trung Hoa, NXB Tân Việt, Sài Gòn, 1971.
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TẠP CHÍ KHOA HỌC ĐHQGHN, KINH TỂ - LUẬT, s ố 1E, 2004

NHO GIÁO TRONG TƯƠNG LAI PHÁP LUẬT VIỆT NAM
TS. Phạm D uy N ghĩa
Khoa L uật , Đại học Quốc gia Hà Nội

Bài viêt dự định địn h nghĩa lại giá trị của Đạo Khổng trong sự p h á t triể n của k hái n:ệm
pháp lu ậ t Việt Nam. Là một tậ p hơp các quy tắc đạo đức chi phổi n h ữ n g h à n h vi của con
người, Đạo Khổng th a y t h ế và trợ giúp các quy ch uẩn pháp lu ậ t tro n g việc duy trì t r ậ t tự xã
hội. Dựa vào công trìn h n gh iên cứu này, bài báo đưa ra sáu vấn đề và đề x u ấ t giúp đưa văn
bản pháp lu ậ t của Việt N am gần vối quyền lợi của người dân.

VNU, Journal o f Science, Econom ics-Law, N„IE, 2004