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Monday, September 23, 2019

Huong uoc” and the process of legal reform as well as rural democratization

Updated: 09:49’ - 01/04/2011

>>New rural conventions and the State law 

Ass. Prof. Dr. Le Minh Thong     

State and Law Research Institute

 

The relationships between “huong uoc” (village codes) and the State law

It can be easily realized through studying the process of formation and development of legal culture in Vietnam through various historical periods that in addition to the State laws, the village codes have always played an important role in regulating the social relations in Vietnamese villages and communes. State laws and village codes seem to be the legal baggage for the survival and development of various generations of the Vietnamese in all ups and downs of the history. Reviewing various stages of national development throughout thousands of years now, particularly since our forefathers gained the national independence, various Vietnamese dynasties elaborated and enforced numerous major codes while having still preserved and respected “huong uoc” and village rules, considering them important tools for regulating and maintaining the relationship between the State, the nation and the village communities. Through various periods of building and defending the national independence by feudal monarchies, the history witnessed four typical codes: “Hinh thu” (the Criminal Code of the Ly dynasty); “Hinh thu” (the Criminal Code of the Tran dynasty); “Quoc Trieu Hinh Luat” (The National Criminal Code of the Le dynasty); and  “Hoang Trieu Luat Le” (the Royal Laws and Regulations of the Nguyen House). All these big codes, though with different legal values, have existed and brought into full play their effect on a basic legal foundation of the Vietnamese community, namely “huong uoc” and village rules, which have constituted a particular environment of legal culture to further enhance the effect of the State laws on the one hand and to restrict the State laws in an effort to preserve the peculiarities of the commune lifestyle in an agrarian society on the other hand.

It can be seen that the State laws and the village codes were two sides of a political and legal institution, which reflected the correlation between the national unification and the communal self-governance and helped maintain the balance between all aspects of the political, economic, cultural and social life of each village and the entire nation. The double characteristics of the political and legal institution in Vietnam in the previous development stages can be seen as the consequential outcome of the process of struggle to accept the influence of foreign legal ideas (mainly Confucianism) on the one hand and to preserve the Vietnamese nation’s cultural identity on the other hand. Here, the heaven-earth-human being relationship and harmony in legal terms were concretized through the individual- village- State relationships. The Vietnamese have always survived in the governing relationship between the village and the State. Consequently, the village affairs and the State affairs have always been the common concern of the whole community and the village interests have always been associated to the national interests. These interests are harmonious on the one hand and contradictory on the other hand. These two sides of a coin help to maintain the balance not only in the material, economic, political and social lives but also in the spiritual life of each individual and each community of the Vietnamese. So, it can be realized that there has always existed between the State laws and the village codes a relationship which is uniform and contradictory too. Though it is not an easy task to clearly determine the uniformity and contradiction between the State laws and the village codes, such can be generally outlined in the following aspects:

Firstly, the State laws had to rely on “huong uoc” and village rules to penetrate into the social life. The self-governance of ancient Vietnamese villages in formality seemed to block the central government’s authority and the existence of “huong uoc” seemed to curb the regulatory capability of the State laws. But in reality, the organizational structure of the village’s self-governance as prescribed in “huong uoc” was the ruling instrument of the State administration embodied in the structures of such organizations as “Hoi Dong Ky Muc” (councils of village elder notables) or the apparatus of village officials. Similarly, to some extents, “huong uoc” was the ruling instrument of the State and the embodiment of the State laws in conformity with the customs, practices and lifestyle of each community. This is attributed to the fact that: “The village also means the State as the villages put together constitute the State and the root of the State, and prosperous villages make a strong nation...,” as clearly stated in the Forewords of the “huong uoc” of Tay Mo village. So, villages constitute the root of the State and the State laws have been enacted mainly for villages and their implementation in villages. Theoretically, the State laws are legal norms of universal and typical nature, which create general legal frameworks for regulation. However, such general legal frameworks cannot be applied commonly to all subjects and all localities in the context of Vietnamese villages which have been self-governed and enclosed with different customs and practices as well as ways of living. In order to be able to enter life and to have their regulatory capability brought into full play, these legal norms of the State laws must find ways to embody themselves in the provisions of “huong uoc” and to bring their regulating objectives via “huong uoc” to every village community. The uniformity between the State laws and “huong uoc” could be seen in many ancient village codes, such as the “huong uoc” of Tho Khoi village, Cu Linh canton, Gia Lam district, which wrote: “Villages have their own ethical norm systems and conventions to closely bind villagers together just like the State has its rules and laws to advise and prevent citizens from wrong doings; thus the State laws and “huong uoc” are created by the Heaven to be followed by people...”; or “huong uoc” of Phu Coc village (Ha Tay province) which also stated: “It is said that the State has hundreds of law provisions to administer the State affairs while villages have their own conventions to help customs further prosper. It is the people who constitute the root of the State. We must strive for unity, brotherhood, mutual respect, better customs, friendship, a peaceful and happy life...”

Examining other ancient “huong uoc,” we can realize that basically, the provisions in “huong uoc” have all demonstrated the spirit of the Confucian ideology, especially the rules of “tam cuong, ngu thuong” (three bonds and five constants in the village hierarchy).

Secondly, the State controlled the formulation and enforcement of village codes. It is this factor that glued the State laws and village codes. In this regard, a royal decree of King Le Thanh Tong (1442-1497) made it clear that:

 “- Villages should not formulate their own village codes as there have existed the common laws of the State.

- Villages having different and unusual customs may be allowed to make their conventions.

- Those who elaborate village codes must be aged persons who understand Confucianism, have virtue and official positions.

- Once the village codes have been completely elaborated, they must be approved or disapproved by superior mandarins.

- Once the village codes are allowed for application, those who fail to comply with them shall be punished by superior mandarins.” 

The State’s control over the elaboration and enforcement of “huong uoc” has shown that though “the State has its own laws and the villages have their own rules,” the village rules cannot go beyond the State laws and, in essence, the village rules represent specific images of the State laws in particular conditions of each village.

Thirdly, “huong uoc” and village rules, for their parts, were not only the concrete manifestations of the State laws but also the important complements to the State laws which, however elaborate and specific they are, cannot cover all aspects of the particular village relations, as besides the universal characters, each village has its own characteristics, hence each village community always needs specific provisions which are familiar to them and easy to understand and to follow by every villager, reflecting its own organizational and development requirements. In that sense, “huong uoc” became important means and instrument of complement to the regulating capacity of the State laws. Such complementary and support role of “huong uoc” is demonstrated in the following:

- “Huong uoc” transformed the general provisions of State laws into specific rules of villages.

- “Huong uoc” simplified provisions of the State laws, not only making the State’s legal ideology closer and more accessible to the village’s ideological system, to the psychology and lifestyle of each commoner, but also making the State laws easier to understand, easier to apply. With simple presentation in rhythmical verses like folklore, “huong uoc” penetrated into the life of people in a natural manner. As a result, the State  laws’ spirit infiltrated deeply into the community life without any noisy and expensive means of propaganda and dissemination.

- “Huong uoc” helped transform the rigidity and severity of the State laws into the flexibility in the communal behaviors. In “huong uoc” and village rules we can see the spirit of tolerance, generosity and flexibility.

- “Huong uoc” contained many specific provisions, thus filling up the loopholes of State laws, regarding specific relations of the village community. Such matters as the distribution of public land, the rights of the elderly, the male, the female as well as village security and spiritual life of the community... have been generally prescribed in State laws, but much more specifically in the village codes.

Fourthly, the enforceability of “huong uoc” relied on the enforceability of the State laws

In fact, the fairly high efficiency of “huong uoc” in regulating the village affairs and relations lies not only in that they have conformed to the customs, lifestyle and psychology of villagers but also in that their enforceability was, in the final analysis, always guaranteed by the enforceability of the State laws. This could be easily seen through the punitive provisions, various forms of sanction and punishment prescribed in “huong uoc” have, in essence, stemmed from remedies already defined in different penal laws of previous feudal dynasties. The penalties prescribed in “huong uoc” were simply the elaboration of the State laws though their application degrees and scopes might vary. Therefore, it can be seen that the State laws’ remedies were behind the village codes’ remedies; and, thanks to this, the village codes acquired the regulating force though they were not always voluntarily observed by people; or even if they were observed by people not because of the benefits they might bring to them but of their fear of being punished under the State laws, as clearly confirmed in King Le Thanh Tong’s royal decree that “once the village codes are allowed to apply, those who fail to comply therewith shall be duly punished by superior mandarins.”

Fifthly, “huong uoc” were not only been governed by the State laws but also, for their parts, exerted strong impacts on the State laws. Such counter-effect of “huong uoc” can be outlined in the followings:

“Huong uoc” reflected the interests, will and aspirations of the village communities, which the State administration had to reckon with when promulgating and enforcing the State laws. This means that when elaborating and promulgating laws, the State apparatus had to handle the relationships between the interests of the State and those of the village communities. In the previous contexts where each village was considered a “mini royal court,” the interests of the village communities prevailed those of the State. As a result, the State laws could promote their effects and penetrate into village life only when they were identical to the basic contents of the “huong uoc” regarding the relations based on interests.

The political, legal and ethical ideologies set forth and determined in “huong uoc” are not entirely the outcomes of the Confucian legal and ethnical ideologies, which were once the ideological foundation of the feudal State laws. In a sense,  from the cultural traditions of the Vietnamese of various generations, the political, legal and ethical ideologies having arisen from the realities of village life have reflected the nation’s cultural identity. For that reason, the political and legal ideologies in the Vietnamese villages have become an important factor in creating the face of the legal life and the identity of the legal culture of Vietnam. If the rule “tam giao dong nguyen” (the three religions- Buddhism, Taoism and Confucianism- have the same origin) solved most problems arising from the spiritual life of the Vietnamese, the political and legal ideologies in the Vietnamese villages have contributed to preserving the Vietnamese identity of legal culture in various feudal criminal codes which were heavily influenced by Confucian legal ideologies. Also thanks to this, those criminal codes of various Vietnamese feudal dynasties absorbed on the selective basis the Chinese feudal laws while truthfully reflected the economic, cultural and spiritual life of the Vietnamese nation.

Sixthly, the State laws and “huong uoc” were not only consistent and interacted but also contradictory. Such contradiction in the relationship between the State laws and “huong uoc” are manifest in the following aspects:

The State laws always tended to reaffirm their concentrated and unified administration (domination) that have restricted the villages’ autonomy. Meanwhile, “huong uoc” always inclined to establish and consolidate the communal autonomy and self-governance. Therefore, “huong uoc” have always been seen as the manifestation of self-governance rights of the ancient villages of Vietnam. Most “huong uoc”  made it clear that “the State has its own laws and the village has its own rules” or “the State has its own regulations and the people have their own conventions.” For this reasons, “huong uoc” were not always welcomed by the feudal State administration, which sought ways and means to restrict and control “huong uoc.”

The State laws tended to establish the uniformity of a legal space for the whole country. Meanwhile, “huong uoc” and village rules created the enclosed village life and the split up of the legal space not only in the relationship between the country and the villages but also in the relations among villages in the ancient society of Vietnam.

The contradiction between the State laws and “huong uoc” is most evidently embodied in the old saying that “the kings’ rules resign themselves to village rules”. Such contradiction was found not only in their substance but also in the enforcement of the State laws.

Of course, those provisions of the State laws, which conformed to the interests of the village communities or were concretized in “huong uoc,” could easily find their ways into the communal life without any “winner” or “loser.” And only those which infringed upon the local interests of villages, particularly the interests of the local dignitaries were neutralized and not observed. In these cases, the village mandarins often abused “huong uoc” to shirk their obligations towards the State and extort money from ordinary people.

In the practical legal life in the ancient villages of Vietnam, the concept “the kings’ rules resign themselves to village rules” created conditions for “huong uoc” to demonstrate their negative impacts as “huong uoc” were, on the one hand, essentially a cultural phenomenon with many positive values, thus contributing to the maintenance of disciplines and social order and the preservation of fine traditions and customs, and, on the other hand, contained not a few rules of negative nature, reflecting the spirit of localism, factionalism based on the “village’s psychology”. All these, together with various rules on village hierarchy and bad practices of wedding, funeral, village feast and festivities, were abused by village dignitaries to tie up the peasants to innumerable obligations, responsibilities, restrictions and prohibitions, thus creating a lifestyle of only abiding by the village rules while ignoring the State laws in the true meaning of the saying “the kings’ rules resign themselves to village rules.”

II. Bringing into full play the values of “huong uoc” in the current process of legal reform and rural democratization in Vietnam  

The relationship between the State laws and “huong uoc” in the history of Vietnam’s legal culture shows that despite all limitations, basically the State laws have been associated with the village rules, governing the village rules on the one hand and also being governed by the latter on the other hand. Such interaction between the State laws and “huong uoc” have created the Vietnamese identity of legal culture. Therefore, it would be one-sided and unjust to hold that in the light of vigorous changes in all aspects of the rural life in Vietnam, “huong uoc” is nothing but a story of the past. Yet, on contrary, in spite of historical ups and downs, the positive values of ancient “huong uoc” remain to be the continuous underground sources of national culture, though they once seemed to be forgotten. As a result, recently “huong uoc” have staged a spectacular comeback in many localities, many villages.
Ancient “huong uoc” played a particularly important role in the village life in Vietnam, which can be outlined in the following aspects:

- They contributed to organizing and managing various aspects of the village life, maintaining order and discipline, creating a stable and safe living environment for the whole village community.

- They helped nurture and foster sense of community, indomitable spirit, autonomy and self-reliance for each member and the entire village community.

- They helped establish a democratic life, associating human beings with nature, individuals with community.

- They contributed to maintaining and developing the fine customs and cultural traditions of the community, consolidating the moral and humanitarian values.

- They helped consolidate and enhance solidarity, mutual assistance and support in each family, each family line and the entire community.

- They contributed to building up the sense of village community, associating it with the sense of nation.

With a view to “decanting troubled water for clean one”, the affirmed positive values of “huong uoc” should be assimilated while their limitations and negative aspects should be rectified and eliminated.

The basic thing in the movement for elaboration of new “huong uoc” is not merely to continue promoting the positive values of ancient “huong uoc” but more importantly to place the objectives and contents of new “huong uoc” in their organic relations to the tasks of the current legal reform and rural democratization in Vietnam. For its part, the process of legal reform and rural democratization should be placed in its relations with the process of elaborating and implementing new “huong uoc” in Vietnamese villages. Consequently, the question of relationship between the State laws and “huong uoc” is being raised to a higher level of perception and a higher level of development.
In this sense, the following elements should be taken into account in the process of legal reform in Vietnam:

1. The legal reform, particularly the branches of law closely related to rural development, should take into consideration the diversity, complexity and paradox of the Vietnamese countryside. It can be realized that the present-day Vietnamese countryside represents a fairly polyhedral picture. The economic, social, cultural and psychological characteristics of each region, each zone, each locality have helped villages and communes to get out of their monotony once established under the mechanism of centralized and State-subsidized economy and seek their own paths of development. The current situation of the rural society reflects a double-faced trend: The rural life is currently creating conditions for the resurrection of the small-scale agricultural economy, the village psychology as well as the ancient institutions which have died out or been done away with. At the same time it also accelerates dismantling the small-scale agricultural economy by taking up the development of the commodity economy, stepping up the rural industrialization and modernization. Such rural dilemma demands that the legal reform must create a new legal environment in order to create premises for the “revitalization” of the time-tested traditional values of “huong uoc” and the abolition of the negative aspects, and at the same time lay foundation for the Vietnamese countryside to embark into a new civilized and modern socio-economic mechanism. On the basis of that newly-created legal environment, the Vietnamese countryside shall be built up with a unified and diversified structure of village.   

2. All subjects governed by law shall be re-determined in various aspects of the political, economic and social life in each village. On the basis of fully re-evaluating all social relations which have been directly regulated by the State laws over the past several decades, the subjects of direct law regulation must be re-classified and narrowed. More concretely, the State laws should regulate the fundamental social relations, which are universal and typical for  the entire political, social and economic life in villages of all types. Those relations which are not typical for all villages and demonstrate the characteristics of each type of community may be left to be governed by other social norms, including village rules and “huong uoc.” This means that the modes and forms of regulating the social relations arising in the village life, which recognize “huong uoc” and their traditional cultural values as an important source of regulation of the village relations. So, the State laws must perform the regulation at two levels: the direct regulation of fundamental and universal social relations arising in various aspects of the political and economic life at the grassroots level; and the indirect regulation via “huong uoc.” In the second level of regulation, the State laws must penetrate into the village life through normative provisions of “huong uoc.”

3. Once “huong uoc” are recognized as a source of regulation for a number of social relations in the village life, the State laws must create space for such regulation. The legal basis of this space is the very recognition of the self-governance right of the village community. Ancient “huong uoc” could play a big role in consolidating and preserving the key socio-cultural values of villages just because they had been formulated on a broad basis of the villages’ self-governance regime. Without such regime, “huong uoc” have no ground to exist. Therefore, recognizing and prescribing the villages’ self-governance regime become conditions decisive to the revitalization of “huong uoc” in its positive meaning. Of course, the determination of the nature, extent and scope of the self-governance right for the grassroots units is an uphill task. The complexity and difficulty in building up a self-governance regime are associated to a number of questions, which have been left unanswered so far. Such questions include:

The self-governance is closely associated to the ancient village structure which is characterized by family-line linkage, customs, practices, religious beliefs, lifestyle and spiritual world. But today villages have experienced numerous changes and have basically lost their ancient linking elements. In many localities, the villages now are purely administrative units and places of residence.

The ancient villages were seen from the perspective of “huong uoc” as independent administrative units closely related to the “commune” concept. Yet, the present-day villages are no longer independent administrative units and closely related to the concept of “hamlet” or village. So, a village constitutes a part of a commune and a commune has many villages. This has made more and more elements of ancient villages fade away. Meanwhile, from the legal point of view, communes but not villages are grassroots units. So, the unanswered question is whether the self-governance is determined for the communes or the villages.

Self-governance, in a traditional meaning of “village democracy,” is often associated with two basic institutions: the bureaucratic institutions and the non-bureaucratic institutions. Over the past decades, the village institutions in Vietnam have basically been bureaucratized. Apart from the village administrations, political and social organizations, including those organized in hamlets have been organized or supported in all aspects of their operations by the State. Therefore, the organizations and operations of these institutions are characterized by the State powers though to different extents while they should have really become the instruments of self-governance of  communal structures and fully non-bureaucratic.

4. In their relations with the country-side, the legal reforms create basic changes in the organizational structure of institutions as well as in the administrative relationship at the grassroots units. First of all, a new mechanism as part of the power system shall be built up and put into operation at the commune level. The commune administration apparatus should be organized along the direction of combining the State power with the self-governance right of the population community in the locality. The Resolution of the fourth plenum of the IXth Central Committee of the Communist Party of Vietnam set forth fundamental orientations and solutions to the further consolidation of the grassroots administrations. These have constituted important political bases for the renovation of laws governing the power structure at the grassroots level. Therefore, a law governing the commune level should be quickly studied and elaborated in order to create a new apparatus characterized by both the public powers and the self-governance at the commune level.

From another aspect, there must be a thorough perception of the relationship between the commune level and the hamlet level. The current size of a commune no longer corresponds to a traditional village, the nature and requirements of the current development. In the countryside, it may be utopian to split up a commune into many villages; so, the restoration of hamlets emerges as a proper solution. However, the emergence of the position of hamlet chief is changing the administrative relations in communes. Communes are being in the danger of becoming an intermediate level while hamlets are gradually becoming the administrative units.

Consequently, there should be a clear-cut attitude in perception and legislation that the hamlet is a form of communal self-governance and a starting point for the formulation of “huong uoc” with a view to maintaining and bringing into full play the traditional values confirmed and tested in the ancient “huong uoc.” The organizational structure and institutions in hamlets must be truly non-bureaucratic in order to really become forms of rallying community, preserving and bringing into full play the communal identity as our forefathers had done in the ancient villages.

5. The grassroots democracy regulation is currently implemented in Vietnamese villages and communes, thus creating important steps of development in the process of rural democratization. Under the guiding principle that the people are aware of, the people discuss, the people do and the people inspect matters, the Government decree on the grassroots democracy regulation has constituted an important legal basis for the people to exercise their democratic rights. The results of implementing the democratic mechanism in villages and communes over the recent years have revealed positive changes in the democratic life therein. However, the democracy regulation with the provisions on people’s awareness, people’s discussion, people’s performance and people’s inspection has just stopped short at general provisions which are universal for all grassroots units. Therefore, only if the provisions in the democracy regulation are penetrated into the conventions of hamlets and embodied in specific provisions to suit the characteristics of each hamlet, can they bring into full play their significance and role. It should be realized that the grassroots democracy regulation in its capacity as a legal document which is regulating the relationship between the public powers and the public in the grassroots locality, not regulating the relationship between the public and the public in the villages’ self-governance system like “huong uoc.” The democratic life at the hamlet level would be rigid and formal if the hamlet activities are governed only by the democracy regulation, which, therefore, must be embodied in the provisions of “huong uoc.”

6. “Huong uoc” are being drafted and implemented under different names in various rural areas in Vietnam. It is no longer appropriate to debate on whether “huong uoc” are necessary or not as “huong uoc” and their existence have become a matter of fact. The question which requires further thinking in order to better promote the regulating efficiency of laws and the regulation of “huong uoc” too is the relationship between the State laws and “huong uoc” in term of the subjects of regulation, the scope and extent of regulation and particularly the contents of regulation.

As analyzed in Part I above, such relationship reveals that the uniformity and contradiction between the State laws and “huong uoc” were inevitable in the former societies where the State laws and “huong uoc” representated different forces with conflicting interests in a sense that the State laws often expressed and protected the interests of the rulers while the village rules basically expressed the interests and demands of the ruled. But in our regime, the State is of the people, by the people and for the people; hence the State laws are of the people and serve the people’s interests. Therefore, there have been no reasons for the State laws and “huong uoc” to contradict each other. They are unified for a common objective of promoting to the fullest democracy of the people through various forms and means of regulation.

For that reason, the process of renovating the legislation governing the countryside should be facilitated in order to clear the way for the traditional values of legal culture, which was forged from the forefather’s cultural heritage to be brought into full play in the new “huong uoc.” The formulation and implementation of new “huong uoc” in Vietnamese villages must contribute to supplementing and elaborating laws, transforming the letters and spirit of State laws into the particular circumstances and conditions of each hamlet, each village or each commune.

It is the uniformity between the State laws and the new “huong uoc” that constitutes the condition for a broader process of democratization characterized by the time’s modernity and the national cultural identity in Vietnam’s rural areas nowadays.-

VNL_KH1 

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