By Associate Prof. Dr. Ngo Duc Thinh
Director of Folklore Research Institute
An international seminar on “The customary laws and the current rural development in Vietnam” was held in Buon Ma Thuot city, the Central Highlands province of Dac Lak, from November 23-25, 1999, with the financial support from Ford Foundation in Vietnam.
Many papers were presented by Vietnamese and foreign researchers, pointing to different aspects of the customary laws such as “customary laws and land ownership as well as local migration” (by Dr. Oscar Salemink (the Ford Foundation); “Three periods of development of “huong uoc” (by Prof. Phan Doan Dai, Hanoi National University); “Customary laws and the management of natural resources” (by Dr. John Ambler,
from the USA); the diversified ownership over natural resources and the development (by Franz Von Benda-Beckman, Rotterdam University)…
In this issue, “Vietnam Law & Legal Forum” publishes the excerpts of the paper presented by Associate Prof. Dr. Ngo Duc Thinh, Director of the Folklore Research Institute.
Customary laws constituted an universal social phenomenon during the pre-industrial revolution period and have existed till today with different extents in many ethnoses in the world, particularly in Asia and Africa. Basically, the customary laws are indigenous intellectual treasures regarding behaviors and community management though they also contain different values: linguistic and ideological, cultural, literary, religious.... Therefore, for long now, many jurisprudents, ethnologists, folklorists and historians have been interested in the studies of customary laws, both theoretically and practically.
In Vietnam, the customary laws of the ethnic minorities and “huong uoc” (the village rule) of the Viet (or Kinh) majority have long attracted the attention of many historians and ethnologists. Particularly, during the 1980-1990 decade, the search for and study of customary laws and village rules had grounds to boom due to the increasing demands for social studies of various ethnic groups, especially the management of rural society in the present cause of development in Vietnam. Moreover, in recent years, the Communist Party as well as the Government of Vietnam have pointed to the necessity to search for, study and inherit the knowledge on hamlet and village management in the customary laws and village rules in order to compile the “quy uoc nong thon moi” (a new rural conventions) contributing to the community management and the exercise of democracy at the grassroots level.
I. The Outline of Customary Laws of Various Ethnoses in Vietnam
It can be said that customary laws are very popular among all ethnoses in Vietnam. Depending on their forms, Vietnamese customary laws can be divided into three kinds:
- Customary laws in form of oral verses passed among people
- Customary laws in form of writing or codification
- Customary laws in form of social practices.
a/ The customary laws in the form of prose have been orally passed from generation to generation. Typical of this kind of customary laws are those of various ethnic minorities in Central Highlands such as Phatkdi of the Ede, Phat kduoi of the Mnong, to loi djuat or to loi phian of the Giarai, adat mu car of the Raglai, day to ron kdi of the Bana, Nri of the Sre, N’dri of the Ma...
This kind of customary laws covers various aspects of the social life, from the community relationships, the roles and responsibilities of leaders, customs and practices, to marriage and the family, property ownership, infringement upon individuals (scoldings, beating, murder). They have contained not only prohibitions and sanctions but also admonition, education, aimed to create the social opinions for disseminating the good and eliminating the evil.
b/ Written or codified customary laws
The customary laws of this kind can be seen in two forms: “Huong uoc” (the village rules) of the Viet (Kinh) majority people and the local laws of the Thai and Cham ethnic minorities
- “Huong uoc” of the Viet (Kinh) majority were actually written customary laws of each village under the feudal time, which have existed till today under different names such as Huong uoc, huong le, khoan le, huong tuc... Huong uoc appeared during the Le dynasty (the 15th century), but the oldest one kept until today was made in the posterior-Le dynasty, the 17th century.
There are two types of Huong uoc: Huong uoc co (ancient huong uoc) written in Chinese characters or Nom (Chinese-transcribed Vietnamese), and Huong uoc cai luong (reformed huong uoc) written in Chinese characters, Nom or “quoc ngu” (Romanized Vietnamese language). Recently, many villages and communes have compiled new huong uoc (or “quy uoc nong thon moi” meaning new rural conventions) based on references to the knowledge on ancient people’s community management.
Huong uoc have dealt with a number of key issues of villages: 1) The organizational structure of village with quarters, hamlet lanes (according to residence), lineages (according to blood lines), associations (according to occupations), the administrative management apparatus; 2) The regulations on social ties; 3) The conventions on village security; 4) The conventions on agricultural promotion and educational promotion; and 5) The conventions on capitation, taxes, corvee for each category of villagers.
- The local laws of Thai and Cham minorities.
The hamlet laws of the Thai ethnic group (known as “Hit khoong ban muong” in Thai dialect) exist in two forms: a) “luat muong” (hamet laws) and b) customs and practices relating to weddings and marriages, funerals, worshipping.... Being more judiciary than customary, “luat muong” have long been recorded in writing, being considered a code which serves as legal basis for regulating all affairs of Thai hamlet. They deal with a wide range of matters such as the hamlet history; the hamlet boundary; the hamlet management apparatus and interests of local officials; the rights and obligations of hamlet commoner; the worshipping and rituals of the hamlet; regulations on commendation, rewards and penalties regarding the ownership rights, marital and family ties, infringement upon physical bodies, customs and practices.
Meanwhile, the local laws of the Cham people (known as “adat” in Cham dialect) have existed largely in the form of social practices in hamlets, namely ways to deal with violations of the customary laws. However in 1950, “adat” were collected and partly documentated by Mr. Duong Tan Phat, an intellectual of the Cham origin, covering mainly matters related to marriage and family.
c/ Customary laws existing in the form of social practices
These include the customary laws of some ethnoses, which had once existed in the forms of oral verses or written documents before they disappeared for this or that reason; and also the customary laws of some other ethnicities, which have existed only in form of social practices within the hamlet community.
As compared to the two kinds mentioned above, the customary laws of this kind are greater in number. They have also existed together with the customary laws in oral verses and written customary laws within various ethnoses.
II. Customary Laws and the Rural Development at present
1. The customary law and the management as well as exploitation of natural resources
One of the most fundamental issues for the rural development at present is the question of living environment and the management as well as exploitation of natural resources such as forests, land, water, forest and aquatic products.... In the customary laws, the knowledge on environment and management of natural resources has been demonstrated in many aspects:
- The customary codes themselves, particularly those of ethnicities in the Central Highlands, are rich treasures of knowledge on environment and natural resources. Those are knowledge about types of soil, types of forest, plant varieties, animal breeds. In the customary laws of the Ede and Mnong ethnicities, almost all more than 200 articles refer to plants and/or animals, reflecting their rich knowledge of their own living habitat which help people of these ethnic groups effectively preserve and exploit natural resources.
- The customary laws of many ethnoses in the Central Highlands contain specific provisions on environment and natural resources, aiming to prevent human acts of infringing upon or destroying the environment and such natural resources as land, forests, water sources, animals, domestic animals....
2. The customary laws and the ownership of natural resources
The customary laws of various ethnoses have all confirmed the public ownership of arable land, forest land, rivers and streams, as well as other natural resources by hamlet communities, to which all hamlet inhabitants have access to.
However, this is not quite true to ethnoses where matriarchy prevailed. Here, land and natural resources belonged to the maternal side.
For the Thai ethnicity in north-western Vietnam, land and forests belong to the entire hamlet represented by “chau din” (the land lord). Annually, the public land in the hamlet is distributed first of all to the hamlet officials according to their ranks, then to the commoner. The forest products are also under the public ownership, and those who exploit them shall have to pay a part thereof to the local officials.
So, the ownership of land and natural resources is similar among ethnoses though each of which has its own coloring therein. That is the community’s ownership which is closely associated with the individuals’ appropriation and use rights. Their customary laws strictly forbid any one to infringe upon the lawful appropriation and use rights of each member of the hamlet community.
To us, under the current social conditions, the traditional forms of ownership should be studied and recognized within the general framework of the State management over the natural resources through the allocation of land and forests to people. This will create conditions for the rational reorganization of production, the improvement of the living conditions of ethnic minority people, and at the same time help clearly determine the masters of land and forests, an important factor for the protection and rational exploitation of natural resources. Experiences drawn from land and forest allocation in some localities inhabited by ethnic minority people show that the fundamental element of the traditional ownership, namely the close combination between the management right of the entire hamlet community and the appropriation and use rights of each family household in such community, should be inherited. Only by doing so, can the land and forest allocation yield practical results and the natural resources be protected and used in a sustainable manner.
3. The customary laws and the regulation of social relations as well as the building of a new cultural life in hamlets and villages.
The regulation of all social relations and building of a fine cultural life in hamlets and villages always constitute the basic contents of any customary law or “huong uoc”. For instance, 156 of the total 236 articles of the Ede customary law or 196 out of 214 articles of the Mnong customary law deal with social relations and customs as well as practices. Meanwhile in “huong uoc” of the Viet (Kinh) majority people or the customary law of the Thai ethnic minority, two-thirds of the articles deal with social ties and culture. According to the traditional viewpoints as reflected in various “huong uoc” and customary laws, a peaceful and harmonious society and a fine culture shall be the roots of a prosperous life.
The building of social relations and fine cultural life has been reflected in the customary laws in various aspects:
- The community relationship within the hamlet and village, based on the principle of equality, mutual assistance and solidarity. For such relationship, every people have to respect the common conventions stated in “huong uoc” and customary laws.
- Building the relationships between hamlet or village chiefs and hamleters or villagers, based on the principle of each person’s obligations and rights.
- The relationships between the male and the female, the family relationships (the relations between husbands and wives, between parents and children).
- The maintenance of order and security in the hamlet or village.
- The encouragement of youngsters to study (educational promotion) in “huong uoc” of the Viet (Kinh) people.
Panoramically, most of the regulations on social relations and cultural life in the customary laws have still retained their positive values, which can be inherited and brought into full play in rural management and the building of cultural life at the grassroots levels. Truly, these can be found in many policies as well as undertakings regarding social and cultural matters, educational orientations, relationship between men and women, the family relations... of the State, youth organizations, women’s organizations, though at different extents.
Yet, the inheritance and promotion of traditional laws must be carried out in the spirit of inheriting and bringing into full play their positive factors while restricting and eliminating the negative ones unsuitable to the current social conditions.
4. The customary laws and the State laws.
The relationship between the customary laws and the State laws has been dealt with for centuries now. The popular saying “The king’s rules of behavior come after the village rules” has more or less told of such relationship during the feudal time in Vietnam. Historical documents reveal that at first the feudal State of the Le dynasty (in the 15th century) attempted to restrict and outlaw the “huong uoc” (village rules), but finally had to recognize and use them for the purpose of creating the stability and order for hamlets and villages for the interests of the State and the Confucian ideology. The States also institutionalized the drafting of “huong uoc” by stipulating persons entitled to participate therein, that was persons with official titles and scholars) and the administrative levels entitled to approve “huong uoc” after they were drafted. Since “doi moi” (renewal), particularly when the Vietnamese State adopted the policy of taking peasant household as the production unit, “huong uoc” have been recompiled in the form of “quy uoc nong thon moi” (new rural conventions) in many localities, serving as basis for management of hamlets and villages. This phenomenon is seen not only in Vietnam but also in other countries such as China, the Republic of Korea, Japan, Indonesia, Malaysia, Thailand....
So, the existence of “huong uoc” and customary laws is an objective reality in a country when the hamlet or village is a social entity, which is more or less self-ruled. At present, though the Vietnamese countryside is embarking on the process of industrialization and modernization, the small-scale agricultural village remains to be the basic element of the Vietnamese countryside and agriculture. This is more manifest in mountainous and highland rural areas inhabited by ethnic minority people, where the hamlet, which is characterized by high community cohesion, is the basic social organization bearing the particulars of each ethnicity, and where the customary laws still exert greater impacts than those in delta villages of the Viet (Kinh) people, remaining to be the main tools for regulating the community relations.
Such an objective reality in the rural areas of both the Viet (Kinh) and the minority people requires the combination between the State laws and the customary laws as well as “huong uoc” for the rural management. This is of important significance in the period of transition from the traditional society to the modern society. Yet, the question is how such combination can be effected so as to boost the rural stability and development.
We should scrutinize the treasure of customary laws of various ethnicities in Vietnam in order to inherit their positive factors and do away with the negative and backward ones, thereby working out “new rural conventions” as done in many northern provinces inhabited by Viet (Kinh) people and some mountainous localities of ethnic minority people. However, the drafting of such new rural conventions must conform to and promote the current trend of social development, must not contravene the State laws and must ensure the people’s democratic rights in discussing and deciding on matters in the conventions.
The customary laws and the State laws, though sharing many similarities, have their own particulars and their own scope of social relations for regulation. They are interrelated and intersupported but cannot substitute for each other.
Realities have shown that such social relations within villages and hamlets as the individual- individual relations, the individual- community relations, the disputes related to civic interests, to customs and practices, to ethical values and social conducts... have all been regulated by customary laws and settled by “reconciliation teams” on the basis of the provisions of the “new rural conventions”.
Over the recent years, the Vietnamese Communist Party and State have adopted and implemented the “Regulation on democracy at the grassroots” with the basic contents being “the people know, the people discuss, the people do and the people inspect” all local affairs. This Regulation and the new rural conventions are interrelated and intersupported. The people shall exercise their democratic rights by proposing, discussing and implementing the village affairs through the new rural conventions. So, it can be considered that the “Regulation on democracy at the grassroots” and the “new rural conventions” constitute the actual combination between the State laws and the village/hamlet customary laws.
The setting up of legal support organizations for the poor by the Prime Minister’s Decision No. 734/TTg of September 6, 1997, which are tasked to answer people’s queries about legal matters, to guide people in exercising their rights and fulfilling their obligations, to represent people or participate in negotiations and conclusions of agreements, in conciliation or proposing State bodies to settle matters related to citizens. All these activities have been carried out free of charge for the poor, social policy beneficiaries and people of ethnic minorities.
Clearly, this is a vivid manifestation of the combination between the State laws and the customary laws within the village/hamlet communities. Through this, the State laws will be step by step disseminated and enforced among the ethnic minority people while the positive factors of the customary laws will be further brought into full play, thus contributing to the rural management at present. Organizationally, the legal support centers shall coordinate with and support the “conciliation teams” in effecting the customary laws and the State laws within villages and hamlets.
In a nutshell, Vietnam’s customary laws have existed and been applied in various forms and at various extents, having contributed to the management of villages and hamlets in particular and the management of traditional countryside in general. They still exert positive impacts on the rural development at present.
In rural areas inhabited by people of various ethnic groups, the customary laws have positively contributed to the preservation and management of natural resources, particularly forests, cultivated land and water sources, to the determination of relations of ownership over the natural resources (forests, land…), that is the public ownership by the village/hamlet communities and the rights to use them by individuals of such communities within the framework of the State’s current land law, as well as to the consolidation of social relations and the building of a healthy cultural life at the grassroots.