Associate Professor Dr. Nguyen Xuan Kinh
Deputy Director
Folklore Research Institute
I. The customary law and “huong uoc” (village rules)
1. The customary law or folk law is the product of a society where the class disintegration and the State organization do not exist. It has been orally transmitted in verses from generation to generation. The local (hamlet, village) nature was manifest in the customary law. As affirmed by Associate Professor Ngo Duc Thinh, “there has been no and can not be any law common for both M’nong and Ede ethnicities. Like “huong uoc” in each village of the Viet people, each customary law, besides its common fundamentals, contains many provisions bearing local traits, suitable to the specific conditions of each ethnic group and given locality.
According to Associate Professor Phan Dang Nhat, the customary law was elaborated by the entire community. The customary law enforcement council is directly elected by the people and the community itself directly controls the enforcement of the customary law to prevent wrong doings and encourage good conducts. The customary law pays heed to the harmony of the entire community. In its nature, the customary law is unlike the Western law, covering a larger scope which embraces morality, ethics, code of conducts and entails organizational mechanism, councils, forms of reward and sanction to ensure the enforcement of the social norms set by the customary law.
2. “Huong uoc” (village rule) of the Viet is the product of an ethnicity which has developed to the level of State organization. It is the record of rules concerning the social organization as well as social life in a village, the regulations gradually formulated in history, readjusted and supplemented when necessary.
“Huong uoc” is of the Viet (Kinh) majority people and the product of village culture. It was written in Han (Chinese), Nom (Demotic or ancient Vietnamese) or Vietnamese scripts, and passed down from generation to generation. It is likely that at first, “huong uoc” was also made in verses and, like the customary law, orally transmitted among villagers, then later recorded in documents, in “huong uoc”.
II. The relationships between feudal laws and “huong uoc” as well as the customary laws
The relationship between the country and the village, between the State law and the village rule (huong uoc) is a diversified and complicated relationship.
The village and the country became one when the feudal regime was thriving with many policies worked out for the people, and when the whole country pooled efforts together to combat floods or foreign invaders. By then, the village rules were not contrary to the State law.
Yet, when the feudal State was on decline, the village officials, though pretending to be submissive by keeping to pay tax and conscripting labor and soldiers, denied to declare accurately the land areas, the number of young men, having tried to seek benefits for their own villages. So, in this case, the saying “Phep vua thua le lang” (The king’s rule is overwhelmed by the village’s customs) proves correct, as it has been understood by many people.
The feudal State based itself on Confucianism to promulgate laws and knew how to reconcile the Confucian creeds with the local traditions as well as village customs. When promulgating the State laws, the feudal State paid attention to the customs and practices of the Viet people.
For regions inhabited by ethnic minority people, various feudal dynasties of Vietnam adopted a rather loose ruling policy, delegating the ruling powers to tribal chiefs, provided that such regions were not in turmoil and tributes were regularly paid to the State.
If disputes arose among ethnic minority people, the feudal State respected local customs, having left them to be settled according to their customary laws. If disputes arose between the ethnic minority people and the Viet (Kinh) people, the settlement thereof were based on the royal court’s laws, as clearly seen in Article 40 of “Quoc Trieu Hinh Luat” (The Royal Court’s Penal Law): “Offenses committed against each other by highlanders shall be settled according to their own customs. If the highlanders commit crimes against low-landers, the State laws shall apply”. Similarly, Article 3 of the king’s Order No. 51 promulgating the “Hoang Viet Trung Ky Ho Luat” (The Vietnamese Royal Court’s Civil Law for Central Vietnam) in 1936, stated: “Such law shall only apply to the Viet people, while for the ethnic minority people, their own customary laws still apply”.
III. “Huong uoc” and the cus-tomary law in the present-day society
1. The customary laws, “huong uoc” and feudal laws were the products of the past historical periods. From the customary law to “huong uoc” was a step of development from low to high. In some aspects, the feudal law was a step of development higher than ‘huong uoc”. The feudal law was of national character and the makers thereof had higher skills. On the other hand, some aspects men-tioned in “huong uoc” were not covered by the State law; hence, in this case, “huong uoc” had the effect of supporting and complementing the State law.
2. Now, the traditional “huong uoc” is no longer suitable in the countryside and further more can not be applied. However, till now, Vietnam’s legal system has not yet been complete and many aspects of the social life, particularly in rural areas, have not been legally acknowledged. Moreover, in not a few cases such as wedding ceremony, funeral, organization of traditional rites, they need not be governed by State laws; the actual effect of laws in the countryside remains low. Having felt somehow strange to the State law, the rural people have only been accustomed to the village customs, practices and rules. In such circumstance, a number of conventions on cultural villages have been elaborated on the basis of inheritance of experiences in the elaboration and enforcement of traditional “huong uoc”, which can be considered new “huong uoc”. As commented by a number of law researchers that the provisions on marriage, funeral, reburial, family and social morality are those extremely necessary in daily life of communities, on which the State law cannot and should not exert its impact. It can be said that these have constituted the yard of the village rules, where they bring into full play their role and exert their impacts. On the other hand, some provisions of the village rules may be reasonable under the practical conditions of such villages but not conformable with laws. Therefore, in order to ensure that village rules are not contrary and not contradictory to the Constitution and legal documents, there should be regulations on the approval of village rules by the district administration.
At present, the rural population still represents nearly 80% of the national population, with their support and complementary role, the cultural village conventions exist by the side of the law system. Even when Vietnam’s rural population is lowered to under 10% like in developed countries and when the gap between the urbanity and the countryside no longer exists, there still exist laws and sub-law regulations.
3. Meanwhile the customary laws have no longer interested inhabitants, especially young people, in ethnic minority people regions situated near communication lines, where economic and cultural exchanges have strongly developed and where co-habit people of different ethnicities, though they still have their role in deep-lying, far-flung and economically underdeveloped areas, where many provisions of the customary laws are, however, not conformable to the State laws. Article 14 of the Civil Code of Vietnam states: “In cases where the law does not provide for and the parties do not come to an agreement, customs or analogy of law may be applied, provided that such applications are not contrary to the basic principles of this Code.”
The customary laws of ethnic minority people contain not a few provisions non-conformable to current legislation. In a transitional period, new customary laws (similarly to the conventions on cultural villages of the Viet) should be elaborated to make them suitable to the practical circumstances in the regions inhabited by ethnic minority people, in addition to the popularization of the Constitution and laws. To us, a very urgent and necessary thing to be done now is to translate legal documents into languages of the ethnic minority people.-