Editor’s note: Inheritance s one of the important characteristics of law. Vietnam’s law of today cannot but inherit the historic, cultural and traditional values of the past. In order to better understand Vietnam’s law of today, it is necessary to understand the history of the State and law of the country. Vietnam Law & Legal Forum will introduce to the readers the main features of the history of the State and law of Vietnam through the different stages of history. First of all, we would like to introduce to our readers an article by Prof. Dr. Dao Tri Uc, Director of the Institute of State and Law, the National Center for Social Sciences and Humanities, on the basic viewpoints and methods of studying this issue.
The Constitution of the Socialist Republic of Vietnam passed in 1992 states in its Preamble: “Through thousands of years of history, the Vietnamese people working industriously and creatively, and fighting heroically for national construction and defense, have forged a national tradition of unity, benevolence and indomitability, and created Vietnam’s civilization”.
Vietnam’s history is the history of the Vietnamese nation, not of any single feudal dynasty or lineage, although each dynasty or lineage has left its own hallmark in the history to one extent or another. Apart from the general features in economic, social, cultural, military and foreign affairs, each dynasty and lineage made its own contribution to the evolution of Vietnam’s society through the ups and downs of history. Each dynasty, each period was just a “stopover” in the cultural current of the nation. This explains why a certain ideology (such as Confucianism) was able to survive through many periods and many dynasties.
Written or unwritten law during the different stages of development of Vietnam’s history is the interweaving of values in legislation, culture, morality, society, religion and tradition. Therefore, studying law also means studying those values of society.
In any period of history, law is always a recognition of the objective demand for regulating social relations. That is why, studying law is also studying the contemporary social relations, the economic, political, cultural and traditional features of each epoch and in the different historical stages of each epoch. On the other hand, because law is in essence the char characterization of social relations which make up its contents, to study law, nothing is more objective and accurate than to proceed from the analysis of the actual economic and social features of society. The requirements and interests of different social classes and the entire society, the forms of social relations, the methods of managing society and the State, the long-standing customs, the codes of behavior, the social hierarchy and order, the national and social ceremonies and rituals... are forms reflecting social values, and with the passage of time, they themselves have become the cultural values of society. They may or may not remain to this day, but thanks to the understanding of the contemporary society, they can be re-established more and more fully.
One of the aims in studying the State and law in any period of history is to determine its potentials for inheritance, because inheritance in law is precisely the inheritance of culture and tradition. A legal system that can help maintain a stable and progressive social order is one that can incorporate traditions into new elements: the new elements can survive and extend into the future only when they crystallize the quintessence of traditions. In the legal domain, they are the legal principles, legal customs, legal institutions, and the methods of legislation and law enforcement, the principles and habits in the organization of the State and in the organization of community life.
Many history research projects have indicated that the first State in Vietnam was founded in the period of the Hung kings - the State of Van Lang, Au Lac when the Vietnamese still had no script. Naturally, without a script there could be no written law. Yet, the primitive State still had its own law, albeit verbal law. In later periods, the feudal dynasties in Vietnam made written law and even institutionalized them. When studying this historical period of the State and law, and referring to the inheritance of the legal legacy of any feudal dynasty, one should bear in mind the fact that in the feudal society, as in any class-divided society marked with class antagonisms, law always developed in two directions. First, at the point of time when law was promulgated, it was the condensation of the popular values and the experiences of preceding stages and periods. On the other hand, as social and class concept, law was enacted to protect the class interests and social order to the advantage of the ruling class at the time of its promulgation. But from these two aspects of the issue, one should not jump to the conclusion that the first aspect is progressive and should be inherited, while the second aspect is counter-progressive, and therefore should not be inherited. In given historic conditions, the interests of the class and even of a specific group of the feudalist class, can conform with the common interests of other classes and of the entire nation, and may become a strong motive to spur social progress. That is why, in the codes, regulations and imperial edicts and ordinances of this king or that lord, we can still find something of the nation which reflects and conforms with the common interests. Such values should be inherited. The difference between the common values and the local, restricted values is an issue which should be considered in the light of each specific historical circumstance.
Thus, from what we have today, we can trace back the course of history to find the values of one epoch or another, because each page of history contains not only the features of that period, but also those of the preceding periods. On the other hand, it should be noted that in the matter of law, not only what is progressive has been inherited, but what is counter-progressive might also be inherited. But unlike other phenomena such as political, ideological, religious and moral, there is always in law larger scope for reconciliating progressive and counter-progressive elements, because counter-progressive elements, because law at all times is the representation of the common and popular order, although the ruling class uses it to reflect and protect their own interests. Even when the interests of the ruling class are progressive, law still cannot help being unprogressive for a section of society. For instance, in Europe, the Civil Code promulgated by Germany late in the 19th century was a typical bourgeois code. However, the Civil Code of bourgeois Germany still contained “very feudalist” stipulations, such as on the conditions of marriage and divorce, on the division of property of a divorces couple, on illegitimate children, on the landlords’ farms, on the feudalist forms of exploitation of the peasantry, etc.
Similar points can certainly be found while studying the laws of the feudal dynasties in Vietnam’s history.
The inheritance of law, as said above, can be considered a “vertical inheritance”, i.e. in the order of time, from the past to the present.
But the inheritance of law can also be a “horizontal inheritance”, in other words, the interaction and mutual assimilation of the legal systems of contemporary feudal regimes. This is because the feudal societies existed in different stages of cultural and law development, and even if they were in the same stage of development, the dissimilarity of interests was always the condition for them to seek different regulatory methods. We all know that Vietnam’s culture has never been a closed national culture, but it has always inherited in a selective manner the quintessence of the world’s culture, particularly the culture of India and China. It has proved itself able to nationalize what it has inherited from outside, and never let itself be assimilated by other cultures. This explains why Vietnam’s culture has had a great vitality.
While admitting this fact, we cannot rule out the interaction between the legal system of feudal Vietnam and those of other feudal nations, especially the neighboring nations. Therefore, the study of different historical stages of Vietnam’s law is also aimed at discovering the impact of this “horizontal inheritance” on our country’s law.
History has proved that the “intrusion” by “alien” factors was not always a voluntary reception, but might be the result of an imposition or a cultural invasion and enslavement, and sometimes even a community or a nation was assimilated or obliterated. However, law as a national cultural value can never be assimilated without leaving its trace. A part of the culture of the vanquished nation would merge into the current of the conquerors, and became a feature of their lifestyle without their knowing it. For instance, in history, the Roman law was developed under the strong influence of the lifestyle and highly developed legal doctrines, and the highly democratic methods of government of the nations in the Orient and of Greece in the preceding times, which were conquered by the Roman Empire.
Therefor, studying the “horizontal inheritance” in law, or the inter-action and mutual influence of the contemporary legal systems, is an opportunity to find out the cultural values of nations and of mankind at the time.
In studying the history of Vietnam’s State and law, we should have in mind the important object of confirming the events, facts, social values of legal significance and the legal documents. Therefore, the principal method of study should be the historical method, i.e. the study of historical records, annals, documents...
As we know, through the ups and downs of history, with the passage of time, and particularly in war time conditions, many original documents and books have been lost, many other documents are incomplete, and hand-written copies differ in many details. That is why, with the method of socio-economic and socio-political study, it is necessary to combine the study of general history and history of the State and law.
To study the history of the State and law, apart from the historical method, it is necessary to apply other scientific methods as well. These are the methods of comparative study, analysis and generalization, logic and systematization. One cannot help using the knowledge of ethnography (for instance, studying the habits, socio-economic activities of nationalities and localities at present, the traditional forms of activity of communities, and the methods of studying archaeological and economic documents). One of the important sources of materials for study is folklore works on local ceremonies and festivals, folksongs, sayings, shanties...
In particular, while studying each issue of the history of Vietnam’s State and law, it is necessary to use the sources of historic and literary works of great ideologists and scientists, who lived in different periods in the past centuries. These are historical works, such as “Kien van tieu luc” by Le Quy Don (1726-1783), “Lich trieu hien chuong loai chir” (circa 1809-1820) by Phan Huy Chu (1782-1840), “Su ky toan thu” and “Viet su thong giam cuong muc” by Ngo Sy Lien, or anonymous historical works such as “Dai Viet thuc luc” on Vietnam’s history during the 1558-1887 period, etc.
By the analytical method or annalistic recording, those works may provide accurate date which we can combine with other sources in getting to understand the history of the State and law. Vietnamese historians have been applying such methods to shed light to many issues of common history. It is certain that the objectiveness and accuracy of historical issues on the State and law and documents is also requiring this comprehensive method.-