Trung Anh
The legal thought of the feudal class comprises the main ideas and concepts of the ruling feudal class concerning law. Researchers on the mainstream ideology of the Dai Viet (ancient name of Vietnam) have concluded that the feudal class of Vietnam was not strong enough spiritually to create an ideology of its own, independent and commensurate with the stature of the nation. On the ideological plane in general and in legal thinking in particular, the Vietnamese feudalist class has assimilated alien thoughts, and transformed them on the basis of its own class outlook and also some elements of the national tradition.
In the first ten centuries of the Christian era, the natural cultural interflow and the invasion of the northern feudalists brought along with it into Vietnam many new ideologies such as Buddhism, Taoism, Confucianism... While Buddhism and Taoism right from the start penetrated into Vietnam in a peaceful manner and were readily and voluntarily accepted by the people to become the two main religions of the country, Confucianism had a very hard time finding for itself a foothold in the Vietnamese society. This is because it came as a ruling instrument of the aggressor. For many centuries Confucianism could not take root in Vietnam and did not exert any significant influence on the spiritual life of Vietnamese.
In the 10th century, with the Bach Dang victory over the Yuan which put an end to a thousand years of the rule of the northern feudalists, Vietnam entered a new era, that of independence, national construction and defense. The Vietnamese feudalist class became the ruling class holding the political as well as State power. The question for it then was to build a system of ideological, political and legal system of its own capable of serving as the compass for the activities in managing the country and defending the interests of the ruling class.
Neither Buddhism nor Taoism proved themselves equal to this task because, in spite of their wide and major influence on the spiritual life of Vietnam, they remained purely religious doctrines and ex‑temporal at that. They could not, whatever their popularity, put forth practical viewpoints in service of the organization and running of society. In other words they are not doctrines for ruling.
Meanwhile, Confucianism remains essentially a wordly doctrine. The ruling feudalist class could easily find in the tenets of Confucianism the political and legal concepts to meet the demand in managing the country and the interests of the ruling class. Moreover, at the time of the emergence of the Vietnamese feudalist class which was set to build its own State and legal system, in the neighboring country a stable and strong political system had been installed according to the principles of the Sung Confucianism. Naturally, these political and legal viewpoints could not but influence the concepts of the ruling class and ideologists of Vietnam. It is actually for this reason that the political Confucian outlooks in general and the legal concepts in particular were readily accepted by the Vietnamese feudalist class. Under the Ly, Tran, Le and Nguyen dynasties, these legal view‑points of Confucianism took deeper roots and became the ideology of the Vietnamese feudalist class.
Because it consists essentially in upholding the moral principles and the ethical cultivation of each and every individual as the basis of social order, the Confucian doctrine could not set forth a complete outlook on the legal plane. Around the 3rd century before BC, there appeared in China an ideological school which put forth a legal thinking which was exactly the opposite of the original Confucianism. It is known as the "legists' school" which consisted essentially in giving prominence to the rule of law. This doctrine was used by Qin Shin Hwangdi to reunify China. Later, its elements continued to be utilized by the successive monarchic dynasties in China but was always masked behind the Confucian appearance in the so called theory of "Confucian on the surface but ruling by law inside "or "Confucian Yang but ruling Yin". The reality of the legislation and legal reform in the Tang and Sung dynasties has proved that while upholding the moral principles of Confucianism these ruling classes still had to depend to one extent or another on the theory of the legislators. This characteristic has left its stamp on the legal thinking of the Vietnamese feudalist class when contacting and accepting Chinese Confucianism.
In addition, as in any absorption, the alien ideologies always are subject to the influence of the intrinsic elements. Due to a combination of numerous elements such as the class characteristics, the lingering democratic traditions of the primitive communes, the tradition of humanitarianism, solidarity and patriotism as well as the traditional legal thinking of the Vietnamese nation, the Confucian thoughts have been "Vietnamized", accepted and transformed on the basis of selection combined with elimination.
In essence, the legal thinking of the Vietnam feudalist class is expressed in the following aspects:
1. The doctrine "Confucian on the surface and rule of law inside", or the combination of the rule by morality and the rule by law in the management of society and in legislation
Original Confucianism upheld the rule of morality, considering morality as the main instrument for social management, while the law was an unavoidable necessity, and a supplement to the rule by morality was not effective.
This concept of rule by morality has made deep imprints in the legal thinking of the Vietnamese feudalist society. Throughout ten centuries of the feudal system, the successive dynasties in Vietnam, both in their apogee and progressive periods and in their decline and decrepitude, all declared their commitment to the "rule by morality" in the management of society. As a matter of fact, when evaluating a personality or the merits of a dynasty, the feudalist class based itself mainly on whether or not this personality or dynasty had relied on morality or good customs to rule.
In its essence, the principle of "rule by morality" is a policy of using moral ethics to regulate the social relationships and directing social activities along the way the rule wanted. The Vietnamese feudalist class thought it could use morality to manage society through the two following main lines of activity:
a/ Self perfection by the ruler (king) and the ruling class.
The king should try continually to perfect his ego in order to set the example for his subjects and to have a basis for making correct decisions. The king's virtue is a crucial element in the guidance for the activities of the whole society. Likewise, the virtues of the mandarins also exerted an important influence on the running of public affairs.
b/ Educational activities to educate the population aimed at raising their awareness and fashioning among them a code of conduct compatible with the moral concepts of the ruling class in the whole society, and transforming the fulfillment of duties into a voluntary act of everyone in society. To this end, the ruling class has set forth criteria for the conduct of everyone and institutionalized them into moral principles of a directional character. That is what is known, as "behavioral principle." Basing themselves on this "behavioral principle", the monarchs and Confucian scholars of Vietnam believed (or at least hoped) that they could persuade all members of society to voluntarily behave in the way the ruling class wished them to.
However, while declaring that morality and behavior are the basis to rule the country, the Vietnamese feudal class did not deny the role of law. Right after founding the first dynasty in Vietnam, the Dinh monarch ordered the institution of the punishment by throwing the criminal into boiling oil vats, or into tiger arena to create a strong impression of the royal power. King Ly Thai Tong ordered "the compilation of rules and laws and modify them to suit the situation, to classify them into many articles and group them into the Criminal Law."(1) Under the Tran dynasty, aware of the role of law, King Tran Du Tong ordered the compilation of the Criminal Code. In particular, from the 15th century onward, the Vietnamese feudal class realized more and more clearly that law is indispensable. Right after ascending the throne, Le Loi declared: "All along history it has been proved that to rule the country must be based on law, without law disorder will prevail." King Gia Long, when ordering the compilation of the Hoang Viet Code, stated: "In their ruling of society, our ancestors always combined punishment with conversion by morality and have never bent on only one side." In their practical rule, the monarchs under the Le and Nguyen dynasties promulgated a huge amount of legal documents ranging form codes to single documents such as edicts, ordinances and decrees...
Thus, we can see that inside the appearance of "rule by morality", the feudal class always upheld the role of law. However, they did not regard law as the main instrument to regulate the social relations. To their mind, law is only an assortment of duties without any right, law is synonymous with punishment and coercion, law means criminal law. Therefore, it was only a last resort when morality and persuasion had failed. To rule by law was not regarded as the best way or the most civilized way of ruling. Between morality and law, education and punishment, the first element was always rated higher but the second element remained always necessary.
It can be said that the combination of rule by morality with rule by law has permeated the managing activities in general and the activities in legislation and law enforcement in particular in the history of Vietnamese feudalism. But this undertaking took different forms and different degrees of expression in different periods. Generally speaking, the rule by law was not given priority in the first period of the feudal system. This is because besides absorbing the Confucian ideology, the feudalist class was also deeply influenced by the doctrine of fraternity of Buddhism as well as by the extra‑legal mode of management of the primitive communes which still kept its deep imprints in those days. At the same time, the simplicity of the social relations and the need to mobilize the people's force during the fight against warlordism and foreign aggression also helped to relegate the rule of law to a secondary role in the mind of the feudal class.
From the 15th century on, the role of law was considerably heightened in its relation with the other social managerial tools. This has its following historical backgrounds:
First, the use of morality to rule in the conditions of exacerbating social conflicts and the increasing opposition of the people had proved to be less and less efficacious. To concentrate power in order to consolidate the centralized monarchical State, there must be stronger measures of autocracy including law.
Secondly, the increasing complexity of the social and economic life had given rise to many new social relations (contractual and ownership relations...) requires closer and clearer regulations which in this case are the legal documents.
Thirdly, the Confucian doctrine assimilated by the Vietnamese feudalist class from the 15th century onward was chiefly the doctrine of the Han and Sung empires reflecting the latter's recognition of the role of law in the management of society. In the conditions of Vietnam from the 15th century onward, the policy of "Confucian on the surface and the rule of law inside" had enough time to take deep roots among the ideology of the upper classes in society.
2. The ideology of sanctifying the royal power in legislation and the enforcement of law
In Vietnam the monarchic ideology was manifest right from the start and became the underlying ideology in the political concept of the feudal class throughout the feudal period. The king was looked upon as the supreme ruler holding unshared power. The king's power was synonymous with the power of the State. The subalterns and the entire population considered it their natural duty to obey the king unconditionally. The sanctification of royal authority in legislation and law enforcement is a concrete expression of the monarchic ideology in the domain of law and a permanent outlook in the legal thought of the Vietnamese feudal class.
On the legal plane, this thinking was translated into the recognition of the unique role of the king in the promulgation and amendment of laws which was also considered the right and responsibility of the king, a personal activity of the king entirely dependent on his desire and conviction. In fact, the kings arrogated to themselves the unique right to promulgate and amend the laws. In spite of the fact that in all dynasties there was a large contingent of mandarins assigned with the specific task of compiling the laws, but all the legal activities were initiated by the kings themselves who also provided guidance in compilation and who alone could promulgate. Even in the period called "Le King and Trinh Lord" when the Trinh lords had actually held real power and the king reigned only nominally, the Trinh lords only promulgated simple and single laws while all the major laws regulating the large social relations were promulgated in the name of the king.
The sanctification of the royal power is also manifest in the supreme power of the king in the enforcement of law. Under the Ngo, Dinh, Early Le and Ly, the kings directly conducted trials at the Court. From the Tran onward, although the juridical organs had been established, the king remained the highest judge in the country having the final say, and in many cases it was he who directly pronounced the verdict. Often he was given the unwritten power of dictating his own judgement without having to consult anybody or being subject to any restriction.
Nevertheless, under the impact of the tradition of communal democracy and the sense of responsibility toward the nation, a number of kings, high mandarins and scholars (especially in the period of progressive king) there was no case of extremism in the sanctification of the royal power.
In the history of Vietnamese feudalism, the sanctification of the royal power usually went in parallel with the concept of "clearsighted monarch." Many kings and scholars recognized the right of the king's subjects to formulate "petitions" or "recommendations" to the king in the legislative work and in the enforcement of law. Though much of which was purely formalistic, the king sometimes placed himself under the rule of law.
On the other hand, the continued existence of the village rules beside the laws of the State and the concept whereby "the king's edict stops at the village gates (the order of the king must yield to the village's rules)" also demonstrates the lack of extremism in the sanctification of the royal authority on the legal plane.
This is because in practice the village customs were considered the second code of the village, regulating almost all the relationships within the village and impacting on the entire population in this community. Though consistent with the law of the country on the whole, the village customs and rules had not a few regulations which were contrary to the rule of the country but were, however, recognized, if implicitly, by the rule of the country. The village rules were elaborated mostly by the retired servants of the feudal system and partly by the scholars who were the social segment representing the feudal ideology. Both the retired public servants and scholars placed themselves of their own free will under the control of these village rules. In fact, they might have argued that within the boundary of a small locality, the rules might not necessarily be set up directly by the sovereign himself. This tendency actually clashed with the general disposition to sanctify the royal authority. It is actually for this reason that the monarchs from the Le dynasty onward devised many ways to prevent the development of the village rules by urging that they be ratified or at least sanctioned by the highest ruling authority. In practice, this effort yielded little result.
3. The recognition of social hierarchy in the feudal legal system
This is in essence the concept about the inequality of individuals before law. It was the most evident outcome of Confucianism and also the underlying thinking of legislation in the feudal times in Vietnam.
In all its theoretical expressions, Confucianism always tended toward the model of an ideal society, namely a peaceful society founded on a hierarchical order which must be clearly defined and closely observed. Confucianism wanted the hierarchical order to be an absolute order and would do anything to preserve this absoluteness.
The old Vietnamese society was built on this Confucian basis of a multi‑layer hierarchy. This hierarchical structure strengthened with the passage of time. Taken as a whole, the hierarchy in feudalist Vietnam was arranged along the basic pattern comprising the King, the Mandarinate and the People. There was a clear distinction among these three components of the old society. The differentialization of social classes applied not only to each individual but also to his family. At the same time, this hierarchy was also observed within each family. Organized in the spirit of the Confucian order, the family is the miniature image of the feudal Court and of a religion in which the elderly are revered as the king or a genie, all the burden of responsibility resting on two categories, the descendants and women.
Restrained by the conservative tendency of Confucianism, the Vietnamese feudal class had no propensity to a progressive society. Its main objective was to build an appropriate hierarchical order and to preserve it, i.e. to keep everything at its place so that the country might enjoy peace. In particular, it opposed all attempts at lese‑majesty and especially disobedience from below. The law in its capacity as one of the instruments of social management represented naturally a means to achieve this objective.
Thus, as conceived by the feudal class of Vietnam, the most important task of law was to directly establish this hierarchy and also to strengthen and defend the hierarchical order. In other words, the Vietnamese feudal class wanted a discrimination right in the law.
This concept was recognized by all dynasties and embodied and concretized in the legal regulations. The feudal concept of class differentiation was directly translated into the contents of laws.
This is easily discernible when we study the system of legal documents enforced during the feudal times. The law in all dynasties placed the king above all legal provisions and made the king the special object of legal protection. The law also formalized the hierarchical structure in which the upper classes were given special privileges and were exempted from normal legal obligations. The law gave special attention to defining the hierarchy in the family and provided heavy sanctions against all acts of infringement upon this hierarchy.
However, in view of the special conditions of the Vietnamese society, the recognition of hierarchy in the law had many points different from the original spirit of Confucianism.
In its consciousness, the Vietnamese feudal class did not set up a rigid delineation among the classes and did not intend to generate a stratum of people who did not fall under the control of law, as opposed to another stratum who was the object of the regulation of law and who was not protected by law. This means that the recognition of social classes in the law is not synonymous with the elimination of the upper classes from the purview of law. It simply means the creation of a number of privileges and prerogatives of these classes in the concrete legal relations. In addition, most monarchs and scholars of Vietnam tended to attenuate the forms of punishment when legislating and enforcing the law with a clear consciousness that this was a wiser method of ruling. But this undertaking has to some extent further lessened the class differentiation in the law.
The above characteristics of the legal thinking in feudal Vietnam arose from many internal causes of the feudal society of Vietnam, chiefly the following:
‑ There was not too great a difference in the living conditions among the classes in Vietnam, hence the absence of extreminism in class discrimination.
‑ The tradition of communal democracy, solidarity and humanitarianism and the respect for women which had existed all along the national history, had endowed the feudal class with some consciousness of the human rights and equality of everyone before law, and of the role and interests of women...
‑ The tendency to be "Confucian on the surface and to use the rule of law in the inside" was part of the legal system of thinking of the Vietnamese feudal class. When it absorbed the spirit of Confucianism, the Vietnamese feudal class recognized class differentiation in law and also adopted the spirit of the rule by law which consisted first of all in recognizing the equality of all before law, irrespective of property or social status. Accordingly, in its consciousness the feudal class has to some extent moved toward some relative equality in the ordinary legal relations.
Put it another way, we may and should regard the above characteristics as the progressive points in the legal thinking of the Vietnamese feudal class.
4. The "legal ancestry" concept or the spirit of legal inheritance
The "legal ancestry" concept was the expansion of the sanctification of the royal authority in law. It is in essence the recognition that the law in the earlier periods was the starting point and also the model and criteria for the subsequent periods which made it necessary to inherit almost intact (both in the contents and in the form) the legal provisions promulgated by the earlier kings, founders of the dynasty. In a broader sense, it was the full inheritance of the rules established by the ancestral kinds in the present legislation.
The Vietnamese feudal class regarded the legal ancestry as a guideline for ruling and also an important principle in the making of the legal feudal law. Deep in their consciousness, all the feudal monarchs tried their best to limit legal reforms and amendments. When it became a necessity to promulgate a new law, they usually ordered the compilation staff to base themselves on the old documents to make some necessary amendments. This may be considered a mere work of systematization of the various laws.
The Lich Trieu Hien Chuong Loai Chi recorded the fact that King Ly Thai Tong promulgated the Penal Code on the basis of the "reference to ordinary legal acts," classifying them into sections and chapters and compiling them into the Penal Code."(2) King Le Thai To, when promulgating a new law, said that he was only learning from the past to institute the law. He further recommended that "anyone who could detect any of my deviations from the law should notify me immediately."(3) Even King Gia Long, the founder of the Nguyen dynasty, when promulgating the Hoang Viet Code recommended that "we should base ourselves on the law of the Le dynasty (the Hong Duc Code) even though Gia Long was a most fervent proponent of the legal philosophy of the Ching in China."
Through the reality of the laws in the feudal times, it is apparent that they retained many things and applied many things legated by the laws of earlier generations without the least modifications in spite of the changes in the socio‑economic situation. In fact, many provisions were quoted almost word by word from the old regulations.
By upholding the spirit of "legal ancestry" the feudal class of Vietnam has revealed its tendency to depend on Chinese law. However, in practice Vietnamese feudal law could not detach itself from the influence of Chinese law both in contents and in form. King Gia Long went so far as to declare that he was completely dependent on China law which caused the Hoang Viet Code to resemble more an excerpt and adaptation from the law of the Chinese Court than a Vietnamese legal code. This is understandable when viewed against the background of a Vietnam existing beside a major power having a long history of national construction and legislation and a constant propensity to expansion.-
Footnotes:
(1) Dai Viet Su Ky Toan Thu, Volume I, Social Sciences Publishing House ‑ Hanoi 1983, page 219.
(2) Lich Trieu Hien Chuong Loai Chi ‑ History Studies Publishing House, Hanoi, 1961, page 95.
(3) Dai Viet Su Ky Toan Thu, ibid. Volume III, page 68.