Master of Law Ms. NGUYEN VIET HUONG
State and Law Research Institute
Under the feudal regime of Vietnam, the family was commonly understood in a broader concept as a large collective of relatives from several successive generations living together under the leadership of the patriarch. An ideal feudal family was “Ngu dai dong duong” (relatives of five consecutive generations living together). Therefore, the personal and property relations in the feudal family were not only the relations between wife and husband, parents and children but also the all-sided relations between relatives of different lines in the family. However, influenced by the patriarchy, the typical feature of the feudal family, most of those relations were self-regulated on the basis of absolute submission to the patriarch’s opinions and traditional ethical rules without intervention by law. The feudal legislation on the family and marriage only attached importance to regulating acts that directly affected the social order, the social-ethics principles as well as the power and authority of the patriarch. Throughout the feudal time, such a regulation was focally and clearly reflected through provisions of “Quoc Trieu Hinh Luat”, a typical feudal code promulgated under the late Le dynasty.
According to the provisions of “Quoc Trieu Hinh Luat”, the governing of law over the personal and property relations in the family was concretely demonstrated as follows:
1. The law-governed personal and property relations between wife and husband
Marriage is a judicial incident that gives rise to the rights and obligations between wife and husband, which were exercised and performed by both the husband and the wife in accordance with traditional customs and Confucian rules, and were naturally recognized by law without any need to be clearly prescribed therein. The law would intervene only when there was any violation. In other words, those rights and obligations were defined by law in various punitive forms against acts of violations.
Through the provisions of “Quoc Trieu Hinh Luat”, one could imagine the basic personal and property relations between wife and husband as follows:
- The obligation to live together at a place and perform all spousal relationships. The place would be chosen by the husband or his parents and the wife was not allowed to leave the place at her own free will. Such act, if any, shall be duly punished. (Article 321). This obligation is, however, also binding to the husband, though not too strictly. Article 308 of Quoc Trieu Hinh Luat stipulated: “If the husband neglects his wife for 5 months without contacts he will loose his wife; in cases where the wife has got a child (or children), that time limit can be extended to one year”. This provision, seen in no other feudal laws than Quoc Trieu Hinh Luat, shows that the law-makers of the Le dynasty, paid attention, though with caution, to the women’s interests with a hope to reduce the husband’s irresponsibility so as to protect the common interests of the family.
- The obligation to be faithful: This was legally binding only to the wife because polygamy was encouraged in the feudal society. The wife (both the first legitimate wife and the concubine) had to be completely faithful to the husband. Failing to comply with this would constitute one of seven reasons prescribed by law for the husband to abandon his wife who shall also be severely punished. (Article 401).
- The obligation to submit herself to the husband: According to Confucian ideology, the wife has to submit herself to her husband. This was, however, not considered by the Le legislation a total dependence. Quoc Trieu Hinh Luat demanded, on the one hand, that the wife should follow and obey her husband and respect all his decisions, and, on the other hand that the husband have to perform certain obligations (particularly the obligation to support his wife and children). The Le legislation also restricted to some extent acts of maltreatment and cruelty committed by the husband against his wife, though the punishment was not so severe as against the wife if she committed similar acts (Article 482). Moreover, in the spirit of many provisions of law as well as customary practices, the wife (first of all the first legitimate wife) was also entitled to decide together with her husband key issues related to the family.
- The obligation of mourning: This obligation was binding first of all to the wife who had to mourn for her deceased husband for 3 years, during which she had to observe strict provisions of law. After that period, if the wife wished to remain a widow and worship her husband’s memory, such a wish was protected by law. Meanwhile, the husband’s mourning for his wife was not provided for by the law, but perhaps by some rules or conventions in a looser manner.
- The wife, if having committed any crime, was entitled to enjoy a commuting according to her husband’s mandarin rank and title. Article 7 of Quoc Trieu Hinh Luat defined: “Those women with husbands holding some mandarin ranks and titles shall be entitled to enjoy a commuting according to their husbands’ ranks and titles.”
So, it is easy to realize the inequality between husband and wife in their personal relations with numerous obligations falling on the wife, which were vice versa the husband’s rights correspondingly. This inequality was a principle that governed the judicial regulations and at the same time a characteristics of the personal relations between wife and husband in the feudal family.
The property relations between wife and husband were also regulated by law, as reflected largely in provisions on the spouses’ rights to property inheritance.
According to Articles 374, 375 and 376 of Quoc Trieu Hinh Luat, the family property (mainly land) derived from three following main sources:
1. The property the husband inherited from his family
2. The property the wife inherited from her family
3. The property jointly created by the wife and the husband during their married life.
When the family is still in existence, all such properties were considered the common property of the family and placed under the patriarch’s right to decide. However, unlike previous feudal legislation, the Le dynasty’s legislation did not totally deprive the first legitimate wife of all her rights to the family property. Any sale of a family property shall be valid only when both the husband and the wife sign to the papers.
In case of a divorce that terminated their marriage, the law did not prescribe in details the settlement of the consequences with respect to the property. Yet, according to traditional conventions and customary practices, if the wife was not at fault, the husband’s family (and the husband himself) would permit her to bring along all her own property. If having been at fault, she was not allowed to bring along her own property but only personal effects.
In cases where the marriage terminated due to the death of either spouse, the law provided for in details the inheritance right of the wife or the husband. If the husband died, the property (land property) given to the couple by their parents, would be divided into two equal parts: one part was left to the husband’s family for worshipping and the other was reserved for the wife to enjoy the fruits therefrom until she dies or remarry. By then, that part of property would be returned to her in-laws’. Again, if the husband died, the property (land property) acquired by the couple during their married life would also be divided into two equal parts, one part for the wife as her own property, the other part belongs to the husband, which was then subdivided as follows: one-third for the husband’s family for worshipping and two-thirds for the wife to enjoy the fruits therefrom until she dies or remarry.
If the wife died, the property (land property) given to the couple by their parents would be also divided into two equal parts: one part was handed over to the wife’s family for worshipping and the other to the husband for the fruits therefrom. Until he died, that part of the property would be returned to his in-laws’. (If he remarried, he still continued to have the right over that part of property). Again if the wife died, the property (land property) acquired by the couple during their family life would also be divided into two equal parts: one part for the husband as his own property and the other part belonged to the wife, which was subdivided as follows: one-third would be given to the wife’s family for worshipping; two-thirds for the husband to enjoy the fruits therefrom, which would be returned to his in-laws if he died or continue to be in his possession if he remarried.
So, in fact, the husband and the wife had no right to inherit each other’s property. However, the provisions of law on the property relations between wife and husband testify to their inequality as clearly seen in the husband’s role as the key decider over the common property while their family still existed, or the permission given to the husband to continue the possession of his deceased wife’s property if he remarried. Such the inequality originated from the Confucian ideology of thinking highly of the male while slighting the female, from the basic principles for establishing wife-husband relationships in the feudal family (the principle of non-freedom of marriage, the principle of inequality between wife and husband, the principle of promoting the power of the parents, the husband and the first legitimate wife).
2. The law-governed personal and property relations between parents and children
In the traditional Vietnamese family, the relationship between the parents and the children is characterized by the children’s filial piety toward their parents, as demonstrated through their love, respect and care for the parents as well as their absolute obedience to the parents. The children’s absolute and unconditional submissiveness to the parents has been a factor necessary for this kind of relationship.
According to provisions in Articles 457 and 506, the parents were fully entitled to decide the children’s place of residence, upbringing, education and to represent them. As a result, the parents had the obligation to compensate, on behalf of the children, for damages caused by their children’s acts of law-breaking, and were subject to criminal liability for their children’s acts of law offenses (even when the children had settled down to married life and committed acts of law offenses which were covered up by the parents, failing to report to the mandarins). So, under the provisions of Quoc Trieu Hinh Luat, the parents had to bear full responsibility for their children’s acts, which would naturally restrict, to some extent, the legal capacity of the children even though they had reached the adulthood.
Quoc Trieu Hinh Luat concentrated on determining the children’s obligations which were, however, presented in a dispersed and unsystematic manner. From the provisions in Articles 38, 130, 504, 506, 511 and 543 we can preliminarily list the following obligations:
- The obligations to obey the parents’ teachings and advices. Such an obedience was absolute and unconditional despite whether the parents were right or wrong (except the cases where the parents’ teachings and decisions directly threaten the king’s power or life). If children disobeyed the parents, they would be severely punished in accordance with the provisions of law. However, the law clearly distinguished the common disobedience from the deliberate infringement upon the physical bodies or dignity of the parents or grandparents. For the first case the children would be guilty if their parents report to the mandarins. For the second case, a child who committed such acts would be severely punished even with or without the report by the parents, because his/her acts infringed upon not only an individual but also the ethical order always protected by the legislators of the Le dynasty.
- The obligation not to sue the parents: To sue the parents was considered an act contrary to the social ethnics even when the parents were fully at fault. If the lawsuit was groundless or with insufficient grounds, it was considered an aggravating circumstance that increases the penalty.
- The obligation to cover up crimes committed by their father and/or mother: The children were obligated to cover up crimes committed by their father and/or mother, except for such crimes as: betrayal, high treason, the murder of the father by the mother or step-mother, the murder of the children by the father and/or mother. In cases where the criminal acts committed by the father and/or the mother directly infringed upon himself or herself, he or she was only allowed to report to respondible people for settlement.
- The obligation to take the whipping or stick-beating penalty imposed on the father and/or mother. When the father and/or the mother were/was subject to a penalty of whipping or stick-beating for his and/or her criminal acts, the children must take that penalty for the parent to express their filial piety. Quoc Trieu Hinh Luat not only permitted but also encouraged that act by providing that “children who replace the parents or grandparents in taking the whipping or stick-beating penalty are eligible for a commuting”.
- The obligation to mourn for the parents: This is a fundamental obligation in the relationship between the parents and the children to express the latter’s filial piety and respects to the former. The law provided for in details the types of people to be mourned for, the mourning times and clothings as well as the forbiddances during the mourning period. While in mourning the children had to observe strict regulation: being in distression, being banned from all forms of entertainment, or even banned from getting pregnant by the legitimate wife and concubine...
In the property relationship between the parents and the children, the patriarchal ideology was clearly manifest. In the family, the children had no right over the property, totally depending on the parents and obeying their decisions. Yet, when permitted by the parents and reaching a certain age (16 as provided for by Quoc Trieu Hinh Luat), a child could have his/her own property and also from then on the parents would not be responsible for his/her debts, even if he/she was unable to repay those debts.
If the parents die, the children were the only persons entitled to inherit their property. Only if the couple were childless did such property belong to the parents or relatives of either the husband or the wife. Under provisions in Articles 377 and 378 of Quoc Trieu Hinh Luat all property would be left to the children. All infringements upon such inheritance right would be severely punished. If the children were minors (15 years of age or lower), the property would be left to the care of the father or the mother (in cases where either the mother or the father died) or relatives (in cases where both parents died), who would manage such property until the children reach certain age. Yet, if any child was undutiful toward the parents, he or she would be deprived of the inheritance right.
Quoc Trieu Hinh Luat also prescribed in details the principles for severing inherited estates among the children following the death of their parents, as seen in Articles 388 thru 400. Thereby, one-twentieth (1/20) of the property (land) would be spared for ancestrial worshipping, which would be assigned to the eldest son. (If the eldest son had died, the land would be assigned to the eldest grandson or an elder son, or the eldest daughter if there was no elder son). The rest would be distributed to children, including sons, daughters, adopted children, children of the first legitimate wife, children of concubine(s) on the principle that children of the first legitimate wife got bigger shares than children of concubine(s), biological children got more than adopted children, sons and daughters got equal shares.
3. The law-governed personal and property relations among other members (relatives) of the family
As mentioned above, the Vietnamese feudal family included not only parents and children but also relatives of the husband (called spear-side relations) and relatives of the wife (called distaff-side relations). Among such relatives, the personal and property relations were handled mainly by regulations and customary practices but also considerably by provision of Quoc Trieu Hinh Luat.
In the personal relations among relatives, the head of the lineage occupied a special position with many rights and power: the right to be respected, the right to decide important matters relating to the interest of the entire lineage, the right to preside over rituals of the lineage, the right to extenuate criminal acts committed by relatives in lower positions... At the same time he also had numerous obligations such as the obligation to represent the lineage in its relations with other individuals and collectives; the obligation to take personal responsibility for crimes committed by members of the family (Article 35 of Quoc Trieu Hinh Luat).
Among the siblings in the family, the elder brothers (first of all the eldest brother) had the rights and obligations towards their younger brothers and sisters, particularly when the parents had already died. The harmony among siblings was protected by law. Any lawsuit against each other was considered an exasperating circumstance that aggravate the penalty.
Noteworthy in the relationships among relatives was that the obligations of family members in lower positions varied according to types of relatives. To relatives of the direct line of descent, who were in superior positions, the children, grandchildren and the like had to fulfill their obligations as to their own parents (Article 506 of Quoc Trieu Hinh Luat). For other relatives in higher ranks the children and relatives of lower ranks had only to respect and mourn for them.
Besides, the blood relations would serve as a basis to determine the collective criminal liability in some special cases (Articles 411, 412 and 653 of Quoc Trieu Hinh Luat) and at the same time as basis to exasperate or extenuate the penalty.
In the property relationships, the children and grandchildren totally relied on the handling and management by the patriarch. Besides, the grandchildren were obligated to support their grandparents (namely the relatives of superior positions). For an orphan, his/her property and education was assigned to his/her next of skin on the paternal side for management, who had the right to decide the child’s property (Article 378 of Quoc Trieu Hinh Luat).
Inheritance relationships also arose among relatives, but only in certain cases, for certain relatives and certain kinds of property. With regard to the land left for the ancestrial worshipping, the law provided that only people in the direct line of descent, particularly the main family line (the eldest son or the eldest grandson) would be given the priority to inherit. If for some reason they were unable to undertake the ancestrial worshipping, such inheritance right was transferred to the “secondary family line” with the consent of the local mandarins. With respect to land of other kinds, the next of skins were eligible for the inheritance only if the estate leaver died without issue or parents.
So, through the study of the provisions of Quoc Trieu Hinh Luat on the personal and property relations in the feudal family, we can easily realize the law-protected absolute power of the patriarch over the relationships among members of the family. This is the most striking feature determining the governing scope and main contents of the feudal legislation on marriage and family, which aimed to build a family environment in which the patriarch was totally respected and submitted to by other members through leaving all obligations to two types of people: the junior and the female. However, we cannot help recognizing the progresiveness of Quoc Trieu Hinh Luat as compared with previous feudal legislation, as manifest in its provisions on the personal and property relations between members of the feudal family, particularly those highly valuing the personal interests and giving prominence to the women’s role such as the women’s property rights, the right to certain equality between man and woman in inheritance, the rights of biological children and adopted children... This is one of the typical features of Quoc Trieu Hinh Luat that is worthy of consideration.-