>>Vietnam's ancient laws: sources and forms
Pham Diem
State and Law Research Institute
Through thousand years’ building and defending their country, the Vietnamese have, on the one hand, staunchly and persistently struggled against foreign invasion, domination and assimilation and, on the other hand, inherited the quintessence of human civilization, with a view to preserving the national cultural identity while integrating with foreign cultures.
One of the prominent cultural achievements recorded by the Vietnamese in ancient time was the building of a legal system of their own with its very distinctive characteristics and also the inheritance of what were good in the ancient Chinese laws. Truly, this is mostly manifest in Hong Duc Code of the 15th century, a typical ancient code of Vietnam, which was totally different from China’s typical ancient code of the Tang dynasty in the 7th century in its structure and contents as well with provisions either different from Chinese ancient law or unseen therein.
On the structure of the code:
The Chinese ancient code of the Tang dynasty contained 500 articles arranged in 12 chapters:
Chapter I: “Danh le”, prescribing the general issues of the code.
Chapter II: “Cam ve”, prescribing the protection of the royal court.
Chapter III: “Vi che” on the mandarindom.
Chapter IV: “Ho Hon” on the civic status and household registration, marriage and family, and land.
Chapter V: “Cong kho”, stipulating the State budget expenditure.
Chapter VI: “Thien hung” on the army, the management of the king’s elephants’ and horses’ stables.
Chapter VII: “Dao tac”, prescribing crimes of burglary and robbery.
Chapter VIII: “Dau tung”, defining crimes of fight scuffle and wrong litigation.
Chapter IX: “Tra nguy”, prescribing the crimes of fraudulence and deception.
Chapter X: “Tap luat”, defining other offenses.
Chapter XI: “Bo vong”, prescribing the procedures for arrest of persons.
Chapter XII: “Doan nguc”, prescribing the procedures for trial and the prison’s rules.
Meanwhile, Hong Duc Code of Vietnam had 722 articles arranged in 13 different chapters, some of which were not seen in the Tang dynasty’s code such as the chapters on the military administration, the fornication and the land property. Having thought of the constant building of a strong army against foreign invasion as an important and significant task of the nation, the Vietnamese ancient law makers devoted a full chapter to the military affairs. The protection of women under the feudal regime also attracted the ancient law makers’ attention, who devoted a whole chapter to crimes related to sexual intercourse. Also unlike the Tang code which incorporated the land issue in Chapter IV dealing with other issues such as civic status, marriage and family, Hong Duc code of Vietnam put the land issue in a separate chapter where the question of land inheritance and contract were specified.
Moreover, hundreds of articles in Hong Duc Code could not be found in or had contents more or less different from those of, the Chinese ancient code of the Tang dynasty.
On the contents:
The distinctiveness of Hong Duc Code was demonstrated not only in its structure but more importantly in its contents where the ancient law-makers of Vietnam put forth many new points never seen in the ancient law of China.
What was most distinctive in the contents of Vietnam’s ancient law was that it had attached importance not only to the public law but also to the private law, not only to the substantial law but also to the procedural law. Unlike their Chinese counterparts who had paid much attention to the public law but very little to such matters as marriage and family, contract, inheritance… under the private law, the makers of Vietnam’s Hong Duc Code had devoted many chapters and articles to the provisions on ownership, marriage and family, contract, inheritance, having specified forms of contract for land sale and purchase, pledge, mortgage, rent, as well as testament and child adoption deed.
For example, Hong Duc Code stipulated that all deeds and testaments had to be made by the family masters themselves. If they were illiterate, they might ask other persons to write for them, which, however, had in all circumstances to be witnessed by the village mandarins. The Code also prescribed in detail and clearly the regime on property of husband and wife when either of them died, as well as cases where arose the inheritance relationships and the mode of dividing the patrimonies. Particularly, the then law-makers had the sense of distinguishing the origins and types of properties of husband and wife, including the properties given by the husband’s family, the property given by the wife’s family and the properties procured by the husband and the wife during their spousal life. It is due to such distinctive character and practicality in the legislative techniques that the local feudal courts during the French domination (from mid-19th century to mid-20th century) often employed such provisions of Hong Duc Code in handling cases related to spousal properties.
Also unlike the Chinese ancient law which prescribed the legal procedures in two chapters of “Bo Vong” and “Doan Nguc” of a common code, the ancient law of Vietnam not only prescribed the legal procedures also in such two chapters of a common code but also in a separate procedure code named “Quoc Trieu Kham Tung Dieu Le” (Royal Court’s Legal Procedures Regulation) which was made and enforced in the 17th and 18th centuries. This was a peculiar legal phenomenon never seen in the ancient laws of China as well as many other countries in the pre-capitalism period.
Even some classical institutions of the Chinese ancient law were also creatively applied by Vietnamese law makers. For instance, the institution on “Ngu hinh” (five forms of penalty) in the punitive system of the Chinese ancient law, including: “xuy” (whipping), “truong” (caning), “do” (corvee labor), “luu” (exile to remote areas) and “tu” (death). Of these five punitive forms, Hong Duc Code was different from the Tang Code of China in the contents of three forms of penalty: “do”, “luu” and “tu”.
For “do” (corvee labor) penalty, the Tang Code divided it into 5 different grades of seriousness according to the sentence- serving duration: 1 year, 1 and a half year, 2 years, 2 and a half year and 3 years. Meanwhile, Hong Duc divided such penalty into three grades according to the hardness of the corvee labor, and each grade was subdivided into jobs for female and jobs for male.
For “luu” (exile) penalty, it was divided by the Tang Code into three grades: exile for 2000 ly (one ly = 500m), 2,500 ly and 3,000 ly from the convicts’ places of residence, and by Hong Duc Code also into three grades but according to three concrete localities: Nghe An, Quang Binh and Cao Bang.
For the “tu” (death) penalty, the Tang Code prescribed two grades: hanging and beheading while Hong Duc Code stipulated three grades: hanging or beheading, beheading with head put up for show and cutting the convict to pieces to the tune of drum beats.
The distinctiveness of Vietnamese ancient laws, typically Hong Duc Code, was highly valued not only by Vietnamese researchers but also by foreign scholars.
In the early 20th century, in his introduction to the translation of Hong Duc Code into French, Deloustal, a French scholar, highly praised the creativeness of Vietnamese ancient law-makers under the Le dynasty during the 15th century in spite of strong influence of the Chinese legislation and phylosophy.
Recently, Hong Duc Code was translated into English by Harvard University where researchers brought to light the distinctive features of the Code as well as the level of civilization achieved by the Vietnamese during the period from the 15th to 18th century. The director of the Ancient Law Faculty of Harvard University, Oliver Oldman, remarked: “We have also realized over the past many centuries the efforts of a Vietnamese nation under the Le dynasty, a constant effort, in building a strong nationalist state and protecting the lawful private ownership through a progressive legal system with many similarities to the modern Western legal perception.”
Few years ago, in their book titled “Research into Vietnamese legal system”, the Japanese co-authors M.Aikyo and T.Inaco remarked: “Vietnamese ancient laws were certainly not identical to Chinese ancient law. Despite the legal impacts of the Tang dynasty of feudal China, Hong Duc Code was characterized by the very typical features of Vietnam. For example, Hong Duc Code was different from the Tang Code of China in that it had distinguished the substantive law from the procedural law, it had separated the family law from criminal law and administrative law, recognizing the property of women.-