>>Husband-wife relationship in ancient laws of Vietnam
Ms. Tran Thi Tuyet
State and Law Research Institute
I. The women’s position in a Confucianism-dominated society
To speak of the women’s position in a Confucian society means to speak of their plights, their positions and their responsibilities in the family and the society as well.
No one can deny the women’s inferior position in the Confucian society where prevailed the idea of highly treasuring the male while slighting the female as seen in the saying “nhat nam viet huu, thap nu viet vo” (one man means a fortune, ten women means nothing). Though alive, women were considered not having existed in the world. From the time they were born till the time they retired from this world, they were totally dependent on men as manifest in a well-known Confucian guideline “tai gia tong phu, xuat gia¸ tong phu, phu tu tong tu” (in the family, the women had to follow their fathers; when getting married, they had to follow their husbands; when their husbands died, they had to follow their sons).
In the patriarchal families where Confucian ideologies and behaviors prevailed and where people of four or even five generations lived under the same roof, the powers of the male including the grandfathers, fathers, husbands and eldest sons were absolute. According to Confucian conceptions, the interests of the lineage were most important and eternal. The protection of the interests of the family lineages and the grand patriarchal families was considered matter closely related to the public order and the foundation of the Confucian society. For such reason, the feudal legislation stipulated the regime of non-voluntary marriage, unequal marriage. Married women had the responsibility to give birth to children, particularly sons who would carry on the lineages, to worship the ancestors and protect the lineages’ interests. To many, the daughters-in-law concerned the rise and fall of the families. If a woman unfortunately gave birth to girls but no sons or became barren, her husband had the right to abandon her and marry another wife so as to avoid being issueless. Having no one to carry on the lineage means the descent’s interests cannot be handed down from generation to generation on the paternal side, which was considered the biggest among the three crimes of undutifulness. And for this, the women were always at fault.
In the Confucian families, the women had nothing but the obligations to worship their in-laws’ ancestors, take care of their in-law parents, to be faithful to their husbands and to bring up their children. The “tu duc” (four virtues) criteria, the “tam tong” (three follows: in the family, to follow the father; after getting married, to follow the husband; when the husband died, to follow the sons) and the feudal conception of “nu nhi, ngoai toc” (the female, only the outsider) all tied up the women to the dependent position in the family and lineage as well.
Under the patriarchal regime, women were always in the inferior position, being not allowed to participate in social activities and having almost no says in their families. In some social and legal relations, the women were considered only the shadows of their husbands, having no legal capacity. Their only lawful representatives in all domains were their fathers, husbands and eldest sons. For the same offense, the women were always punished by law more severely than the men.
II. Vietnam’s feudal legislation and the protection of women’s interests
No one can deny the impact of the Chinese feudal States and legislation on the Vietnamese feudal States and laws. That was the inevitable outcome of thousands of years’ domination by northern feudalists and cultural exchanges among nations. The absorption and Vietnamization of the Confucian ideologies introduced into Vietnam commenced together with the emergence of the Vietnamese feudal State and legislation.
The written legislation during the Ly, Tran and Ho dynasties (from the 15th to early 17th centuries) did not reveal any traces of the Confucian conceptions regarding the marriage and family which were then regulated by ethical behaviors and practices. The first codes in Vietnam such as the “Hinh Thu” (Criminal Writings) in 1042 under the Ly dynasty, the “Hinh Luat” (Penal Law) in 1341 of the Tran dynasty and a number of reform policies of the Ho dynasty (in the late 14th and earth 15th century) showed that the class oppression then was very eminent while the sex oppression was very dim. This means that during that period, the women were tied up to the inferior position mainly by feudal ethics and not by law.
From the late Tran dynasty on, particularly the Nguyen dynasty when the feudal regime was on decline and became obsolete, Confucianism had infiltrated deeply in the political and social life of the then Vietnam. The “Quoc Trieu Hinh Luat” (Royal Court Criminal Code), known as Hong Duc Code in 1483 of the Le So time as the culmination of the legislative activities of the Vietnamese feudal states, and the “Hoang Viet Luat Le” (Vietnamese Royal Court Laws and Practices), also known as the Gia Long Code in 1815 during the Nguyen dynasty’s tenure intervened deeply in the field of marriage and family. The sex oppression became more manifest than in the legislation of the previous dynasties. However, the then feudal law-makers only prescribed in such codes matters closely related to the public order and foundation of the feudal regime while other matters in this field were still regulated by feudal ethics.
Besides their class nature, such codes were deeply imbued with the national identity, which lively reflected the ethical values as well as particular historical circusmtances of the nation. One of their contents bearing the national characters was the institution protecting the women’s interests.
While strictly adhering to the basic Confucian principles for the family life, King Le Thanh Tong still allowed the relaxation of fetterings on women in various domains when conditions permitted.
For instance, by prescribing the marital ages of 18 for boys and 16 for girls, the legislation of the Le So dynasty prevented underage marriages which had victimized many young and even little girls while still ensuring the requirements that the marriage would mean having more people to look after the parents, to worship one’s ancestors and to early have sons for carrying on the lineage.
Article 322 of Quoc Trieu Hinh Luat stipulated: “Girls who are already engaged to men may petition to mandarins and return the wedding presents, then cancel their engagement if their fiances suffer from incurable ailments or commit crimes, which may lead to their family break-up.”
Similarly, Article 315 of the same code provided that a man who was already engaged, having offered the wedding presents but later refused to marry his intended without any plausible reasons, he would be penalized with 80 canings and lose his wedding presents.
For the relationship between husbands and wives, Quoc Trieu Hinh Luat mainly defined the wives’ obligations towards their husbands. However, the code contained provisions protecting the interests of women even though they were in the inferior position in their families. For instance, the code stipulated if a husband fails to fulfill his obligation to live together with his wife in a place and fails to fully perform the spousal relationships, the wife may divorce him (Article 308); or if a husband neglects his wife for 5 months without intercourse, he will lose his wife. If the wife has a child, he will be given a grace period of one year (Article 333).
The property relationships between the husband and the wife reflected the progressiveness of the legislation during the Le So time. Quoc Trieu Hinh Luat (Articles 374, 375 and 376) and the Hong Duc Thien Chinh Thu (paragraphs 258 and 259) recognized three types of property (mainly land, gold, silver, houses, rice, household untensils made of bronze or porcelain...), which were jointly owned by the husband and the wife:
1. The property the husband had inherited from his family.
2. The property the wife had inherited from her family.
3. The property jointly created by the husband and the wife during their marital life.
The feudal laws recognized the above-mentioned types of property as the common property of the husband and the wife during their marriage, or in other words they were the co-owners of such properties. Yet, in a Confucianism-dominated family, the patriarch (the husband) had more power than his wife in the management of such common properties though the latter did not fully lose her grip thereon. According to the then laws, the contracts on sale of family property had to be signed by both the husband and the wife. The wife was entitled to use part of her husband’s personal property.
Article 375 of Quoc Trieu Hinh Luat and paragraphs 258 and 259 of Hong Duc Thien Chinh Thu stipulated: In cases where a couple has no child and the wife is not at fault in the divorce or the husband dies, the wife is entitled not only to own all her personal property but also to be divided (not to own) half of her husband’s personal property as the support for the rest of her life, which will, however, be handed back to her ex-husband’s family if she dies or remarries, in order to ensure that the property shall be maintained within the paternal lineage
With regard to the property jointly created by the husband and the wife during their nuptial life, Article 375 of Quoc Trieu Hinh Luat stipulated: If the couple has no child and the wife is not at fault in the their divorce or the husband dies, the wife is entitled to own half of their common property to keep as her personal property which will be bequeathed to her parents or her heir if she dies. The other half of the common property shall be divided into three: one-third is given to the person who takes charge of the family worshipping and two-thirds are given to the wife as support for the rest of her life (but not under her ownership), which will, however, be handed back to her ex-husband’s family if she dies.
All these stipulations show that the legislation under the Le dynasty acknowledged the equal contributions by the husband and the wife to their common properties and at the same time protected their lawful ownership over their personal properties as well as their common properties created during their marriage. Yet, it will be a mistake if holding that women in general and wives in particular were equal to men and to their husbands in the ownership over the family properties. During their spousal life, the women’s rights to co-ownership over the common properties as well as ownership over their personal properties inherited from their own families were only nominal. The husbands were the persons who had the decisive powers on the family properties.
The property and inheritance relationships between parents and children in the family were governed by patriarchal ideologies and behaviors. When still living together with their parents, children had no powers over the family properties. Yet, when the parent died, the children were entitled to all the three above-mentioned types of property left behind by their parent. Under the legislation of the Le dynasty, children were ranked the first heirs, with sons and daughters were divided the inheritances equally. The cult-portion land (about 1/20 of the land left behind by the parents) was, in principle, assigned to the eldest son of the head of the line of descent, who takes care of the ancestral worshiping. In cases where such eldest son was unavailabe, disabled or spoiled, who was unable to take care of the ancestral worshiping, the law permitted the second eldest son or the eldest daughter to inherit such land (Articles 388, 391, 392 of Quoc Trieu Hinh Luat). The eldest daughter was entitled to inherit the cult-portion land during her life time, which had to be handed back to the spear side of the family in order to ensure that such land would always belong to the paternal side.
It can be said that the above-said progressive law provisions protected to some extent the interests of the women who always had to bear the brunt of all disadvantage and unhappiness in the feudal society. This was the first time the issue had been touched by the written laws of the feudal states in Vietnam. However, later, the Gia Long Code of a declining feudal state, which had rigidly and clumsily copied the outmoded code of the Chinese feudal regime of Man Tsing, missed the progressive provisions of national characters on the protection of the women’s interests.-