Understanding The Origins Of The Vietnamese Legal System

To Western eyes, Vietnamese justice seems incredibly severe. Some see the story of Trương Mỹ Lan’s death sentence for a financial crime as being excessively severe. Many people found guilty in the case were sentenced to between four and 20 years, with four defendants receiving sentences of life in prison.

People sentenced in the U.S. seldom get more than ten years in prison for the worst financial crimes. Corporate crimes typically receive even lighter sentences, if anything. This got me wondering,

Why do corporate officers in Vietnam face such strict penalties for corporate crimes?

To understand modern Vietnamese law, it is important to understand that it is historically influenced by several legal systems and therefore a mix of dramatically different judicial philosophies. This article will help you understand how Vietnamese law evolved into the system we see today; what the different legal philosophies are; what their core doctrines and influences are; and how they differ.

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Influences on Vietnamese Law

Vietnamese law is influenced by a blend of several cultures layering upon each other. Vietnam’s unique legal landscape was shaped by a couple thousand years of cultural history. The philosophies collaborate to mitigate the excesses of the preceding system. Initially, it was based only on indigenous traditions. These traditions were then overlaid with Confucian principles and refined with French laws, particularly in the areas of contract, property, and administrative law, giving Vietnamese law a Western framework. After the 1975 reunification, Vietnam's legal system incorporated elements of socialist law, reflecting the country's communist ideology, with a focus on state control and collective ownership. 

For over 1000 years, Vietnam had significant cultural and political interactions with China. This included legal concepts and practices derived from Chinese legal traditions, such as Confucianism and Legalism, which had a profound impact on Vietnam's societal norms and legal principles. Much of the Confucian legal philosophy as well as the Manchurian administrative practices make up the core framework of Vietnamese law. 

In recent decades, Vietnam has opened up economically and its legal system has adapted to incorporate aspects of international law and practices that facilitate trade and investment. 

This blend of influences has created a unique legal system that balances traditional values with modern legal principles and international norms.

Chinese Confucianism and Legalism Work Together

Traditional Chinese law is largely based upon traditional Confucian values – a person’s responsibility depends on their place in society. It emphasizes the importance of hierarchy, maintaining social harmony, upholding moral values, and the importance of family. This is in stark contrast to Legalism, which states justice must be strict to maintain order. The contrast between Confucian order and strict Legalism forms the framework of the law.

Confucianism is a philosophical and ethical system developed by Confucius in the 6th century BCE, and rooted in Chinese tradition that emphasizes moral values, social harmony, and proper conduct. The concepts of ren (benevolence or humaneness), li (proper behavior or ritual propriety), and xiao (filial piety) are central to Confucianism, stressing the importance of education, family loyalty, and respect for elders and ancestors. It advocates for a hierarchical society based upon merit where rulers govern by moral example. By promoting virtues such as honesty, integrity, and righteousness, Confucianism aims to create a harmonious and orderly society, influencing both Chinese culture and that of other East Asian societies.

Chinese Legalism is a pragmatic and authoritarian philosophy that emerged during the Warring States period (475-221 BCE). It uses strict laws and centralized control to maintain social order and state power. Unlike Confucianism, which focuses on moral virtue and ethical governance, Legalism asserts that human nature is inherently selfish and shortsighted, requiring stringent laws and harsh punishments to ensure compliance and the stability of society. This results in a strong, centralized state with a powerful ruler who wields absolute authority. Legalism is the glue that holds a centralized bureaucratic state together.

Though Confucianism and Legalism seem like opposing philosophies, they work together to create a balanced and effective system of governance. Confucianism provides the ethical and moral framework, while Legalism offers practical measures for administering the state with rigorous enforcement to maintain order and discipline. By integrating Confucian moral values with Legalist administrative efficiency, the government was able to establish a stable bureaucratic system that seeks to promote both ethical governance and effective control. 

The Gia Long Code

To understand the first level of Vietnamese law, we need to go back to a legal code implemented in the 19^th century under the Vietnamese royal dynasty of Gia Long. This code implemented original indigenous traditions (the ancient Vietnamese law), along with the previous code of law (the Lê Code) and was heavily influenced by the Chinese legal traditions just mentioned, specifically the code of law implemented during the Qing dynasty. 

The Gia Long code was developed by a group of scholars between 1811 and 1815. Although it was superseded in most regions when the French implemented their own codes, the Gia Long Code survived in the central region of Annam where the French allowed the Royal Dynasty to continue to rule. The Code survived because it was designed to reinforce the emperor's power and authority, that of his officials, and the traditional family structure.

To really understand the code, it is important to understand that the roots of the law come from the Chinese system of punishment, where crimes were ranked by the severity of the offense and the frequency of the crimes of the accused. If the crime was severe or the criminal was unrepentant, the punishment was often raised to a higher level. For grave offenses, especially those against the state, the family of the guilty party could be subjected to collective punishment, including the death penalty.

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According to Wikipedia,

In Imperial Qing China, each punishment had five rankings depending on the severity of the crime. The punishment would also include a fine for any crime short of death which likely needed to be paid by the family. These are the punishments for men. The punishments for women were different but could also be quite severe, depending on the crime. 

• Chī (笞), beating on the buttocks with a light bamboo cane or bamboo clappers. 

• Zhàng (杖), beating with a large stick on either the back, buttocks or legs. 

• Tú (徒), compulsory penal servitude of one to three years. 

• Liú (流), exile to a remote location with return to one's place of birth being forbidden. 

• Sĭ (死), death penalty, consisting of hanging or decapitation. 

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The Gia Long Code sought to use the framework of Legalism from the Qing Code to maintain order and discipline. It also sought to focus much more on the rights of wives and children than previous legal codes, such as the Lê Code or the Chinese Confucius Code. The Gia Long Code was already starting to experience the influence of Enlightenment philosophy because it sought to be more accountable to the rights of individual citizens, while holding the administrators more responsible for their decisions and giving the administrators a legal framework to follow. 

Individual Rights

In Western societies, we often watch criminal justice TV shows, portraying the challenge of pursuing criminals while meticulously ensuring the rights of those criminals are not infringed upon. If the police neglect to inform a suspect of their legal rights (Miranda warning), or the police do not have probable cause when executing a search warrant, the suspect could go free. The entire system is designed to create a barrier for the police to work within. If the police do not do everything “by the book”, certain evidence could be considered invalid and therefore may not be used as evidence by the prosecutor during a trial. 

Confucian derived legal systems think of individual rights differently. There are no rights of privacy or “innocent until proven guilty” doctrines. Individual rights are given to people by the state and are not regarded as natural rights for all individuals, as is typical in Western law. The goal of individual rights in a Chinese-based system is meant to preserve order. Individual rights are typically procedural rights to ensure judges would be fair when making decisions. They include protections against unjust imprisonment, rights to due process, and limitations on the powers of officials. 

There is a section of the Gia Long Code that outlines the rules for Administrators (Mandarins). The justice system wasn’t administered by a system of independent justices as you would see in the West, independent justices were an Enlightenment idea. The Administrators were expected to manage administrative affairs, collect taxes, maintain order, and uphold the law within their jurisdictions. The government branches of law enforcement and administering justice were the same. There were no checks against overstepping government authority. The person running the government was also running the court. 

The Gia Long Code sought to hold administrators accountable for their actions and decisions. It created mechanisms for monitoring officials' conduct, investigating complaints, and punishing misconduct or corruption. It created legal principles and procedures which administrators were expected to follow when adjudicating disputes, administering justice, and implementing policies. Punishments for corruption were severe. Officials who performed well and demonstrated loyalty to the emperor could expect promotion and recognition.

The core of this administration policy still exists today. The courts and administrators are now separated, but the courts are still required to answer to the party leadership. This makes the judicial system prone to political pressure. If the justice rules in a way disapproved of by the political leadership, the justice could see a plateauing of their career advancement or possibly even face dismissal. 

The Enlightenment in Europe

While the French did not establish control over the country until the mid to late 19th century, their influence is evident in the Gia Long code. French Missionaries were already in Vietnam for a couple hundred years before Vietnam became a French Colony. In an effort to “proclaim the gospel” of Christianity, Missionaries also proclaimed the gospel of Enlightenment values. The French Enlightenment provides a counterbalance to the centralized power of the earlier Chinese Legalist system with the introduction of individual human rights as well as accountability to administrators.

To better understand these rights, it is crucial to examine their historical context.

The Magna Carta, signed in 1215 by King John of England, is a foundational document in the development of constitutional governance that arose when a group of rebellious barons didn’t like the arbitrary way the king handled taxation and rule. It was a revolutionary contract between the king and these barons that established principles limiting arbitrary royal authority and ensuring legal rights to barons. It laid the groundwork for Enlightenment philosophy as well as ensuring the king was also subject to the law.

Some of the key points included protection of individual rights, access to swift justice, and constraints on taxation without representation. Although it was originally intended to apply only to the nobility, it became the symbol of liberty and the rule of law. It influenced future legal charters and constitutional documents, including the Constitution of the United States of America. 

The core doctrine of the Magna Carta is the responsibility of the government towards its people. It is an individualistic code that limited the power of a Monarch over their people and created limitations on the state over its free citizens. It formed the very basis of listing natural rights based upon Enlightenment ideals, which then became the foundation of Western laws. It outlined certain rights for free men, such as the right to justice and a fair trial by one's peers, and is the basis for what are today called human rights. 

Enlightenment thinkers such as John Locke and Montesquieu built on these principles, taking the rights of the Magna Carta, and expanding them to include individual rights, separation of powers, and the social contract. These thinkers highly valued the concepts of reason, equality, and justice. 

These all seem like common norms today, but at the time, justice was somewhat arbitrary and could vary wildly based upon the mood of the king. 

Locke's ideas on natural rights – life, liberty, and property – argued that governments are created to protect these rights. If they fail, citizens have the right to revolt. Montesquieu's separation of powers proposed dividing the government into distinct branches to prevent tyranny. Rousseau's social contract theory suggested that laws should reflect the general will of the people, ensuring equality and collective sovereignty. These ideas laid the foundation for modern democratic legal systems, emphasizing fairness, accountability, and the protection of individual rights.

These Enlightenment ideals, along with the U.S. Declaration of Independence, formed the core values we see in the Declaration of the Rights of Man and of the Citizen, adopted in 1789 during the French Revolution. It is a seminal document outlining fundamental rights and freedoms and asserting that all men are born free and equal in rights, including liberty, property, security, and resistance to oppression. It emphasized the importance of popular sovereignty, the separation of powers, and legal equality, while condemning arbitrary detention and calling for freedom of speech, religion, and the press. This declaration put Enlightenment’s core principles into writing, blending the Magna Carta’s assertion of rights against government tyranny and the Enlightenment’s emphasis on rational governance and human rights. It serves as inspiration, profoundly influencing democratic movements and constitutions worldwide.

Socialist Legal Theory

Socialist law aims to curb the excesses of a capitalist structure, as seen under the French, by introducing mechanisms that protect the interests of the working class.

Socialist legal theory is based in Marxist-Leninist ideology. It declares that law is a tool of the ruling class, used to maintain its dominance and control over society. In a socialist state, the legal system serves the interests of the working class and promotes the collective ownership of resources. It emphasizes the centrality of the state in regulating economic and social life, aiming to eliminate class distinctions and ensure social justice. Laws under socialist theory tend to focus on economic management – state planning, public ownership, and the distribution of goods – rather than on capitalist market principles. Unlike in the West, where the judiciary is often a separate entity of the government, the Socialist judiciary is accountable to the political leadership. This puts the justices in a subordinate role as they must follow the lead of the political party. 

Doi Moi Reforms

The Doi Moi reforms implemented in Vietnam during the late 1980s brought about profound changes to the country's legal system with the goal of changing the economic system from a purely Socialist centrally planned system into a market oriented economy. Economic reforms were implemented to relax the stringent economic controls of a Socialist system. The goal was to become friendly for international trade by introducing new economically liberal policies which governed investment, trade, taxation, intellectual property and land ownership. The government saw the need for private ownership of property to be competitive in a global economy and established the legal framework for property ownership. They sought to encourage foreign investment and promote entrepreneurship. By aligning Vietnamese financial law with international law, Vietnam was able to increase their competitiveness in the global economy.

A couple case studies which may have ended differently in different legal systems

A good example of cases that would be dramatically different in Vietnam than in the U.S. are the Harvey Weinstein and Bill Cosby sexual assault cases. In the U.S., these cases very much followed Confucian type court proceedings, where the judge could decide what evidence would and would not be allowed. Due to massive public outrage, there was a huge incentive to push for convictions rather than follow the exact procedure of U.S. law. In Confucian law, this would be very much a legal proceeding because the judge has much more freedom to decide what evidence would be allowed and the judge is also the person who decides the guilt and sentence of the defendant. 

These cases differ when they go to appeal. In both cases, it was determined that the U.S. justices for each case allowed tainted evidence into the court. This tainted the decisions of each case which caused the prosecutor’s cases to fall apart when reexamined without that evidence. 

In the case of Bill Cosby, the original District Attorney, Bruce Castor, said that if Cosby made incriminating statements in one case, they could not be used against Cosby in another case. The new district attorney, Kevin Steele, later used those incriminating statements to secure a conviction against Cosby in a subsequent case. This violated Cosby’s rights of due process and the second case was overturned. 

In the case of Harvey Weinstein, Judge James Burke allowed testimony from women based upon crimes unrelated to the charges Weinstein was being accused of to demonstrate a pattern of “loathsome alleged bad acts and despicable behavior” that would undermine the character of the defendant. Upon appeal, the Appeals Court justices commented, “Without question, this is appalling, shameful, repulsive conduct that could only diminish the defendant's character before the jury.” They determined that this testimony unfairly tainted the character of the defendant in the minds of the jury, so the entire case was overturned. 

In both of these cases, it is unlikely that any of this evidence would be thrown out of a Vietnamese court because it is assumed that the presiding justice would be unbiased enough to ignore illegal evidence. The political aspect of the cases would also have a big influence on the Confucian justices, as they are responsible to the political body, which is responsible to the citizens. Justices need to consider the will of the citizens as a whole and rule accordingly. This allows a bit more of mob rule into these types of courtrooms because the justices need to consider the ramifications of an unpopular decision possibly creating civil unrest or even upsetting prominent members of the party. 

The Controversial Vietnamese Death Penalty 

The death penalty is still pretty common in Vietnam, going back to the ancient Chinese penal system. As discussed at the beginning of this article, the Vietnamese legal system is derived from the Gia Long code which was derived from previous Vietnamese legal codes and influenced by the Qing legal code. There is a list of penalties for certain offenses, the most severe being the death penalty. No matter the crime, if it is egregious enough, the death penalty is a possibility. 

This causes a lot of controversy in the West, because death penalty sentences have been issued for what the West would consider lesser crimes, such as drug trafficking. In January 2014, a northern Vietnam court sentenced 30 Vietnamese citizens to death after they were found guilty of heroin trafficking, bringing criticism from international civil rights organizations. This seems severe under U.S. law, which may have a recommended sentence of “only” 5 to 40 years in prison. This could possibly be reduced depending on prior convictions and/or on the mercy of the judge. As of 2014, there were approximately 700 people awaiting the death penalty in Vietnam. 

Conclusion

Vietnam's legal system is sometimes criticized for leading to harsh penalties for crimes, including corporate crimes. The goal of these harsh penalties is to apply accountability to individuals who have committed crimes which have had a greater impact on society. These penalties serve as a lesson for others who wish to commit similar crimes. The severe public punishment of these individuals hopes to deter similar future crimes and provide society with a sense of catharsis as they witness the harsh treatment of criminals.

I often say that comparisons between Vietnam and western systems typically come down to tradeoffs. The goal of the Vietnamese legal system is to promote behaviors which are good for the society as a whole. The tradeoff is that criminals are not allowed to get around the law by using legal technicalities. By using an inquisitorial model, justices are able to factor in all evidence available against the defendant, even if that evidence risks biasing the decision. The expected outcome of this system is a reduction in crime, with the trade-offs of imposing harsher penalties on convicted criminals and the increased risk of falsely convicting innocent individuals. This might sound severe, but it ultimately boils down to the dilemma: which is worse, allowing guilty individuals to walk free or wrongfully punishing someone innocent?

An Additional Resource:

I discovered an intriguing paper on the Death Penalty in Vietnam, which is particularly valuable because it provides a comprehensive history of the Vietnamese legal system to show how the Death Penalty has historically been applied in Vietnam. A significant portion of my research is derived from this paper.

The Changing Nature of Death Penalty in Vietnam: A Historical and Legal Inquiry