Asian Socialism and Legal Change

Asian Socialism and Legal Change: The dynamics of Vietnamese and Chinese Reform

John Gillespie
Pip Nicholson
Copyright Date: 2005
Published by: ANU Press
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  • Book Info
    Asian Socialism and Legal Change
    Book Description:

    Although the immense process of economic and social transformation currently underway in China and Vietnam is well known, less attention has been devoted to the process of Chinese and Vietnamese legal change. Asian Socialism and Legal Change brings together experts to analyse recent developments in the legal sphere, representing the diversity and dynamism of this process. This book is the first systematic analysis of legal change in Asian transitional economies.

    eISBN: 978-1-920942-27-4
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
    (pp. vi-vi)
    (pp. vi-vi)
    (pp. vii-vii)
  6. Contributors
    (pp. viii-x)
  7. Preface
    (pp. xi-xii)
    Malcolm Smith
  8. Acknowledgments
    (pp. xiii-xiv)
    John Gillespie and Pip Nicholson
    • 1 The diversity and dynamism of legal change in socialist China and Vietnam
      (pp. 1-20)
      John Gillespie and Pip Nicholson

      Asian socialist legal transformation is most often considered from a Chinese perspective.¹ Occasionally analysis of Vietnamese socialist legal change is also undertaken.² The unique feature of this book is that the contributors seek to tease out the significance of Asian socialist transformation comparatively, looking to the experience of legal change in both China and Vietnam.³

      Further, this investigation of socialist legal transformation proceeds from diverse perspectives. Many of those investigating how the laws and legal institutions of both China and Vietnam have been reshaped in the recent past write as ʹforeign commentatorsʹ on legal change. But their investigations sit beside...

    • 2 Of ‘socialism’ and ‘socialist’ legal transformations in China and Vietnam
      (pp. 21-44)
      Michael Dowdle

      One of the great tragedies of modern constitutionalism is that it has remained largely insulated from the concerns that socialism was developed to address. These concerns are real, and deserve more constitutional attention then they generally receive. The insights gleaned from Vietnamʹs experience with the process of legal transformation perhaps can go some way toward rectifying this tragedy. We cannot presume, however, that it is enough that Vietnam chooses to call itself, its laws and its constitution ʹsocialistʹ. In order for the ʹsocialistʹ experiences of Vietnam to contribute to a meaningfully ʹsocialistʹ vision of legal transformation, their self-described ʹsocialismʹ must...

    • 3 Changing concepts of socialist law in Vietnam
      (pp. 45-75)
      John Gillespie

      Few aspects of the Vietnamese legal system are more uncertain and controversial than the meaning of socialist law. It influences the way the Communist Party of Vietnam ʹleadsʹ the state, the way the state ʹmanagesʹ society and the way officials and the public implement and obey laws. Socialist law resists definition.

      ʹSocialist lawʹ generates confusion because it was introduced more than forty years ago to regulate the command economy, but the term is still in use to describe contemporary mixed-market regulation. This flexible usage raises the question what is socialist about socialist law? Does the term have immutable and intrinsic...

    • 4 Confucianism and the conception of the law in Vietnam
      (pp. 76-90)
      Pham Duy Nghia

      Confucianism in Vietnam originated from the Vietnamese peopleʹs agricultural lifestyle and continues to influence society today. As a set of social norms, Confucianism not only substitutes for the law in many aspects of life, but also contributes heavily to the conception of the law in Vietnam. Analysing Confucianismʹs impact will help us to understand better the role and limitations of the Vietnamese legal system today.

      With the growth of the market-oriented economy, legal reform in Vietnam has entered a new stage where emerging paradigms are challenging the outdated doctrine of ʹsocialist legalityʹ. Western legal models are increasingly providing the basic...

    • 5 Transforming Chinese enterprises: ideology, efficiency and instrumentalism in the process of reform
      (pp. 91-114)
      Chao Xi

      Historically, the roots of the contemporary Chinese legal system are deeply embedded in the Soviet Union model of the socialist legal system (see Butler 1983). Even today, the Soviet influence can easily be identified, largely reflected in Chinaʹs constitutional organisation, which replicates to a significant extent that of the former USSR (especially in its 1936 Constitution) (A.H.Y. Chen 2000). This significance, however, has been fading. The economic reforms carried out in the 1980s in China were apparently much more dramatic and liberal than those occurring in the Soviet Union at that time—particularly in terms of development of the non-public...

    • 6 Socialist ideology and practical realism: the process of compromise in Vietnam’s law on education
      (pp. 115-134)
      Elizabeth St George

      As part of the overall theme of this book, this chapter seeks to analyse how socialism has been influential in shaping law by examining the specific example of the Education Law of Vietnam, passed in 1998. Socialism, in its many incarnations, played a particularly important role in the development and elaboration of the Vietnamese Education Law, linked in part to the significance of the education sector as the principal vehicle for the transmission of socialist theory and ideology—even as its importance is being downplayed in other sectors. Socialism, in its various different forms, has had a variety of impacts...

    • 7 Legal education in transitional Vietnam
      (pp. 135-158)
      Bui Thi Bich Lien

      The launch of doi moi (literally meaning ʹRenovationʹ) has resulted in numerous unprecedented changes in Vietnam during the last decade and a half. Moving from a centrally planned society to a market-oriented society, the state has defined law as an important tool to govern society and promote economic development. This transformation process poses great challenges for Vietnamʹs legal system, as the ambitious targets set by doi moi need to be facilitated by qualified legal professionals.

      In this context, legal education plays a critically important role. Although it is undeniable that law schools have made significant improvement in terms of teaching...

    • 8 Vietnamese jurisprudence: informing court reform
      (pp. 159-190)
      Pip Nicholson

      In April 2002 the Communist Party of Vietnam (CPV) finalised its Resolution of the Political Bureau on Forthcoming Principal Judiciary Tasks (ʹResolution 8ʹ), a policy paper identifying priorities for Vietnamese legal reform. Subsequently, the Vietnamese Party–state issued laws to reform the courts, responding specifically to the needs identified in Resolution 8.¹ The question emerging from this policy paper and the subsequent reforms is whether, or to what extent, this latest round of court reforms reflects contemporary Vietnamese theorising on the role and function of law and the courts.

      At the heart of this question hovers a larger question. In...

    • 9 Ideology and professionalism: the resurgence of the Vietnamese bar
      (pp. 191-211)
      Nguyen Hung Quang and Kerstin Steiner

      In the cause of building a socialist state based on rule of law, the Communist Party of Vietnam and the Government of Vietnam have issued a number of resolutions, directives and legal normative documents to improve the state apparatus and laws (Hoang The Lien 2002). In early 2001, as part of the legal reform process, the Politburo of the Party Central Committee issued a resolution on future reforms to the judicial branch,¹ laying the foundation for legal reform in Vietnam and resulting in a number of legal normative documents being passed. These documents regulated judicial activities and generally supported the...

    • 10 Mapping legal change in the context of reforms to Chinese police powers
      (pp. 212-238)
      Sarah Biddulph

      In 1978, the Central Committee of the Communist Party of China (CPC) began a program of economic modernisation and reform,¹ a core aim of which was rebuilding the Chinese legal system.² The importance of this aim increased further in 1996, when the Party approved the program of ʹruling the country according to lawʹ (yifa zhiguo). In a speech in 1996 and in his subsequent keynote address to the Fifteenth National Congress of the CPC in September 1997, Jiang Zemin advocated ʹUs(ing) law to rule the country, protect the long-term peace and good order of the state (yifa zhiguo, baozhan guojia...

    • 11 State-owned entrprises, law and a decade of market-oriented socialist development in Vietnam
      (pp. 239-266)
      Adam Fforde

      Three questions are common to the chapters in this book. The first is whether and how socialism shapes law and law-related institutions; the second is the role of external and internal factors in explaining legal change; the third is whether ʹsocialistʹ doctrine inhibits legal change. This chapter will look at these issues in the context of state-owned enterprises (SOEs).

      For obvious reasons, the meaning of ʹSocialistʹ in ʹSocialist Republic of Vietnamʹ is not often discussed in academic fora. I think this is a pity, for, as Tony Benn remarked when interviewed shortly after the fall of the Soviet Union, this...

    • 12 Public Administration Reform in Vietnam: foreign transplants or local hybrids?
      (pp. 267-287)
      Martin Painter

      Vietnam is in the midst of a process of fundamental state restructuring prompted by the abandonment of the command economy and the adoption of a long-term strategy of doi moi (ʹrenovationʹ) that essentially entails market reform and integration with the world economy. In the process, the Vietnamese government has embarked on a substantial public administration reform (PAR) program. The public administration reform program was basically initiated with the launch of doi moi at the Sixth Party Congress of 1986, but it was formally given the status of a coordinated national program at the Eighth Plenum of the Seventh Party Congress...

    • 13 Fragmented pragmatism: the conclusion and adoption of international treaties in Vietnam
      (pp. 288-309)
      Tannetje Bryant and Brad Jessup

      Although The Socialist Republic of Vietnam (hereafter ʹVietnamʹ) has rules regarding the conclusion and adoption¹ of international treaties, they do not make clear whether international obligations entered into by Vietnam are self-executing or require the passage of national legislation to become effective domestically. The resolution to this issue is important because the mode of adoption of international treaties determines which law to apply where there is a conflict between an international treaty obligation and a domestic law. The issue also indirectly relates to how Vietnam complies with its treaty obligations.

      This chapter will examine the rules with regard to the...

    • 14 The Vietnamese state, the Catholic Church and the law
      (pp. 310-340)
      Peter Hansen

      In the village of Phuc Nhac, in the province of Ninh Binh, about 120 kilometres south of Ha Noi, stands a large whitewashed Catholic church. It is the worshipping centre of an active congregation drawn from the local population, more than 75 per cent of which is Catholic. Masses and devotional liturgies are frequent, well attended, and uninhibited.

      In front of the church stands a small, somewhat neglected chapel, dedicated to the memory of St. Anna Le Thi Thanh (De), a Catholic laywoman martyred in 1841 under the emperor Thieu Tri, and canonised as a saint by the universal Catholic...