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Michigan Journal of International Law Volume 17 Issue 3 1996 New Directions in the Study of Vietnamese Law Mark Sidel University of Iowa College of Law Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Comparative and Foreign Law Commons Recommended Citation Mark Sidel, New Directions in the Study of Vietnamese Law, 17 MICH. J. INT'L L. 705 (1996). Available at: https://repository.law.umich.edu/mjil/vol17/iss3/6 This Book Review is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. NEW DIRECTIONS IN THE STUDY OF VIETNAMESE LAW VIETNAM AND THE RULE OF LAW (Carlyle A. Thayer & David G. Man eds.). Canberra: Australian National University, 1993. 189 pp. Reviewed by Mark Sidel* Interest is burgeoning in Vietnamese law. For forty years that interest has risen and fallen in waves influenced by politics, economics, and war. Today, for the first time in several decades, scholars outside and within Vietnam have the opportunity for textured study of a rapidly changing system and to make the study of Vietnamese law a topic of real scholarly interest. It was certainly not always so. Hanoi-based foreign study of Viet- namese law - the law of the Democratic Republic of Vietnam (DRV) and now Socialist Republic of Vietnam - has long been weak and fragmented. That is not surprising. The history of law in Vietnam and of its study abroad since the founding of the DRV in 1945 has been marked by Communist Party domination, weak domestic legal scholarship within Vietnam, dependence of Vietnamese legal studies on the understanding of authoritarian politics in North Vietnam, lack of interest in Europe and the United States in Southeast Asian law, and other factors. It is assumed sometimes that there was virtually no attention paid to Vietnamese law by scholars outside Vietnam between the founding of the DRV and increased interest in trade with and investment in Vietnam which began in the late 1980s. In fact, international attention has been devoted to the study of Vietnamese law since the period of French control in the first half of this century and since the founding of the North Vietnamese state in 1945. However, initial efforts in the field were marked by formalism and fragmentation and were not sustained.' * Lecturer in Law, University of Iowa College of Law; Research Associate, Center for International and Comparative Studies, University of Iowa. Consultant to The Ford Foundation and to the American Counsel of Learned Societies '(Vietnam) (September 1995-present); Program Officer for Vietnam, The Ford Foundation (1992-1995). The author gratefully acknowledges the assistance and support of Bill Alford, Mary Jane Ballou, Peter Geithner, Minh Kauffman, Kelli Emtairah, Sunanthana Kampanathsanyakom, David Mart, Ann Palmer, Nguyen Xuan Phong, Pimpa Molkul, Sisamorn Plengsri, Margaret Raymond, Gene Smith, Ta Vfn Thi, David Thomas, Viet-Huong Kurtz, Tran Bich Van, Lan Vu and Mary Zurbuchen. 1. Useful bibliographies of foreign writing on Vietnamese law include Barbara G. James, Vietnamese Law in English: A Selected Annotated Bibliography, 84 L. LIBR. J. 461 (1992), and the bibliography which appears in the volume under review, VIETNAM AND THE RULE OF LAW Michigan Journal of InternationalLaw [Vol. 17:705 I. STAGES IN A FIELD A. The Contributions of the Formalists in the 1950s and 1960s The modem era of foreign scholarship on Vietnamese law outside Vietnam began when Ho Chi Minh's Viet Minh forces recaptured Hanoi from the French in 1954. In the years which followed, several writers explored the structures of law under the Viet Minh regime (1945-1954) and in the early years of the DRV (1954-1976). In the 1950s and early 1960s, American writer Bernard Fall wrote some of the strongest works on the newly emerging, weak, Party-dominated Vietnamese legal system.2 In a series of book chapters and articles, Fall described and began a preliminary analysis of the legal structures of the DRV.3 182 (Carlyle A. Thayer & David G. Marr eds., 1993) [hereinafter VIETNAM AND THE RULE OF LAW]. The author appreciates additional bibliographic searches performed by Ann Palmer and Lan Vu. This review essay focuses on the law of the DRV, later renamed the Socialist Republic of Vietnam, and not the study of South Vietnamese law used to govern South Vietnam from 1954 to 1975. That strand of the Vietnamese legal experience must await other occasions for discussion. It is important to note that Soviet, now Russian, scholars have shown a consistent interest in Vietnamese legal development, and that a number of senior Vietnamese scholars published on their legal system in Soviet, and later, Russian law journals. The works of George Ginsburgs, discussed below, cite many of those contributions. A two-part article Ginsburgs published in 1973 surveys Soviet studies of Vietnamese law through that year. See George Ginsburgs, Soviet Sources on the Law of North Vietnam (Part1), 13 ASIAN SURV. 659 (1973); George Ginsburgs, Soviet Sources on the Law of North Vietnam (Part 2), 13 ASIAN SURV. 980 (1973). Soviet, later Russian, interest continued into the 1980s and 1990s, as did publication in Moscow by Vietnamese legal scholars. While I wish to note these activities, materials published in Russian are not a primary focus of this review article. 2. Bernard Fall was based in France and the United States for many years and served during the 1960s as Professor of International Relations at Howard University in Washington, D.C. He died in 1967; killed by a landmine while on patrol with the U.S. Marine Corps on the "Street Without Joy" outside Danang. Some of Professor Fall's papers are available at the John F. Kennedy Library at the University of Massachusetts in Boston. 3. These works include BERNARD FALL, VIET-NAM WITNESS 1953-1966 (1966); BER- NARD FALL, THE VIET-MINH REGIME: GOVERNMENT AND ADMINISTRATION IN THE DEMO- CRATIC REPUBLIC OF VIET-NAM (Greenwood Press and Southeast Asia Programs, Cornell University 1975) (1956); BERNARD FALL, THE Two VIET-NAMS: A POLITICAL AND MILITARY ANALYSIS (1967); Bernard Fall, Constitution-Writingin a Communist State: The New Constitu- tion of North Vietnam, 6 How. L.J. 157 (1960); Bernard Fall, Die Neue Verfassung der Demokratischen Republik Vietnam, 6 OSTEUROPA RECHT 145 (1960); Bernard Fall, Die Rechtslage in der Demokratischen Republik Vietnam, 3 OSTEUROPA RECHT 198 (1958); Bernard Fall, The Labor Movement in the Communist Zone of Viet-Nam, 45 MONTHLY LAB. REV. 534 (1956); Bernard Fall, Local Government and Administration Under the Viet Minh, 27 PAC. AFF. 50 (1954); Bernard Fall, North Viet-Nam's Constitution and Government, 33 PAC. AFF. 282 (1960); Bernard Fall, North Viet-Nam's New Draft Constitution, 32 PAC. AFF. 178 (1959). Spring 19961 New Directions in the Study of Vietnamese Law 707 Fall's work was largely descriptive of the formal legal structures of the emerging DRV, with an emphasis on the constitutional aspects. From our current perspective, nearly four decades later, several aspects of Fall's pioneering work are striking. One is the hard-headed attitude Fall took toward the developing North Vietnamese legal framework. Fall's writings evince few illusions about any independent power exercised by legal institutions in North Vietnam. Fall recognized that the emerging legal framework was exceptionally weak and had been created for purposes of Party domination and control. These goals were one impor- tant reason to study Vietnamese law. Another reason was the system's emphasis on equity and equal treatment, as expressions of the origins of the Viet Minh movement which continued to find their way into policy. While Fall wisely recognized that law in North Vietnam was a topic worth studying, his analysis was largely limited to formal structures. This formalism was inevitable. Very little was known about the political struc- tures and the emerging legal framework of the DRV, at least in the 1950s. What little was known was, of course, at the relatively shallow level of structure. Conducting research into Vietnamese legal systems itself was very difficult in Vietnam in the 1950s, and Vietnamese legal writing was itself largely formal in nature, beginning in the 1950s and extending, with few exceptions, to the present.4 Yet, formalism need not be spare or sterile. Fall's work displays a richness of understanding of Vietnam and a thickness of detail and context about the formal legal system. An understanding of the com- plexities of Vietnamese society and politics underlies his attention to the legal system and enriches the formal analysis. Fall's early writing provided sufficient basis in formal description and depth of the relationships between legal, political, and social frame- works to have set the stage for more textured work on Vietnamese law and society, had other scholars taken Fall's work and advanced it. Today, Fall's work can be viewed as a platform for the development of a field of study. But in the 1960s and 1970s there were few other scholars, little interest, and almost no access to research materials on Vietnamese legal institutions with which to build on Fall's pioneering formal work. In retrospect, we are grateful for Fall's formalism, for his willingness, even courage, to engage in formal description to provide baseline information when he knew that other elements of his work went considerably deeper. 4. On the formalism of Vietnamese legal scholarship today, see Mark Sidel, Law Reform in Vietnam: The Complex Transitionfrom Socialism and Soviet Models in Legal Scholarship and Training, 11 UCLA PAc.

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