Law and society in Vietnam

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LAW AND SOCIETY IN VIETNAM

A unique analysis of the struggle to build a rule of law in one of the

world’s most dynamic and vibrant nations – a socialist state that is

seeking to build a market economy while struggling to pursue an ethos

of social equality and opportunity. It addresses constitutional change,

the assertion of constitutional claims by citizens, the formation of a

strong civil society and non-profit sector, the emergence of economic

law and the battles over who is benefited by the new economic regu￾lation, labor law and the protection of migrant and export labor, the rise

of lawyers and public interest law, and other key topics. Alongside other

countries, comparisons are made to parallel developments in another

transforming socialist state, the People’s Republic of China.

MARK SIDEL is Professor of Law, Faculty Fellow, and Lauridsen Family

Fellow at the University of Iowa. He has also served as Visiting Professor

of Law at Harvard Law School.

CAMBRIDGE STUDIES IN LAW AND SOCIETY

Cambridge Studies in Law and Society aims to publish the best scholarly

work on legal discourse and practice in its social and institutional

contexts, combining theoretical insights and empirical research.

The fields that it covers are: studies of law in action; the sociology of

law; the anthropology of law; cultural studies of law, including the role

of legal discourses in social formations; law and economics; law and

politics; and studies of governance. The books consider all forms of

legal discourse across societies, rather than being limited to lawyers’

discourses alone.

The series editors come from a range of disciplines: academic law;

socio-legal studies; sociology; and anthropology. All have been actively

involved in teaching and writing about law in context.

Series editors

Chris Arup

Monash University, Victoria

Martin Chanock

La Trobe University, Melbourne

Pat O’Malley

University of Sydney

Sally Engle Merry

New York University

Susan Silbey

Massachusetts Institute of Technology

Books in the Series

The Politics of Truth and Reconciliation in South Africa

Legitimizing the Post-Apartheid State

Richard A. Wilson

Modernism and the Grounds of Law

Peter Fitzpatrick

Unemployment and Government

Genealogies of the Social

William Walters

Autonomy and Ethnicity

Negotiating Competing Claims in Multi-Ethnic States

Yash Ghai

Constituting Democracy

Law, Globalism and South Africa’s Political Reconstruction

Heinz Klug

The Ritual of Rights in Japan

Law, Society, and Health Policy

Eric A. Feldman

The Invention of the Passport

Surveillance, Citizenship and the State

John Torpey

Governing Morals

A Social History of Moral Regulation

Alan Hunt

The Colonies of Law

Colonialism, Zionism and Law in Early Mandate Palestine

Ronen Shamir

Law and Nature

David Delaney

Social Citizenship and Workfare in the United States and Western Europe

The Paradox of Inclusion

Joel F. Handler

Law, Anthropology and the Constitution of the Social

Making Persons and Things

Edited by Alain Pottage and Martha Mundy

Judicial Review and Bureaucratic Impact

International and Interdisciplinary Perspectives

Edited by Marc Hertogh and Simon Halliday

Immigrants at the Margins

Law, Race, and Exclusion in Southern Europe

Kitty Calavita

Lawyers and Regulation

The Politics of the Administrative Process

Patrick Schmidt

Law and Globalization from Below

Toward a Cosmopolitan Legality

Edited by Boaventura de Sousa Santos and Cesar A. Rodriguez-Garavito

Public Accountability

Designs, Dilemmas and Experiences

Edited by Michael W. Dowdle

Law, Violence and Sovereignty among West Bank Palestinians

Tobias Kelly

Legal Reform and Administrative Detention Powers in China

Sarah Biddulph

The Practice of Human Rights

Tracking Law Between the Global and the Local

Edited by Mark Goodale and Sally Engle Merry

Paths to International Justice

Social and Legal Perspectives

Edited by Marie-Be´ne´dicte Dembour and Tobias Kelly

Law and Society in Vietnam

The Transition from Socialism in Comparative Perspective

Mark Sidel

Constitutionalizing Economic Globalization

Investment Rules and Democracy’s Promise

David Schneiderman

The New World Trade Organization Agreements: 2nd Edition

Globalizing Law Through Intellectual Property and Services (2nd Edition)

Christopher Arup

Judges Beyond Politics in Democracy and Dictatorship

Lessons from Chile

Lisa Hilbink

LAW AND SOCIETY IN VIETNAM

Mark Sidel

To Margaret, Rosie and Thea and to Kevin, Inge and Andy

CONTENTS

List of tables page x

Acknowledgements xi

Introduction 1

1 Constitutionalism and the emergence of constitutional

dialogue in Vietnam 18

2 The emerging debate over constitutional review and

enforcement in Vietnam 50

3 Motorbike constitutionalism: The emergence of

constitutional claims in Vietnam 74

4 Economic law in the service of globalization: Labor law and

labor export from Vietnam 92

5 Law, the press, and police murder: The trial of Lt. Nguyen

Tung Duong 119

6 Law and the regulation of civil society: Nonprofit

organizations, philanthropy, grassroots organizations, and

the state 141

7 Testing the limits of advocacy: The emergence of public

interest law in Vietnam 166

8 Donors, law and social justice in Vietnam: The uncertain

promise 195

Bibliography 223

Index 248

ix

TABLES

Table 4.1 Vietnamese Workers and Specialists Sent to

the Former Soviet Union, East Germany,

Czechoslovakia and Bulgaria, 1980–1990 page 99

Table 4.2 Official Vietnamese Labor Export, 1991–2006 101

x

ACKNOWLEDGEMENTS

Many people have contributed to this effort. In Vietnam and elsewhere

around the world, I am grateful to Ste´phanie Balme, John Bentley,

Bob Burnham, Nittaya Poonpermpan Burnham, Nguyen Nguyet

Cam, Nguyen Bich Diep, Dan Duffy, Luu Tien Dung, Trinh Tien

Dung, Peter Geithner, John Gillespie, Tom Gottschang, Joe Hannah,

Andrew Harding, Neil Jamieson, Sunanthana Kampanathsanyakorn,

Fred Kauffman, Minh Kauffman, Ben Kerkvliet, Bill Klausner, Jim

Kurtz, Viet-Huong Tran Kurtz, Bui Thi Bich Lien, Le Mai, David

Marr, John McAuliff, Roy Morey, Pham Duy Nghia, Binh Ngo, Pip

Nicholson, Hong Nhung Pham, Nguyen Xuan Phong, Sisamorn

Plengsri, Nguyen Hung Quang, Matthieu Salomon, Ta Van Tai,

David Thomas, Bui Van Toan, Phan Nguyen Toan, Karen Turner,

Thaveeporn Vasavakul, Peter Zinoman, and Mary Zurbuchen.

At the University of Iowa, I have benefited from the superb scholarly

environment at the College of Law and the Obermann Center for

Advanced Studies, and from the support and counsel of Eric

Andersen, John Bergstrom, Amanda Bibb, Sandy Boyd, Ken Cmiel,

Marcella David, Carolyn Frisbie, Bill Hines, Carolyn Jones, Ke

Chuanren, Linda Kerber, Richard Koontz, Lorna Olson, Jay Semel,

Karla Tonella, Gordon Tribbey, Stephen Vlastos, my faculty colleagues

in the College of Law, a number of excellent research assistants over

the years, and the superb staff at the University of Iowa College of Law

Library.

This volume was completed while I served as visiting professor at

Harvard Law School and Vermont Law School; at those institutions

I am grateful to Bill Alford, Juliet Bowler, Bruce Duthu, Laura Gillen,

Emma Johnson, Tim Locher, Hong Nhung Pham, Jeff Shields, Melissa

Smith, Hue-Tam Ho Tai, Ta Van Tai, and Stephanie Willbanks.

At Cambridge University Press, it is a pleasure working with Finola

O’Sullivan, Brenda Burke, Helen Francis, Richard Woodham, and

their colleagues.

xi

I have taught or lectured on Vietnamese law at Harvard, the Institut

d’Etudes Politiques de Paris (Sciences Po), Iowa, the University of

Melbourne, the School of Oriental and African Studies in the

University of London, the University of Victoria, and other institu￾tions. I am particularly grateful to students and colleagues at each of

those institutions for raising stimulating questions and encouraging

new lines of thought.

ACKNOWLEDGEMENTS

xii

INTRODUCTION

Vietnam’s doi moi (renovation) era began twenty years ago, in 1986,

and this volume is about Vietnam’s struggles to strengthen law and

pursue legal reform in that era of reform. Vietnam’s efforts are part of a

broader transformation of socialist societies, and this volume makes

explicit comparisons to developments in China, a country closely

watched in Vietnam and whose own reform efforts have sometimes

paralleled (or presaged) some of Vietnam’s struggles and policies

(Cohen 1990).

Vietnam’s current debates and activities in strengthening a role for

law are, of course, closely related to its history, and understanding that

history is crucial to comprehending the debates over legal reform in

Vietnam. Nguyen Ngoc Huy, Ta Van Tai, John Gillespie and other

scholars have illuminated the important roles that Chinese, French,

Russian and (in the south), American law have played in the develop￾ment of different historical stages of Vietnamese law (Huy and Tai

1987; Tai 1989; Gillespie 2006). In this introduction, we begin the

exploration of the modern conflict over the role of law in Vietnam by

exploring conflicting strands of legal thought in Vietnam in the 1950s,

when the first in a series of debates and conflicts on law under Party rule

took place.

Any attempt to unravel these strands cannot challenge the histor￾ical fact that law was severely repressed, undervalued and used as an

instrument of Party policy during this era. The Vietnam Workers

Party, later the Vietnamese Communist Party, directed the legal sys￾tem, often down to the individual trial level, in much the same way

that the Party not only led but directed, or at least sought to lead and

direct, often at the micromanagement level, many other elements of

Vietnamese economic, political, military and social life. But even as

we acknowledge that the Party refused to recognize law as an autono￾mous force in society or, often, even the narrow roles that law could

play within a Party-dominated system, it is important to note that

1

different conceptions of law did exist (Gillespie 2004, 2006; Sidel

1997c). Vietnamese political and ‘‘legal’’ life from the 1950s well

into the 1980s was certainly dominated by the Party (Ginsburgs

1962a, 1962b, 1963). But that clear Party instrumentalization of the

government and its ministries, of the legal system, economic life, and

social life masks other strands of thought and action that are important

to understanding the development of law and the legal system in later

decades. The work of David Marr, John Gillespie, Neil Jamieson, Ben

Kerkvliet, Adam Fforde, Kim Ninh and others provides a more tex￾tured understanding of Vietnamese political, economic and social life

in this era (Jamieson 1992; Marr 1995a; Fforde 1986; Luong 1993;

Ninh 2002; Kerkvliet 2005; Gillespie 2006). Here we explore some of

these complexities for law, strands that may help in understanding the

debates and policy development of the period from 1986 to 2006 that

form the core of this book’s analysis. We do this with reference to

similar developments in China and in the analysis of Chinese law, an

important comparative base for understanding developments in

Vietnam.

Law certainly lags behind history, economics and politics in this

analytical understanding. The dominant paradigm in western under￾standing of Vietnamese law from the mid-1950s through the mid-1980s

has been virtually complete Party domination, almost without opposi￾tion, and the virtual non-existence of countervailing forces and con￾tending strands of thought (Sidel 1993, 1994, 1997b, 1997c). In the

years of the cold war this paradigm was eagerly accepted by some

scholars whose political support for American cold war efforts required

an acceptance of the Vietnamese (and Chinese) tendency to deny

internal conflict, to portray their own views as even more monolithic

than they may have actually been.

In recent years, this paradigm for defining north Vietnamese legal

development in the 1954–1975 period has been accepted by those

working with the emerging Vietnamese legal system, many of whom

are interested in the promotion of western models, structures and

statutes. The introduction of western models largely without reference

to Vietnamese legal traditions and practice is thus not only taken for

granted but takes on a kind of nobility: by bringing in the new and

modern, the aid-givers can dispense with the old (or, in its slightly more

sophisticated version, help Vietnamese reformers discard the old),

which is considered of little value by the donors of the new and the

modern (Rose 1998).

LAW AND SOCIETY IN VIETNAM

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