TOPIC 1: STATE AND LAW

I. Origin of State
Non-Maxist theories:
 Theory of Violence: This theory suggests that states were created
through the use of force or conquest. Powerful individuals or groups
imposed their rule on weaker ones, establishing a hierarchical
system of governance.
 Theology: This theory asserts that states were established by a
higher power, such as a deity or a monarch chosen by divine
providence. According to this view, rulers derive their authority from
a higher source and are accountable only to that source.
 Social Contract Theory: States were formed through a voluntary
agreement among individuals. According to this theory, people
willingly gave up some of their freedoms in exchange for protection
and the establishment of laws and order.
Maxist theory:
 According to Marxist theory, the state is a tool used by the ruling
class to maintain the existing social order and protect their interests.
The origin of the state, as per Marxism, is rooted in the development
of class antagonisms.
 Primitive Community: In the earliest human societies, there was
no need for a state as there were no class divisions. People lived in a
state of primitive communism, sharing resources and labor.
 Rise of Class Society: With the development of agriculture and
private property, class divisions emerged. The ruling class, which
owned the means of production, used the state to enforce their
dominance over the working class.
 State as an Instrument of Oppression: Marxists view the state
as a repressive apparatus used by the ruling class to maintain their
power and suppress the working class. This includes the use of laws,
police, and the military to uphold the interests of the ruling class.
State definition
 Special political organization
 Protect the rights and interests of the ruling classes
 Maintain the stability of society
 Have enforcement power
Nature of state
 Class-conscious face: refers to the recognition that the state is
influenced by and influences the class structure of society. It
suggests that the state’s economic policies, political decisions, and
propagated ideologies often reflect the interests of the dominant
 class. For instance, the state might implement economic policies
that favor the capitalist class or propagate ideologies that maintain
the status quo of class relations. This face of the state is about
understanding how class dynamics shape state actions and how
state actions, in turn, impact class relations.
o Economics: key productive assets
o Politics: create order
o Ideology: establish ideologies
 Social face: refers to the role of the state in shaping and being
shaped by social relations. This perspective views the state not
just as a political entity but as a social institution that is embedded
in and interacts with various social structures. The state plays a
crucial role in maintaining social order, providing public goods,
and regulating social relations. It is also influenced by social
forces such as public opinion, social movements, and cultural
norms. This face of the state is about understanding the state’s role
in society and the social influences on the state.
o Solve the problems arising from society
o Ensure the needs of the community and protect them
Seperation of state powers:
 Legislative power: power to make law
Example:
o U.S. Congress (House of Representatives and Senate) passes a
new law regulating data privacy.
o State Legislature in California enacts a law to increase the
minimum wage.
 Executive power: power to enfore law
Example:
o President or Governor signs a bill into law and directs
government agencies to implement it.
o Federal agencies like the FBI enforce criminal laws by
investigating and arresting suspects.
o Local police enforce traffic laws by issuing tickets for speeding.
 Judicial power: power to interpret law
Example:
o U.S. Supreme Court declares a law unconstitutional in a
landmark case (e.g., Brown v. Board of Education).
o Trial courts resolve disputes between individuals or businesses
(e.g., contract disputes, personal injury claims).
o Appellate courts review decisions made by lower courts to
ensure they followed the law correctly.
II. Origin of Law
Non-Marxist view of the origin of Law
 Social Contract Theory: Law is seen as a product of a mutual
agreement among individuals in a society and represents the
general will or common interest of the people, aiming to protect
rights and promote social welfare.
 Psychological Theory: Law comes from human intuition or inner
sense of right and wrong. According to this theory, people have a
natural conscience that guides their behavior, and over time, this
shared moral sense becomes formalized into law.
 Theological Theory: Law is believed to be created by God or a
divine being, and obedience to law is part of spiritual or religious
duty.

Marxist Theory of Law

Marxist theory offers a materialist and class-based analysis of law’s
origin and function. It sees law as a tool of the ruling class to maintain
control over the working class.
1. Definition of Law
 Laws are legally enforceable rules created by those in power—
typically the state apparatus.
 The law is not neutral or universal; rather, it serves class
interests, especially those of the bourgeoisie (capitalist class) in
capitalist societies.

2. Law as Part of the Superstructure

 Law belongs to the superstructure of society, alongside culture,
politics, and religion.
 The economic base (the mode of production: feudalism, capitalism,
etc.) shapes the superstructure, including law.
 As economic conditions change, so too does the law. For example,
feudal laws were replaced by capitalist laws during the transition to
capitalism.
"The legal system reflects the material conditions of society." — Marxist
viewpoint

3. Origin of Law
 Law originated in primitive communal societies, where norms
and customs guided behavior.
  With the emergence of private property and class divisions, formal
law developed as a tool to protect the interests of those who
owned the means of production.

4. Distinctions in Marxist Legal Theory

a. Rules and Laws
 Rules are something that tells people what they should do or
should not do. (household rules, school regulations)
 Rules include LEGAL RULES and NON-LEGAL RULES.
 Not all rules are law!
b. Legal rules and Non-legal rules
 Legal rules are known as laws and apply to all individuals in
society.
 Non-legal rules determine what behavior is unacceptable in
particular groups or institutions.
Legal rules Non-legal rules
to be obeyed by the whole
  to be obeyed by specific
of society individuals or groups
 made by a law-making body  made by individuals or groups
enforced through the courts enforced by leaders of a group
 consequences of breaching or individuals
is a prescribed  consequence of breaching is at
sanction/remedies imposed the discretion of the leader of
by the courts a group
c. Laws and Morality
 Morality: concept about being good or evil, right or wrong.
Morality is not enforceable while law is.
 Besides the visual behavior it also addresses intention and
attitude.
 Moral principles can be based on culture, religion, and
experiences.
 People complying with moral rules are regarded as good and just
people.
Actions may be Actions may be Actions may be
legal, required moral, but not
but immoral to by both moral required by law.
some standards
people. and the law.
 Abortion under  Drunk driving  Take care of
22 weeks.  Murder and parents
 Owning slaves in stealing  Helping a hurt
Colonial America person
was legal

III. Styles, functions of States

1. Forms of ruling
State forms of ruling refer to the way political power is organized
and exercised within a state — who rules, how they rule, and how
leaders are chosen or replaced.
Monarchy
 Definition: A form of government where the head of state is a
monarch (king, queen, emperor), usually from a hereditary royal
family.
 Types
Absolute monarchy: Monarch has full control over the government
and is not limited by laws or a constitution (Saudi Arabia)
Constitutional monarchy: Monarch is a symbolic or ceremonial
figurehead, and actual governance is carried out by elected officials
under a constitution. (Japan, UK)
Republican government
 Definition: A form of government where the head of state is elected,
either directly by the people or through representatives, and this
government only exercises its powers for a certain period of time
(term of office)
 Types
Aristocratic republic: A form of republic where political power is
concentrated in the hands of a privileged elite (often aristocrats,
wealthy landowners, or nobles), even though there’s no monarch.
(The Senate of Ancient Rome used to be dominated by the noble
class)
Democratic republic: A republic where political power belongs to the
people, and leaders are elected by the majority through democratic
processes like voting. (US, France, India)

2. Form of the state structure

 Refers to how power is distributed territorially within a country
 Two basic forms
Unitary state: A centralized form of government where most or all
legal power is held by the national (central) government. Local or
regional governments may exist but have powers delegated by the
center. There is a single, unified system of law and administration.
(France, Japan, China)
Federal state: A decentralized system where power is
constitutionally divided between a central (federal) government and
regional governments (states, provinces, etc.). Both levels have their
 own laws, powers, and institutions. Regional governments cannot be
abolished or overriden easily. (US, Germany, India)

3. Political Regime
 It refers to the style of governance — how a country exercise its
power
 There are two basic method: Democratic method & anti-democratic
method

4. State form of Socialist Vietnam

 Republic government – has gone through two stages:
o People’s Democratic Republic: 1945 – 1975
o Socialist Republic: 1976 – present
 Structural form: unitary state – only one territory, one supreme
power agency = National Assembly, 1 government – executive
agency, 1 Supreme people’s court and one Supreme prosecutor’s
office
 Political regime: promoting the democratic freedom of the citizens
=> The state belongs to the citizens, all power belongs to the
citizens

IV. Classification of Law

1. Public law and Private law
 Public law refers to the rights and obligations of governments
as they deal with the nation’s citizens.
 Private law regulates the duties between individuals.

2. Criminal law and Civil law

Criminal law Civil law
 Concerns offences against the  Concerns disputes between
whole community even though private individual or
only one person may suffer business organizations
 A prosecutor prosecutes an  A claimant/plaintiff sues a
accused defendant
 The action is heard in criminal  The action is heard in civil
courts courts
 Sanctions: imprisonment,  Remedies: damages,
fine… injunctions, specific
 Example: murder, theft, drug performance
dealing…  Example: contract, tort,
trust, property law

3. Substantive law and Procedure law

  Substantive law is a law that creates and controls the right and
duties of parties.
Example: Law of contract, Company law, Labor law, etc.
 A procedural law(luật hình thức) is a law that creates and controls
the process of enforcing the rights and duties under substantive
law, the process of settling disputes.
Example: Civil Procedure Code (rule on how to plead in court, how
to provide
evidence, etc.….)

V. Sources and Forms of Law

1. Common Law
 Definition: Common law is a collection of principles and rules based
on the decision of judges, and it is also referred to as judge-made
law or precedents
 Principles of precedents: A court apply the rulings of previous
cases tried in a higher court in situations where the facts are the
same.
 Predominates in tort, contract and agency law; it is important in
property and employment law
 How to apply case law
o Principle of Stare Decisis: Similar cases should be treated alike
R. v. Elizabeth Manley, [1933]; MayJonnes [1997] (CA)
o Principle of Stare Distinction: To find out the difference between
the current case with previous precedents Donoghue v
Stevenson [1932], Grant v Australia Knitting Mills [1936]

2. Customs and usages: Unwritten Norms

 Definition: Customs are rules of conduct with clear content to
determine the rights and obligations of individuals and legal entities
in specific civil relations formed and repeated many times over a
long period of time that are widely recognized and applied in a
regional ethnic groups community or in a civil field
 Application of customs
o In cases where it is neither provided for by law nor agreed upon
by the parties, customs may apply but they must not contravene
the principles of the Civil Law
o Customs must be clear to determine the rights and obligations of
the parties in civil relations
o Customs must be practices that are formed, widely recognized
and applied

3. Statue Law
 Definition: a system of written laws formally enacted by a legislative
body (e.g., Parliament, Congress). Unlike common law (based on
judicial decisions), statute law is codified and explicitly written.
 Statues consist of legislation and delegated legislation
Legislation: Legislation is created by Parliament
o Constitution: Supreme law of the land, defines government
structure and fundamental rights. (US Constitution, German
Basic Law)
o Codes: Comprehensive statutes covering broad legal areas (Civil
Code, Criminal Code)
o Acts: Laws passed by Parliament on specific issues. (UK
Consumer Rights Act 2015, US Civil Rights Act 1964)
Delegated legislation
o Parliament may delegate its power to make law to other state
agencies. Rules made in this way are known as delegated
legislation.
o Delegated legislation refers to those laws made by persons or
bodies (usually government ministers or local authorities) to
whom Parliament has delegated law-making authority.
Legal documents Of Vietnam
Consitution (Hiến pháp) National assembly (Quốc hội)
Acts, Codes (Luật, bộ luật) National assembly (Quốc hội)
Ordinance (Pháp lệnh) Standing committee (Ủy ban
thường vụ quốc hội)
Decrees (Nghị định) Government
Orders (Lệnh) President
Decisions (Quyết định) Prime Minister, President
Circulars (Thông tư) Ministers of ministries,
Supereme People’s Court of
Vietnam
Solutions (Nghị quyết) National assembly

4. Legal norms
 Definition: refers to general rules of conduct promulgated or
recognized and guaranteed by the State to regulate social relations
according to the orientations and purposes of the state. They differ
from moral/social rules by being formal, enforceable, and systematic.
 Shows duality: permissive and mandatory
o Mandatory norm: must be followed with no exception (tax law)
o Permissive norm: allow certain actions without requiring them
(citizens may vote at age 18)
 Structure
 o Assumption/hypothesis (Fact Situation) – Defines when the rules
applies
e.g: “If a person enters into a contract…”
o Regulation/disposition (Rule Itself) – Specifies the required
behaviour
e.g: “… they must fulfill their obligations.”
o Sanction (Consequence of Violation) – Penalty for non-compliance
e.g: “… or face legal damages.”
 A legal norm does not necessarily have all three parts. Usually, a
legal norm
will include: presumption + regulation, presumption + sanction.
 When presenting a legal norm, it is not necessary to ensure the
correct order: Assumptions – regulations – sanction, those parts can
be reversed, even those parts can be mixed together.

5. Legal relations
 Definition: a social relationship governed by law, where parties have
mutual rights, duties, powers, or liabilities recognized and enforced
by a legal system.
 Example:
o Contractual Relation: Buyer (right to receive goods) ↔ Seller (duty
to deliver).
o Criminal Relation: State (power to punish) ↔ Accused (liability to
face trial).
 Private Legal Relations (Civil Law Relations)
o Definition: Legal relationships between private parties
(individuals, companies) governed by civil law (contracts, torts,
property, family law).
o Key Features:
✔ Parties are equal before the law (no inherent state authority).
✔ Governed by private law (e.g., Civil Codes, Contract Law).
✔ Dispute resolution through civil courts or arbitration.
o Example
✔ Contract Law (Buyer vs Seller)
✔ Tort Law (Pedestrian suing a driver for negligence)
✔ Property Law (Landlord vs Tenant dispute)
✔ Family Law (Divorce or child custody agreements)
 Public Legal Relations:
o Definition: Legal relationships involving the state or government
as an authority, regulating its interaction with individuals or other
entities
o Key Features:
 ✔ State acts with sovereign power (e.g., taxation, policing).
✔ Governed by public law (Constitutional, Administrative,
Criminal Law).
✔ Dispute resolution through administrative courts or judicial
review.
o Example:
✔ Consitutional Law: Citizen challenging a law for violating
fundamental rights.
✔ Administrative Law: Business appealing a government-issued
fine.
✔ Criminal Law: State prosecuting an individual for theft.

6. Statutory interpretation
Concep Description Example
t
Literal Emphasizes the plain and If a statute says “no vehicles in
Rule ordinary meaning of the park”, bicycles and
words in a statue skateboards may be excluded
since they are not typically
considered vehicle
Golden Allows the court to depart If a statute prohibits the
Rule from the literal meaning carrying of weapons in public
to avoid absurb results or place, the Golden Rule might
ensure legislative intent be applied to exclude a toy
is fullfiled gun, preventing an absurb
outcome
Mischie Looks to the problem or If a law is created to prevent
f Rule “mischief” that the prive gouging during
statute was designed to emergencies, the mischief Rule
remedy and interpret the might be applied to ensure that
law in a way that new methods of price
addresses that issue explotation are also covered
Ejusde Applies when a list of If a regulation prohibits “dogs,
m specific words is followed cats, and other animals”,
Generi by a general term, and Ejusdern Generis may limit
s the general term is “other animals” to those similar
interpreted in light of the in nature to dogs and cats
specific words

Literal Rule: London and North Eastern Railway v Berriman [1946] AC

278
A railway worker was killed whilst oiling the track. No look out man had
been provided. A statute provided compensation payable on death for
those 'relaying or repairing' the track. Under the literal rule oiling did
not come into either of these categories. This result although very
 harsh could not to be said to be absurd so the golden rule could not be
applied. There was no ambiguity in the words therefore the mischief
rule could not be applied. Unfortunately the widow was entitled to
nothing.

Golden Rule: Re Sigsworth [1935] 1 Ch 98

A son murdered his mother. She had not made a will. Under the statute
setting the law on intestacy he was her sole issue and stood to inherit
her entire estate. The court applied the Golden rule holding that an
application of the literal rule would lead to a repugnant result. He was
thus entitled to nothing.

Mischief Rule: Smith v Hughes [1960] 1 WLR 830

The defendants were prostitutes who had been charged under the Street
Offences Act 1959 which made it an offence to solicit in a public place. The
prostitutes were soliciting from private premises in windows or on
balconies so could be seen by the public. The court applied the mischief
rule holding that the activities of the defendants were within the mischief
the Act was aimed at even though under a literal interpretation they would
be in a private place.

Class rule (Ejusdem generis rule): Powell v Kempton Park [1897] 2 QB

242
The Betting Act 1853 made it an offence to keep a house, office, room or
other place for the purposes of betting. The House of Lords had to decide if
the statute applied to Tattersall's enclosure at Kempton Park Racecourse.
The court applied the ejusdem generis rule and held that the other items
mentioned in the statute related to places indoors whereas Tattersall's
enclosure was outside. There was thus no offence committed.

IRAC Method
IRAC Structure:
1. Issue
o What is the legal question or problem at hand?
o Identify the issue clearly—this is usually framed as a question.
2. Rule
o What are the relevant laws, regulations, or legal principles that
apply?
o State the rule(s) that govern the issue.
 3. Application / Analysis
o Apply the rule to the specific facts of the case or scenario.
o Explain how the rule works in this context, analyzing any
ambiguity or counterarguments.
4. Conclusion
o Provide a clear and concise answer to the issue based on the
application.
o This is your final judgment or determination.

Example of IRAC in Use:

Question: Can a person who finds lost property keep it?
Issue:
Can someone who finds a lost item legally keep it, or must they return it to
the original owner?
Rule:
Under common law, a finder of lost property has rights to the item against
all except the true owner. However, if the item is mislaid or abandoned,
different rules may apply.
Application:
In this case, the item (a wallet) was found on the floor of a private store.
This suggests it was lost, not mislaid or abandoned. According to the law,
the finder (a customer) may have a right to it over all except the true
owner. However, because it was found on private property, the rights may
defer to the property owner (the store).
Conclusion:
The finder may not be able to keep the wallet, as the store owner may
have a stronger claim due to the property being found on their premises.
Ultimately, the wallet should be returned to the rightful owner if they can
be located.