Chapter 3:

Introduction to Law
Van Pham (PhD)
[email protected]

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3.1 The origin, nature, concept and characteristics of
the law
3.1.1 Origin and nature
What is law?

Why we need the

law?

Whether law is the

only instrument to
regulate human
behaviours?

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3.1 The origin, nature, concept and characteristics of
the law
3.1.1 Origin and nature
• Professor Jhon Salmond: “Law may be defined as the body of principles recognised and
applied by the State in the administration of Justice”
• Professor John Chipman Gray: “The Law of the State or of any organized body of men is
composed of the rules which the courts, that is, the judicial organs of that body, lay down
for the determination of legal rights and duties” => Judges are people who actually make
the statutes.
• Legal philosopher John Austin: “ Law is a social fact and reflects relations of power and
obedience.” => Meaning (1) law and morality are separate and (2) that all human-made
("positive") laws can be traced back to human lawmakers, is known as legal positivism”
• Professor H.L.A.Hart: “Law is the combination of primary rules of obligations and
secondary rules of recognition”

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3.1 The origin, nature, concept and characteristics of the law
“Law is a system of rules of conduct promulgated or recognized and
guaranteed to implement by the government, demonstrates the will of the
ruling class, and also is element that regulates social relationships to
create order and stability in society”
(Faculty of Law, Hanoi National University, 1993, p. 26)
• A system of rules = quy tắc xử sự có tính bắt buộc chung
• promulgated or recognized and guaranteed to implement by the government =
do nhà nước ban hành và đảm bảo thực hiện
• demonstrates the will of the ruling class = mang ý chí của giai cấp thống trị
• to create order and stability in society= nhằm điều chỉnh các quan hệ xã hội

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 3.1.1. Origin and nature

According to Karl Max:

• Law is the product of class struggles
• Law is considered to be the tool of the ruling class to maintain its powers over the
working classes

Creating rules and

The winner Dominant class
enforce them by
Class struggles establishes new want to maintain
using military and
government its powers
state power

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 3.1.1. Origin and nature

The command of Set the standards

the sovereign to to protect the
protect their society
powers (“The social
(“The class side”) side”)

QUESTION: What happen if the law is created to achieve either of these two
purposes?

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3.1 The origin, nature, concept and characteristics of the law
3.1.2. Characteristics of the law
• It is a set of rules.
• It regulates the human conduct
• It is created and enforced by the government.
• It has certain amount of stability, fixity and uniformity.

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3.2. Type and form of the law
3.2.1. Type of the law (kiểu pháp luật)
Different type of government has different law (decided by the ruling class it aims to protect)

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 Do you know? Introduction to
legal systems
Legal systems in the world

Legal
systems

Common Customary Religious

Civil law
law law law

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Map of legal systems in the world

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Civil law v. Common law
Civil law (Dân luật/Luật thành văn)

Regulations enshrined in Courts’

Facts of
legal codes decision
the case

Written law

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Civil law v. Common law
Common law (Thông luật/Luật bất thành văn)

Similar judge decisions Court’s

Facts of have already been made decision
the case (precedents)

Unwritten law

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3.2.2. Forms of law (Hình thức pháp
luật)

Sources

Statutory law Case law Customary law

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a. Statutory law (Luật định/Văn bản quy
phạm pháp luật)
Definition:
Written law passed by a body of legislature.
Example:
During an argument, A was angry at B and killed him with a
machete.
Pursuant to Article 123 of The Criminal Code of Viet Nam, A shall
face a penalty of 12 - 20 years' imprisonment, life imprisonment,
or death.

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b. Case law (tiền lệ pháp)
Definition:
Law that is based on precedents, that is the judicial decisions from
previous cases, rather than law based on constitutions, statutes, or
regulations
In Vietnam, The Council of Justices of the Supreme People’s court
have the legal authorities to select trial decisions from all the courts to
make them into judicial case law. Then the case is applied in
adjudicating subsequent cases.
So far Vietnam has 63 judicial case law.
Example:
Case law number 45/2021/AL in identifying murders in an “unfinished
homicide”
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Do you know?
Case law No. 41/2021/AL regarding termination of de facto marital
relationships:
- Background of the Case law No. 41/2021/AL: a man and a woman lived
together without marriage registration. However, they no longer lived
together and prior to the effective date of the Law on Marriage and
Family, one of either the man or the woman lived with another as husband
and wife. The first marriage relationship and the second marriage
relationship in this case both are de facto marital relationships.
- Legal solution: In this case, it is necessary to determine the termination
of the first de facto marital relationship

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c. Customary law (Tập quán pháp)
Definition:
The established pattern of behavior that can be objectively verified within a particular social
setting. A claim can be carried out in defense of "what has always been done and accepted by law"
To make a custom become a customary law:

Compatible with
government’s
ideology
Accepted by the
government as legal
A custom norms
Benefits to the
development of
the society

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 c. Customary law
Examples of applying customary law
in resolving civil disputes
- The “Cay cha 19 tieng” custom in Long
Hai town, Ba Ria – Vung Tau Province
- The H’mong informal rules: Rẫy cháy
không sạch phải dọn; chòi bị cháy phải
đền; không được đòi quá đáng; không
được bắt đền to”. Hoặc: “Nuôi lợn cố
tình thả rông; nuôi trâu cố tình thả rông;
nuôi voi cố tình thả hoang, chúng ăn rẫy
phải chịu, phá chòi phải đền. Lợn, trâu,
voi làm sai, chủ phải đền.”

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Do you know?
All breaches of the customary laws have been tried by the
community in a public, democratic and fair manner; and the
trial has been supported by all involved parties (the plaintiff
and the defendant as well). Judgments have always been
seriously enforced with a view to bringing the convicts back to
the community life rather than excluding them from the society.
Therefore, the customary laws are characterized mainly by
humanitarianism (excluding some outdated provisions which
are superstitious, unscientific and unhygienic in their nature
and need to be adjusted for their conformity with the present
life)
=> When there is a contract breach between Ede people, each
party will send one representative to the negotiation. If they
can not find any resolution, the conflict will be sent to the tribe
leader (gia lang or truong buon) to solve. These people play
the role of the jugde and their decisions must be respected by
both parties. If they follow the rule then the violating party has
to pay up to twice times of the contract value.

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 Hierarchy of legal normative documents in Vietnam

Constitution

Codes/Laws/Ordinances

Decrees/Decisions/Resolutions

Circulars

Resolutions/Decisions of People’s Councils and the People’s

Committee of communes

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