Legal Reforms in China and Vietnam

A Comparison of Asian Communist Regimes

John Gillespie, Albert Chen

• Publisher: Routledge
• Year: 2010
• ISBN:
  9781136978425
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Although the adoption of market reforms has been a key factor leading to China's recent economic growth, China continues to be governed by a communist party and has a socialist-influenced legal system. Vietnam, starting later, also with a socialist-influenced legal system, has followed a similar reform path, and other countries too are now looking towards China and Vietnam as models for development. This book provides a comprehensive, comparative assessment of legal developments in China and Vietnam, examining similarities and differences, and raising important questions such as: Is there a distinctive Chinese model, and/or a more general East Asian Model? If so, can it be flexibly applied to social and economic conditions in different countries? If it cannot be applied to a culturally and politically similar country like Vietnam, is the model transportable elsewhere in the world? Combining 'micro' or interpretive methods with 'macro' or structural traditions, the book provides a nuanced account of legal reforms in China and Vietnam, highlighting the factors likely to promote, change or resist the spread of the Chinese model.

1
Comparing legal development in China and Vietnam

An introduction

John Gillespie and Albert H. Y. Chen

Mapping the comparative terrain

For many decades, global discourse about legal development has been dominated by Western notions of rule of law and liberal democracy. Although this dialogue is diverse and reflects temporal and geographic variations, until comparatively recently it stared down challenges from religious fundamentalism, Fascism, Marxist-Leninism, and other meta-theories. The gradual shift of economic power from the West to northeast Asia over the last forty years, and to China more recently, presents a new and distinctive challenge to Western domination over global development discourse.¹

To explore this phenomenon, we argue that it is necessary to abandon, or at least suspend, the belief that “global culture,” which developed out of the European Enlightenment and diffused worldwide through imperialism and imitation, is an irresistible socializing force.² We need to consider the possibility that “global culture,” which now includes northeast Asian influences, does not invariably produce local variations of Western legal development in socialist Asia.³ The Western model is important but may not be the only reference points for legal development in socialist Asia.

This volume explores whether there is a distinctive Chinese legal development model, and if so, whether it is likely to form the nucleus of an alternate global vision for legal development in Asia and beyond. Just what a Chinese development model might look like is difficult to pin down, since China has borrowed from many external sources, is changing rapidly, and varies considerably from region to region. Taking this diversity into account, Randall Peerenboom in this volume argues that China is a non-democratic, export-oriented, open, and yet not neoliberal developmental state. He believes that China has selectively adapted the Western (Washington Consensus) and northeast Asian development models, but remains open to the growing literature that portrays Chinese legal development as distinctive and an alternative to other models.⁴

As China’s economic rise becomes clearer, especially following the recent international financial crisis, its development model seems to attract more admirers in Asia and beyond.⁵ The Chinese model may be difficult to resist by leaders in countries like Vietnam that are interested in boosting their economy while curbing social and political pluralism. Adding to its allure, in 2005 China became Vietnam’s largest trading partner and in 2008 bilateral trade exceeded US$15 billion.⁶ Even countries such as Thailand and Indonesia that are pursuing a more liberal development trajectory may increasingly turn to China for inspiration as the disparity in economic power increases. To put this relationship into perspective, when China first proposed trade talks with ASEAN in 1990 its GDP was 1.12 times larger than ASEAN’s combined GDP. By 1999 the lead increased to 1.82 and in 2004 its GDP was 2.15 times larger.⁷

A central aim of this volume is not only to understand what exogenous and endogenous influences have shaped China’s legal development, but also to assess the applicability of the Chinese model to other countries in Asia. Vietnam was selected as a test case, because at least on the surface it seems a likely candidate to emulate the Chinese model. China and Vietnam have much in common – a Confucian past, socialist-influenced legal systems, and rapidly developing economies and societies. Vietnam’s geography and history has sensitized it to developments in China. For a thousand years China ruled Vietnam and for another thousand years Vietnamese rulers looked to China as a source of ideas about statecraft. After China, Vietnam has one of the fastest growing economies in Asia.⁸ Its legal and governance structures share some striking similarities with those in China, as does its understanding about the objectives of legal development. It too has experienced rapid economic growth without the trappings of a Western democracy or a fully functioning rights-based legal system. Although the sequencing of reforms differs, each country has enacted comprehensive legislative frameworks, and they are gradually reforming their legal institutions.

These similarities have attracted growing interest by economists⁹ and political scientists,¹⁰ but this volume is the first comprehensive attempt to comparatively assess legal development in these countries. Some commentators assume that Vietnam is a smaller version of China, but Vietnamese scholars in this volume point to the differences residing within the similarities. Most differences are found below the surface level of statutory norms and legal institutions in the conceptual and procedural approaches to legal development and governance. The differences are also to be found in the myriad ways officials, citizens, and business groups interpret and implement the law.

Paying attention to these differences will assist our inquiry into whether there is a distinctive Chinese legal development model, or whether China is better understood as a variation on a broader east Asian developmental theme. The similarities and differences also have much to tell us about the likelihood of other countries replicating the Chinese model. If the model encounters difficulties in a culturally and politically similar country like Vietnam, it may be too dependent on Chinese conditions to reproduce similar results elsewhere. The chapters in this volume combine “micro” or interpretive methods with “macro” or structural traditions to produce a nuanced account of legal reforms in China and Vietnam.

Comparing China and Vietnam

To compare legal development in China and Vietnam, we propose avoiding conventional forms of analysis based on legal traditions and legal culture.¹¹ Analysis of this kind, we argue, registers inconsistencies and incompatibilities between essentialized representations of legal culture, and as a consequence cannot account for the observed degree of fragmentation and regionalization in China and Vietnam.¹² More importantly, as David Pollack charges, “homogeneous, holistic notions of culture … cannot provide an explanation for social and cultural change.”¹³ Further complicating legal cultural analysis, in socialist Asia comparison does not progress far without moving beyond legal traditions to consider other sources of social ordering such as political, regulatory, and moral governance. Comparative analysis needs to recognize the limits of the power of law. Law does not so much control behaviour as coordinate among a number of other, often non-state, regulatory systems.¹⁴ All this suggests that a comparative analysis needs to range beyond conventional comparative approaches and consider modes of analysis that examine state, non-state, and hybrid regulatory regimes.

To discuss and compare legal development in China and Vietnam we propose five modes of analysis that have been synthesized from the comparative law and social science literature. The following discussion uses these modes to examine the history and sequencing of legal development, paying particular attention to Chinese influence over Vietnam. The neglect of history invites mechanistic comparison, because history provides an empirical dimension to test the soundness of inferences and suppositions. None of the five comparative modes is intended to function on its own, but in combination they provide ways to understand the interaction between China and Vietnam. The five modes are:

• foreign imposition

• deference

• international integration

• borrowing

• diffusion.

Foreign imposition

Pre-modern Chinese imposition

The foreign imposition of laws and regulations occurs when governance structures are forced on countries by foreign powers.¹⁵ For millennia, legal systems around the world have developed through this process. Some of the best-documented impositions occurred during the military expansion of the Roman empire and Chinese domination in Vietnam from 112 BC to AD 939.¹⁶ During this period Chinese thinking and practices became the central point of reference for Vietnamese elites. Chinese scholarship, political theories, religious values, family structures, and bureaucratic practices indoctrinated and molded, though never entirely supplanted, indigenous Vietnamese outlooks.¹⁷ Chinese rulers modified their governance system in Vietnam, placing their faith in legalism (fa), rather than humanistic moral persuasion (li), to control the “resistive and morally unperfected” indigenous population.¹⁸ Isolated from Chinese rule, Vietnamese language and culture survived in the villages. Long after independence, Chinese thinking continued to influence local rulers and actually gained in prestige during the fifteenth century, reaching a zenith in the mid-nineteenth century.¹⁹

French colonial imposition (1864–1954)

In an age of European colonialism in east Asia, French colonial rule officially began when the Vietnamese Emperor, Tu Duc, signed a treaty ceding three provinces to France in 1862.²⁰ But unlike the imposition of Chinese governance almost two thousand years earlier, colonial legality did not take hold beyond the small colonial enclaves and had surprisingly little lasting impact. French laws rarely touched the lives of most Vietnamese because most people were isolated from the colonial economy.²¹ Even the small population of urban Vietnamese was ambivalent about the colonial model. As Nguyen Tuong Tam noted:

Each side has its good points and its bad points, and it is not yet certain where morality lies. But when the old civilization is brought out and put into practice before our very eyes, we are dissatisfied with the results. We can only continue to hope in Western civilization. Where that civilization will lead us, we do not know. But our destiny is to travel into the unknown, to keep changing and progressing.²²

Nationalists and Marxist-Leninist revolutionaries in Asia reacted differently to colonial legal systems. For example, nationalists in China during the Republican period (1912–49)²³ and a few urban intellectuals in Vietnam²⁴ turned to European constitutionalism to galvanize opposition to colonial domination. For revolutionaries, however, contradictions between the harsh implementation of colonial law and its lofty idealism (democracy, liberty, and equality) excited radical opposition to the imposed legal system.²⁵ By questioning the impartiality of liberal legalism, revolutionaries effectively portrayed the colonial legal system as alien and imposed, serving foreign rather than indigenous interests.²⁶

The different responses by nationalists and revolutionaries to colonial legalism are well illustrated in Vietnam. Following independence from the French in 1954, revolutionaries in northern Vietnam increasingly turned to China and the Soviet Union for legal inspiration. Meanwhile, the nationalist Republic of Vietnam in the south retained much of the French colonial system until reunification in 1975.

The Chinese and Vietnamese leadership today invoke foreign imposition as a tactic to resist calls by foreign and domestic actors for civil rights. They associate Western liberal legalism with caving into foreign domination. This strategy resonates strongly with the public who are instructed from infancy to feel humiliated and angry at the period of Western domination from the mid-nineteenth to the mid-twentieth century.²⁷ Citizens are encouraged to believe that Western liberal legalism is something that is beyond their cognitive horizon, and does not constitute a denationalized, universally valid truth.

Imposition through conditioning

In an age where gunboat diplomacy is actively, if not always successfully, discouraged by international agencies, foreign impositions take the form of economic conditioning. Pressure to follow a particular regulatory path is applied through a combination of economic sanctions and incentives. ...

Table of contents

• Routledge Law in Asia
• Contents
• Tables
• Contributors
• Preface
• 1 Comparing legal development in China and Vietnam
• Part I Mapping the Chinese and Vietnamese legal development models
• Part II Developing an administrative law system
• Part III Access to justice in China and Vietnam
• Part IV Commercial regulation in China and Vietnam
• Part V Legal education and the legal profession in China and Vietnam
• Part VI Legal diffusion
• Index